1722879 (Migration) - [2019] AATA 2754

1722879 (Migration) [2019] AATA 2754 (28 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1722879
MEMBER:John Billings
DATE:28 June 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 28 June 2019 at 12:42pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Federal Circuit Court remittal – s 375A certificate – investigation methodology – privacy – ground for cancellation – incorrect information in previous visa application – failure to correct incorrect answers – failure to disclose child – marital status – separated – not divorced – ‘previously’ been married or in a de facto or independent relationship – extra-marital affair – lack of the required commitment – subjective intention of the parties – objective facts – evidence of subsequent conduct – credibility issues – inconsistent evidence – consideration of discretion – serious act of non-compliance – visa grant based on incorrect information – proposed investment in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 101, 105, 107, 107A, 109
Migration Regulations 1994 (Cth), rr 1.15, 1.15A, 2.41
CASES
Bretag v MIMIA [1991] FCA 582
Cao v MIAC [2007] FMCA 225
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Singh [2016] FCAFC 183
MIEA v Pochi [1980] FCA 85
Resham Singh v MIEA [1996] FCA 1429

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 on 24 July 2015 by a delegate of the Minister for Immigration under s.109(1) of the Migration Act 1958 (the Act) to cancel the Class BB Subclass 155 (Five Year Resident Return) visa held by [the applicant].
The delegate cancelled the visa after issuing a NOICC (notice of intention to cancel visa) and considering [the applicant]’s response. The delegate found that [the applicant] gave incorrect information in an application for a visa that he held previously, and exercised discretion to cancel the visa. [The applicant] was a secondary applicant for that visa. The primary visa applicant was [Ms A]. [Ms A] is a [age] year old national of China. [The applicant] was married to [Ms A] at the time of the application for and the grant of the visa. The information concerned [the applicant]’s relationship status and whether he had any children other than the son he had with [Ms A]: see further below. The significance of the information is that to be eligible for the visa [the applicant] had to be a member of the family unit of a person who satisfied the primary criteria. Relevantly, [the applicant] had to be the spouse of [Ms A]. (The term “spouse” is defined in the Migration Regulations 1994 (the Regulations): see below).
The…

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.

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Details

AGLC: 1722879 (Migration) [2019] AATA 2754
Case: [2019] AATA 2754
Decision Date: 28 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed a delegate's decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The dispute centred on allegations that the applicant had provided incorrect information in a previous visa application and failed to correct this information or disclose relevant changes in circumstances, including marital status and the existence of a child.

The Tribunal was required to determine whether the applicant had contravened sections of the Migration Act 1958 (Cth) that necessitate the provision of correct information and the notification of any inaccuracies or changes. Specifically, the Tribunal considered whether the applicant had failed to disclose a previous marriage or de facto relationship, and whether their marital status was accurately represented, given they were separated but not divorced. The Tribunal also had to consider the validity and effect of a non-disclosure certificate issued under section 375A of the Act, which sought to protect information relating to investigation methodologies and third-party privacy.

In its reasoning, the Tribunal found that the delegate had properly engaged the cancellation power under section 109 of the Act and that the notice issued under section 107 complied with statutory requirements. The Tribunal acknowledged the applicant's submissions regarding the section 375A certificate, noting that while the applicant could not view the specific documents, the Tribunal was still obliged to consider its duties under section 359A. The Tribunal ultimately concluded that the applicant had engaged in a serious act of non-compliance by failing to disclose accurate information and by not correcting previous inaccuracies, leading to the visa being granted based on flawed information.

The Tribunal affirmed the decision to cancel the applicant's visa.

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 EVIDENCECancellation and the discretion to cancel 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. Section 107A provides that the possible non‑compliances that may be specified in the notice under s.107 and that can constitute a ground for cancellation under s.109 include non‑compliances that occurred at any time, including non‑compliances in respect of any previous visa held by the visa holder. 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.Non-disclosure certificate The Department’s file includes a non-disclosure certificate dated 11 August 2015, given under s.375A of the Act. As to the Tribunal’s obligations with regard to s.375A certificates see generally MIBP v Singh [2016] FCAFC 183. The certificate concerns information in two sets of documents. Concerning the information in the first set of documents, the certificate states that disclosure would be contrary to the public interest because it is “information about investigation by the [D]epartment’s officers, disclosure of which may reveal investigation methodology” and “may affect future capacity to obtain information using these methods. Concerning the information in the second set of documents, the certificate states that disclosure would be contrary to the public interest because it is information provided by a third party, disclosure of which “may breach the privacy of that person”. The Tribunal provided a copy of the certificate to [the applicant] on 3 October 2018 and invited submissions as to the validity of the certificate. The Tribunal pointed out that it would in any event have regard to its obligations under s.359A of the Act. There was a submission dated 19 October 2018. It was submitted that without having the opportunity to view the documents [the applicant] was unable to determine the validity of the certificate and make submissions about whether the claimed reasons for non-disclosure were justifiable.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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