1508524 (Migration)

[2016] AATA 3047

1508524 (Migration) [2016] AATA 3047 (12 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuri Valerio

CASE NUMBER:  1508524

DIBP REFERENCE(S):  BCC2014/2731213 OSF2010/057247

MEMBER:Wendy Banfield

DATE:12 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 115 (Remaining Relative) visa.

Statement made on 12 January 2016 at 12:09pm

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 115 (Remaining Relative) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the visa applicant had not complied with paragraph 101(b) of the Migration Act. After the applicant had applied for a Class BO visa on 9 October 2010 he was interviewed on 10 January 2013 regarding that application. The applicant stated that he and his girlfriend, Ms Capili were not living together and had never lived together. The delegate found that those statements were incorrect. This was because Ms Capili submitted a partner visa application on 30 July 2014 on the basis of being in a de facto relationship with the applicant and the applicant sponsored Ms Capili on the same grounds. Ms Capili and the applicant claimed in the partner visa application that they had lived together since 15 March 2012. 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 7 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Florence May Valerio and Mr Florencio Valerio, who are the applicant’s sister and father. 

4. The applicant was represented in relation to the review by his registered migration agent.

   Evidence of the visa applicant

5. The visa applicant told the Tribunal that in the Philippines he has a girlfriend and together they have a son. The child is nearly 3 years of age. The Tribunal explained that the issue in the applicant’s case was whether he and his girlfriend lived together prior to him coming to Australia. The applicant said that he and his girlfriend had not lived together. The Tribunal asked the applicant about Ms Capili’s statement for her partner visa application where she claimed that she and the applicant had been living together since the birth of their child. The applicant said that was not the case and the statement had been written by the applicant’s sister Florence. The applicant said his sister was the one with the knowledge regarding de facto relationships and therefore she completed the forms.

6. The Tribunal asked why the applicant had not listed his child as a dependent in his own application form. The applicant said at the time he lodged his remaining relative visa application, it was 2010 and his son was not yet born. His son was born in 2012. The Tribunal asked what his intentions were regarding his girlfriend when he had come to Australia to live. He said his intention was that his girlfriend and son would come to Australia to be with him. The applicant confirmed that Ms Capili made her partner visa application on the basis of a de facto relationship with him. The applicant repeated that his sister researched and did the application for him and Ms Capili. He said his sister misinterpreted the meaning of de facto in relation to the application and he had only signed the application form.

7. The Tribunal suggested to the applicant that since Ms Capili made a partner visa application so soon after he was granted residency, it must have always been his intention to sponsor her as his de facto. He agreed he had wanted his girlfriend and son to come to Australia and live with him but reiterated they had misunderstood the relationship status. The Tribunal asked the applicant if he provided false information in relation to his Subclass 115 (Remaining Relative) visa and why it should not be cancelled. The applicant said that it was a mistake, he was not in a de facto relationship with Ms Capili and his sister had misinterpreted the criteria for a partner visa.

8. The Tribunal asked the applicant to clarify whether he was claiming he had never been in a de facto relationship with Ms Capili but if she had been successful in her partner visa application, they intended to get married. Regarding living arrangements when the applicant was still in the Philippines, he said he and Ms Capili had always lived in separate homes but she would sometimes stay over with him. They did not live together permanently despite having a child because they had not intended to have a baby and live together as they were not married. The applicant said he wanted to get married before living together.

9. The Tribunal asked the applicant why his son’s birth certificate gave the same address for him and for Ms Capili. The applicant said that had been done because he did not want his son to know when he grew up that his parents had lived at different addresses. The applicant’s parents did not want him to live with Ms Capili because his grandmother did not approve and his parents were of the same view.

   Evidence of the witness – Ms Florence Valerio

10. The witness is the sister of the applicant. The Tribunal asked the witness about the circumstances that led to the applicant’s visa being cancelled. The witness said the family’s main goal had been to help the applicant with his visa application. She said the applicant’s situation in the Philippines regarding Ms Capili was as boyfriend and girlfriend who had a child together. The Tribunal explained that Ms Capili had claimed in her partner visa application that she was in a de facto relationship with the applicant since having their child and if this were correct, it would mean the applicant was not eligible for a Subclass 115 (Remaining Relative) visa. The witness said they had only been boyfriend and girlfriend and had each lived with their parents.

11. The witness confirmed that she had assisted the applicant and Ms Capili to make the partner visa application. The witness said the remaining relative visa application had been made in 2010 and the child was not born until 2012. She said that when the applicant was interviewed in 2013, he had told the case officer about the birth of his son. The Tribunal referred the witness to the partner visa application which stated the applicant and Ms Capili had lived together since March 2012 at the applicant’s Cortez Street address. The witness explained the reason that date had been included was so that the applicant and Ms Capili could meet the requirements for a de facto relationship. The witness said she had thought de facto was the same as boyfriend and girlfriend and it appeared to be the closest thing to the relationship her brother was in with his girlfriend.

12. The witness told the Tribunal that she had believed since the applicant was a permanent resident in Australia he was eligible to sponsor Ms Capili as a de facto. She said they had not applied for a prospective marriage visa as they were not then in a position to get married. She had thought de facto was most appropriate but said she now concedes she had made a mistake.

    Evidence of the witness – Mr Florencio Valerio

13. The witness is the applicant’s father. The witness told the Tribunal that the applicant had not lived with his girlfriend, Ms Capili when they were in the Philippines as it was not acceptable due to them not being married. He said this was the case even though they had a child together. The witness said Ms Capili would come to their house when the applicant’s family wanted to see the child. He said the applicant had lived with his parents in the family home until they went to Australia and he continued to reside there by himself after the family left. Ms Capili had continued to live with her parents in another street nearby.

14. The Tribunal asked the witness about the partner visa application in which the applicant and Ms Capili had lived together while in the Philippines. He said the application had been completed by his daughter Florence and she had asked the Department for information but he believes they did not have the full circumstances. The witness said the applicant’s visa should not be cancelled as up to now he has been a single person and he wants to live together with his son as a family.

    Submission by the representative – Mr Felix Carao

15. The applicant’s representative made the following submissions:

    ·     The visa applicant did not migrate to Australia with his family originally not because he was in a de facto relationship with Ms Capili but because he was misguided by his migration agent at the time. The family were told that the applicant could not be included in the family application due to his age.

    ·     On 10 January 2013 when the applicant was interviewed by an immigration officer in Manila, he informed the officer that he had a girlfriend and also had a child with her. In the first instance, he did not mention the child as he thought it would affect his application but in the second instance he clarified the matter. The officer at the time appeared to be satisfied that the applicant and Ms Capili were not living together.

    ·     The applicant and Ms Capili have been in a boyfriend and girlfriend relationship since 2005 but because they had not married, the families did not allow them to live together, even after they had a child of the relationship. They saw each other almost every day and stayed at each other houses but always returned to their own homes.

    ·     When the address was written on the baby’s birth certificate in 2012, it was not a complete address and was done so as to avoid embarrassment to the applicant, his girlfriend and son in later life since the child was born out of wedlock. The birth certificate recorded Ms Capili as a housewife by default simply because she was not working.

    ·     Documents including Ms Capili’s mother’s book, identity records and hospital bills and her health insurance records show her address as her parent’s residence, not the applicant’s home. Ms Capili’s grandmother who owns the residence where she lives has provided a statement declaring that Ms Capili has always lived in the family home. Her driver’s licence also shows her address as her parents’ home, not the applicant’s address.

    ·     The partner visa application was mostly done by the applicant’s sister, Florence Valario who wrote on the partner visa application that the applicant and Ms Capili were living together because she knew they had to satisfy the 12 month de facto rule. She accepts that she influenced the parties and was in error.

    ·     Ms Capili would often visit the applicant’s home in the Philippines after he had left for Australia in order to use the internet connection there to Skype with the applicant. The parties thought this could count as part of a de facto relationship arrangement when the partner visa application was made.

    ·     Regarding the applicant and Ms Capili’s Facebook pages, the applicant’s page only claimed that he and Ms Capili were happy and had a child together. It never stated that they were married or lived together.

    ·     Once it was realised that incorrect information had been provided in the partner visa documentation, attempts were made to rectify it which proves their honesty and misunderstanding.

    ·     The incorrect information provided was not done maliciously; it was the result of incorrect advice from the applicant’s sister. The applicant has not been in a de facto relationship with Ms Capili.

    ·     The applicant has contributed to Australian society by paying taxes and he has abided by the law. The cancellation of his visa has brought his family a great deal of stress and if it is not reinstated, it will continue to cause them distress.

16. 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

17. 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.

18. 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.

19. 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?

20. 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 section 101(b) of the Migration Act in the following respects: the applicant claimed in an interview on 10 January 2013 that he and Ms Capili did not live together and had never lived together under one roof.

21. The Tribunal is satisfied the applicant stated in January 2013 that he and Ms Capili did not live together but in 2014 in his sponsorship of Ms Capili’s partner visa application, he claimed he and Ms Capili lived together between March 2012 and April 2014 and that these statements were not consistent. However, explanations have been provided by the applicant, his witnesses and his representative as to how the inconsistency occurred. Evidence has been presented that the original statement in January 2013 was in fact correct and the inconsistency in 2014 was an unintended error.

22. The claims are that the parties were confused by the meaning of de facto partners, which was exacerbated by the applicant’s sister who believed it was the most appropriate description of the relationship between the applicant and Ms Capili and was responsible for steering them in that direction. While the applicant and Ms Capili were responsible for their own visa applications, it does provide an explanation as to why a de facto relationship was claimed. Clearly the applicant was not eligible to sponsor Ms Capili for a partner visa on the basis of a de facto relationship if they had not been living together for 12 months. It was claimed that as a permanent resident, the applicant believed he could sponsor Ms Capili and that the closeness of their residences, plus time spent staying over with each other and having a child constituted a de facto relationship.

23. In his submission dated 29 July 2015, the applicant’s representative said that when Ms Capili found out she was expecting a baby in 2012, she and the applicant decided they would live together, however, they never actually did because of Ms Capili’s health during pregnancy. It is claimed Ms Capili continued to live with her parents but saw the applicant regularly including staying over with him at his parents’ house.

24. The Tribunal notes that at the applicant’s interview with the Department in Manila in January 2013, the immigration delegate accepted that the applicant had a girlfriend and a baby but was not in a de facto relationship with her. It was pointed out to the Tribunal that if there were doubts at that time, a home visit could have been conducted. At the time, evidence was provided such as documents in relation to the birth of the baby in 2012 that showed Ms Capili’s address as her parent’s residence, not the applicant’s parents. When asked about the same incomplete address appearing on the birth certificate of the baby for both parents, it was claimed this was done so that the birth certificate would not record the parents as living separately at the time.

25. While the Tribunal continues to have some doubts about the true nature of the relationship between the parties in January 2013, on balance, it is plausible that the applicant and sponsor did not live together permanently at the same address since they lived in close proximity anyway. The applicant’s parents and sister and Ms Capili’s grandmother all provided statements confirming the applicant and Ms Capili did not live together. On the evidence, it is clear the applicant and Ms Capili tried to fit their circumstances as a couple to the requirements for a partner visa after the applicant was in Australia but the Tribunal is prepared to accept that it was due to unintentional error rather than deliberate deception. The applicant clearly had no understanding as to the impact it would have on his residency in Australia or that there may have been a more straightforward way for him to reunite with Ms Capili and their child.

26. The Tribunal agrees with the delegate who made the decision to cancel the applicant’s visa that there are two accounts regarding whether the applicant and Ms Capili lived together under the same roof at any time. These are the 2013 statement that the applicant and Ms Capili did not live together and the 2014 statement that they had lived together from March 2012 to April 2014. The Tribunal has had the benefit of hearing from the applicant and witnesses in person as well as receiving a detailed submission from the applicant’s representative. Based on the applicant’s retraction of the 2014 statement and the comprehensive explanations that have been provided from a number of sources as to the reason for the inconsistency, the Tribunal is prepared to accept that the applicant’s claims in 2013 that he and Ms Capili did not live together permanently under one roof was correct.

27. 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. 

28. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 115 (Remaining Relative) visa.

    Wendy Banfield
    Member

    
    

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.

    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.