Sabire (Migration)

[2019] AATA 4143

Sabire (Migration) [2019] AATA 4143 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Flis Ibrahim Sabire

CASE NUMBER:  1915274

DIBP REFERENCE(S):  BCC2016/3291798 BCC2017/3737313 OSF2008/031288 OSF2011/039570

MEMBER:Christine Kannis

DATE:13 September 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 13 September 2019 at 7:09am

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – incorrect information – failed to declare daughter – child with former husband – cultural and religious issues – returnee to Somalia – threats of terrorist attacks – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 104, 107, 109
Migration Regulations 1994 (Cth), r 2.41

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not inform the Department of a change in her circumstances. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant is a national of Somalia. She first entered Australia on 28 September 2012 holding a Subclass 309 Partner (Provisional) visa. She was granted a Subclass 100 Partner (Permanent) visa on 6 January 2014.

4. On 12 April 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she had not complied with s.104 of the Act. She provided a response to the NOICC and her visa was cancelled on 11 June 2019.

5. The applicant appeared before the Tribunal on 26 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ismahan Ismail, Ms Halima Ali Mohamed (by telephone from Uganda), Ms Adde Sirad Gafow (by telephone from Kenya), Mr Hassan Ahmed Dhisow (by telephone) and Mr Ahmed Hussein Shire (by telephone from Uganda). The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

9. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

10. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the NOICC issued under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

11. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104 which says:

    Section 104:

    Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)  If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

12. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104 in the following respects: the applicant did not inform the Department regarding changes to her circumstances pertaining to being in a relationship with a person other than her sponsor and having a child with that person, both of which made an answer/s to a question on her Partner visa application form incorrect in the new circumstances and before she was immigration cleared in respect of the Subclass 309 visa on 29 August 2012 and before the grant of the Subclass 100 visa on 6 January 2014.

13. Section 99 of the Act provides that any information a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of s.100, paragraphs 101(b) and 102(b) and ss. 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.   

    s. 107 notice

14. The s.107 notice sent to the applicant on 12 April 2019 set out the following information to indicate non-compliance with section 104 of the Act.

    Applicant’s first Subclass 309/100 visa application

15. On 5 September 2008 the applicant lodged a Subclass 309/100 visa application with Hassan Ahmed Dhisow as her sponsor. In an interview she said she had travelled to Kenya to find a way to help her family and to find a husband. She made a quick decision to marry due to family and financial pressure. The delegate noted she met the sponsor on 5 August 2008, commenced a relationship after 10 days and married on 29 August 2008. The delegate considered the applicant married the sponsor due to family pressure and a perceived self-benefit rather than a genuine desire to live with him in a genuine relationship and the visa was refused.

    Applicant’s second Subclass 309/100 visa application

16. On 27 June 2011 the applicant lodged a second Subclass 309/100 visa application (the visa application) with Hassan Ahmed Dhisow as her sponsor in which she provided the following answers:

    • At question 24 when asked whether she had ever been in a same-sex or opposite sex de facto relationship before she answered “No”.
    • At question 38 when asked for her children’s details she did not provide an answer.
    • At question 39 when asked for her other dependants’ details she did not provide an answer.
    • At question 42 when asked for her fiancé’s or partner’s full name she answered “Hassan Ahmed Dhisow”.
    • At question 66 when asked where she and her fiancé or partner first met she answered “5 August 2008, Nairobi Kenya”.
    • At question 67 when asked how long after they met did she and her fiancé or partner begin a relationship she answered “23 days”.
    • At question 68 when asked when she and her fiancé or partner decided they both wanted to commit to a long term spouse relationship or de facto partner relationship she answered “29 August 2008”.
    • At question 69 when asked when and where did she begin a married or de facto relationship with her fiancé or partner she answered “17 February 2011, Nairobi Kenya”.
    • At question 70 when asked if she and her fiancé or partner were not living together or have not lived together the reasons for this she answered “Awaiting approval of visa to Australia”.
    • At question 71 when asked if she and her fiancé or partner intend to maintain a lasting relationship she answered “Yes”
    • At question 73 when asked whether she entered the relationship with her fiancé or partner solely to gain permanent residence in Australia she answered “No”.

17. When lodging the visa application the applicant provided an affidavit dated 17 February 2011 in which she said she married Hassan Ahmed Dhisow on 29 August 2008 and that her second marriage to him occurred on 17 February 2011. She provided documents evidencing that he had previously been married and the marriage was dissolved on 9 November 2010.

18. On 25 August 2011 the applicant attended an interview in Nairobi during which she said she   married Hassan Ahmed Dhisow on 29 August 2008 and he commenced sending her money in October 2008.

19. The delegate considered the information and documentation provided and decided the applicant was in a genuine and ongoing spousal relationship with her sponsor. The Subclass 309 visa was granted on 29 August 2012 and she arrived in Australia on 28 September 2012.

20. On 26 March 2013 the Department requested further evidence of the relationship for assessment of the Subclass 100 visa application. On 11 December 2013 the applicant provided a statutory declaration made on 25 September 2013 in which she stated she had a mutual commitment to a shared life as husband and wife or as a de facto partner, or as an interdependent partner to the exclusion of all others with Hassan Ahmed Dhisow. She lived with him and their relationship was genuine and continuing. She said the relationship began in 2008, they had lived together for five years, they did not have children and they were committed to each other as a wife and a husband.

21. The delegate considered the information and documentation provided and decided the applicant and her sponsor had a mutual commitment to a shared life to the exclusion of all others. The Subclass 100 visa was granted on 6 January 2014.

22. On 16 February 2014 the applicant departed Australia. She returned on 15 May 2014.

    Ahmed Hussein Shire’s Subclass 309/100 visa application

23. On 4 October 2016 Ahmed Hussein Shire lodged a Subclass 309/100 visa application which listed Fadumo Ahned Hussein (DOB 14 August 2012) as a dependent and the applicant as his sponsor. In his application he provided the following information:

    Relationship status: Married

    Date of marriage: 2 January 2016

    Place of marriage: Kampala District

    Have the applicant and the sponsor met in person? Yes

    Date applicant and sponsor first met: 17 February 2014

    Location of first meeting: Uganda

    Date applicant and sponsor committed to a shared life together to the exclusion of all others: 2 January 2016

24. In the application Ahmed Hussein Shire stated that he and the applicant had a daughter (the dependent listed in the application) and that even though they lived in different countries, she shared the child’s expenses. He said she had visited twice and stayed with him. The first visit was from February 2014 to May 2014 and the second was from December 2015 to July 2016 when they lived together for six and a half months. They married on 2 January 2016.

25. In the application Ahmed Hussein Shire stated that the applicant had been his girlfriend before she left Somalia in 2005. They did not see each other again until November 2011 when they met in Mogadishu. They were together for nearly two months and she was pregnant when she went to Nairobi in December 2011. She returned to Mogadishu on 25 July 2012 and gave birth to their daughter on 14 August 2012 in Somalia. Four weeks after the birth she left the baby with him and returned to Australia without telling him. She called from Australia and told him she was married. After some months her husband found out about her daughter and they separated and divorced. She contacted him and said she wanted to see her daughter. She kept communicating with him and finally decided to go to Uganda. They continued communication.

26. In support of his application Ahmed Hussein Shire provided a statement made by his cousin in 2015 that stated Ahmed Hussein Shire and the applicant had been in a long term relationship and had a daughter. Evidence that the applicant’s divorce from Hassan Ahmed Dhisow was finalised on 20 July 2015 was provided.

27. In support of Ahmed Hussein Shire’s visa application the applicant submitted a Sponsorship for a partner to migrate to Australia form (the Sponsorship form) in which she provided the following information:

    ·She first met the applicant on 17 February 2014 in Uganda.

    ·Regarding financial aspects of the relationship they share the financial support of their daughter.

    ·Regarding the nature of the household they share the responsibility for their daughter. She visited her husband from February 2014 to May 2014 and from December 2015 to July 2016.

    ·Regarding social aspects of the relationship she visited her husband twice and lived with him from December 2015 to July 2016. She attached photos of them together with their friends.

    ·Regarding the nature of the parties’ commitment she said they were friends until she left Somalia in 2005 and they met again in November 2011 in Mogadishu and lived together for two months. She fell pregnant and went to Nairobi but returned to Mogadishu on 25 July 2012 and gave birth to their daughter in Somalia on 12 August 2012. When the baby was four weeks old she left her with Ahmed Hussein Shire and she returned to Australia without informing him. She called him from Australia and told him she was married. After some months her then husband found out about her daughter and they separated and divorced. She contacted Ahmed Hussein Shire and said she wanted to see her daughter. She kept communicating with him and finally decided to go to Uganda. They continued communication.

    ·Regarding the details of the development of the parties’ relationship she said after they separated in 2005 they met again in Uganda in February 2014 and lived together for three months. She returned in December 2015 and they lived together until July 2016. She became pregnant but miscarried after she returned to Australia.

    Response to the s.107 notice

28. In her written response to the NOICC the applicant provided the following information:

    ·She could not tell anyone about the birth of her daughter due to religious, cultural and family taboos with respect to having a child out of wedlock. 

    ·She relied entirely on her family members to handle communications with the Department and also on others assisting her because her English language skills are limited. Faiza Hersi assisted her with the lodgement of her Subclass 100 visa application.

    ·She considered she was in a genuine spousal relationship with Hassan Ahmed Dhisow at the time her Subclass 309/100 visas were granted.

    ·She had a brief affair with Ahmed Hussein Shire and fell pregnant. She ended the relationship before the grant of her visa and left their daughter with him and came to Australia to be with Hassan Ahmed Dhisow.

29. In response to the NOICC the applicant also provided a statutory declaration dated 24 April 2019. The statutory declaration was not a certified translated document and was in English. When providing the statutory declaration the applicant’s representative advised – I prepared the declaration in the presence of Ms Sabire and a friend of hers who acted as interpreter to ensure that Ms Sabire could explain clearly her situation and would understand everything written in the statutory declaration was the information she wished to convey.

30. The applicant provided the following information in the statutory declaration:

    ·    Her failure to report changes in her circumstances was not intended to influence her visa application. At the time she felt she could not say anything and thought she could continue her life without her daughter. 

    ·    She did not understand the importance of notifying the Department of changes in her circumstances. She relied on family and friends in her community to assist in her visa applications and handle all communications and provision of information to the Department due to her limited English skills.

    ·    She was in an exclusive relationship with Hassan Ahmed Dhisow when her Subclass 100 visa was granted on 6 January 2014.

    ·    She visited Mogadishu in November-December 2011 to find her family. She could not find them but met up with Ahmed Hussein Shire. They had been very close as children as boyfriend and girlfriend.  She had not had contact with him since 2008. They had a brief affair and she fell pregnant. The relationship was very brief and in her mind it was not a de facto relationship.

    ·    She feared disclosing her pregnancy to family and others and she fled to Nairobi where she stayed with a friend. She returned to Mogadishu to have the baby. She stayed with her daughter for four weeks and decided to leave her with her father.

    ·    On 29 August 2012 her Subclass 309 visa was granted and 28 September 2012 she travelled to Australia and was in an exclusive relationship with Hassan Ahmed Dhisow.

    ·    Sometime after her Subclass 309 visa was granted in August 2012, which she assumed was a number of months, Hassan Ahmed Dhisow somehow discovered she had a child. This strained the relationship but they tried to work on it and remain together.

    ·     She tried to continue with her life in Australia but she missed her daughter and went to visit her in Uganda in February 2014 after her Subclass 100 was granted. She stayed with Ahmed Hussein Shire who had the care of their daughter.

    ·    She returned to Australia on 15 May 2014 and she and Hassan Ahmed Dhisow separated sometime after her return. She believed the tension arising from her having a daughter led to the breakdown of the marriage.

31. At the time of responding to the NOICC the applicant provided a letter of support from Dr Hassan Egal, President of the Somali Community Association of Western Australia and statutory declarations made by Dr Abdul Razack and Faiza Hersi. The letter and statutory declarations essentially stated that due to cultural and religious reasons the applicant was previously unable to disclose the existence of her daughter.

    Additional documents provided prior to the hearing

32. Prior to the hearing the applicant provided written statements from Adde Sirad Gafow dated 7 August 2019, Mr Abdi Afi Mohamed dated 7 August 2018, Ms Ishahan Ismail (undated), Sheikh Yusuf Parker of Alhidayah Centre dated 6 August 2019, Mrs Rugiyo Hassan dated 31 July 2019, Mr Ssanja E dated 15 August 2019, Ms Halima Ali Mohamed dated 10 August 2019, Ms Samsam Abdi Director of Glory Family Day Care WA dated 7 August 2019 and Mr Ahmed Shire (unsigned and undated).

    Evidence at hearing

33. The applicant told the Tribunal that when she went to Mogadishu in November 2011 she could not find her relatives despite her neighbours and former classmates helping in the search. She said on one occasion after searching for 20 days, she returned to a friend’s house and was very emotional because she didn’t know if her family were alive.  She said Ahmed Hussein Shire helped her physically and emotionally at this difficult time and this resulted in one sexual encounter from which their daughter was conceived. She said she did not live with Ahmed Hussein Shire in 2011. Ahmed Hussein Shire’s evidence to the Tribunal was that their daughter was conceived accidentally as the result of a one night fling and he and the applicant did not live together.

34. The Tribunal noted that in her statutory declaration dated 24 April 2019 the applicant said she had a brief relationship with Ahmed Hussein Shire and in his Application for a Partner visa and her Sponsorship forms they both said they lived together for nearly two months in November-December 2011. Utilising the s.359AA procedure the Tribunal put this information to the applicant. She said she must have misunderstood the question on the Sponsorship form because she lived with a neighbour for the two months.

1. The Tribunal is prepared to accept that the applicant did not reside in a de facto relationship with Ahmed Hussein Shire in 2011. The Tribunal accepts that she was searching for her family at this time and that she may have relied on a neighbour to the extent that she lived with the neighbour for part of the time in November-December 2011.

2. The Tribunal does not accept the applicant’s evidence that her daughter was conceived after one sexual encounter. The evidence was that the applicant and Ahmed Hussein Shire had a relationship before she left Somalia in 2005. Her evidence at hearing was that he helped her emotionally through a difficult time. The Tribunal considers it likely that they briefly renewed their relationship and relies on the applicant’s statutory declaration and Sponsorship form in which she said they lived together for nearly two months. The Tribunal also relies on the applicant’s response to the NOICC which provided information consistent with her statutory declaration and the Sponsorship form which were provided in 2016. The Tribunal does not accept that the applicant misunderstood the question on the Sponsorship form. The question did not require a yes or no response and she provided various dates in her detailed response in the form.

3. Shortly after her Subclass 100 visa was granted the applicant travelled to Uganda. In the Sponsorship form she said she went to visit her husband (although he was not her husband at that time). She also said she went to visit her daughter. The applicant told the Tribunal that she went to see her daughter only and that she did not go to visit Ahmed Hussein Shire because at that time she was still married to Hassan Ahmed Dhisow. The Tribunal referred the applicant to several photos identified as having been taken in February - April 2014 which included photos of her and Ahmed Hussein Shire. Some of the photos included their daughter however there were photos of the applicant and Ahmed Hussein Shire only which showed them in affectionate embraces. When asked about these photos the applicant said they were posed to convince her daughter to have photos taken with her. She said her daughter was reluctant to let her cuddle and kiss her because she was unknown to her at that time. The Tribunal questioned the applicant as to why photos of her and Hassan Ahmed Dhisow embracing would convince the child. The applicant said it was a change of tactic. The Tribunal did not find this explanation to be persuasive.

4. The Tribunal did not accept the applicant’s evidence that the photos showing her and Ahmed Hussein Shire in affectionate embraces were taken to convince their daughter to have photos taken with her. In nearly every photo, both those which include their daughter and those which do not, the applicant and Ahmed Hussein Shire are clearly an affectionate couple.

5. Ms Mohamed told the Tribunal that in 2014 she observed the relationship between the applicant and Ahmed Hussein Shire. She said these two people had no relationship at all and they stayed in separate hotel rooms. Given the photos referred to in the preceding paragraphs the Tribunal did not accept that they had no relationship at all.

6. The Tribunal asked the applicant about the breakdown of her marriage to Hassan Ahmed Dhisow. She said her marriage ended after her Subclass100 visa had been granted because he found out about her daughter. Mr Dhisow’s evidence was similar in this regard. Given the applicant’s statutory declaration in response to the NOICC, the Tribunal has concerns about the truthfulness of the applicant’s and Mr Dhisow’s evidence with respect to this matter. However on balance it is prepared to accept that Mr Dhisow became aware of the child after the Subclass 100 was granted and that this led to the end of the marriage.

7. Ms Ismail told the Tribunal that in 2010 she spent time with the applicant and Hassan Ahmed Dhisow and they took photos. She did not spend time with them as a couple in Australia but did talk to them on the phone. As such the Tribunal gave this evidence limited weight. Ms Gafow told the Tribunal that the applicant and Hassan Ahmed Dhisow lived together under one roof in Kenya in 2011. This was not an issue in dispute.

8. In the visa application the applicant did not provide a response to question 38 regarding whether she had children. The Tribunal considers the failure to respond to the question is properly interpreted as the applicant indicating that the question was not applicable to her circumstances, that is that she had no children. When asked about not responding to question 38 the applicant said she was unable to recall her response.

9. Regarding her failure to notify the Department of the change in her circumstances about having a child, the applicant said her main reasons were that she was fearful of her then husband, Hassan Ahmed Dhisow and fearful of the stigma attached to having a child out of wedlock in the Islamic culture. The Tribunal noted that she was married at the date of the child’s birth, although her husband was not the father of the child.

10. The Tribunal noted that shortly after the Subclass 100 visa was granted the applicant returned to Uganda in 2014 to see her daughter. The Tribunal asked the applicant the reason she was able to return and acknowledge the child in 2014 when she had left her in 2012 and not notified the Department in 2012 or 2013 because of the stigma attached to her circumstances. She said she did not associate with anyone or the community when she was in Uganda and nobody knew of the child. Whilst the Tribunal accepts that the applicant may have limited her community involvement in Uganda it is clear from the witnesses contacted by phone during the hearing that others know of her child. The Tribunal noted, and put to the applicant, that Ahmed Hussein Shire’s cousin had provided a statement in support of his Subclass 309 visa application in which he referred to the child of their long term relationship. She said she had not told her family members about the child.

11. Written statements provided by Ms Ismail, Sheikh Yusuf Parker, Dr Hassan Egal and Mrs Rugiyo Hassan all refer to the possible consequences of a woman having a child out of wedlock in the Islamic faith as including extreme embarrassment, exclusion from the community and being stoned to death.

    Post hearing submission

12. Following the hearing the applicant’s representative provided a post hearing submission and a letter from Ms Anisa Mohamed.

13. The applicant’ representative referred to the applicant’s statutory declaration dated 24 April 2019 provided in response to the NOICC in which she said sometime after the grant of her Subclass 309 visa in August 2011, and she assumed it was a number of months, Hassan Ahmed Dhisow found out about her daughter. She said this caused strains in the relationship but they decided to give the marriage their best effort.  In the post hearing submission the applicant’s representative said:

    I wrote the statement with Ms Sabire and two of her friends who were interpreting for her. Since the hearing I have consulted with the same person Ms Sabire

    Ms Sabire came to see me with a Notice of Intention to Cancel her permanent residence visa. The due date for a response was a few days later and we prepared the statutory declaration and supporting evidence in one long meeting. Ms Sabire has stated to me that she was under a huge amount of stress at the time and was confused about the exact dates when her husband learnt of the existence of her daughter.

    At the hearing Ms Sabire stated that her husband knew of the existence of Fadumo (Ms Sabire’s daughter) after the grant of her permanent residence visa that is after January 2014. This evidence was supported by oral evidence I believe that Ms Sabire at the time of the writing of the statutory declaration was confused between the meaning of subclass 309/100 visa and the permanent subclass 100 visa.

14. As noted earlier, the Tribunal has concerns about the truthfulness of the evidence with respect to when Hassan Ahmed Dhisow became aware of the applicant’s child however it is prepared to accept that he became aware of the child after the Subclass 100 was granted.

15. In the post hearing submission the applicant’s representative said regarding the evidence provided by Ms Sirad Ghafow:

    I have been informed by one of the persons who attended the hearing that they believe that the interpreter missed an important point in Ms Sirad’s evidence in that Ms Sirad stated that she knew about Ms Sabire’s relationship with Mr Hassan since 2011, however, Ms Sirad actually stated they she knew of their relationship since 2009.

16. The Tribunal notes the contention that there was an error in interpretation however makes no finding as a result of the claim. As noted, this issue was not in dispute.

17. In the post hearing submission the applicant’s representative submitted that the evidence provided at the hearing supported that the sole focus of the relationship between Ahmed Hussein Shire and the applicant at the time of grant of both visas was their daughter and not each other.

18. The applicant’s representative advised that Ms Anisa Mohamed was concerned that she may have misinterpreted some information and said she had provided the following letter:

    Dear Member,

    I am writing this letter to clarify a mistake I made when I was interpreting for Falis Sabire during a meeting she had with Ged Boylan. The meeting session was when they were writing the state declaration for Falis. The mistake is solely based on a misinterpretation of a few words. The phrase Falis said to me at the time in the Somali language was that she had “a regretful meeting with Mr. shire” and I translated that to Mr. Ged as she had “A brief affair”. I realized my mistake during the hearing on the 26^th of August when I heard the professional translator translate Falis’s words and when the point was raised by you. I tried to speak out at the hearing to correct my previous mistake, but I was told that I wasn’t allowed to speak to Ged. I grew up here in the beautiful country of Australia and my Somali understanding is not as good as a professional translator. There are a few dialects within the Somali language that can cause misunderstandings. I hope the mistake I made does not cost both Falis and her daughters future.

19. The Tribunal considered Ms Mohamed’s letter. The meaning of “regretful meeting” was not made clear however in the post hearing submission the applicant’s representative said the applicant’s child was conceived following a single one encounter and the Tribunal understands that Ms Mohamed’s letter was provided to support that claim. For the reasons previously stated the Tribunal does not accept the child was the result of a single sexual encounter only.

20. When the applicant lodged the visa application question 38 was not applicable to her circumstances however prior to the grant of her Subclass 309 visa and being immigration cleared her circumstances changed and she had a child. She failed to notify this change in her circumstances. Her visa application was lodged on 27 June 2011, her daughter was born on 14 August 2012, her Subclass 309 visa was granted on 29 August 2012 and she was immigration cleared on 28 September 2012. The Subclass 100 visa was granted on 6 January 2014.

21. In the visa application the applicant declared that she would inform the Department of any changes to her personal circumstances while her application was being considered and that she understood this also applied to her permanent visa application. When asked at hearing about making this declaration the applicant said she was unable to recall the declaration.

22. The Tribunal acknowledges the applicant’s evidence that she was unable to recall her answer to question 38 and that she had made the declaration. The Tribunal also notes that in her statutory declaration in response to the NOICC she said she relied entirely on her family members in communications with the Department and on others assisting her because her English language skills are limited. She did not raise this reliance on others at hearing however in the Tribunal’s view she had a responsibility to ensure she understood the responses provided to the Department in her application form and to be aware of the declarations she signed.

23. The Tribunal finds that the applicant’s circumstances changed after the visa application was lodged and prior to her Subclass 309 visa being granted. She was not in Australia and she failed to notify the Department before she was immigration cleared.  The Tribunal finds that her failure to inform the Department of her changed circumstances that she had a child made answers to questions on her partner visa application incorrect in the new circumstances.

24. The Tribunal finds that the applicant’s circumstances changed after her application was lodged and prior to her Subclass 100 visa being granted. She was in Australia and failed to notify the Department before the visa was granted. The Tribunal finds that her failure to inform the Department of her changed circumstances that she had a child made answers to questions on her partner visa application incorrect in the new circumstances.

25. For these reasons, the Tribunal finds that there was non-compliance with s.104 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

26. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

27. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

28. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

29. The applicant was informed at hearing that each of the r.2.41 prescribed circumstances would be considered by the Tribunal and also any other relevant facts and matters.  The Tribunal has had regard to the documentary evidence the applicant provided and also to the oral evidence given by the applicant and the witnesses at the hearing.

30. The Tribunal has taken these matters into account when considering the discretion.  

    The correct information

31. At the time the Subclass 309 and Subclass 100 visas were granted the applicant had a child who was not the child of her relationship with her sponsor. The information provided in her application form was that she did not have a child. The correct information was not provided because the applicant did not notify the Department of the change in her circumstances.

32. This is a significant issue which weighs in favour ofcancellation.

    The content of the genuine document (if any)

33. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information

34. An application for a Partner visa includes an assessment of whether the applicant is a spouse, including a de facto spouse, of the sponsor. That requires an assessment of whether the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The nature, duration and breakdown of any previous relationships the applicant may have had was relevant to that assessment. In the Tribunal’s view, if the existence of the child born from the applicant’s relationship with Ahmed Hussein Shire whilst she was married to her sponsor had been known, her relationship with Hassan Ahmed Dhisow may have been scrutinised more closely. The Tribunal finds that information about this past relationship, whatever its nature (whether it was a single encounter only or a brief affair) and the birth of the child was very significant to the assessment of the applicant’s eligibility for the visa. 

35. It is not necessary for the Tribunal to determine whether the visa would have been granted, if the correct information was known. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information being that the applicant did not have any children. This weighs in favour of cancellation.

    The circumstances in which the non-compliance occurred

36. The applicant’s contention that she could not tell anyone about the birth of her daughter due to the religious and cultural stigma is not accepted as justifying the non-compliance. The Tribunal acknowledges the written statements provided by various people about the consequences of being an unwed mother in the Islamic culture. These range from extreme embarrassment (Sheikh Yusuf Parker) to death by stoning. Whilst the Tribunal accepts that the applicant may have been excluded from parts of the community if her circumstances had been known, no evidence to substantiate that she would have been stoned to death was provided. 

37. The applicant also said one of the main reasons for non-compliance was that she was fearful of Hassan Ahmed Dhisow. Given the timing of her decision to return to Uganda and acknowledge her child, shortly after the permanent visa was granted, the Tribunal considered she is likely to have been motivated in her non-compliance by the processing of her visa application for which he was the sponsor rather than her fear of him.

38. The applicant’s contention that she relied on others to handle communications with the Department is also not accepted as justifying the non-compliance. The Tribunal is of the view that it was the applicant’s responsibility to ensure she was aware of and comply with her obligations whilst awaiting the outcome of the visa application.

    The present circumstances of the visa holder

39. The applicant told the Tribunal she has not seen her daughter since 2017. During phone calls her daughter asks her when they will be reunited and this upsets her. 

40. The applicant looks after six children in her home in a family day care arrangement. She lives alone in a house she rents in preparation for the arrival of her husband and her daughter.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

41. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations.

    Any other instances of non-compliance by the visa holder known to the Minister and any breaches of the law since non-compliance:  

42. There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance. The Tribunal is not aware of any other breaches of the law since the non-compliance.

    The time that has elapsed since the non-compliance

1. The application for the Partner visa was made in June 2011. The Subclass 309 visa was granted in 2012 and the Subclass 100 visa was granted in 2014. Seven years have passed since the non-compliance and the Tribunal acknowledges this is a lengthy period.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

2. There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined.

   Any contribution made by the holder to the community

3. The applicant told the Tribunal that she volunteers for four hours on Sundays at a youth centre. She also teaches cultural and language studies on weekend evenings and once a month she helps a Somali women’s group and teaches traditional songs and cultural matters.

4. Prior to the hearing the applicant provided letters of support which referred to her being an active volunteer at the Western Australia Youth Centre since early 2018, that she makes a contribution to the Somali Community in Perth by assisting in organising events and that she has been a welcoming hostess in Somali Youth Development Association activities.

5. In the post hearing submission the applicant’s representative said the applicant plays an important role in her community in Perth, she has always been employed and makes a positive contribution to Australian society.

6. The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in r.2.41 where they are relevant or applicable in this case.

7. In addition to the prescribed matters in r.2.41, the Tribunal has had regard to matters under policy include the following.

   Other considerations

8. As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109. They are:

   ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140;

   ·whether there are mandatory legal consequences to a cancellation decision; for example

   §  whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non-refoulement obligations;

   §  whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister’s personal intervention (e.g.s.46A, s.46B, s.48, 48A etc.); and

   §  whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and is liable to be detained under s.189 and removed under s.198

   ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation; for example:

   §  if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;[1]

   §  whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment; and

   ·any other relevant matter.

   Whether there would be consequential cancellations under s.140

   [1] This is consistent with the High Court’s decision in MIMA v Teoh (1994) 183 CLR 273, and with Article 3.1 of the UN Convention on the Rights of the Child 1989 (CROC) which states: ‘In all actions concerning children … the best interests of the child shall be a primary consideration’. For guidance on what constitutes an ‘action concerning children’ see Suleyman v MIMA [2000] FCA 610 (Mathews J, 12 May 2000) at [38] and Tien v MIMA (1998) 89 FCR 80 (Goldberg J, 3 December 1998) at 105.

9. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

10. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

11. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although the applicant may have limited opportunities when making future visa applications in Australia.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

12. The applicant said she cannot return to Somalia because of a high risk of terrorist attacks. The Tribunal acknowledges the threat of terrorist attacks in Somalia however the applicant presented no evidence that she is likely to be subjected to any terrorist activity if she is required to depart Australia.  

13. The written statements from Dr Hassan Egal and Mrs Rugiyo Hassan refer to the possibility of the applicant facing an honour killing or being stoned to death if she returns to Somalia or Kenya. The applicant presented no persuasive evidence of these possibilities in her case and the Tribunal is not satisfied that there is a real chance of them occurring if she is required to depart Australia. The Tribunal is also mindful that the applicant is eligible to apply for a protection visa if she believes Australia owes her protection obligations. As such, the Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

14. The Tribunal also notes that others, including Ahmed Hussein Shire’s cousin, are aware of the child and that she is a child of the relationship. The Tribunal is also mindful that the applicant voluntarily visited Ahmed Hussein Shire and her daughter in Uganda for lengthy periods in 2014, 2016 and 2017 and returned safely to Australia each time.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

15. When asked about the hardship that may be caused by cancellation of her visa the applicant said if she returned to Somalia she would be excluded by the community and that she would be at increased risk from terrorists.

16. The applicant told the Tribunal she works hard, pays taxes and makes a contribution to Australia.

17. The Tribunal acknowledges that the cancellation of the applicant’s visa will cause some hardship because the applicant has established a life in Australia since 2012.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled. The Tribunal also notes that the applicant has stayed with Ahmed Hussein Shire and her daughter for extended periods of several months in 2014, 2016 and 2017.

    Conclusion on the exercise of the discretion

18. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s.104.

19. The Tribunal acknowledges that several years have passed since the non-compliance. The Tribunal accepts that there are no other known instances of non-compliance and no other known breaches of the law. The Tribunal accepts that hardship may be caused to the applicant if the visa is cancelled and she is required to leave Australia. The Tribunal accepts that the applicant volunteers for community organisations. These are factors that suggest that the visa should not be cancelled.

20. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was made without the correct information because the applicant did not advise of a change in her circumstances, namely that she had a child. This information made an answer to a question on her Partner visa application form incorrect in the new circumstances.  The Tribunal has formed the view that the applicant’s reasons of being fearful of community stigma and of Hassan Ahmed Dhisow do not justify the failure to comply with her obligations whilst awaiting the outcome of visa applications. In the Tribunal’s view, the fact that the decision was made without the correct information and the circumstances in which the cancellation occurred outweigh other considerations.

21. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. There are no consequential cancellations. The Tribunal accepts that if the applicant’svisa is cancelled, and unless she is granted another visa, she may be subject to detention, although the applicant may be eligible to apply for othervisas.

22. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

23. The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

    Christine Kannis
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)      purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)      giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.