Salim (Migration)

[2022] AATA 5279

Salim (Migration) [2022] AATA 5279 (30 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Inge Salim

CASE NUMBER:  2204689

HOME AFFAIRS REFERENCE(S):          BCC2020/2279205

MEMBER:Jennifer Cripps Watts

DATE:30 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 30 October 2022 at 2:16pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 801 (Spouse) visa –incorrect answers were given or provided – applicant has been known by a different name – has been known by three different names or identities – provides care to her Australian citizen husband – significant hardship would be caused to sponsor –decision under review set aside    

LEGISLATION
Migration Act 1958, ss 5, 101, 103, 104, 107, 109
Migration Regulations 1994, rr 1.15, 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 Home Affairs to cancel the applicant’s subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. On 22 March 2022, the delegate cancelled the applicant’s visa under s.101 of the Act for giving incorrect answers or leaving questions unanswered in the visa application; s.102 of the Act for giving incorrect answers on incoming passenger cards; and for providing a bogus document/s (as defined in s.5(1) of the Act) in the manner described under s.103 of the Act; for these reasons, by operation of s.107A, under s.109 of the Act the applicant’s visa was cancelled.  An extract of the relevant sections of the Act are attached as an appendix to this decision.  The issue in the present case is whether the ground/s for cancellation of the applicant’s subclass 801 permanent partner visa are made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 21 June 2022 and 9 August 2022 (the Tribunal hearings) to give evidence and present arguments. The Tribunal also received oral evidence from Mr Martin Sucic (the sponsor).  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages for the benefit of the applicant and Tribunal.  Mr Sucic did not require an interpreter, and confirmed this to be the case before he gave his oral evidence.  He said he was a little hard of hearing.  The Tribunal ensured that questions were put to him clearly, and occasionally they were repeated or clarified as the need arose.  Occasionally questions were repeated or clarified for the applicant as well, which is not unusual in migration hearings.  The hearing was generally unproblematic in terms of the communication between the Tribunal, the applicant, sponsor and interpreter. 

4. The applicant provided the Tribunal with a copy of the primary decision record.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. The Tribunal has had regard to information in the Department and Tribunal files, the oral evidence given by the applicant and sponsor at the Tribunal hearings, and to other relevant matters, in particular those raised in the applicant’s written submissions including why her visa should not be cancelled.

9. At the start of the hearing, the applicant was told that the Tribunal would summarise her case, to refresh everyone’s memory and for context.  It has a long history.   Facts and circumstances about her matter were given to the applicant at the Tribunal hearing, as follows.

   Background

10. The cancellation of the applicant’s subclass 801 visa relates to a partner visa application made by her and the sponsor on 25 June 2014.  Both the subclass 820 temporary and subclass 801 permanent visas were granted, on 25 June 2014 and 15 July 2016 respectively.

11. Questions relating to the applicant’s identity came to the attention of the Minister, after the applicant applied for Australian citizenship on 20 February 2021.  Prior to the application a facial image compassion check with her New South Wales Driver’s Licence, in the name of Inge Salim born in 1952, which had been matched with that of Soety Halim born in 1954.  The New South Wales Roads and Maritime Services had informed the Department of the match using their facial recognition software.  Upon receipt of this information, the facial images of the identities Soety Halim and Inge Salim were sent to the Department of Home Affairs’ Facial Image Examination Unit.  On 19 August 2020, the Forensic Facial Image Examiner gave their opinion that ‘they represent the same person’.  When the applicant applied for Australian citizenship, the Department had already received the information relating to the applicant’s two different identities, that of Soety Halim born in 1954 and Inge Salim born in 1952.

12. On 15 February 2022, a s 107 notice a Notice of Intention to Consider Cancellation under s 109 of the Act (the s 107 notice) was sent to the applicant, relating to her partner visa.  The applicant responded in writing, not disputing the grounds for cancellation, but relying on her married relationship with the sponsor and the dependence her elderly husband has on her for his care because of his medical conditions as the reason why her visa should not be cancelled.  The applicant’s partner visa was cancelled on 22 March 2022 and she applied for merits review of the decision.

13. Documents provided by the applicant, relating to the partner visa application, indicate that she has been known by three different names or identities; which are included in the primary decision record.  At the Tribunal hearing, the applicant explained the history of her name changes.  There was a fair amount of questioning and clarifying of names and dates, relating to the applicant’s identities, which is understood to be as follows:

    ·Currently, and in relation to the application that is the subject of this review, the applicant goes by the name Inge Salim born in 1952; she has a passport and other identity documents in this name;

    ·Formerly, the applicant was known as Soety Halim, born in 1954; this is an identity that the applicant used previously to enter Australia in 1998 and, among other things, apply for a protection visa, which was refused;

    ·and Siu Ing Lim, born in 1954 

14. Form 80 for the partner visa (at df.45, the applicant declares her name at birth was Sui Ing Lim, although this is likely because she did not want to reveal that, under her previous identity of Soety Halim, the applicant had travelled to Australia before, applied for and been refused a protection visa, worked in Australia unlawfully and was deported.

15. The applicant first entered Australia in 1998 holding a tourist visa, travelling under the identity, Soety Halim, born in 1954.  From 2009 onwards, the applicant travelled in and out of Australia as Inge Salim, born in 1952, and she continues to use this false identity.  The facts and circumstances relating to the applicant’s identity or identities, and the timeline of movements and events, are as follows and not disputed by the applicant.  The Tribunal considered the applicant’s non-compliance as it is particularised in the s 107 letter sent and went through each of the matters with her at the Tribunal hearing.  They were discussed with her in detail, and in summary are as follows (including other relevant factual information):

    (a)In 1954, the applicant claims to have been born in Indonesia as Sui Ing Lim; in 1967 her father legally changed her name to Soety Halim; she used the name Soety Halim until she changed her identity to Inge Salim after returning to Indonesia in December 2004.  The applicant has included in written submissions and in oral evidence at the Tribunal hearing that Soety Halim (born in 1954) is her ‘genuine’ name and identity. 

    (b)In around May 1998, there were riots in Indonesia, about 10,000 students marched on the parliament building, resulting in large scale violence between the security forces, police and students.  There were fires and looting and more than 1,000 people were killed.  Buildings in Jakarta’s Chinatown were destroyed.  People of Indonesian Chinese ethnicity were the main target of the attacks.  The applicant, living under the identity Soety Halim, fled Indonesia and came to Australia in July 1998, holding a visitor visa, because she feared for her life.    

    (c)From 1998 to 2004 the applicant resided in Australia holding various substantive and bridging visas, under the name and identity Soety Halim born in 1954.

    (d)In October 1998, the applicant was granted a further tourist visa as Soety Halim.

    (e)7 January 1999, the applicant was granted a tourist long stay visa as Soety Halim.

    (f)On 23 April 1999, Soety Halim applied for a protection visa and included in the application her daughter Ellen Halim, born in 1975 and her brother Soetardjo Halim, born in February 1963, as dependent applicants

    (g)On 8 February 2000, the protection visas were refused

    (h)12 September 2000, the Refugee Review Tribunal affirmed the decision to refuse the protection visa for Soety Halim and the applicant sought judicial review of the decision

    (i)11 January 2001, the applicant was granted a Bridging Visa E relating to the judicial review of the RRT decision dated 12 September 2000

    (j)In 2004, the High Court of Australia remitted the class action case, Nancy Lie & Ors, and the applicant was granted a Bridging Visa E relating to the judicial review of the RRT decision dated 12 September 2000; the applicant withdrew the application 

    (k)On 27 November 2004, Soety Halim’s Bridging Visa E was cancelled because she breached the 8101 no work condition that attached to the visa, and she was detained at the Villawood Detention Centre

    (l)On 11 December 2004, the applicant was removed from Australia as an unlawful non-citizen, under the identity Soety Halim born 1954

    (m)After returning to Indonesia in 2004, the applicant changed her identity to Inge Salim born in 1952; she obtained documents relating to that identity, including a passport, birth certificate and Indonesian ID card

    (n)The identity Inge Salim born in 1952 was not done legally, but was created for the applicant by a friend of hers in Indonesia

    (o)23 March 2009, the applicant entered Australia holding a tourist visa and declared her identity on her incoming passenger card as Inge Salim born 1952 and using a passport with the identity

    (p)Inge Salim travelled in and out of Australia on several occasions, between 2009 and 2011, holding tourist visas and on each occasion she returned to Australia using her Inge Salim passport and gave her identity on incoming passenger cards as Inge Salim

    (q)In February 2011, the applicant and sponsor met each other

    (r)On 25 July 2011, the applicant’s substantive (tourist) visa ceased

    (s)For a period of nearly three years, from 26 August 2011 to June 2014, the applicant resided onshore with no visa, as an unlawful non-citizen

    (t)On 1 February 2013, the applicant and sponsor married each other

    (u)On 25 June 2014, the applicant (who did not hold a substantive visa) and sponsor applied for a combined subclass 820/801 partner visa

    (v)On 7 August 2014, under the name Inge Salim born in 1952, the applicant’s partner visa was refused by a delegate of the Minister because the applicant did not meet Schedule 3 criteria because she did not hold a substantive visa at the time of application; the delegate was not satisfied there were compelling reasons for waiving the criteria

    (w)The applicant sought merits review and, on 30 May 2016, the Migration Review Tribunal remitted the applicant’s matter to the Minister for reconsideration, on the basis that she met the Schedule 3 requirement, which was essentially because they accepted as a compelling reason the need of her Australian citizen husband to be cared for by the applicant and gave weight to the hardship that would be caused to him if the applicant had to depart Australia.

    (x)On 15 July 2016, the applicant’s subclass 801 permanent partner visa was granted to her, as Inge Salim.

    (y)On 4 June 2020, the applicant was identified by NSW Roads and Maritime Services facial imaging software, which matched the applicant (visa holder, Inge Salim) to another identity, Soety Halim, and the information was sent to the Department

    (z)20 February 2021, the applicant lodged an application for Australian Citizenship by Conferral (and failed to make declarations about travel outside Australia; or that she had been known by other names; she gave an incorrect date of birth; other visas she had held in other names and her removal from Australia in December).  With the application, the applicant provided a bogus birth certificate and a bogus Indonesian residence card, in the name of Inge Salim.

16. The applicant’s current identity (Inge Salim) that she is using is not the name she was born with.  The applicant gave oral evidence at the Tribunal hearing that the identity, Inge Salm born in 1952, is not a real or legal person, notwithstanding that it is the identity she has been using to enter and depart Australia since 2009.  The applicant gave evidence as to these matters; she does not dispute them.

17. The applicant has an Indonesian passport in the name Inge Salim, issued on 18 July 2019 that expires on 18 July 2024; and a New South Wales driver’s licence, also in the name Inge Salim, that expires 29 May 2030.

18. In written submissions, and in her oral evidence at the hearing, the applicant confirmed:

    ·when she was born in Indonesia in 1954, she had been given the name Sui Ing Lim

    ·in 1967 the applicant’s father changed her name to Soety Halim (together with name changes for other of her close family to the last name ‘Halim’, and says that she is ‘genuinely’ known as Soety Halim.  Essentially, the applicant gave evidence that she has never been known as Siu Ing Lim, her real identity is Soety Halim born in 1954; and has lived with the identity Inge Salim born in 1952 since assuming the identity after returning to Indonesia in 2004. 

19. At the Tribunal hearing, the applicant was referred to the two birth certificates she had provided, for Siu Ing Lim born in 1954 and Inge Salim born in 1952.  She said that her birth certificate for Siu Ing Lim was ‘the second one’.  It was put to the applicant that she could not have been born twice and that at least one of the birth certificates cannot be correct.  The applicant was asked to identify which birth certificate was the true one.  She responded that that her birth certificate for Inge Salim (born in 1952) was the first one and again, as she did frequently throughout the hearing, said it was all arranged by a friend in Jakarta.  She was asked, but said she could not remember the friend’s name.

20. The primary decision record includes that the applicant is a citizen of Indonesia.  However, it is not clear under what name, of the three she has used, that her Indonesian citizenship is held.

21. It is difficult to arrive at a conclusion as to the applicant’s real identity, that is her name and date of birth.  All the Tribunal can be satisfied of, with any degree of confidence, is that she arrived in Australia in 1998 as a tourist, applied for a protection visa that was refused and that she was deported from Australia in 2004 using her Soety Halim born in 1954 identity; since 2009 the applicant has been living in Australia with the identity Inge Salim born in 1952; the partner visa application was made using the Inge Salim identity; the applicant appears to conduct all of her affairs in Australia under the identity of Inge Salim, including for her driver’s licence, government services, bank account and lease they currently have for an apartment at Macquarie Park in Sydney; she was married to the sponsor with the name Inge Salim and remains married to him; and Inge Salim is registered as her husband’s carer, for the purpose of providing the care and (until her visa was cancelled in 2022) receiving carer payments from the Australian government.  The sponsor says he did not know until recently that his wife had a fraudulently obtained identity, that is, when her partner visa was cancelled under s 109 of the Act. 

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

22. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, sent to the applicant on 15 February 2022, being the manner particularised in the s 107 notice and, if so, whether the visa should be cancelled.   The Tribunal has considered the information in the s 107 notice on the Department file.  The non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101(a), 101(b), 102(b), and 103 of Sub-division C of the Act.

23. In response to the s 107 notice and at the Tribunal, the applicant agrees that there was non-compliance as it is particularised in the s 107 notice and gave more detailed evidence about the matters in her oral evidence at the hearing than she did in the written response to the Department in March 2022.

24. In the present matter, the Tribunal has considered the Department’s s 107 Notice of Intention to Consider Cancellation letter, dated 15 February 2022.  The Tribunal has considered relevant material on the Department and Tribunal files and discussed at length with the applicant the matters relating to the non-compliance, as it is particularised and with regard to the documentary evidence on the Department file, and is satisfied that there was non-compliance as it was particularised in the s 107 notice (a copy of which is attached to this decision).  The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

25. The Tribunal finds that there was non-compliance with ss 101, 102(b) and 103 of the Act in relation to the subclass 820/801 Partner Visa application that is the subject of this review, as particularised in the s 107 notice, in summary:

    ·Section 101(a) of the Act relating to incorrect information about names she has been known by and countries she has visited in the applicant’s Form 47SP lodged with the visa application

    ·Section 101(b) of the Act relating to incorrect information about to the applicant’s immigration status, specifically whether she had held a Bridging Visa E, the applicant’s name and birthdate, details of the applicant’s family, her previous marriage in the applicant’s Form 47SP lodged with the visa application

    ·Section 102(b) of the Act relating to incorrect information in the applicant’s incoming passenger cards on 10 occasions, from 2009 through to 2017

    ·Section 103 of the Act relating to a number of bogus documents (as defined in s 5(1) of the Act), provided with the visa application, and false or misleading information contained in them, relating to the applicant’s identity

1. The Tribunal finds that there was non-compliance by the applicant as it is particularised in the s 107 notice.

   Should the visa be cancelled?

2. As the Tribunal has decided that there was non-compliance in the way described in the s 107 notice, 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).

3. In exercising this power, the Tribunal must consider the applicant’s response 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 reg 2.41 of the Regulations, and have been considered.

4. The applicant submitted, in writing in response to the s 107 notice, and both in writing and her oral evidence at the Tribunal hearing, essentially the same reasons why her visa should not be cancelled, which includes:

   ·That she is 70 (and now 71) years of age

   ·If she returns to Indonesia, the applicant fears that she will ‘be placed at significant risk of contracting COVID-19 because of her age’

   ·The sponsor’s age and his medical conditions and impairments and his need for the applicant to remain in Australia as his registered primary carer; the applicant was his registered primary carer and receiving Centrelink payments from August 2018 to March 2022, from around two years after her permanent 801 partner visa was granted up to the time the visa was cancelled

   ·It is unsafe and would cause hardship to the sponsor to go to Indonesia with his wife because of his age, ‘exposure to health risks’ and his inability to speak Indonesian and live comfortably and safely in the country or within the culture

   The correct information

5. The failure of the applicant to provide correct information, with reference to ss 101, 102(b) and 103 of the Act, is essentially her full immigration status, that is, any information relating to Soety Halim born in 1954, was not provided and nor was information about family members, her previous marriage in Indonesia, whether the applicant had had a visa cancelled, whether she had ever been removed from Australia and whether she had held a Bridging Visa E.   The correct information relating to these matters have been detailed earlier in this decision.

   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

6. The assessment of the visa application was undertaken on the basis that the applicant’s identity was Inge Salim born in 1952.  The identity documents that were submitted in support of the partner visa application were obtained fraudulently.  The decision to grant the visa was based on the false identity and accompanying evidence, and omissions, that were provided to the Department by the applicant so as not to reveal her previous identity or identities.  The applicant claims that no-one asked her to provide information about her identity or identities before she acquired the Inge Salim born in 1952 identity.  The Tribunal considers this to be a disingenuous suggestion by the applicant and is not persuaded that she was never asked or that the applicant was unaware she should provide the information. 

7. It is acknowledged that the partner visa subclasses 820 and 801 were both granted on the basis of a delegate of the Minister finding that the applicant was in a genuine marriage (as defined in the Act).   However, the applicant did not give information about her real identity with the application, and gave incorrect information, omitted information and provided bogus documents relating to the visa application. 

8. The decision to grant the partner visa was based at least partly on incorrect information and bogus documents relating to the applicant’s identity.

   The circumstances in which the non-compliance occurred

9. The s 109 ground for cancellation arose when it was discovered that the applicant had provided incorrect information in her 2014 partner visa application relating to her identity, family composition and previous adverse immigration history.

10. The applicant had travelled to Australia in 1998 as a tourist and in 2000 applied for a protection visa.  It was refused, the applicant withdrew her appeal of the decision of Refugee Review Tribunal in 2000 to affirm the decision to refuse her protection visa.  In November 2004 the applicant’s Bridging Visa E was cancelled; she had been working illegally.  In December 2004, the applicant was returned to Indonesia.

11. Notwithstanding that the applicant’s protection visa was refused, noting that she herself withdrew the judicial appeal application, in 2004 the applicant continued (and still continues) to claim that she will be persecuted in Indonesia because of her Chinese ethnicity. 

12. In written submissions provided to the Tribunal, the applicant claims she ‘could not live her life normally and without any other choice, she decided to return to Australia using the name Inge Salim’ (in 2009).

    The present circumstances of the visa holder

13. In 2014, when the applicant applied for the combined subclass 820/801 partner visa, she did so onshore while she was unlawful and did not hold a substantive visa, requesting waiver of the Schedule 3 requirements on the basis of the age and health of her husband and the need he has for her to be present in Australia caring for him.  While the visa was initially refused, on remittal from the Tribunal the subclass 820 temporary visa was granted, as was the permanent 801 visa a couple of years later.  Eight years has now passed since the visa application was made.  Evidence was provided at the time of the visa application relating to the sponsor’s health.  Similar evidence and claims have been provided and made in relation to the reliance the sponsor has on his wife relating to their present circumstances.  His health, since 2014, given his age, has unsurprisingly not improved. 

14. While the Tribunal makes no findings about the genuineness or otherwise of their spouse relationship, the applicant and sponsor attended both of the Tribunal hearings together and, on the evidence they gave, and their demeanour towards one another, do appear to still live as spouses akin to the matters to assess a spouse relationship as they are described in r 1.15A(3) of the Migration Regulations 1994.

15. The applicant ceased receiving her Centrelink carer payments when the partner was cancelled in March 2022.  The Tribunal accepts that the cancellation of the visa and the cessation of her usual income is causing the applicant and sponsor some financial hardship.

16. The Tribunal is compelled to give especially significant weight to the care that the applicant provides to her Australian citizen husband, for whom she has been the registered carer for four years.

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

17. The applicant applied for Australian Citizenship on 20 February 2021, with reference to facial recognition between her New South Wales driver’s licences in the names Soety Halim and Inge Salim in 2018, it had been referred to the Department by the New South Wales Roads and Traffic Authority and it was concluded that they are the same person. 

18. In February 2022, the applicant was sent the s 107 notice that is referred to in this decision.  There is no evidence before the Tribunal that the applicant had made any attempt to notify the Department of the incorrect information and bogus documents she had provided to the Minister.  It was only when the applicant was notified in writing, that she confirmed that she had been non-compliant with ss 101, 102(b) and 103 of Subdivision C of Division 3 of Part 2 of the Act, in the manner particularised in the s 107 notice.  

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

19. As already mentioned, the applicant applied for Australian Citizenship in February 2021.  It is included in the primary decision record, and is not disputed by the applicant, that she continued to represent herself as Inge Salim born in 1952 when making the citizenship application; she did not declare any other previous identities, travel movements, or adverse immigration history in any name (Inge Salim) and date of birth (1952) other than Inge Salim born in 1952.  The applicant given unequivocal oral evidence, at the Tribunal hearing, that the Inge Salim born in 1952 identity ‘does not legally exist’ and that it is an identity that was arranged by a friend in Indonesia so she could use it to return to Australia, which are matters  that are accepted by the Tribunal.

    The time that has elapsed since the non-compliance

20. The applicant has used the identity, Inge Salim born in 1952, since she arrived in Australia on 23 March 2009 and has continued to use the identity while travelling in and out of Australia since then, on numerous occasions.  On her first entry as Inge Salim, in 2009, on her incoming passenger card the applicant declared Inge Salim born in 1952 to be her identity; the date on which the first act of s 102(b) non-compliance occurred.

21. Non-compliance by the applicant with ss 101 and 103 of the Act occurred when she lodged the combined subclass 820/801 partner visa application on 25 June 2014.  The details and extent of non-compliance, relating to her identity, family composition, travel in and out of Australia, and adverse immigration history have already been detailed earlier in this decision.

22. In these circumstances, that is the non-compliance with ss 101, 102(b) and 103 of the Act, they occurred more than eight years ago, which is a significant period of time.

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

23. There is no information or evidence before the Tribunal that indicates the applicant to have breached the law since the non-compliance.

24. Yes, she is still representing herself as being Inge Salim, and confirmed that she was married to the sponsor as Inge Salim and that the passport and drivers licence she uses are also held as Inge Salim.  In addition, the applicant, up until the time her partner visa was cancelled.

    Any contribution made by the holder to the community.

25. The applicant has provided a Certificate of Appreciation, dated 9 December 2021, issued to her by the Chinese Australian Services Society (CASS) for her work as a ‘committed volunteer’.  It is accepted that the applicant was given the award in 2021.  The certificate does not specify the nature of the work, or over what period of time the applicant has been a CASS volunteer.  It is given a little weight.

26. Other matters have been considered, with regard to the applicant’s written response to the s 107 notice, documentary evidence provided to the Tribunal and oral evidence given at the Tribunal hearing.

    Whether there would be consequential cancellations under s 140

27. There is no evidence before the Tribunal to indicate that there would or may be any consequential cancellations under s 140 of the Act.

    If there are children whose interests would be affected by cancellation

28. There is no information before the Tribunal indicating that there are any children who would be affected by cancellation.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

29. The applicant claims that when she obtained the Inge Salim born in 1952 identity, she ‘had no choice’ because she needed to return to Australia because she feared persecution in Indonesia.  The decision relating to the applicant’s protection claims, in the name Soety Halim born in 1954, is that the protection visa was refused.  On appeal, the applicant, as a member of a class action relating to the Tribunal decision to affirm the decision of the Minister to refuse her protection visa, had her case remitted by the High Court of Australia.  The applicant claims this was for financial reasons.  However, the Tribunal has received no verifiable evidence as to the claim.  The applicant withdrew her appeal to the Court and, simply put, the protection visa application is finalised as a refusal.  The applicant has made no further claim for protection. 

30. The Tribunal accepts that the 1998 riots occurred and that Indonesian citizens of Chinese ethnicity were targeted.  Other than the applicant’s unsubstantiated claim that she would, on returning to Indonesia (in 2022), suffer persecution, there is no information before the Tribunal that, on the basis of her Chinese ethnicity, this would be the case. 

    Whether there are mandatory legal consequences,

31. The likely consequence of cancellation is that the applicant would become unlawful and liable to detention under s 189 of the Act and removal under s 198 of the Act if she was not to depart Australia voluntarily.  Her options for lodging a further visa application would be extremely limited, if there are any at all, and the Minister may need to intervene for the applicant to be able to lodge a valid visa application within a meaningful timeframe, in the applicant’s circumstances, given her husband’s age and failing health.

    Other relevant matters

32. It is noted in the delegate’s decision that in response to the s 107 notice, the applicant ‘did not address her family composition’ and that ‘the true identities of the visa holder’s siblings and children remains unknown’.

33. At the Tribunal hearing, the applicant was asked whether she has any relatives living in Australia and she said ‘no’.  The applicant was asked about her daughters and said she has two daughters; Elfy Halim, who was included in the applicant’s protection visa application; and Ellen Halim.  The applicant said they have both been living in Indonesia since 2003 or 2004.  The applicant was asked when she had last been in contact with her daughters and said ‘it’s been a long time’, that she has lost their number, lost a mobile phone with their numbers in around 2005, and that she hasn’t had contact since 2004 or 2005.

34. On the basis that the applicant indicated that she had brought her daughter, Elfy, with her in around 1998, and had included her in the protection visa application, it seemed reasonable to think the applicant may have remained in contact with her, unless there was a good or plausible reason not to.  The applicant claims not to have had any contact with them because she lost her mobile phone and her daughters’ phone numbers 17 or 18 years ago,  Noting that the applicant had travelled back to Indonesia on several occasions from 2009 onwards, it was put to her that the Tribunal was trying to understand why she would not talk to her children at all and how, if she hadn’t spoken to them since around 2004 or 2005, she knew they were in Indonesia.  The applicant said that she doesn’t have their numbers and can’t call them anymore. 

35. The applicant was vague and evasive when she responded to questions about her daughters, and whether they or any other of her close family members live in Australia.  The Tribunal’s impression was that the applicant was not being entirely truthful about her family members’ whereabouts, and the Tribunal is not entirely convinced that the applicant has no relatives in Australia other than her husband.  It’s an interesting consideration though, because it may weigh favourably for the applicant if she has close relatives in Australia, depending on the circumstances, if that is in fact the case.  It is for this reason, the Tribunal raised the matter with the applicant.  Conversely, it is not a consideration that can be given positive weight in favour of deciding not to cancel her visa if the applicant, as she claims, has no other close family members residing in Australia.  Given the Tribunal’s uncertainty relating to this matter, it is given neutral weight.  

36. The Tribunal has considered the discretionary matters above and, with some reservations, but by the very slimmest of margins, based almost entirely on the very significant assistance the sponsor requires and the detriment that would be suffered by him, in the circumstances of this case the Tribunal concludes that the visa should not be cancelled.

    Request for the Tribunal to refer the applicant’s matter to the Minister

37. It is acknowledged that the applicant’s solicitor requested that the Tribunal refer her matter to the Minister if an unfavourable decision was made. 

    DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

    Jennifer Cripps Watts
    Senior 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.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    102Passenger cards to be correct

    A non‑citizen must fill in his or her passenger card in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.