1813239 (Migration)

[2020] AATA 3317

1813239 (Migration) [2020] AATA 3317 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1813239

MEMBER:Michael Cooke

DATE:11 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review to cancel the applicant’s Subclass 151 (Former Resident) visa.

Statement made on 11 June 2020 at 12:25pm

CATCHWORDS

MIGRATION – cancellation – Special Eligibility (Class CB) visa – Subclass 151 (Former Resident) – providing incorrect information to the Department – applicant did not declare his  son and alleged partner – undeclared change of circumstance – applicant denied partner relationship existed until later – subsequent request for Ministerial Intervention – member of the family unit at time of application – significant impact on the Ministerial Intervention decision – how incorrect information was taken into account in visa grant – tests for dependency – no upper age limit at the time – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 116, 120, 359, 417
Migration Regulations 1994, rr 1.03, 1.05, 1.12

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 dated 2 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 151 (Former Resident) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AB) on the basis that the applicant provided incorrect information to the Department. 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 ([named]) appeared before the Tribunal on 11 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms [Ms A]. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

4.    The Tribunal was provided by the applicant’s representative ([Representative A]) with a comprehensive submission addressing the key issues in the case and arguing that the NOICC was inadequate.

5. On 19 March 2020 the Tribunal forwarded an Invitation pursuant to s.359A of the Act as follows:

6. In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

The particulars of the information are:

• A Filipino Affidavit of Support dated 27 June 2014 signed by [Uncle B] and [Aunt B] indicating that you are “the boyfriend and partner of [Ms C] and father of [the applicant’s son]”.

• The signatories further indicate that “we have known [Ms C] for more than five (5) years as the partner of our above-mentioned nephew”.

• The signatories regard [Ms C] as “our niece by affinity”.

This information is relevant to the review because it indicates that you were involved in a de facto relationship between 2009 and 2014 with [Ms C] (your wife) and which was not disclosed to the Department as ‘a change in circumstances’ as required under Australian migration law.

The information is further relevant is it discloses that you gave incorrect information to the Department at Question 43 of Form 80 which you submitted around 30 October 2014 pursuant to your mother’s successful Request for Ministerial Intervention lodged on 28 May 2013. You claimed you did not have a partner when you did.

The information is relevant to the review because it indicates that you gave incorrect information at Question 44 of Form 80. You claimed you did not have a son when you did.

The above information is further relevant to the review because it discloses that by giving incorrect information to the Department you falsely purported to meet the definitions of ‘dependent child’ in reg.1.03 and definition of ‘member of the family unit’ in reg.1.12.

The information is relevant because by submitting incorrect information you succeeded in securing the grant of a Subclass 151 permanent residency visa to which you were not entitled.

The above information also indicates you deliberately gave false and incorrect information to the Department as part of a Request for Ministerial Intervention and are, therefore, an unreliable witness and a person of poor credibility.

If we rely on the above information in making our decision, we may find that you have breached s.116(1AB) of the Act and the decision of the delegate to cancel your visa should be affirmed.

You are invited to give comments on or respond to the above information in writing.

7.    The applicant responded to the Invitation on 20 April 2020 as follows:

Dear Sir/Madam,

RE [the applicant] (DOB: [specified]) Application for Review of a decision to cancel a Subclass 151 (Former Resident) visa

We refer to the above matter; our previous submissions filed on behalf of [the applicant] dated 02 November 2017 to the Department of Immigration and Border Protection ('the Department') and 04 December 2019 to the Administrative Appeals Tribunal ('the AAT'); and your invitation to comment dated 06 April 2020.Based upon the letter, we note the provided particulars of the information are:

1. A Filipino Affidavit of Support dated 27 June 2014 signed by [Uncle B] and [Aunt B] ('the signatories') indicating that you are "the boyfriend and partner of [Ms C] and father of [the applicant’s son]".

2. The signatories further indicate that "we have known [Ms C] for more than five (5) years as the partner of our above-mentioned nephew".

3. The signatories regard [Ms C] as "our niece by affinity".

We enclose a statutory declaration provided by [the applicant] on 17 April 2020 to comment on his response to the provided particulars. He commented as follows:

"I have limited knowledge of my birth father, [name]. He abandoned my mother, brother and me when I was very young."

"My birth father has [specified siblings, including], [Uncle B], [and others named]. [Uncle B] is the eldest of the brothers. I first met him when I was young, about 7 years old. Our families would gather for All Souls Day and occasionally at Christmas time. I knew him as my uncle but we are not close. Since I first arrived in Australia in November 2009, I never contacted [Uncle B] or his wife [Aunt B] whilst in Australia. "

"In or about July- August 2010, I returned to the Philippines to acknowledge paternity for my son [name]. I did not contact [Uncle B] or [Aunt B] during this time as I did not think they were aware of [Ms C] or [the applicant’s son].

"[In] January 2016, [Ms C] and I married in a civil ceremony in [a named] Province. The ceremony was arranged by [Ms C] and her family. I invited all relatives from my side of the family including my father and all his siblings. My father did not come but [Uncle B] came to my wedding. This was the first time I saw him since leaving for Australia in 2009. I have not had any contact with him or [Aunt B] since the wedding. "

"To the best of my knowledge, I have never had any personal conversation with him, nor have I ever told him anything personal about my relationship with [Ms C]."

"I do not agree that I was in a partner relationship with [Ms C] at that time and refer you to my previous statutory declaration dated 4 December 2019."

“I say that I first formally introduced [Ms C] to [Uncle B] at our wedding [in] January 2016."

Information as to a partner

We rely on [the applicant’s] statutory declaration dated 17 April 2020 and submit that [the applicant] first formally introduced [Ms C] as his partner to the signatories at his wedding [in] January 2016. [The applicant] knows the signatories as his relatives but they are not close; and he has never had any personal conversation with respect to [Ms C] prior to his wedding with the signatories.  We further rely on paragraphs 11 to 22 of [the applicant’s] statutory declaration dated 04 December 2019 and submit that [the applicant] was not in a partner relationship with [Ms C] between he firstly arrived in Australia and before the grant of his permanent residence visa. He disagrees that he was involved in a de facto relationship between 2009 and 2014 with [Ms C]. Accordingly, we submit that he did not require to notify the Department about 'a change in circumstances' about his relationship as he did not have a partner at the time.

[The applicant] completed a Form 80 on 30 September 2014, declaring that he did not have a partner at Question 43, to which the AAT claims it was an incorrect information. Based upon the above information, we submit that [the applicant] did not give incorrect information to the Department at Question 43 of Form 80 as he did not have a partner at the time.

Information as to a child

In the Form 80, [the applicant] declared that he did not have a child at Question 44, to which the AAT claims it was an incorrect information and may have breached s.116(1AB) of the Migration Act 1958 (Cth) ('Act') that will result in visa cancellation.

rely on our submission dated 04 December 2019 [pages 4-10] and emphasis the definition of 'dependent child' under Reg. 1.03 and 'member of the family unit' under Reg. 1.12 at the time the Minister intervened the case on 15 March 2015 to the subclass 151 visa ultimately granted (24 March 2015).

Under Departmental policy on "dependent child" at the time of the application, being at the time the Minister intervened on 15 March 2015

A child who has turned 18 may be considered a dependent child if they are dependent on their parent/s for financial support to meet basic needs for food, clothing and shelter. Under policy, officers are not required to investigate the reasons for that dependency.

Therefore, pursuant to Reg. 1.03, and Reg. 1.12 of the Regulations, when assessing whether [the applicant] could meet the requirements as a secondary applicant, the only issue is whether [the applicant] was dependent on his mother, [Ms A]. We rely on evidence of [the applicant’s] dependency on [Ms A] submitted on 02 November 2017 to the Department and submit that [the applicant] was wholly/substantially reliant on [Ms A] for financial support to meet his basic needs for food, clothing and shelter and therefore met the requirements as 'dependent child' under Reg. 1.03 and 'member of the family unit' under Reg. 1.12 at the relevant time. We therefore submit that [the applicant’s] answer in respect to his child was insufficient information in itself to assessing his dependency claims.

Cancellation

We submit that grounds paragraph s116(1AB) for cancellation do not exist.

S116(1AB) is a 2-part test. First, incorrect information must have been given to the Minister, and second, this information must have been taken into account, or in connection with, in deciding to grant a visa.

We accept that [the applicant] provided incorrect information to the Minister (i.e., declaring that he did not have children at Form 80, Q44 dated 30 September 2014), and therefore, the first part of the test is met.

However, we submit that the second part of the test is not met. There is no evidence as to how the incorrect information that [the applicant] did not have children was taken into account, or in connection with, in deciding to grant his subclass 151 visa, or particularise how it would have had a "significant impact" on the Minister's decision.

Conclusion

We submit that [the applicant] did not provide incorrect information in relation to his partner relationship in Form 80 and accepted that he provided incorrect information to the Minister in respect to his child. We submit that S116(1AB) did not apply in this case on the grounds that [the applicant’s] incorrect information answer in respect to his son is not the factual relevant to his financial dependency on his mother and does not lead a significant impact on the Minister' s decision.

8.    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

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AB). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

The Hearing

1. The Tribunal extensively questioned the applicant and his mother about their shared history of trying to secure permanent residency in Australia. The Tribunal also referred to the submission of [Representative A] which elaborated a ‘timeline’ of the various events that had occurred in the applicant and his mother’s dealings with the Department. This included trips to and from Australia and their lengthy dealings with the Department including the Minister’s office pursuant to a s.417 Ministerial Intervention Request. The witness ([Ms A]) informed that the Department had facilitated the request based on the family’s compassionate situation being the large number of children and various issues to do with her ‘exploitation’ at the hands of migration agents.

2. The applicant readily admitted that he had misinformed the delegate in the Form 80 at Q44 about having a child. He had subsequently corrected the incorrect information formally. The Tribunal put it to him that the possible reason he had decided to misinform the delegate was simple. He felt advising them that he had a son would have led to further enquiry into his ‘dependency’ status vis a vis his mother (the witness). Such an investigation may have brought to light a possible de facto relationship with his (now) wife and which would possibly impugn his dependency on his mother. This was an important factor included in the claim in his s.417 Intervention Request. It could impugn his Request because as a ‘dependent’ applicant he is not able to be in a de facto partner relationship pursuant to the definition of ‘dependency’.

3. The applicant gave his explanation for the misinformation as being based on his frame of mind at the time. He was confused about his role in his son’s life. He was under stress to see the Intervention Request succeed and he also was not in a relationship with his (now) wife at the time. His mother suggested that the failure of the first Protection visa (PV) application had also led to this conclusion. The Tribunal indicated that it found the applicant’s explanation to be rather implausible as the question 44 was a straightforward one - Yes or No. However, it observed that the scenario the Tribunal had outlined as a reason was effectively a ‘what if’ scenario which was never played out. A Subclass 151 permanent residency visa was granted to the whole family based on the dependency on their mother and the Minister’s compassionate consideration of their case.

4. The Tribunal then addressed other issues on the ‘timeline’. In particular, the Tribunal expressed concern that whilst the applicant had admitted to providing wrong information to the Department in the Form 80 of 30 September 2014 (received on 14 March 2014) he had (almost) simultaneously informed the Department that he had a son. The delegate’s decision (on the Tribunal file) discloses that the applicant’s (now) wife applied to the Department for a [Student] visa in October 2014. As part of that process the applicant ‘provided a statement of support and consent for his son to migrate’ (T1, f.6). The Tribunal alluded to a scenario in the Department where various pieces of information contradicted each other. One being the incorrect information in Q44 (that the applicant did not have a son) and the other being the Letter of Support for the applicant’s now wife in 2014 (see above) indicating that the applicant had acknowledged he did have a son. It appeared this contradictory information was not apparent in the processing of the Ministerial Request for Intervention in 2014.

5. The Tribunal then gave the applicant’s representative an opportunity to address the hearing on behalf of his client. The representative put it to the Tribunal that the grounds for cancellation in paragraph s116(1AB) do not exist. In particular he argued that there is no evidence as to how the incorrect information that the applicant did not have children was taken into account, or in connection with, in deciding to grant his Subclass 151 visa, or particularise how it would have had a "significant impact" on the Minister's decision.

6. The Tribunal observed that the word ‘significant impact’ appeared from the delegate’s decision to be the key ‘driver’ of the decision which found the grounds were made out. It was effectively a presumption on the delegate’s part of the ‘what if’ scenario extrapolated by the Tribunal earlier (see above). In other words, it presumed that a truthful declaration (by telling the truth at Q44) would have impugned the applicant’s claim of ‘dependency’ pursuant to the definitions in reg.1.05A and/or reg.1.03. There was a presumption by the Minister’s office that all the information provided was truthful. To complicate this situation there was the additional fact that the applicant had (on a separate occasion) disclosed his relationship with his son (via his wife’s Student visa application of 2014).

7. The representative insisted that s.116(1AB) required that the incorrect information ‘must have been taken into account in, or in connection with, the making of either a decision that enabled the visa holder to make a valid visa application or a decision to grant that person a visa’. He insisted that there was no evidence that the applicant’s false declaration (his declaration about not having a son) was ‘taken into account’ or stood ‘in connection with’ the making of the Ministerial decision.

8. The Tribunal also gave the applicant and his mother an opportunity to make personal statements. They both stressed that their dearest wish was to remain in Australia. The applicant said that he feared his child would be a victim of the same abandonment that he had suffered as a child and this was why he decided to marry his son’s mother. His mother insisted that she had wanted to bring her family to Australia and live a better life than they had in the Philippines. Unfortunately, twice she was the victim of exploitation by rogue agents. She had been able to succeed through the kindness of the Department who had understood her personal situation and had offered to allow her a pathway to Ministerial Intervention which was successful. She had received her [tertiary] qualification and the family were now all citizens.

Does the ground for cancellation exist?

s.116(1AB) – Incorrect information

1. A visa may be cancelled under s.116(1AB) if incorrect information was given by or on behalf of the visa holder to one of the following: an officer; authorised system; the Minister; or any other person, tribunal or body performing a function or purpose under the Act, or an administrative process in relation to the Act. The incorrect information must have been taken into account in, or in connection with, the making of either a decision that enabled the visa holder to make a valid visa application or a decision to grant that person a visa, whether that valid visa application or grant related to the current visa or a previous visa that was held. The giving of the incorrect information must not be covered by Subdivision C of the Act (ss.97 – 115). The ground applies whenever the incorrect information was given.

2. The applicant’s representative on his behalf has maintained the following:

   We submit that grounds paragraph s116(1AB) for cancellation do not exist.

   s.116(1AB) is a 2-part test. First, incorrect information must have been given to the Minister, and second, this information must have been taken into account, or in connection with, in deciding to grant a visa.

   We accept that [the applicant] provided incorrect information to the Minister (i.e., declaring that he did not have children at Form 80, Q44 dated 30 September 2014), and therefore, the first part of the test is met.

   However, we submit that the second part of the test is not met. There is no evidence as to how the incorrect information that [the applicant] did not have children was taken into account, or in connection with, in deciding to grant his subclass 151 visa, or particularise how it would have had a "significant impact" on the Minister's decision.

   In the decision by the Minister on 15 March 2015 the notes provided to the Minister for his consideration provide:

   "[Ms A] has been in Australia since January 20007 and had an intention to settle permanently in Australia. Her children consider themselves Australian and had a 'stronger and deeper connection to Australia than their original country of birth'... Her other children have also undertaken studies and employment (factory hands) in Australia (they do not have permission to work now).

   [The applicant], aged 26 years, is said to have completed a [degree] in the Philippines. He is currently not working.

   He has provided evidence of obtaining a [further qualification] on 4 February 2013. He undertook a voluntary work training certificate with [a named business] from January to April 2013.

   He has provided a letter from his employer, [named], who has written positively on his work performance with the company."

   In assessing the case, the Minister has taken into account [the applicant’s] age, length of stay in Australia, previous work history and financial dependency on her mother and the Minister was satisfied that [the applicant] was a member of the family unit.

1. The applicant’s representative forwarded a submission addressing the issues in the case as follows:

Procedural defect

1. The letter of Notice of Intention to Consider Cancellation under s116 (NOICC letter) was issued to [the applicant] on 19 October 2017 (and) seeks to particularise the information that the Minister took into account as follows:

   "I consider that you have provided incorrect information in association with your request for Ministerial Intervention. Specifically, you did not declare that you had a son who was born in [year] at question 44 of form 80. Had this information been declared it would have had a significant impact on the Minister's decision to intervene and grant you a Class CB Subclass 151 Fortner Resident visa as a dependent family member."

   We submit that the incorrect answer provided by [the applicant] in respect to his child was insufficient information in itself to be able to be taken into account in making a decision.

   We submit that the NOICC letter failed to meet the requirement pursuant to s.120(2)(a). The Department also failed to provide sufficient information to ensure that the visa holder understands why it is relevant to the cancellation, therefore failed to meet the requirement pursuant to s.120(2)(b).

   2. Assessing [the applicant] met the requirements as a secondary applicant

   This requirement is generally both a time of application and time of decision requirement. In this case, we submit that the relevant times are the date that the Minister decided to intervene (15 March 2015) and the date of 151 visa grant (24 March 2015).

   It is not at issue that [the applicant] is [Ms A’s] biological child, and that he had turned 18 at all the relevant times. Therefore, pursuant to s.5(1) of the Act, Reg. 1.03, and Reg. 1.12 of the Regulations, when assessing whether [the applicant] could meet the requirements as a secondary applicant. The only issue is whether [the applicant] was dependent on [Ms A].

   Dependency is a 2-part test. First, the first person must have been wholly or substantially reliant on the second person for financial support to meet their basic needs for food, clothing, and shelter. Second, the first person must have been more reliant on the second person than on any other person or source of support. Whether the first person has a child is irrelevant.

   At the time of original subclass 866 Protection visa application (12 June 2012), [Ms A] included [the applicant] as her dependent. From the time of Ministerial Intervention request in May/June 2013 to Ministerial Intervention decision on 15 March 2015 to grant the 151 visa on 24 March 2015, the family had lost their work rights. The evidence is that the family was volunteering, and [Ms A] organised donations from die community to help their family survive. Significant evidence of [the applicant’s] dependency on [Ms A] dated 2010 to 2013 was submitted and presumably considered as part of the Ministerial Intervention request. New evidence confiims that in September 2012, [the applicant] had listed [Ms A] as beneficiary for his superannuation, and that in September 2014, he and [Ms A] were still using the same residential address. We submit that all the evidence supports a conclusion of dependency and [the applicant] was dependent on [Ms A] at the time of visa grant.

   We therefore submit that grounds for cancellation do not exist. The second part of the s116(1AB) test, that the information about whether or not [the applicant] had children was taken into account in deciding to grant his subclass 151 visa, is not met. Even if this information was taken into account in relation to whether [the applicant] met the requirements as a secondary applicant, we submit, and the evidence is, that [the applicant] was dependent on [Ms A] and met the definition of member of the family unit/dependent child at all relevant times.

   3. The Law does not set an upper age limit at the relevant time

   In the Record of Decision of Visa Cancellation, it would appear that the Department considered [the applicant’s] age ([age] years old at the time of making Minister Intervention request; [age] years old at the time of decision) with the fact of having a child and assumedly being in a de facto relationship and concluded that [the applicant’s] claims of dependency on the primary applicant was in question. It provides: -

   "I note that the visa holder was [age] years old at the time the intervention request was lodged and [age] years old at the time the visa was granted, an age when it is reasonable to consider an individual would not be dependent on their parents and potentially have a family of their own. Given the visa holder's age, had he declared that he had a child this would have raised concerns about his claimed dependency on the primary applicant and further investigation would have been conducted into the visa holder's circumstances."

   It is submitted that the Department has made an assumption without evidence in respect of the existence of a de facto relationship.

   We further submit that the Department should not have drawn an adverse inference In respect to [the applicant’s] age. We submit that on and before the Minister intervened in this case, there is no age limit set out under the Act or the Regulations for a secondary applicant to be able to claim a dependent child. It was not until 19 November 2016 (Commencement Date) when the Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016 made (Amendment Regulation), the Regulations was amended to introduce an age limit. The Amendment Regulation set an upper age limit of 23 years for children who are dependent for most visas, but except protection, refugee and humanitarian visas. In this case, the Minister Intervened on 15 March 2016 and granted visas on 24 March 2016, before the Commencement Date. Accordingly, we submit that [the applicant’s] age should not be considered relevant in this matter.

   4. De facto relationship

   In the Decision dated 2 May 2018, the Department notes: -

   "On 17 June 2016 the visa holder provided a statutory declaration in association with [Ms C’s] permanent Partner visa application. In this declaration the visa holder provided the following information:

   He entered into a relationship with [Ms C] in September 2008 while he was still residing in the Philippines

   The visa holder arrived in Australia [in] November 2009, but he did not advise his family about his relationship with [Ms C].

   In December 2009 the visa holder was advised by [Ms C] that she was pregnant.

   The visa holder returned to the Philippines in July 2010 to see [Ms C] and his son and after this visit their relationship "remained silent", although the visa holder called her a few times and she sent him photos.

   In June 2012 [Ms C] advised the visa holder that she was applying for a student visa to come to Australia and that he was not aware that the visa holder's [Uncle B] provided her with financial support.

   [Ms C’s] mother did not allow her to travel with the visa holder's son.

   [Ms C] arrived in Sydney in September 2012 and she resided with the visa holder's family, but the two parties had limited contact.

   After the subclass 151 visa was granted, the visa holder re-established a relationship with [Ms C] to ensure that her son had a father.

   The visa holder married [Ms C] [in] January 2016.

   Based on this information I consider that the visa holder has provided incorrect information in association with his request for Ministerial Intervention under section 417 of the Act. Specifically, the visa holder did not declare that he had a son who was born in [year] at question 44 of form 80.

   The above information was not contained in the NOICC. Based on the information provided in response to the NOICC, it would appear that the Department concluded the parties may have been in a de facto relationship and justify the decision to cancel on this assumption rather than the incorrect information with respect to the child. There is no evidence before the Department suggesting that [the applicant] and [Ms C] were in a relationship at the relevant time.

   5. Others

   We further contest the Department's unfounded conclusion that [the applicant] intentionally did not declare the child in order to gain an immigration advantage. We refer to [the applicant’s] statutory declaration [para 17] that they informed the Department about the child in 2012 (sic 2014). We are instructed that [the applicant] received advice from the case officer from the Department that having the child was irrelevant in their case.

Particulars of the ground for cancellation:

Section 116. Power to cancel

116(1AB)        Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa if he or she is satisfied that:

(a) incorrect information was given, by or on behalf of the person who holds the

current visa, to:

(i) an officer;

(it) an authorised system; or

(in) the Minister; or

any other person, or a tribunal, performing a function or purpose under this Act; or

any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and

(b) the incorrect information was taken into account in, or in connection with,

the making of a decision that enabled the person to make a valid application for a visa;

or (h) a decision to grant a visa to the person; and

(c) the giving of the incorrect information is not covered by Subdivision C.

This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (it) is the current visa or a previous visa that the person held.

1. On 28 May 2013, the applicant’s mother ([Ms A]) submitted a request to the then Minister for Immigration and Citizenship to intervene under section 417 of the Act including the applicant as ‘a member of her family unit’.

2. In support of this Intervention Request, the Department received a completed form 80 "Personal particulars for assessment including character assessment" containing the visa holder's information 30 October 2014. In this form the applicant provided the following information (in part):

   Part Q — Associated people

   (a)Do you have a partner?

   Partner includes wife, husband, fiancé, boyfriend, girlfriend, significant other and de facto. If widowed you must give details for your deceased partner.

   Your answer: No

   (b)Do you have children?

   Children includes biological or adopted, children from a current or previous marriage, all stepchildren and deceased children.

   Your answer: No

   At question 54 of the form, the visa holder signed the following declaration and dated it 30 September 2014:

   Part S — Declaration

   WARNING: Giving false or misleading information is a serious offence

I declare that:

• The information I have supplied in or with this form is complete, correct and up-to-date in every detail

• I have read and understand the information supplied to me.

• I have read and understand the information in form 1442i Privacy notice.

• I understand the department may collect, use and disclose my personal information (including biometric information and other sensitive information) as outlined in form 1442i Privacy notice.

1. On 15 March 2015, the Minister for Immigration and Border Protection considered the applicant’s request and based on the information he provided, the Minister decided on 15 March 2015 to intervene under section 417 of the Act. On 15 March 2015 the applicant was granted a Former Resident (subclass 151) visa.

2. On 11 March 2016 Ms [Ms C] (born [date]) lodged an application for a combined Partner (Subclass 820/801) visa which included the applicant as her sponsoring partner. [Name] (born [date]) the applicant’s son was included in this application as a dependent family member. On page 15 of the online application she stated that she had married the applicant [in] January 2016.

3. On 14 March 2016 the Department received a Form 1023 "Notification of incorrect answers" which had been completed by the applicant. In this form he advised that he had provided incorrect information in the Form 80 which he had provided on 30 October 2014 in association with his section 417 Ministerial Intervention Request. He advised that he failed to declare that he did have a child at that time, namely [name] who was his son. The applicant also provided an annexure to the form where he stated:

   "I was not in a serious relationship with my son's mother at the time of my son's birth in [year], subsequent Australian visa applications or request for Ministerial intervention, or the Minister's decision to grant me a visa in 2015. His mother and I would argue. She would say I was not and never will be a father to my son and she will have to change his surname. I did not declare that I had a son because I was so confused with who I am to my son and I was stressed with my mother's Australian visa applications and request for Ministerial Intervention and I thought it would not matter since I was just a secondary applicant to my mother. I now realise that my failure to provide correct information was wrong and l am very sorry for providing incorrect information."

4. On 17 June 2016 the applicant provided a Statutory Declaration in association with [Ms C’s] permanent Partner visa application. In this declaration the applicant provided the following information:

• He entered into a relationship with [Ms C] in September 2008 while he was still residing in the Philippines

• He arrived in Australia [in] November 2009, but he did not advise his family about his relationship with [Ms C].

• In December 2009 the applicant was advised by [Ms C] that she was pregnant.

• The applicant returned to the Philippines in July 2010 to see [Ms C] and his son and after this visit their relationship "remained silent", although he called her a few times and she sent him photos.

• In June 2012 Ms [Ms C] advised the applicant that she was applying for a student visa to come to Australia and that he was not aware that his [Uncle B] provided her with financial support.

• [Ms C’s] mother did not allow her to travel with the applicant’s son.

• [Ms C] arrived in Sydney in September 2012 and she resided with the applicant’s family, but the two parties had limited contact.

• After the Subclass 151 visa was granted, the applicant re-established a relationship with [Ms C] to ensure that her son had a father.

• The applicant married [Ms C] [in] January 2016.

1. The Tribunal is satisfied that the applicant gave the Department incorrect information pursuant to the occasion of the Ministerial Intervention Request. He has claimed (in a Statutory Declaration) also to have given the Department the information in 2012 via his case manager and as part of an Assurance of Support document for his now wife’s Student visa application in 2014.

2. The Tribunal notes the reasons particularized by the delegate in the Notice for Cancellation. Specifically:

   "I consider that you have provided incorrect information in association with your request for Ministerial Intervention. Specifically, you did not declare that you had a son who was born in [year] at question 44 of form 80. Had this information been declared it would have had a significant impact on the Minister's decision to intervene and grant you a Class CB Subclass 151 Former Resident visa as a dependent family member." (Tribunal emphasis in bold)

3. The Tribunal finds that this reason (in bold) in the Notice may be based on the notion that the declaration of the existence of his son may have evidenced further information pertinent to the Ministerial processing and eventual grant. Such information may have revealed an undeclared partner relationship with [Ms C]. Such a discovery would have inevitably impugned the Minister’s decision to grant the Intervention – fatally for the applicant. This is because (if established) the purported relationship would be contrary to the definition in reg.1.03 which states that as a ‘dependent child’ [the applicant] cannot be:

   a child who is engaged to be married or has a spouse or de facto partner,

Furthermore, it could establish that he had submitted further ‘incorrect information’ in his Form 80 which he had provided on 30 October 2014 in association with his section 417 Ministerial Intervention Request

1. The delegate it should be noted was examining evidence after the actual grant of permanent residency on 15 March 2015 under section 417 of the Act. The delegate in suggesting the failure to disclose had a ‘major impact on the Minister's decision to intervene and grant you a Class CB Subclass 151 Former Resident visa as a dependent family member’ appears to have formed the view that, through his latter-day disclosure of having a son, the applicant had concealed crucial information. This information could be a long-term undisclosed relationship with his (now) wife. The fact that he sponsored his now wife subsequently a year after the grant (2016) may have led the delegate to that conjecture when making the decision in May of 2018.

2. The Tribunal has seen other evidence which suggests any such conjecture is not entirely without foundation. There is, for instance, the Assurance of Support document issued by the applicant’s uncle and aunt for [Ms C] which mentions the applicant as ‘her boyfriend and partner’. There is the submission of the applicant’s representative that [Ms C] came to Australia to ‘try to reconcile with [the applicant]’ and she actually lived for a time with the family. In oral evidence the applicant insisted that when she quit the premises, he did not know her whereabouts. The Tribunal finds this claim highly implausible especially when juxtaposed with his historical poor credibility. Likewise claims regarding his non-involvement with parental decision making and claimed confusion about his role in his son’s life yet he provided a Statement of Support and consent for his son to migrate in October 2014.A further question is why he acknowledged his son to the Department when allowing him to travel in 2014 yet provided ‘incorrect information’ to the Department regarding his son in March 2015.

3. It is a matter or record that the applicant has clearly indicated that he did not answer Q44 correctly because he gave ‘incorrect information’ to the Department at the time he submitted his Form 80 and later sought it corrected.

4. On 11 March 2016 [Ms C] lodged an application for a combined Partner (Subclass 820/801) visa which included the applicant as her sponsoring partner. [The applicant’s son] (born [date]) was included in this application as a dependent family member. On page 15 of the online application she stated that she had married the applicant [in] January 2016.

5. Apart from the other information that he had submitted (his claim in a Statutory Declaration) that he had given the Department the information about his son in 2012 (via his case manager), there is also the Assurance of Support document for his now wife’s Student visa application in 2014 wherein he disclosed his son.

Findings and Reasons

1. The Tribunal is satisfied that the applicant does not meet the first requirement in s.116(1)(AB)(a) because:

   (a) incorrect information was given, by or on behalf of the person who holds the current visa, to: (i) an officer; (ii) an authorised system; or (iii) the Minister; or (iv)  any other person, or a tribunal, performing a function or purpose under this Act; or (v)    any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act.

2. The Tribunal will now discuss the second requirement found in s.116(I)(AB)(b) and the impact of the ‘incorrect information’ on the decision of the Minister to grant the applicant a Subclass 151 visa.

3. The delegate in the NOICC claimed that the incorrect information had a ‘significant impact’ on the Minister’s decision because it was logically related to his claim because “this would have raised concerns about his claimed dependency on the primary applicant (his mother) ‘and “further investigations would have been conducted into the visa-holder’s circumstances”.

1. The applicant’s representative insists that

   We submit that the incorrect answer provided by [the applicant] in respect to his child was insufficient information in itself to be able to be taken into account in making a decision.

   We submit that the NOICC letter failed to meet the requirement pursuant to s.120(2)(a).

   The Department also failed to provide sufficient information to ensure that the visa holder understands why it is relevant to the cancellation, therefore failed to meet the requirement pursuant to s.120(2)(b).

2. The representative thus insists that the NOICC is inadequate to ground cancellation.

3. It is not denied by the applicant that he provided incorrect information. However, the ‘incorrect information’ furnished by the applicant (pursuant to Q44) was made regarding his son. Having a son (disclosed or undisclosed) does not of itself impugn the applicant’s ability to meet the definition of ‘dependent child’. Being married or having a de facto partner would do so. The Tribunal is satisfied that the applicant is now married but the Tribunal is unable to be satisfied on the evidence before it that he was previously in a de facto relationship with his now wife. The crucial condition precedent for the Ministerial Unit’s finding that he was (pursuant to reg.1.12) a ‘member of the family unit’ of his mother - was his dependency on her. He was (as far as the Ministerial Unit was concerned) a proven ‘dependent’ of his mother and met the definition at the time of grant and during processing. They were satisfied that the main issue in the case was his age and how that impacted on his ‘dependent’ status. The fact he had an undisclosed son was insufficient information of itself to be able to claim it would have been ‘taken into account in making the decision’ to grant him the Subclass 151 visa.

4. Giving further strength to this finding, the Tribunal notes that that the applicant did inform the Department he had a son on at least one occasion (acknowledged by the delegate) and on another earlier according to his Statutory Declaration.

5. The applicant is plainly a person of poor credibility and his (acknowledged) behaviour was egregious in his dealings with the Ministerial Intervention Unit. However, the Tribunal finds that the ground in s.116(1AB)(b) is not made out.

6. Therefore, the ground for cancellation does not exist and the decision must be set aside.

DECISION

1. The Tribunal sets aside the decision under review to cancel the applicant’s Subclass 151 (Former Resident) visa.

Michael Cooke
Senior Member