Sultan Ali (Migration)
[2018] AATA 4706
•12 October 2018
Sultan Ali (Migration) [2018] AATA 4706 (12 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Saeeda Sultan Ali
CASE NUMBER: 1725413
DIBP REFERENCE(S): BCC2016/1920994
MEMBER:Christine Kannis
DATE:12 October 2018
PLACE OF DECISION: Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.
Statement made on 12 October 2018 at 6:56am
CATCHWORDS
MIGRATION – Cancellation – Partner (Migrant)(Class BC) visa – Subclass100 (Spouse) – incorrect answers – death of parents – number of siblings – time resided with sponsor – sibling’s visa application – ongoing non-compliance – age and inability remember childhood – primary caregiver to family – best interests of children – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 359AA
Migration Regulations 1994 (Cth), rr 1.12, 2.41CASES
COT15 v MIBP (No 1) [2015] FCAFC 190
Goundar v MIBP [2016] FCA 1203
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Le [2016] FCFAC 120STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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).
The delegate cancelled the visa on the basis that the applicant had provided incorrect answers to the Department in her visa application. The issue is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 3 September 2018 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s husband, Mr Qadir Ali. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review by her registered migration agent.
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
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.
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.
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?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 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 s.101(b). Under s.101(b), a non-citizen must fill in his or her application form in such a way that no incorrect answers are given.
Relevant to this matter, by operation of s. 99 of the Act, 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 s.100, paragraphs 101(b) and 102(b) and ss104 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.
The applicant was included in the Subclass 309 visa application of the primary visa applicant, Wazir Begum Mohammdi (Wazir). Wazir applied for the visa on the basis of her relationship with her spouse; the sponsor, Ramazan Ali Mohammadi.
In order to meet the requirements for the grant of the visa, the applicant was required to satisfy, among other requirements, cl. 309.311 of Schedule 2 of the Migration Regulations 1994 (the Regulations) that she was a member of the family unit of, and made a combined application with, a person who satisfied the primary criteria and that at the time of decision she continued to be a member of the family unit of a person who, having satisfied the primary criteria, was the holder of a Subclass 309 visa (cl 309.321).
Regulation 1.12 defines the circumstances in which a person is a member of the family unit of “another person”, the family head. In the context of a subclass 309 visa, the family head is the person who satisfies the primary criteria for the grant of the visa.
At the time of application and time of decision, r.1.12(1)(b) relevantly said:
… a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(b) a dependent child of the family head or of a spouse of the family head; or
The term ‘dependent child’ is defined in r.1.03 and at the time of application included the natural or adopted child, or step-child of a person (other than a child who has a spouse or is engaged to be married), being a child who has not turned 18 and who is dependent on that person.
Adoption is defined in r.1.04 and includes that a person (the adoptee) is taken to have been adopted by a person (the adopter) if before the adoptee attains the age of 18 the adopter assumed a parental role in relation to the adoptee under arrangements entered into outside Australia that under subregulation (2) are taken to be in the nature of adoption. Subregulation (2) says:
…. arrangements are taken to be in the nature of adoption if:
(a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
(b) the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and
(c) the Minister is satisfied that:
(i) formal adoption of the kind referred to in paragraph (1)(b):
(A) was not available under the law of the place where the arrangements were made; or
(B) was not reasonably practicable in the circumstances; and
(ii) the arrangements have not been contrived to circumvent Australian migration requirements.
The term ‘dependent’ is defined in r.1.05A. This regulation prescribes clear objective criteria to be met for dependence to be established. First, r.1.05A(1) stipulates that the person who is claiming to be dependent (the ‘first person’) must be, at the time at which consideration is being given, ‘wholly or substantially’ reliant on the other person. Second, that degree of reliance is required to have been for a substantial period immediately before that time. Thirdly, the financial support being provided must be to meet the first person’s basic needs in three respects: viz: food, shelter and clothing. Lastly, the first person’s reliance on the other person must be greater than his or her reliance on any other person or source of financial support to meet those basic needs: Huynh v MIMA [2006] FCAFC 122 at [28]. According to the Department’s Procedural Advice Manual (PAM3) “substantial period” in the context of r.1.05A(1) means at least 12 months.
The delegate set out the history of the grant of applicant’s visa as follows:
·In a statutory declaration made on 15 July 2006 the sponsor said Wazir commenced looking after his cousin’s children, the applicant and two of her siblings, following the deaths of their parents. In a later statutory declaration made on 16 September 2006 the sponsor said the applicant’s two siblings had died.
·The Department conducted interviews on 4 December 2006. Wazir maintained at interview that the applicant had no siblings and said she was unaware of the two siblings who were said to have been in her care prior to their deaths.
·At interview the applicant said she had eight siblings, five sisters and three brothers. She was unable to recall their names however believed they were all older than her.
·At interview Wazir’s two eldest children said the applicant used to live with her family which consisted of her parents and a sister and a brother.
·The Department accepted the information provided by the applicant and decided she had older siblings who would be able to look after her. The delegate was not satisfied that the applicant was wholly or substantially reliant on Wazir or the sponsor and the visa was refused.
·The sponsor sought review of the decision to the former Migration Review Tribunal (MRT) and on 21 February 2008 he provided the following information:
oThe applicant was his cousin and she and two of her siblings lived with Wazir from 2002 after their parents’ deaths.
oWazir attended the funerals of the applicant’s parents.
oAs there was no other male relative left in the family he had to assume guardianship of the applicant.
oThe applicant had four sisters and three brothers but he was unaware of their whereabouts. Two of the applicant’s brothers had lived with her and Wazir but they had died.
oThe applicant lived with Wazir for four of five years initially in Afghanistan and later when they fled to Pakistan.
·The MRT was satisfied that the sponsor was the only surviving male relative of the applicant and that he assumed guardianship of her under Afghani custom. The MRT referred to the credibility and consistency of the sponsor’s evidence. The MRT said irrespective of whether the applicant had other siblings, it was satisfied that the applicant became part of Wazir’s household after her parents died which was in accordance with the usual practice or recognised custom of her culture. The MRT decided that the applicant met the requirements of r.1.04 and that she had been adopted by the sponsor.
·The MRT was satisfied the applicant was a member of the family unit as a dependent child of Wazir or her spouse as outlined in r. 1.12, and that she was wholly or substantially reliant on the primary visa applicant as defined under r. 1.05A(1).
·On 17 February 2011 the applicant was granted a dependent Subclass 309 visa.
The delegate set out the basis for deciding the applicant’s parents were still alive when it was claimed they were deceased. The delegate referred to information that had been provided in other independent applications, namely those of Saadat Ali Qasmi and Alam Elahi.
On 6 December 2013 Saadat Ali Qasmi lodged an application for a Subclass 309 in which he listed his family members to be:
·Parents: Sultan Ali (Born: 1947) and Fatima Sultan (Born: 1955)
·Siblings:
oSajjdah Khanum (Born: 1975 - deceased 1985/1986)
oSadiqa Khanum (Born: 1977) Aliases: Sadiqa Khanum Qasimi/Saddiqa Ali
oAyatullah (Born: 1979 - deceased 1981/1982)
oMosoma Khanum (Born: 1981) Alias: Masooma Sultan Qasimi
oHassan Mijitaba Qasimi, (Born: 18/05/1989) Alias: Hassan Mujtaba (28/02/1989)
oNaiba Qasimi (Born: 08/08/1993) Alias: Naiba
On 15 December 2015 Alam Elahi (Aliases: Ayatullah Ali Jafari/Ayatullah Abdul Khlaik) lodged an application for a Subclass 309 in which he listed his family members to be:
·Parents: Sultan Ali / Abdul Khaliq Elahi (Born: 1947) and Fatima Sultan (Fatima Elahi) (Born: 1955)
·Siblings:
oSajjdah Khanum (Born: 1975 - deceased 1985/1986)
oSadiqa Khanum, Sadiqa Khanum Qasimi, Saddiqa Ali [(1977)
oAyatullah (Born: 1979 - deceased 1981/1982)
oMosoma Khanum [Masooma Sultan Qasimi](1981)
oHassan Elahi also known as Mujtaba Hassan
oQutsia Elahi also known as Naiba
Alam Elahi’s mother, Fatima, was interviewed. She said her husband, Sultan Ali / Abdul Khaliq Elahi was alive and working in his own shop, making and selling homeopathic medicines. She said Alam Elahi had seven siblings, namely:
·Saddat Ali
·Alam Elahi
·Mujtaba Elahi (Hassan)
·Sajjida
·Siddiqa
·Masooma
·Saida
·Naiba (Qutsia)
Alam Elahi’s wife was interviewed. She said Alam Elahi had his parents, five sisters and two brother, namely:
·Parents: Abdul Khaliq – residing in Quetta and Fatima - residing in Quetta
·Siblings:
oSadat Ali – residing in Australia
oAlam Elahi – residing in Australia
oMujtaba – residing in Quetta
oSajida – residing in Canada
oSadiqa – residing in Quetta
oMasooma – residing in Quetta
oSaeeda – residing in Australia
o
oNaiba – residing in Quetta
In response to the s.107 notice the applicant’s representative provided the following information:
·During the Subclass 100 visa review procedures the applicant admitted she had eight siblings consisting of five sisters and three brothers, all of who were older than her.
·The applicant had been living with the family of the sponsor and Wazir since the age of two.
·The siblings and parents were separated and therefore she had no idea about their whereabouts. It is believed in Afghanistan if someone is missing for more than two to three years they are assumed to be dead.
·The applicant had no support from her biological siblings or parents. The family of the sponsor and Wazir were her sole guardians and caretakers.
The Tribunal put information to the applicant utilising the procedure pursuant to s.359AA of the Act. The Tribunal informed the applicant that subject to her comment or response, the information would be the reason or part of the reason for affirming the decision under review. The following information was put to the applicant:
·At the MRT hearing on 21 February 2008 the sponsor said Wazir had attended the funerals of the applicant’s parents. The applicant responded that she was 18 months to two years old when she went to live with Wazir and could not remember whether this had occurred.
·At the MRT hearing on 21 February 2008 the sponsor said the applicant had lived with Wazir since 2002. In 2002 the applicant would have been 12 years old. This is inconsistent with information provided by her representative and by her in the hearing that she had lived with Wazir since she was two years old. The applicant responded that she was unable to remember when she commenced living with Wazir and she wasn’t sure whether the sponsor had been untruthful or whether she was not remembering correctly.
Noting the discrepancy in the dates she commenced living with Wazir the Tribunal asked the applicant about where she had lived for the first 12 years of her life. The applicant was evasive and repeatedly reverted to saying she had been young and could not remember.
The Tribunal referred to the delegate’s decision and in particular the information provided by Saadat Ali Qasmi, Alam Elahi, Alam Elahi’s mother; Fatima, and wife Rahila. The Tribunal noted that it appeared the applicant’s parents and some of her siblings may be alive and asked her whether she had contacted or made attempts to contact her parents or her siblings. The applicant was again evasive and after requesting a brief adjournment to discuss her answer with her representative she said she had not contacted or made attempts to contact her parents or her siblings.
The Tribunal asked the applicant whether she believed her parents were alive or dead. She said in her heart she believes they are alive.
Based on the information provided by Saadat Ali Qasmi, Alam Elahi, Alam Elahi’s mother; Fatima, and wife Rahila, the Tribunal was satisfied that Alam Elahi, Saadat Ali Qasmi and the applicant are siblings and that the parents named by Saadat Ali Qasmi and Alam Elahi are also the applicant’s parents.
The applications for Saadat Ali Qasmi and Alam Elahi were lodged on 6 June 2013 and 15 December 2015 respectively. The applications indicate the parents were not deceased at the time of the applications in 2013 and 2015, which is a significant time after they were alleged to have died in 2002.
In a statutory declaration made on 15 July 2006 and at the MRT hearing on 21 February 2008, the sponsor claimed the applicant had resided with Wazir since 2002 because her parents had died.
The Tribunal has found that the applicant’s parents are not deceased. As such the answers provided to questions in the applicant’s Subclass 309 visa application were incorrect.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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. 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.
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 PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The applicant was included as a member of the family unit on the basis that she was a dependent child of the family head and the spouse of the family head. In order to be a dependent child of Wazir and the sponsor the applicant claimed her parents were both deceased.
The Tribunal has found that the correct information at the time of application and at the time of decision was that the applicant’s parents were not deceased.
Section 100 makes it clear that an answer to a question is incorrect even if the person who gave it or caused it to be given did not know that it was incorrect.
The correct information was not provided. This is a significant issue which weighs in favour ofcancellation.
The content of the genuine document (if any)
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
The Tribunal has found that the applicant’s parents are not deceased. Accordingly she was not an orphan as previously claimed by Wazir and the sponsor and she could not be adopted by them and was therefore not their dependent child for the purposes of r.1.12.
The decision to grant the visa was based on incorrect information provided at the time of application and at the MRT hearing.
The Tribunal finds that the decision to grant thevisa was based, wholly or partly, on incorrect information. This also weighs in favour of cancellation.
The circumstances in which the non-compliance occurred
The Tribunal places significant weight on the information the sponsor provided at the time of application in 2006 and to the MRT in 2008 including that Wazir had attended the applicant’s parents’ funerals. The Tribunal put this information to the applicant pursuant to s.359AA of the Act however she was not forthcoming in giving evidence and sought to rely on her young age and inability to remember her childhood.
The Tribunal notes the non-compliance occurred over an extended period on an ongoing basis, from at least 27 September 2006 to 17 February 2011. This also weighs in favour of cancellation.
The present circumstances of the visa holder
The applicant has resided in Australia since July 2011. She is married to an Australian citizen and has given birth to two children in Australia. Her children were born in 2012 and 2015 and are Australian citizens. The applicant initially told the Tribunal that if she is required to depart Australia her husband and children would also leave with her. When Mr Ali gave his evidence he was adamant he would stay in Australia with his mother, his siblings and his children. He said he would not allow the applicant to take the children if she is required to depart Australia. On hearing his evidence the applicant changed her evidence and said she would not take the children if she is required to depart Australia.
Mr Ali told the Tribunal that if the applicant’s visa remains cancelled his life will be destroyed. He said her life would also be destroyed because she has nowhere to go and if she goes to Pakistan there are security concerns.
There is no dispute that if the applicant’svisaremains cancelled, there will be significant upheaval for this family. The presence of the applicant’s young children in Australia significantly weighs in her favour and weighs against cancellation .
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations.
Any other instances of non-compliance by the visa holder known to the Minister and any breaches of the law since non-compliance:
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
It has been 12 years since it was incorrectly recorded in the applicant’s dependent Subclass 309 visa application that she was a member of the family unit of the sponsor and Wazir on the basis that her parents had died. The non-compliance was continued in 2008 when the sponsor provided incorrect information to the MRT.
The applicant was granted thevisa on 17 February 2011 and more than seven years has now passed.
Any contribution made by the holder to the community
The applicant told the Tribunal she is the primary caregiver of her two children. Her husband is in full-time employment and she is responsible for running the household. The applicant also provides care to her mother-in-law and her disabled brother-in-law. Her mother-in-law suffers from diabetes and her brother-in-law is blind. Documentary evidence indicating that the applicant is in receipt of carer payment and carer allowance was provided.
Other considerations
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.
There are no persons in Australia whosevisas may be cancelled under s.140 of the Act.
Whether there are mandatory legal consequences to a cancellation decision
If the applicant’svisais cancelled and unless she is granted anothervisa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted anothervisa, she may be an unlawful non-citizen and subject to detention and possible removal from Australia and she may be subject to an exclusion period. The delegate noted that a cancellation decision would also enliven s.48 of the Act, limiting the types of visas for which the applicant could apply in the future.
Whether any international obligations would be breached as a result of the cancellation , such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child .
The applicant’s written submission in response to the NOICC stated that she fears persecution as a lone female without any male support in Afghanistan or Pakistan. The submission referred to Article 1 of the Refugees Convention and stated that given the political unrest in Afghanistan her fears of persecution are well founded.
The applicant’s evidence to the Tribunal was that she had not given any thought to where she would go if she is required to leave Australia. When asked whether she would go to Pakistan she said she did not know.
The Tribunal noted that the applicant’s parents and some of her siblings live in Pakistan and so it is unlikely that she would be a lone female if she returns to Pakistan.
The non-refoulement obligations of Australia are not required to be taken into account as a mandatory consideration when determining whether to cancel a visa.[2] The extent to which the Tribunal must go into claims that Australia has protection obligations to the person when considering the discretion to cancel the visa will vary depending upon the circumstances of the applicant.
[2] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015) at [38].
In COT15 v MIBP (No.1) the Full Federal Court upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a protection visa.[3] The Full Court noted that the Act contemplates that those obligations will be considered in the context of a protection visa application.[4]
[3] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015).
[4] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015) at [38].
In MIBP v Le the Full Federal Court, agreeing with COT15 v MIBP (No. 1), held that an assessment of Australia’s non-refoulement obligations is not a mandatory consideration where it is open for the visa holder to apply in Australia for a protection visa, even if the visa holder had previously been recognised as a refugee for the purposes of the Refugees Convention.[5]
[5] MIBP v Le [2016] FCFAC 120 (Allsop CJ, Griffiths and Wigney JJ, 9 September 2016) at [61] and [65], overturning Le v MIBP [2015] FCA 1473 (Logan J, 24 December 2015). This case involved judicial review of a personal Ministerial decision to cancel a K4011 Refugee (Vietnamese) Permit under s.501(2) of the Act.
However, it may be necessary to consider any harm claimed by an applicant which may not engage Australia’s international non-refoulement obligations.[6]
[6] In Goundar v MIBP [2016] FCA 1203 (Robertson J, 12 October 2016).
Having carefully considered Australia’s non-refoulement obligations and noting that the applicant made no claims at hearing, the Tribunal is not satisfied that the applicant would face treatment of a kind that would be contrary to Australia’s non refoulement obligations under the international treaties to which it is a signatory. The Tribunal finds that Australia will not breach its obligations under any international agreements if the visa is cancelled.
The Tribunal had regard to the Department’s Guiding Principles-Treatment of Children policy which directs the decision maker to consider Australia’s obligations under the United Nations Convention on the Rights of the Child (CROC), to take steps to minimise any negative impact on the child and to take into account the different immigration status of the child and his or her parents.
The Tribunal has carefully considered the impact that the cancellation would have on the applicant’s husband and their children, particularly with regard to Australia’s obligations in terms of CROC and the requirement that the Tribunal treat the best interests of the children as a primary consideration.
There can be no dispute that the impact ofcancellationon the applicant’s children should be given significant weight. The evidence was that if the applicant is required to depart Australia the children will remain here with their father. The delegate concluded that the applicant’s children may not face separation from the applicant as the family could voluntarily depart Australia together and due to the young ages of the children they would assimilate into life outside Australia. However the applicant’s husband said his mother and siblings live in Australia and he would not leave Australia if the applicant is required to do so and he will not allow her to take the children.
The Tribunal accepts that separation of children from their parent/s is likely to be detrimental to their wellbeing and the interests of the Australian children may also enliven obligations under the CROC and this weighs againstcancellation.
Overall, the Tribunal finds that the best interests of the children would be best served by maintaining the family unit together and clearly that will only happen if the applicant is permitted to remain in Australia.
Conclusion on the exercise of the discretion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal accepts that the applicant has been living in Australia for many years and is settled in Australia. The Tribunal accepts that there is at least a possibility that if thevisa is cancelled, there may be a period of separation between the applicant and her husband and children. 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. The Tribunal accepts that hardship will be caused to the family by thecancellation.
The Tribunal has taken into account the applicant's current circumstances, the length of time that has elapsed since the non-compliance and the significant impact of cancellation on her family and, in particular her children.
The Tribunal finds that there are significant reasons why thevisashould not be cancelled.
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 not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.
Christine Kannis
MemberATTACHMENT – 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.
105Particulars of incorrect answers to be given
(1)If a non‑citizen becomes aware that:
(a) an answer given or provided in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)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.
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