1711207 (Migration)

[2020] AATA 1951

1711207 (Migration) [2020] AATA 1951 (4 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711207

MEMBER:Justin Owen

DATE:4 March 2020

PLACE OF DECISION:  Sydney

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 04 March 2020 at 2:50pm

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – visa cancelled as a result of cancellation of father’s visa – incorrect information in father’s visa application – cancellation of father’s visa set aside on review – cancellation of applicant’s visa taken never to have occurred – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 140(2)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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. On 8 January 2014 the applicant was granted a Subclass 100 (Spouse) visa based on a sponsorship lodged by [Mr A]. The applicant is the son of [Mr A], an Australian permanent resident. The applicant was granted a visa only because his father [Mr A] was granted a visa. [Mr A]’s visa was cancelled under s.109 using s.101(b) of the Act on 11 March 2017. As [Mr A]’s visa was cancelled on 11 May 2017, the delegate was satisfied there was a ground to cancel the applicant’s visa under ss140(2) of the Migration Act.  The applicant’s visa was cancelled on 11 May 2017.  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 was represented in relation to the review by his registered migration agent.

4. 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

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.

7. 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.

8. The delegate identified and particularised in the s.107 notice non-compliance by the applicant’s sponsor and father [Mr A] with s.101(b) in the following respects:

   At question 43, in response to which the visa holder stated that the authorities would put him      in jail or possibly kill him. This is incorrect as the visa holder has since voluntarily returned to      Uzbekistan, made himself known to authorities and has not experienced any significant       issue or was harmed as he claimed.

   At question 44, in response to which the visa holder stated that the security service officers        would harm him. The visa holder has since returned to Uzbekistan has not faced apparent    harm from the authorities.

   At question 45, in response to which the visa holder stated that people did not understand          his religion.  At question 46, in response to which the visa holder stated that the authorities    would not protect him, rather they would cause him harm due to the profile that he claimed to          have held with the authorities. The visa holder's actions in returning to Uzbekistan and       making himself known to authorities without issue since the grant of his visa indicate that he is not of adverse interest to the state. The reason for this appears to be that he did not hold          the claimed adverse profile, which suggests that he is not an apostate.

   The visa holder has stated that he feared the authorities of Uzbekistan and that he could not      return there, however, he has since voluntarily returned on two occasions, engaged with his claimed persecutors and obtained a new passport. As this information was material to the     determination that the visa holder was owed protection, it appears that the visa holder does    not hold the adverse profile as he has claimed and that he may not have engaged Australia's protection obligations.

   I therefore consider that the visa holder has not complied with section 101(b) of the Act    because he has provided incorrect answers in his application for a class XA subclass 866           Protection Visa. The visa is therefore liable for cancellation.

9. The sponsor [Mr A]’s visa was subsequently cancelled by the delegate on 11 May 2017. The visa of the applicant in this review: the son of [Mr A] - as well as the visas of his mother and two siblings were all consequently cancelled under s140(2) as a result of the cancellation of [Mr A]’s visa on 11 May 2017.

10. The sponsor [Mr A] applied for a review of the decision to cancel his visa with the Tribunal.  The issue before the Tribunal was whether there was non-compliance by [Mr A] 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. 

11. S.114 (1) of the Migration Act states if the Federal Court, the Federal Circuit Court or the Administrative Appeals Tribunal sets aside a decision under section 109 to cancel a person's visa, the visa is taken never to have been cancelled. 

12. On 19 December 2019 the Tribunal set the delegate’s decision made under section 109 aside and substituted a decision not to cancel the sponsor [Mr A]’s Subclass 866 (Protection) visa.  As the Tribunal on 19 December 2019 found that there was no non-compliance by the sponsor [Mr A] in the way described in the s.107 notice, it follows that the discretionary power to cancel his visa does not arise.

13. The sponsor [Mr A]’s visa was therefore never cancelled under s.109. Any consequential cancellation of a visa under s140(2) subsequently would be taken never to have occurred. It follows that the discretionary power to cancel [the applicant]’s visa does not arise. The ground for the cancellation of the applicant’s visa does not exist. Therefore the decision to cancel the applicant’s visa under s.140(2) should be set aside by the Tribunal on the basis that the sponsor’s visa was not cancelled.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

    Justin Owen
    Senior Member

    
    

    ATTACHMENT – 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.

    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.