Kasiaheng (Migration) [2021] AATA 4993 (3 September 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Ms Florenscia Julia Kasiaheng
CASE NUMBER:	2013447
DIBP REFERENCE(S):	BCC2018/4693045 
MEMBER:	Senior Member Dr N Manetta
DATE:	3 September 2021
PLACE OF DECISION:	Adelaide
DECISION:	The Tribunal sets aside the decision under review and substitutes a new decision that the applicant’s visa not be cancelled under s 109 of the Migration Act 1958.   

Statement made on 03 September 2021 at 3:49pm

CATCHWORDS 
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in orphan relative visa application – parents’ status – whether Form 47CH filled in ‘on applicant’s behalf’ by aunt – 14-year-old minor at the time of application – completely unaware of the forms being lodged by adults – consideration of discretion – settled family life in Australia – Australian citizen husband – best interest of the children – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 101, 107, 109

 statement of decision and reasons
application for review
1.  	This is an application by Ms Florenscia Julia Kasiaheng seeking a review of a decision made by a delegate of the Minister for Immigration on 27 August 2020 to cancel her Subclass 155 Return (Residence) (Class BB) visa under s 109 of the Migration Act 1958 (the Act).
2.  	The delegate cancelled the visa because he or she decided that a deliberately false statement was made “on Ms Kasiaheng’s behalf” when she entered the country in 2004 as a 14-year old minor on an Orphan Relative Visa.  It was further decided that the making of this statement enlivened the jurisdiction to cancel Ms Kasiaheng’s present visa, a resident return visa, under s.109 of the Act.  For whatever reason, no response was given by or on behalf of Ms Kasiaheng to the delegate’s invitation to explain why the visa should not be cancelled.  Having received no response, the delegate proceeded to cancel the visa in his or her discretion. 
ISSUES
3.  	The two issues arising in the present case are, first, whether the discretion under s 109 was enlivened (that is, whether a jurisdiction to cancel Ms Kasiaheng’s visa arose in the circumstances of this case); and, secondly, if so, whether the discretion to cancel Ms Kasiaheng’s visa should be exercised.
4.  	The first question essentially involves a question of law.  The second question, if it arises, calls for a consideration of the merits and demerits of Ms Kasiaheng’s case.  In respect of the second question, I conduct what is known as a de novo hearing. This implies that I must reach the correct or preferable decision on the evidence before me irrespective of the presence, or absence, of any discernible error in the reasoning of the delegate.
5.  	Ms Kasiaheng appeared before the Tribunal on 29 April 2021 to give evidence and make her submissions. She was represented in relation to the review by her registered migration agent, Ms Dizon.  The Tribunal also received oral evidence from Ms Kasiaheng’s husband, Mr Lay, and from Mr Lay’s work supervisor, Mr Fulton.
STATEMENT OF CONCLUSION    
6.  	I have decided that the decision to cancel Ms Kasiaheng’s visa should be set aside.  I set out below the background facts and the reasons for my decision.
BACKGROUND FACTS AND REASONS
7.  	Ms Kasiaheng gave evidence before me.  In my opinion, she was honest and straightforward in the giving of her evidence. Equally, I have no difficulty accepting the evidence of Mr Lay and Mr Fulton.
8.  	Ms Kasiaheng was born in Indonesia on 12 July 1990. She lived with her parents and grandparents from birth. She has two brothers. Ms Kasiaheng completed her early schooling in Indonesia.  Her grandmother, to whom she had become close, ended up emigrating to Australia and wanted her granddaughter to come to Australia and enjoy better opportunities.  She, and Ms Kasiaheng’s aunt, who was also living in Australia, decided to apply for Ms Kasiaheng to enter Australia on a false pretext. The pretext was that Ms Kasiaheng was an orphan with no relatives and that she should be accepted into Australia on an “orphan relative visa” to be cared for by her grandmother and aunt. A false application− and a deliberately false one on the evidence before me− was prepared and submitted.  
9.  	The two documents I have in front of me are as follows. First, there is a Form 40CH entitled ‘Sponsorship for a child to migrate to Australia’. This form was signed on 25 July 2004 by the sponsor, Ms Henshall, Ms Kasiaheng’s aunt.
10.  	The second form in question is a Form 47CH, entitled ‘Application for migration to Australia by a Child’ and it is dated 25 July 2004. It too was signed by Ms Henshall.  The first document contained the out-and-out lie that Ms Kasiaheng was an orphan when it was known to Ms Henshall that Ms Kasiaheng’s parents were still alive.  Similarly, the second document contained the same lie.
11.  	Ms Kasiaheng entered Australia in 2004 and lived with her grandmother and aunt as I understand her evidence. She commenced her life here and ended up completing high school to Year 11.  She then began work. Ms Kasiaheng did return to Indonesia to visit family, including her parents, on holiday, but otherwise her life continued here (almost as if she were, indeed, an orphan). Importantly, I note that Ms Kasiaheng, who was a teenager at the time of her entry into Australia, did not know about the lie that had been told in relation to her parents. When she arrived here, she simply knew that she was coming to Australia for a better life and better educational opportunities. She did not participate in the plan that was hatched by her aunt and grandmother to represent falsely to the Australian authorities that her parents were either dead or missing.  She only found out about the lie when the authorities drew it to her attention in connection with the cancellation of her visa.  
12.  	The delegate maintained that Ms Kasiaheng is deemed by section 98 of the Act to have filled in Form 47CH for the “orphan relative visa”. Section 98 provides as follows:
“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.”
13.  	I note s 101 obliges a non-citizen to fill in or complete his application form accurately so that no incorrect answers are given or provided.  A breach of s 101 leads to a notice being issued under s 107 and, eventually, possible cancellation under s 109.
14.  	Having concluded that Ms Kasiaheng is taken in law to have filled in 47CH because it was filled in by Ms Henshall “on her behalf”, the delegate found, correctly, that false information had been given in relation to Ms Kasiaheng’s parents’ status. He then applied section 107A of the Act.  This allowed the delegate to treat Ms Kasiaheng’s deemed false answers in connection with her previous visa to be relevant answers for the purposes of considering cancellation of her present visa. I accept that section 107A operates in this way.
15.  	The critical question, therefore, is whether section 101 applied to Ms Kasiaheng, and in particular whether in the circumstances of this case it can be said that section 98 applied to deem her to have made the false statement about her parents that exists in Form 47CH.
16.  	The question boils down to whether Form 47CH was filled in “on Ms Kasiaheng’s behalf” by her aunt. The expression “on a person’s behalf” is not a legal one with a fixed meaning.  In some contexts, it will refer strictly to a recognised relationship of principal and agent; i.e., where a person has a duly appointed agent to act on his or her behalf. In other contexts, it may extend to include a situation where a person lacks capacity or understanding to appoint an agent and another person must of necessity act to assist that person if that person is to receive a particular benefit.
17.  	Ms Kasiaheng, being a child and being completely unaware of the circumstances, did not, self-evidently, cause the application form to be filled in for the purposes of section 98 nor did she appoint Ms Henshall her agent. In one sense, the application form was filled in “on her behalf” because a perceived benefit to her was being sought.  But it is only in that limited sense that the application form was filled in “on her behalf”.  
18.  	I do not believe that s 101, when read with section 98, was intended to apply to children who are completely unaware of the forms being lodged by adults in connection with their entry to Australia.  They are not deemed to have made the false statements adults make on government forms.   
19.  	If that conclusion is correct, then s 98 did not apply, and Ms Kasiaheng, as opposed to Ms Henshall, did not provide incorrect information to the Australian authorities on the Form 47CH to which I have referred.
20.  	It would also follow in law that the jurisdiction to cancel her present visa did not arise by virtue of Ms Henshall’s false answers on the Form 47CH.
21.  	If I am incorrect in this conclusion, and a jurisdiction to cancel the visa did arise, the second question I have identified arises.  I shall express my views on this second question.  
22.  	This is, in my opinion, a very plain case where the discretion to cancel should not be exercised.  I wish expressly to note that the delegate, for whatever reason, did not have before him or her Ms Kasiaheng’s submissions in relation to the exercise of the discretion.  I do not criticise the decision taken he or she took.
23.  	In deciding whether to exercise the discretion, I must have regard to certain prescribed matters: s 109(1)(c). I shall not set these matters out, but I have had regard to them. 
24.  	I accept that Ms Kasiaheng would not have entered Australia but for the false answer that was given on Form 47CH.  I note, however, that Ms Kasiaheng has spent all her life in Australia from 2004 onwards, apart from occasional trips to Indonesia on holiday.  She was not personally culpable in respect of the lie included in Form 47CH.  Seventeen years have elapsed and Ms Kasiaheng is now happily married with a child and is expecting a second child.  She is gainfully employed and making her contribution to Australian society. She has no criminal background.
25.  	Her husband, Ms Lay, works in Darwin with the Northern Territory Government as a biosecurity officer in connection with the National Program for Citrus Canker.  Mr Lay’s supervisor, Mr Fulton, gave evidence about the valuable work Mr Lay does and his future employment prospects, which are positive.  Mr Lay and Ms Kasiaheng have a settled family life there.    
26.  	Mr Lay gave evidence of the circumstances of Ms Kasiaheng’s family in Indonesia. It is clear that Ms Kasiaheng’s family live in straitened circumstances in Indonesia with a much lower standard of living. Indeed Mr Lay and Ms Kasiaheng send approximately $5000 - $6000 a year to their family in Indonesia to assist them. They depend on Mr Lay and Ms Kasiaheng’s earnings.
27.  	In my opinion, the consequence of cancelling Ms Kasiaheng’s visa would be to fracture Mr Lay’s and Ms Kasiaheng’s settled family life.  It is unreasonable to expect Mr Lay, as an Australian citizen gainfully employed in Darwin, to relocate to Indonesia with a young family when he has no certain prospects of supporting his family there. Mr Lay is not of Indonesian background and does not speak the language. 
28.  	The interests of the two children (that is, of their young child and soon-to-be-born baby) are important, and, I believe their interests (in terms of an appropriately secure and financially stable environment, with good educational prospects) are better served by the family remaining in Darwin.  
29.  	In all the circumstances, this is, in my opinion, self-evidently a case where the discretion to cancel should not be exercised.  
FORMAL Decision 
30.  	My formal decision will be to set aside the decision under review and to substitute a decision that Ms Kasiaheng’s visa not be cancelled.

Dr N Manetta
Senior Member