1825299 (Migration) - [2020] AATA 4234

1825299 (Migration) [2020] AATA 4234 (9 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1825299
MEMBER:Kate Millar
DATE:9 October 2020
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

Statement made on 09 October 2020 at 1:51pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] came to Australia [in] August 2016 as the holder of a Class XB (Global Special Humanitarian) (Subclass202) visa. This visa was granted on the basis that [the applicant] was a member of the family unit of her mother [Ms A].
One of the requirements to be a member of [Ms A]’s family unit was that [the applicant] was not engaged to be married and did not have a spouse or de facto partner.
After arriving in Australia, [the applicant] advised the Department of Home Affairs that she had provided an incorrect answer in her visa application, and she was in fact married and had a child. She maintains she has not lived with her husband but was living with and financially dependent on her mother before coming to Australia. She states she had hidden her pregnancy and gave birth when she said she was staying with a friend.
A delegate of the Minster for Immigration, Citizenship, and Multicultural Affairs found she had provided an incorrect answer on her visa application and cancelled her visa under s.109(1) of the Migration Act 1958 (the Act).
The issue in the present case is whether a ground for cancellation is made out, and if so, whether [the applicant]’s visa should be cancelled.
[The applicant] appeared before the Tribunal on 11 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from her brother [Mr B], her mother [Ms A], and her husband [Mr C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.
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 s.101 of the Act. Section 101 of the Act requires a non-citizen to fill in his or her application form in such a way that all questions are answered, and no incorrect answers are given or provided.
To cancel a visa under s.109 of the Act the Minister must first issue 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.
A decision maker must consider the response to the s.107 notice and decide if there was non-compliance in the way specified in the notice (s.108 of the Act). If there…

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: [2020] AATA 4234
Decision Date: 9 October 2020

CaseChat Overview and Summary

This matter concerned an appeal by a visa holder against the cancellation of her Subclass 202 (Global Special Humanitarian) visa. The cancellation was based on allegations that the applicant had provided incorrect information in her visa application regarding her relationship status. The applicant had declared she had never been married or in a de facto relationship, and had not previously been married, in a de facto relationship, or in a customary, traditional, or religious marriage. However, she later notified the Department of an incorrect answer, stating she had been in a de facto relationship since 2014, married in a religious ceremony, and had a child.

The primary legal issues before the Tribunal were whether a valid notice under section 107 of the *Migration Act 1958* (Cth) had been issued, whether a ground for cancellation under section 109 of the Act had been established, and whether the visa should be cancelled having regard to the prescribed circumstances in the *Migration Regulations 1994* (Cth). The Tribunal considered the requirements for issuing a valid notice under section 107, which necessitates providing particulars of the alleged non-compliance. It also examined the definition of an incorrect answer under section 100, noting that knowledge of the incorrectness is not required.

The Tribunal found that the delegate had reached the necessary state of mind to issue a notice under section 107, as the applicant had notified of an incorrect answer. The notice provided particulars of the non-compliance by referencing the applicant's declaration of "Never married or been in a de facto relationship" and the answer "No" to questions about previous marital or de facto relationships. The Tribunal noted that the applicant's subsequent notification revealed she was in a de facto relationship and had been married in a religious ceremony, and had a child. Despite the initial incorrect information, the Tribunal ultimately set aside the decision to cancel the visa, substituting a decision not to cancel.

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 s.101 of the Act. Section 101 of the Act requires a non-citizen to fill in his or her application form in such a way that all questions are answered, and no incorrect answers are given or provided. To cancel a visa under s.109 of the Act the Minister must first issue 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. A decision maker must consider the response to the s.107 notice and decide if there was non-compliance in the way specified in the notice (s.108 of the Act). If there is non-compliance, a decision maker is to consider the response regarding the non-compliance and the prescribed circumstances set out in in r.2.41 of the Migration Regulations 1994 (the Regulations) and after doing so may cancel the person’s visa (s.109 of the Act). It follows the issues are whether a valid notice under s.107 was issued, whether a ground to cancel [the applicant]’s visa has been established, and whether her visa be cancelled, having regard to factors prescribed in the Migration Regulations 1994 (the Regulations). Did the notice comply with the requirements in s.107? In looking at the validity of the notice issued under s.107 of the Act, a delegate of the Minister must first consider that a visa holder had not complied with a provision, and then meet the requirements for issuing a valid notice. As [the applicant] notified of an incorrect answer in her visa application, the necessary state of mind was reached to issue a notice under s.107 of the Act. Section 107 of the Act sets out a number of requirements to issue a valid notice. The first is that the notice gives particulars of the possible non-compliance. In this case, the delegate refers to the application for the visa lodged on 2 November 2015:· The box which is ticked under the heading Relationship status as being Never married or been in a de facto relationship;· In answer to Question 8 of Part D of Form 842 which asks Have you or any other person included in the visa application previously been legally married, in a de facto relationship or in a customary/traditional/religious marriage that is not legally recognised and the answer given was “No”.· The applicants declared that the information supplied is complete, correct and up to date in every detail. [The applicant] lodged a notification of an incorrect answer dated 13 July 2017 together with a statutory declaration dated 12 September 2017 which stated she had provided an incorrect answer about her marital status with the correct information being:I am in a defacto relationship with [Mr C] (married in a religious ceremony) since 2014. We have a son [Master D] who was born in [Month, Year].

Decision

Reasons for decision

Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.Kate MillarSenior MemberATTACHMENT – 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 sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.Kate MillarSenior MemberATTACHMENT – 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.