1712464 (Migration) - [2018] AATA 2910

1712464 (Migration) [2018] AATA 2910 (26 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1712464
MEMBER:Robert Wilson
DATE:26 June 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.
Statement made on 26 June 2018 at 1:35pm

CATCHWORDS
Migration – Cancellation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse ) – Federal Magistrates Court remittal – Non-compliance – Changes in circumstances to be notified – Genuine spousal relationship – Whether decision to grant visa based on incorrect information – Date that relationship with visa sponsor ceased – Contradictory evidence from applicant and witness – Witness credibility – Cancellation of a visa held by another person due to being a member of the same family unit – Best interests of children – International obligations – Stigma against divorced women – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5F, 78, 99, 100, 101, 102, 103, 104, 105, 107, 109, 116, 131, 133F, 137L, 137N, 140, 189, 198, 417
Migration Regulations 1994 (Cth), rr 1.15A, 2.41
CASES
Cao v Minister for Immigration [2007] FMCA 225
Jasbeer Singh v Minister of Immigration and Ethnic Affairs [1994] FCA 1534 at [48]
MIAC v Khadgi (2010) 190 FCR 248
QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136
Tarasovski & ors v MILGEA [1993] FCA 515
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

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).
The delegate cancelled the visa on the basis that the visa holder had not complied with ss.104(1) and (2) of the Act because she failed to inform the Department of Immigration (the Department) of her change in circumstances prior to her second-stage permanent Subclass 100 (Spouse) visa grant. The visa holder’s (applicant’s) ended relationship with her former husband [Mr B], or at least the fact she was not in a genuine and continuing relationship and a mutual commitment to a shared life as a married couple to the exclusion of all others with [Mr B], were material at the time in deciding the grant of her visa. The delegate considered that had the Departmental officer known the circumstances at the time of deciding her visa application, the applicant would not have been granted a Subclass 100 (Spouse) visa on 1 September 2014. 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 matter is before the current second Tribunal because on 6 June 2017 the Federal Magistrates Court ordered that the matter be reconsidered.
The applicant, [Ms A], appeared before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1712464 (Migration)

Details

AGLC: 1712464 (Migration) [2018] AATA 2910
Case: [2018] AATA 2910
Decision Date: 26 June 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed the decision to cancel the visa of Ms. A, the applicant. The dispute concerned the applicant's Subclass 100 (Spouse) visa, which had been granted based on her relationship with her sponsor, Mr. B. The Tribunal was required to consider whether the applicant had provided incorrect information in her visa application and whether her relationship with Mr. B had ceased before the visa was granted, as well as the credibility of evidence provided by a witness, Mr. C.

The primary legal issues before the Tribunal were whether the applicant had failed to notify the Department of changes in her circumstances, specifically the cessation of her genuine spousal relationship with Mr. B, and whether the decision to grant her visa was based on incorrect information. The Tribunal also considered the conflicting evidence regarding the timeline of the applicant's relationship with Mr. B and Mr. C, and the credibility of Mr. C's statements. Furthermore, the Tribunal had to assess the impact of the cancellation on the best interests of children and any international obligations, although these aspects were not elaborated upon in the provided text.

The Tribunal reasoned that the applicant's statutory declaration, made on 23 April 2014, constituted an answer to a question on her visa application, pursuant to section 99 of the Migration Act 1958 (Cth). This declaration stated that she and Mr. B could not live apart and loved each other. However, this was contradicted by Mr. B's subsequent statement in his divorce application, filed a week after the declaration, that the reason for divorce was the applicant's non-cohabitation. Additionally, Mr. C provided evidence suggesting he had been in a relationship with the applicant since February-March 2014, which predated the applicant's declaration of a genuine and continuing relationship with Mr. B. Despite submissions that the applicant's declaration was unsworn, the Tribunal found it to be information provided for the purposes of section 99. The Tribunal ultimately affirmed the cancellation decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCENotification of Intention to Consider Cancellation On 23 December 2015, the Notice of Intention to Consider Cancellation (NOICC) was sent to [Ms A]. The NOICC provided information including, but not limited to, the following. In the visa application form the applicant provided answers to these relevant questions, providing information about her spousal relationship with the sponsor. On the Form 47SP - Application for migration to Australia by a partner, signed by the applicant on 25 June 2012, the applicant provided the following information. At question 66, when asked when and where she and her fiancé or partner first met, the applicant stated that the date was 4 May 2012 and the place was her parents’ house. At question 69, when asked when and where the applicant began a married or de facto relationship with her fiancé or partner, the applicant stated that the date was 12 May 2012 and the place was her parents’ house. On the Form 40SP - Sponsorship for a partner to migrate to Australia, signed by the sponsor on 25 June 2012, the sponsor provided the following information. At question 10, when asked how he and his fiancé or partner met, the sponsor stated that he was ‘introduced by friend.’ At question 31, which asked for the address for correspondence, the sponsor stated: [Address 1]. Further information in the NOICC is as follows. In support of the applicant’s partner visa application the parties provided a Nikah Nama stating that the parties married on 12 May 2012. On 17 December 2012, [Ms A] was granted a Subclass 309 (Spouse) visa and on 31 December 2012, she entered Australia as the holder of that visa. On 30 April 2014, [Ms A] provided information in support of the Subclass 100 (Spouse) visa application including individual statutory declarations provided from [Ms A] and [Mr B]. On 1 September 2014, [Ms A] was granted the Subclass 100 (Spouse) visa by the Department. On 12 March 2015, [Mr C] stated that he and [Ms A] married on 5 February 2015. On 12 November 2015, [Mr C] provided the Department with a copy of the divorce document for [Ms A] and [Mr B], issued by Bangladeshi authorities on 10 September 2014. In the document, [Mr B] states as his reason for divorcing the applicant as being ‘reason of not agree of having co-habitation with me as wife’. The Department’s system also showed that [Mr B] departed Australia on 7 May 2014 (a week after the applicant lodged the application for the Subclass 100 visa on 30 April 2014) and did not return to Australia until 4 November 2014. The Subclass 100 (Spouse) visa was granted on 1 September 2014. Other information is that [Ms A], [Mr B] and [Mr C] shared the address of [Address 1] as detailed below:·From 22 February 2012 until 8 July 2015, it was [Mr C]’s nominated address. ·From June 2012 until March 2015, it was [Mr B]’s nominated address.·From 31 December 2012, it was [Ms A]’s nominated address.·On 23 December 2013, [Mr B] and the applicant had a six month lease for (house number omitted) [Address 2].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The parties were stating they cannot be separated, yet one week after the statement the sponsor departed Australia and applied for divorce. The sponsor claimed that the reason for divorce is that the applicant did not agree to cohabitation with him, as his wife. Different evidence, provided by [Mr C], is that he had been in a relationship with the applicant since February-March 2014. [Mr C]’s explanation was that he provided this information to the Department as a result of his poor English, the lack of an interpreter, and the fact he was tired and stressed. Consideration [Ms A], in her statutory declaration dated 23 April 2014, stated, ‘Since we get married we know each other very well. We found we care for each other very much. We cannot live separate from each other. We love each other from our heart. Our relationship is genuine and long-life’. The applicant’s solicitor wrote on 5 May 2016 that the statutory declaration above is an unsworn statement and it is not corroborated by any other independent information. Firstly, in response, in [Mr B]’s statutory declaration which was signed by him, he wrote, ‘I can’t live apart from my wife. I love my wife from my depth of my heart, I had a very beautiful family and feelings, care for each other’. Furthermore, in his statutory declaration, [Mr B] declared on 23 April 2014, in the first paragraph the pro-forma typed words: ‘That I have a mutual dependent commitment to a shared life as husband and wife, or a de facto partner, or as an interdependent partner, to the exclusion of all others, with [left blank]’. At paragraph 2, the following pro forma typed words are included, ‘That our relationship is genuine and continuing’. Further, the Tribunal refers to s.99 of the Act: 99 Information is answerAny 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. The statutory declaration is located in a Department file, [number deleted](ff.109-111). It is next to [Mr B]’s ‘Statutory Declaration – Partner Visa (Sponsor)’ (ff.112-114) dated 23 April 2014. The Tribunal finds that the applicant’s statutory declaration constitutes an answer on her visa application form, having regard to the terms of s.99 above. The Tribunal has considered the applicant solicitor’s submission that the statutory declaration is unsworn; however, it finds that despite this the statutory declaration is information for the purposes of s.99 and that it is an answer given by [Ms A] to a question on her application form.