1515847 (Migration)

[2016] AATA 3361

1515847 (Migration) [2016] AATA 3361 (22 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hofit Alfi

CASE NUMBER:  1515847

DIBP REFERENCE(S):  BCC2014/1340224 osf2009/001188

MEMBER:Margie Bourke

DATE:22 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 22 February 2016 at 5:12pm

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 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that there was non-compliance with s.101(b) of the Act,  and the reasons to cancel the visa outweigh the reasons not to cancel the visa. 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 11 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from a friend of the applicant’s, Anai Lindsay. 

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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.

   Did the notice comply with the requirements in s.107? 

7. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. The Tribunal has considered the submissions made by the applicant’s representative to the Department, claiming the s.107 Notice did not give clear particulars of the possible non-compliance.  The Tribunal has considered that the Department issued a s.107 Notice dated 15 May 2015, issued a second s.107 Notice dated 1 June 2015, which the Department stated disclosed the details of the evidence of the applicant’s possible non-compliance, and then issued a third s.107 Notice dated 21 October 2015. The Tribunal has considered the third s.107 Notice dated 21 October 2015, and is satisfied that it gives clear particulars of the possible non-compliance with s.101(b), which is the statutory declaration made by the applicant dated 20 September 2011 and includes her declarations about her relationship with the sponsor.

8. The applicant advises the Department in writing dated 15 June 2015 that she will be representing herself from this date.

9. The applicant stated in the hearing that the s.107 Notice meets the requirements.  The Tribunal has considered the third s.107 Notice, and is satisfied the Minister’s delegate had reached the relevant state of mind to engage s.107, the Notice included clear particulars of the possible non-compliance, and the other statutory requirements of s.107 were met.  

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

10. 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 dated 21 October 2015 was non-compliance with s.101(b) of the Act in the following respects: The applicant provided in support of her application, a statutory declaration dated 20 September 2011. In this statutory declaration the applicant stated her name and address, and declared she lived together with the sponsor Ruben Maria Kri Criel, that they had a mutual commitment to a shared life as husband and wife or as a de facto partner to the exclusion of all others, and that their relationship was genuine and continuing. The applicant declared that the sponsor and she had been living together since they met five years ago.

11. The s.107 Notice dated 21 October 2015 also particularised and identified non-compliance with s.101(b) in respect of information provided by the applicant’s former sponsor Ruben Maria Kris Criel in information provided in sponsorship of an applicant for another partner visa form 40SP dated 29 June 2013, and in which is also recorded various addresses the sponsor has recorded and advised that he had resided at since January 2010.  

12. The Tribunal has considered the statutory declaration that the applicant provided to the Department dated 20 September 2011.  In this statutory declaration the applicant states that she and the sponsor have always shared everything.  She states that she and the sponsor have been living together since they met five years ago. The applicant provides details in the statutory declaration of the house they reside in with friends, their harmonious lifestyle, their social activities together, the division of household responsibilities and plans to save for the future to purchase a home.  The applicant stated in the hearing that the sponsor had been living and working on Christmas Island, and she had not wanted to live there. The applicant told the Tribunal that she had her employment in Melbourne, and after being financially dependent upon the sponsor in New Zealand in 2008/9, she enjoyed her independence of earning her own money and her own job. The applicant stated she only saw the sponsor once in the period from May 2010 to March 2012, when he visited in September 2011.  The applicant stated to the Tribunal that they were an “unconventional” and an “alternative” couple but that did not mean they were not in a genuine relationship.  The applicant stated that couples could reside separately for work reasons. The Tribunal is satisfied, based on the written and oral evidence before it, that the sponsor lived and worked at Christmas Island from at least as early as May 2010. The Tribunal is satisfied the applicant resided in Melbourne from May 2010. The Tribunal is satisfied, based on the written and oral evidence before it that the applicant and sponsor did not meet from May 2010 until the sponsor visited the applicant in Melbourne in September 2011.  The Tribunal discussed with the applicant why the unconventionality or the alternativeness of the relationship, or the fact the sponsor lived in another state and she had not seen him for a period of 15 months, were not disclosed in her statutory declaration of 20 September 2011.The applicant stated, as she had told the Department, it was a mistake not to inform the Department.

13. The applicant stated the sponsor had recorded incorrect dates in his documents and this was not fair in the findings against her. The applicant stated she knew the sponsor had gone to Japan for a snowboarding holiday, but did not know he had started a new relationship.  The applicant stated she was not aware of the new relationship until many months later.

14. The Tribunal finds that the applicant’s statutory declaration that states the applicant and sponsor have been living together since we met, was a failure to comply with the requirements ofs.101. The requirements are as follows: s.101 A non-citizen must fill in or complete his or her application form in such a way that (b) no incorrect answers are given or provided.  By operation of s.99, there must also be no incorrect answers given in any information by the non-citizen given in relation to the application for the visa.  The applicant has not met this requirement, and her statutory declaration dated 20 September 2011 did not provide the correct information.  The statement that the applicant and sponsor had been living together since they met five years ago was not a correct answer.   The correct answer was that the parties were living apart.  For the purposes of s.101(b) it is immaterial whether the parties were living apart for the reasons of work, and their relationship was “unconventional” as the applicant described it.  The relevant information is that the correct information at 20 September 2011 is that they did not meet in person for a period of 15 months.  

15. 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?

16. 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).

17. 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 of the Regulations. 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.

18. R.2.41(a): The correct information is essentially in two categories. The applicant states she did not know of the sponsor’s new relationship which commenced in February or March 2012, and she was still committed to the relationship with the sponsor. Secondly, the applicant provided a statutory declaration dated 20 September 2011 declaring she and the sponsor had always resided together, they shared everything including expenses, and lived a harmonious life together saving for a home in the future.   The Tribunal accepts the evidence of the applicant at the hearing that the sponsor had resided at Christmas Island since May 2010 and she did not wish to join him. The sponsor visited her in September 2011, on his way to a new job in Darwin. The applicant told the Tribunal they were “inseparable” for four years, and then lived an “alternative, unconventional” lifestyle”.  The point here is that the applicant incorrectly advised the Department that of the circumstances of the relationship. The applicant’s statutory declaration of 20 September 2011 did not advise of the alternative or unconventional nature of the relationship; it did not advise that the sponsor resided on Christmas Island and the applicant had not seen him for the previous 15 months. The applicant’s statutory declaration dated 20 September 2011 stated the parties resided together, and had done for five years, and recorded that they lived a conventional type of relationship, working, saving for a house, spending time together, enjoying parties and the sponsor cooking for them both.  The correct information, if provided in September 2011, that they had lived separately and not met for 15 months, would most likely have resulted in the applicant not have been granted the visa.

19. The Tribunal does not have direct oral evidence from the sponsor.  The Tribunal has considered the sponsor has provided information to the Department and to the Tribunal in relation to when the relationship with the applicant ended, and when the applicant was aware of the cessation of the relationship. The Tribunal received a letter from the sponsor dated 3 February 2016, in which he declares that he incorrectly stated in the sponsorship form for his current partner the relationship with the applicant ended on 10 October 2011.  The sponsor wrote the relationship never ended on a specific date.  The sponsor states that in his statutory declaration dated 9 April 2014, he declared the applicant left him after her permanent visa was granted. Given the inconsistency of the evidence form the sponsor, the Tribunal finds it unreliable.  The Tribunal is not assisted by information from the sponsor as to what constitutes “correct information”.

20. R.2.41(b): There is no evidence before the Tribunal as to the content of any genuine document.

21. R.2.41(c): The applicant was granted a visa on the information available to the Department that she was in a genuine relationship with the sponsor.  This information included the statutory declaration of the applicant dated 20 September 2011 in which the applicant declared the parties had lived together for five years, shared everything, and described their household responsibilities and their lifestyle. The Tribunal is satisfied that if the applicant had provided the correct information that she had not seen the sponsor for fifteen months and he had visited her in September after the fifteen months they had lived apart this would have had the likely effect that the applicant would not have been granted the visa.  The Tribunal is satisfied that the incorrect information was partly the reason for the grant of the permanent visa in March 2012.

22. R.2.41(d): the applicant completed the statutory declaration in support of her application for a permanent resident partner visa at a time when the sponsor had come to visit her in Melbourne in September 2011.  The Tribunal is satisfied that the sponsor and applicant had not met personally for 15 months, and the sponsor was on route to a job in Darwin. The Tribunal is satisfied that the applicant did not consider that she and the sponsor were going to continue to live together at the time of the statutory declaration. The applicant was living at a house in Elsternwick with friends. The Tribunal accepts the applicant’s evidence that she and the sponsor continued to have a joint bank account, but the applicant was the person who used it. The Tribunal is satisfied the applicant did not consider that she and the sponsor were going to continue to share everything at the time she made the statutory declaration. The Tribunal is satisfied that the circumstances of the non-compliance with s.101(b) are that the applicant provided incorrect answers and information to the Department in relation to the circumstances of the relationship. The Tribunal is satisfied that the applicant provided the Department with a statutory declaration dated 20 September 2011 that gave a detailed account of the relationship that was not a correct account of the relationship from May 2010 onwards. 

23. R.2.41(e): The applicant is currently living in Melbourne, and states she has obtained a Diploma in make up artistry, and has current employment as a nanny. The applicant provided the Tribunal with many references and a signed petition, which attest to her character.  The Tribunal has considered the petition, which includes 1,141 names, many of which are a name and email address, but many also add a comment.  The Tribunal does not give the petition much weight as the signatories are not identifiable, some names are repeated, some names are just a christian name, some comments do not disclose whether the commentator knows the applicant. The Tribunal gives the references much more weight, as the references establish the applicant as a person who is appreciated within the community. The Tribunal has noted a reference that recorded the applicant’s ability to teach circus to children with autism, and hoping the applicant would undertake this role.  The Tribunal has considered the many references the applicant provided from her landlord, friends and employers. The applicant stated to the Tribunal she had been stressed waiting for the outcome of the review, and found it difficult to plan for the future without knowing the outcome.  The applicant stated her parents, two sisters and her seven nephews and nieces reside in Israel.  She stated she did not wish to return to Israel to live as she has not lived there for many years, although she had visited her family for three months in 2012. The applicant stated she wished to live in Australia as it is peaceful compared to the volatility of Israel.  She stated she did not wish her potential children in the future to have to do military service.  The Tribunal has considered that the applicant’s family reside in Israel, and the applicant has visited them recently for three months. The Tribunal does not put much weight on the applicant’s reluctance to return to Israel in considering the r.2.41 factors.

24. R.2.41(f): The Tribunal is satisfied that the relationship of applicant and sponsor has ended.  The Tribunal is satisfied the sponsor visited the applicant in September 2011.  The Tribunal is satisfied the applicant is separated from the sponsor.  The Tribunal is satisfied the applicant has continued to reside and work in Melbourne.  The Tribunal is satisfied the applicant has continued to meet her other obligations under the Act. 

25. R.2.41(g): There is no evidence before the Tribunal of any other instance of non-compliance.

26. R.2.41(h): The Tribunal is satisfied that four years and five months have elapsed since the non-compliance contained in the statutory declaration dated 20 September 2011, and nearly four years have elapsed since the applicant was granted the permanent visa in March 2012.

27. R.2.41(j):  There is no evidence before the Tribunal of any evidence of any breaches of the law by the applicant since the non-compliance.

28. R.2.41(k): The Tribunal has considered the references from friends, colleagues and representatives of organisations. The Tribunal is satisfied the applicant has contributed to the Australian community as a volunteer on many occasions, and has assisted people within the community.   The Tribunal is satisfied that the applicant has contributed as a volunteer at an eco-retreat centre, at music festivals, and for workshops run by Secretariat of National Aboriginal and Islander Child Care.  The references do not articulate the length of time the applicant volunteered but accepts the worthiness of the volunteer work the applicant has contributed.

29. Whilst 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 the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

30. The Tribunal has considered all the factors above. The Tribunal considers that the information provided by the applicant in her statutory declaration of September 2011 was a substantial reason for the grant of the permanent visa in March 2012. The Tribunal gives the most weight to the fact the applicant gave clearly incorrect information to the Department in her statutory declaration. The Tribunal considers this incorrect information provided by the applicant outweighs collectively the other considerations of her admiration within the community, the length of time since the visa was granted, and the volunteer work and other employment the applicant has participated in since that time. The Tribunal gives little weight to the applicant’s claimed concern about returning to Israel as the Tribunal is satisfied the applicant’s family reside there, and the applicant has returned to Israel to spend three months with her family in 2011.

1. 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 be cancelled.

   DECISION

2. The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

   Margie Bourke
   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.

   104Changes in circumstances to be notified

   (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

   (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

   (4)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.