1822320 (Migration) - [2019] AATA 1777

1822320 (Migration) [2019] AATA 1777 (31 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1822320
MEMBER:Jane Marquard
DATE:31 January 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 116 (Carer) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 31 January 2019 at 2:06pm
CATCHWORDS
MIGRATION – cancellation – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – applicant did not comply with visa – applicant is carer for mother – spent time offshore for health reasons – other relatives provided assistance in her absence – no non-compliance by applicant – decision under review set aside – no jurisdiction with secondary applicants

LEGISLATION
Migration Act 1958 (Cth), ss 101-105, 107, 109, 116, 140
CASES

Bader v Minister for Immigration (2018) FCCA 485
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 first named applicant’s Subclass 116 (Carer) visa under s.109(1) of the Migration Act 1958 (the Act). The first named applicant is a married woman from [Country 1] and the other applicants are her daughters. The first named applicant (the applicant) was granted the Carer visa on 12 September 2016 to care for her mother, aged [age] years old. She claims to also care for her father, aged [age] years old.
The delegate cancelled the visa on the basis that the applicant did not comply with section 101 (b) of the Act, which provides that a non-citizen must fill in or complete an application form in such a way that no incorrect answers are given or provided.
The applicant has applied to the Administrative Appeals Tribunal (the Tribunal) for a review of that decision. The issue in this review is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicants appeared before the Tribunal on 19 December 2018. The applicants were represented and the representative appeared at the hearing. An interpreter in the Arabic ([Country 1] dialect) assisted the Tribunal.
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…

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

Case: [2019] AATA 1777
Decision Date: 31 January 2019

CaseChat Overview and Summary

This matter concerned an application by a visa holder to review the cancellation of their Subclass 116 (Carer) visa. The applicant had provided information in their visa application regarding their mother's need for care and the availability of other relatives in Australia to provide that care. The Department of Home Affairs had subsequently cancelled the visa, alleging non-compliance with section 101(b) of the Migration Act 1958 (Cth) by providing incorrect answers in the application. The Tribunal was required to determine whether the visa cancellation was valid.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 (Cth), which mandates that visa applicants provide no incorrect answers in their application forms. This involved assessing whether the information provided by the applicant concerning their mother's care needs and the availability of other relatives in Australia was indeed incorrect, and if so, whether this constituted a valid ground for visa cancellation under section 109 of the Act. A further issue was the Tribunal's jurisdiction concerning secondary applicants.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 of the Act and that the notice issued under that section complied with statutory requirements. However, the Tribunal was not satisfied that the applicant had provided incorrect answers as particularised in the section 107 notice. The applicant had stated that no other relatives in Australia were reasonably able to provide the required assistance, and that their mother did not have other relatives in Australia not previously listed. The Tribunal noted that the applicant had spent time offshore for health reasons, during which other relatives provided assistance. Crucially, the Tribunal concluded that the applicant's absence and the subsequent assistance from other relatives did not render their original statements incorrect in the context of the visa application. Consequently, the Tribunal determined that the discretionary power to cancel the visa under section 109 of the Act did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the first applicant's Subclass 116 (Carer) visa. The Tribunal also stated that it had no jurisdiction with respect to the other applicants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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. Extracts of the Act relevant to this case are attached to this decision.Was the s.107 notice valid? 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. 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 section 101(b) of the Act, which provides that ‘a non-citizen must fill in or complete his or her application form in such a way that (a) no incorrect answers are given or provided. The non-compliance identified was as follows. On page 13 of the application form submitted by the visa holder on 13 September 2011, under the heading ‘details of other family members’, the visa holder provided the following information:·Parents: Name: [Mr A]Date of birth: [date]Country of current residence: AustraliaName: [Ms A]Date of birth: [date]Country of current residence: Australia·Your brother and sisters (including full, half, step and adopted brothers and sisters):Name: [Mr B]Date of birth: [date]Country of current residence: Australia·On page 17 of the application form, under the heading ‘Give details of the relative in Australia who needs your care’, the visa holder provided the following answers:Full name of relative: [Ms A]Date of birth: [date]Relationship to you: Mother·On page 17 of the application form in response to the question, ‘what medical condition led to your relative needing your assistance?’ the visa holder answered ‘[various medical illnesses]’.·On page 17 of the application form in response to the question ‘what assistance will you provide to your relative, and for what period will you provide that assistance’, the visa holder answered ‘I will provide my mother with all possible and needed assistance. I am a [health professional] myself, therefore I would be able to assist her with all personal needs as well as medical needs’.·On page 17 of the application form, in response to the question ‘does the relative requiring the care have any other relatives in Australia not previously listed in this form?’ the visa holder answered ‘no’.·On page 17 of the application form, in response to the question ‘are any relatives in Australia (other than yourself if you are applying onshore) reasonably able to provide the assistance required, the visa holder answered ‘no’.·On page 18 of the application form, in response to the question ‘has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital or nursing home or other community service to assist your relative’, the visa holder answered ‘yes’, and provided the following information:Name of organisation: [Organisation 1].In response to the question, ‘can your relative obtain long-term assistance from this organisation’, the visa holder answered ‘no’.·On page 19 of the application form, the visa holder stated that ‘the care provided by the community organisations are based on short term and hourly basis per week. The sponsor has been registered with Carelink as well’.·On page 22 of the application form, the visa holder declared the following:‘I declare that the information that I have supplied in this application is complete, correct and up-to-date in every detail.’‘I understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled’.

Decision

Reasons for decision

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 first named applicant’s Subclass 116 (Carer) visa. The Tribunal has no jurisdiction with respect to the other applicants.Jane MarquardMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 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.100Incorrect answersFor 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 correctA 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‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

The Tribunal has no jurisdiction with respect to the other applicants.Jane MarquardMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 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.100Incorrect answersFor 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 correctA 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‑complianceThe 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.