Sherchan (Migration)

[2020] AATA 4321

Sherchan (Migration) [2020] AATA 4321 (7 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suyog Sherchan

CASE NUMBER:  1921731

DIBP REFERENCE(S):  BCC2017/4614061

MEMBER:Antoinette Younes

DATE:7 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 7 September 2020 at 12:40pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – family composition – identity of ‘mother’ – stepmother – biological mother – divorced when the applicant was three years of age – biological mother’s adverse migration history – bogus document – Certificate of Relationship – authenticity could not be verified – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109

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 500 (Student) 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 comply with ss.101 and 103 of the Act.  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 appeared before the Tribunal on 2 September 2020 to give evidence and present arguments.  The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. 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.

6. 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.

7. 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 notice issued under s.107 complied with the statutory requirements.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.  The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101 and 103 of the Act.

9. Section 101 provides

   Visa 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.

10. Section 103 provides:

    Bogus 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).

11. In support of the application for review, the applicant provided a copy of the delegate’s decision record.  During the hearing, the Tribunal referred to the following matters:

    ·On 28 March 2017, the applicant lodged electronically a student visa subclass 500 application.  On page 5 of the application under the heading “Other Family members”, he provided his mother’s name as Sukh Devi SHERCHAN, born on 19 September 1967, and residing in Nepal. 

    ·The applicant provided a Letter of Sponsorship stating that Sukh Devi Gauchan (mother) is providing him with financial support.  He also provided a Genuine Temporary Entrant Statement indicating that he is the son of Sukh Devi SHERCHAN.

    ·The applicant provided a Certificate of Relationship from the Office of Tokha Municipality dated 11 December 2016 with a profile photograph with a caption stating “Mrs. Sukh Devi Sherchan (Applicant’s mother”.

    ·The applicant was granted the subclass 500 student visa on 7 April 2017 based on the information provided.

    ·Subsequent to the grant, the Department became aware that it is not Sukh Devi SHERCHAN who is applicant’s mother but Gita Tulachan, who was awaiting a visa outcome in Australia and was unlawful at the time of the application.  Moreover, the Department conducted investigations, including referral of the Certificate of Relationship to the Australian High Commission in New Delhi and checks revealed that the Certificate is not genuine.

    Notice of Intention to Consider Cancellation (NOITCC)

12. On 21 June 2019, the Department sent to the applicant a NOITCC to which he responded.

13. In a Statutory Declaration of 3 July 2019, the applicant stated that:

    ·He was born on 21 Jul 1993 in Nepal.  His parents were Tul Prasad Sherchan and Gita Tulachan.  His parents were divorced in 1996 when he was about three years old. His mother left the family to live somewhere unknown. His father married Sukh Devi Sherchan in 1998 and they have remained married. In Nepal, he saw his mother infrequently and that he never felt that Gita Tulachan was his mother. He considered Sukh Devi SHERCHAN to be his mother. Sukh Devi SHERCHAN looked after him and took care of his needs. Sukh Devi SHERCHAN has been a mother to him at all times and he never felt that he was her stepchild. He has been fortunate to have such a person as his mother.

    ·Sukh Devi Sherchan is recorded whenever possible as his mother and he would not put Gita as his mother. He would always put Sukh Devi Sherchan as his mother. Local administration and other authorities have her recorded as his mother. His citizenship to which he applied when he was about 16 years of age, lists his mother as Sukh Devi Sherchan and this was so when Gita was still in Nepal.

    ·All his friends and relatives regard Sukh Devi Sherchan as his mother. In all documents. She is presented as his mother and this was the reason for providing the information provided in the visa application. It may be possible under Australian law that he has provided incorrect information when applying for the visa, but all the documents refer to Sukh Devi Sherchan as his mother. The provision of her name has not been provided for the purpose of the visa because he applied for his citizenship prior to Gita coming to Australia. A stepmother is not excluded from being a financial sponsor for the purpose of the student visa application and the outcome would not have differed if he had stated she was his stepmother.

    ·The documents were provided from the authorities based on the information they held. He has no knowledge of Gita’s adverse migration history and he has very limited contact with her. She left Nepal nearly 10 years ago and he had assumed that she had obtained Australian citizenship.

    ·At all times, he has provided information which he considered to be correct.

14. In submissions dated 28 August 2019, the representative made the following points:

    ·The applicant is now 24 years of age.   The applicant’s parents are Gita Tulachan and Tul Prasad Sherchan who were divorced in 1996 when the applicant was three years of age. Following the divorce, the applicant’s mother left him with his father and she returned approximately on five occasions during a 13 year period until 2009 when she left Nepal.

    ·The applicant’s father married Sukh Devi Sherchan in 1998 and since that time, the applicant has been looked after by his stepmother.  Sukh Devi Sherchan has been listed as the applicant’s mother in all records and documents because of the disappearance of his biological mother who has now been found. The applicant was granted Nepalese citizenship in 2009 naming Sukh Devi Sherchan as his mother and Tul Sherchan as his father. Gita Tulachan is not referred to anywhere on his records.

    ·Gita Tulachan came to Australia in 2009 when the applicant was 16 years of age and she has married someone else. The applicant had very limited contact with her while she was in Nepal. He has had no more than five interactions with her since the divorce until she left Nepal. The interactions were brief and were meetings in the shopping centre or the park without the knowledge of other members of the family. The applicant does not know why Gita came to Australia or what she is doing. He knows now that she is in Australia that he has had no contact with her. He is not aware of her visa status or plans or wishes in the future.

    ·Sukh Devi Sherchan is the first woman who “symbolised unconditional love to him”. She has given the applicant the best and he has wanted to make her proud. The applicant does not refer to her stepmother but as a mother.  Although Gita is his biological mother, she has not given him anything that he required as a child. The applicant does not consider Gita as a mother. Through Sukh’s support, the applicant has grown up with decent qualifications and completed a Masters’ degree at the University of New South Wales.

    ·There has been no deliberate or intentional provision of incorrect information or bogus documents. The Nepalese citizenship certificate was issued in 2009. The application for citizenship was made prior to Gita’s departure to Australia. Significantly is that the document refers to Sukh Devi Sherchan as the applicant’s mother. Relationship verification was obtained in 2016 and 2019 from Tokha Municipality certifying that the applicant is the son of Sukh Devi Sherchan. At the time of registering the relationship of local authorities and whatever the situation may have been with the applicant’s parents, this is what is contained in his records.

    ·Non-compliance might have occurred because the applicant knew that Sukh Devi Sherchan was not his biological mother. He could have made a declaration in a separate form or format that that was the situation, but this did not happen.

    ·In relation to the purpose of student visa and for the purpose of the provision of financial support, there was no advantage if the financial support was provided by the mother or the stepmother. Stepmothers are in the category of those who can provide financial support.

    ·In relation to the adverse migration history of the applicant’s biological mother, such information would have made no impact on the applicant’s visa application because the applicant had not lived with his biological mother for 21 years. The visa would have been granted irrespective of the biological mother’s adverse migration history.

    ·The applicant has not deliberately misled the Department for the purpose of gaining an Australian visa. The applicant has suffered traumatic consequences due to his parents’ divorce when he was three years of age. The applicant has travelled to various countries for education, training and employment. He would not have had difficulties in being granted an Australian visa. The applicant is a victim of his unfortunate circumstances.

15. The applicant provided copies of the following relevant documents to the Department:

    ·Certificate of Nepali Citizenship dated 22 November 2009 showing Sukh Devi Sherchan as the applicant’s mother.

    ·Relationship Verification dated 27 June 2019 showing Sukh Devi Sherchan as the applicant’s mother.

    ·Verification Certificate dated 27 June 2019 noting Sukh Devi Sherchan as the applicant’s mother.

    ·Name Verification dated 23 June 2019 concerning a change of name of Sukh Devi Sherchan from Sukh Devi Gauchan.

    ·Birth Certificate for the applicant dated 27 June 2019 confirming that Sukh Devi Gauchan is the applicant’s mother.

    ·Photograph of a man with three children.

    ·Marriage Registration Certificate dated 11 December 2016 verifying the marriage between the applicant’s father and Sukh Devi Gauchan in August 1998.

    ·Statement of Sukh Devi Sherchan dated 3 July 2019 confirming that she is the ‘stepmother’ of the applicant.

    ·Statement of the applicant’s father referring to his divorce and subsequent marriage to Sukh Devi Sherchan in 1996.

    ·Citizenship Certificate of the applicant.

    ·Multiple work references, achievement certificates, and educational documents for the applicant.

16. In the course of the hearing, the applicant confirmed that he completed the online student visa application and provided the name of Sukh Devi Sherchan as his mother.  He explained to the Tribunal that his father and biological mother, Gita Tulachan, divorced when he was about three years of age and his father subsequently married Sukh Devi Sherchan whom he has considered to be his mother.  The Tribunal asked the applicant the reasons for not mentioning any details about Gita Tulachan in the application and/or any of the supporting documents.  He reiterated his explanations that he considered Sukh Devi Sherchan to be his mother.

17. The Tribunal asked the applicant about any contact with Gita Tulachan.  He stated that he rarely saw her in Nepal.  He explained to the Tribunal that he and his sister lived with his father and Sukh Devi Sherchan and did not see or had any regular contact with Gita Tulachan.  He said there was an incident with his sister following which she went to live with Gita Tulachan.  He confirmed that the contact he had with Gita Tulachan was rare.

18. In relation to any contact with Gita Tulachan in Australia, the applicant gave evidence that he arrived in Australia in April 2017 (13 April 2017 – noted in the delegate’s decision record) and met his mother soon after his arrival.  In accordance with s.359AA, the Tribunal discussed with the applicant information such as Facebook and Instagram messages and a copy of a photograph of the applicant with Gita at Bondi Beach in April 2017.  The Tribunal questioned the applicant about his reasons for seeing Gita soon after his arrival in Australia in light of his claims that he had not had much contact with her during his upbringing.  He said he wanted to see her, and they just took a picture. 

19. Subsequent to the hearing, the applicant provided a Statutory Declaration of 3 September 2020 confirming that when he was applying for the visa, he did know that Gita was in Australia, but he did not know she was in Sydney.  He stated that when he came to Australia, he did not know how to react.  They met at Bondi Beach and their photograph was uploaded to Instagram.

20. There is substantial documentary evidence before the Tribunal to support the applicant’s contentions that Sukh Devi Sherchan is his mother officially and that Gita Tulachan is his biological mother.  There is no information before the Tribunal to suggest that the documents are not authentic or that they contain incorrect information.  The Tribunal acknowledges that the Department undertook investigations that revealed that the authenticity of the Certificate of Relationship document issued by the Office of Tokha Municipality, dated 11 December 2016 could not be verified which led to a finding that there has been breach of s.103.  However, the weight of the documentary evidence before the Tribunal and a fair appraisal of the material indicate that the document contains correct information, in that Sukh Devi Sherchan is the applicant’s mother officially.  The Tribunal finds that the totality of the evidence indicates that the Certificate of Relationship document issued by the Office of Tokha Municipality, dated 11 December 2016 is not a bogus document and that it contains correct information consistent with all other official documents concerning the applicant.  Therefore, the Tribunal finds that the applicant did not breach s.103 of the Act.

21. In relation to the provision of incorrect information, the issue is whether the applicant provided incorrect information as contemplated by s.101 of the Act when he indicated in the application and supporting statement that Sukh Devi Sherchan is his mother.  The applicant acknowledges that it would have been appropriate to mention that Sukh Devi Sherchan is his stepmother and that his biological mother, Gita Tulachan is in Australia.  The issue of motive has been highlighted in the delegate’s decision record in that the applicant did not mention Gita Tulachan because she has an adverse migration history which would have adversely impacted on the applicant’s ability to obtain an Australian visa.  The applicant has maintained that he did not and does not know Gita’s migration history.  The Tribunal has some doubts about the applicant’s assertions, but these doubts are insufficient to make a definitive finding that he knew of her migration history and had deliberately failed to mention her name to gain a positive migration outcome.  The Tribunal is persuaded by the submissions that Gita’s migration history is likely not to have had impact given that the applicant had not seen her for most of his life and that a stepmother can be a sponsor.  The Tribunal can only speculate about the outcome had the applicant disclosed that Gita is his biological mother, but the Tribunal considers it to be unreasonable to conclude on the evidence that the applicant had intended to mislead and provide incorrect information.  The Tribunal appreciates that there does not have be a deliberate intention for the provision of incorrect information for s.101 to be enlivened – the question is whether incorrect information has been provided.  Although it would have been prudent to specifically mention that Gita Tulachan is the applicant’s biological mother but, on the evidence, the applicant did not provide incorrect information when he indicated that Sukh Devi Sherchan is his mother. Therefore, the Tribunal finds that the applicant did not breach s.101(b) of the Act.

22. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

23. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Antoinette Younes

    
    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.

    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.