1609228 (Migration) - [2016] AATA 4645

1609228 (Migration) [2016] AATA 4645 (8 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Sheryl Navarro Khoo
CASE NUMBER:  1609228
DIBP REFERENCE(S):  BCC2015/981004
MEMBER:Carolyn Wilson
DATE:8 November 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
Statement made on 08 November 2016 at 2:23pm

STATEMENT 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 187 - Regional Sponsored Migration Scheme 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 information in her application for the Subclass 187 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.
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, 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 s.101(b) in the following respects:
‘On 27 August 2013 an application was lodged for a [Subclass 187] visa by your father…the primary applicant. You were included in the application on the basis that you were a member of the family unit of the primary applicant as defined in Regulation 1.12…
‘On page 5 of the application the following information was provided in association with yourself:
‘Relationship status: Never Married…
‘Based on this information and meeting all other criteria you were granted your RSMS visa on 20 November 2013 as a member of the family unit of [your father]…
‘On 3 June 2014 an application for a class UK subclass 820 Provisional Partner visa was lodged for Mr Ke Wei Khoo which was sponsored by you…
‘In response to Question 23 of the application “Have you met the visa applicant in person?” you stated “Yes” and that you first met on 28 May 2013.
‘In response to Question 24 of the application “When did you and the visa applicant commit to a shared life together to the exclusion of all others?” you answered 2 July 2013.
‘As part of your application you provided a statutory declaration dated 28 May 2014. On this form you declared (in part)….”Khoo Ke Wei and I entered into a de facto relationship on the 2^nd July 2013 residing together at Cataby Roadhouse…
‘Based on this information it appears that you were in a de facto relationship with Mr Ke Wei Khoo at the time that you lodged and were granted your RSMS visa…This leads me to believe you were not a member of the family unit of the primary applicant…
‘I consider that you have provided incorrect information in your application…namely that you did not declare your de facto relationship with Mr Ke Wei Khoo.
‘I therefore find that you have not complied with section 101(b) of the Migration Act.’
The delegate took the statutory declaration dated 28 May 2014 on face value and concluded that because the applicant had declared she was in a de facto relationship as of 2 July 2013 then they were in fact in a de facto relationship. Based on this finding the delegate concluded there was non-compliance with s.101(b) and that the reasons to cancel the visa outweighed the reasons to not cancel.
The applicant and Mr Khoo deny that they were in a de facto relationship in 2013. They state the migration agent prepared the statutory declaration signed by the applicant and that the applicant did not understand fully what is meant by the term ‘de facto’. She now concedes the information provided with the Partner visa was factually incorrect.
The Tribunal has considered the evidence provided by the applicant in a statutory declaration dated 21 September 2016, setting out the history and nature of her relationship with Mr Khoo. The applicant says she met Mr Khoo in May 2013 when she started working part-time at the Cataby Roadhouse in rural WA. They lived in shared accommodation at the Roadhouse, which was provided to employees given the remoteness of the workplace. However the applicant stayed at the roadhouse only when she had shifts, and returned home to her parents on a weekly basis for around 3 days. She started dating Mr Khoo in July 2013 and that is when they date their romantic relationship from. Although they both lived on site at the roadhouse, they had separate units and she shared with another female. In September and October 2013 they each met each other’s parents. They introduced each other as friends or boyfriend and girlfriend, not de facto partner. In November 2013 the applicant opened her first bank account in Australia. Mr Khoo was with her at the time, and they decided to make it a joint account, although they did not commence using this account until sometime later. For Christmas 2013 Mr Khoo stayed with the applicant at her parents’ house, although he had to share a bedroom with the applicant’s brother, not with the applicant. The applicant says that it was around Christmas time that the relationship became a serious one. From that time Mr Khoo was able to stay at her parents’ house when he was in Perth, but was never allowed to share a bedroom with the applicant. The applicant stopped working at the Cataby Roadhouse in February 2014 and lived full-time with her family. In March 2014 the applicant’s parents met Mr Khoo’s mother for the first time. That month Mr Khoo proposed marriage and the couple married in May 2014. Mr Khoo stopped working in Cataby in June 2014 and moved into the applicant’s family home, until the couple rented their own place in 2016.
The applicant provided statutory declarations from Mr Khoo, her parents, siblings, and friends who worked and lived with them at Cataby Roadhouse. These declarations support the history of the relationship as set out in the applicant’s statutory declaration. They support the claim that until the couple became engaged and then married, they were viewed by their family and friends as merely girlfriend and boyfriend. The co-workers declare that although they all lived at the Cataby Roadhouse, it wasn’t one share house but a number of smaller units. Photographic evidence was provided of this. They all declare the applicant shared with another female co-worker, and Mr Khoo had his own unit.
Were the parties in a de facto relationship at time of application and time of decision?
A ‘de facto relationship’ is defined in s.5CB of the Migration Act. The requirements of de facto relationships defined by s.5CB(2) are:
·the parties are not in a married relationship with each other; but
·they have a mutual commitment to a shared life to the exclusion of all others;
·the relationship is genuine and continuing;
·they live together or, do not live separately and apart on a permanent basis; and
·they are not related by family.
When determining whether the requirements in s.5CB(2) are satisfied, the Tribunal has considered all of the circumstances of the relationship, including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.
The Tribunal found the evidence provided by the applicant and her family and friends to be comprehensive, consistent and credible. They all declare that in 2013 the couple were socially recognised as boyfriend and girlfriend, not de facto, and the Tribunal accepts this. In relation to the nature of the household, the Tribunal accepts that during the period from visa application lodgement (August 2013) to visa grant (November 2013), the applicant lived in share housing provided by her employer for about 4 nights a week. Mr Khoo also lived in that share housing, but in a separate unit. The Tribunal finds such an arrangement is inconsistent with the type of household a de facto couple would establish, given they did not share household duties, expenses, or even reside in the same unit, and that for nearly half the week the applicant lived elsewhere (with her parents). Apart from opening a bank account in November 2013, there is no evidence the couple shared expenses, assets and liabilities such as would be normal for a de facto couple. The Tribunal gives weight to the short duration of the relationship at time of application and visa grant, and accepts that during that period the couple were only beginning their relationship and had not formed an intention to commit to a de facto relationship. The Tribunal accepts their evidence that the relationship became more serious around Christmas 2013, and that the commitment to a shared life together to the exclusion of all others was made either around then or when they became engaged in March 2014. However, on the evidence before it the Tribunal could not be satisfied they were ever in a de facto relationship.
The Tribunal finds the applicant and Mr Khoo were not in a de facto relationship at the time the applicant applied for the Subclass 187 visa, nor at the time the visa was granted. It follows therefore the Tribunal is not satisfied there was non-compliance by the applicant in the way described in the s.107 notice. The Tribunal finds the applicant’s description of her relationship status as ‘never married’ in the application form was the correct information. The Tribunal finds that at no time between the application lodgement and visa grant did that relationship status change.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
Carolyn Wilson
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.