1901227 (Migration) - [2022] AATA 964

1901227 (Migration) [2022] AATA 964 (4 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1901227
MEMBER:Justine Clarke
DATE:4 March 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Five Year Resident Return (Subclass 155) visa.

Statement made on 04 March 2022 at 4:34pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – changes in circumstances in relation to previous partner visa application not notified to department – breakdown of relationship with sponsoring partner and commencement of new relationship prior to grant of visa – inconsistent and conflicting evidence of dates and circumstances – misunderstanding of questions and language difficulties – timing of initial and final separation from first marriage, and meeting, development and committing to second relationship – initially lived separately at sister’s house – second partner’s application made quickly while in immigration detention – second marriage now ceased – consistent and credible evidence despite passage of time – anonymous allegations that second relationship contrived – photos on social media with man in home and third countries – long-standing close family friend – posed for niece’s make-up and photography portfolio – statements from family and friends – insufficient evidence to make finding of non-compliance – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 107A, 109, 359, 359A, 375A, 376
Migration Regulations 1994 (Cth), r 2.41
CASES
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840
Sheptitskaya v MIBP [2015] FCCA 159
SZEEM v MIMIA [2005] FMCA 27
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 10 January 2019 by a delegate of the Minister for Home Affairs to cancel the applicant’s Five Year Resident Return (Subclass 155) visa under s 109(1) of the Migration Act 1958 (the Act).
The applicant was born in Vietnam. At the time of this decision, she is [Age] years of age. The Tribunal notes the evidence before it that the applicant has legally changed her name to ‘[New legal name]’.[1]
[1] See Change of Name Certificate on the second of the Department’s files for the processing of [Mr B]’s application for a Subclass 820 Partner visa (that is, [Number 4]).
On 3 September 2015, the applicant was granted a Five Year Resident Return visa.
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with sections 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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 1901227 (Migration)

Details

AGLC: 1901227 (Migration) [2022] AATA 964
Case: [2022] AATA 964
Decision Date: 4 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The dispute centred on allegations of non-compliance with section 104 of the *Migration Act 1958* (Cth), specifically concerning the applicant's failure to notify the Department of changes in her circumstances prior to the grant of a previous partner visa. The applicant had allegedly provided inconsistent and conflicting evidence regarding the breakdown of her relationship with her initial sponsor and the commencement of a new relationship, which the Department considered indicative of a lack of genuine commitment to a shared life and an attempt to secure a positive migration outcome by withholding information.

The primary legal issue before the Tribunal was to determine whether the ground for cancellation, namely non-compliance with section 104 of the *Migration Act*, was made out. This required the Tribunal to assess the credibility of the applicant's explanations for the inconsistencies in her evidence, particularly concerning the timing of her separations and new relationships, and to decide whether she had a positive obligation to notify the Department of these changes before her partner visa was granted. The Tribunal also had to consider whether, even if non-compliance was established, the visa should still be cancelled.

The Tribunal considered extensive documentation, including departmental files related to the cancellation decision and previous partner visa applications, and reviewed the audio recording of the hearing. While acknowledging the delegate's findings of conflicting information and a lack of credibility regarding the applicant's explanations, the Tribunal ultimately found that the evidence, despite the passage of time and some language difficulties experienced by the applicant, was consistent and credible. The Tribunal noted that allegations of the second relationship being contrived were unsubstantiated and that evidence from family and friends supported the applicant's claims. Crucially, the Tribunal concluded that there was insufficient evidence to make a finding of non-compliance with section 104.

Consequently, the Tribunal set aside the decision under review, meaning the cancellation of the applicant's visa was revoked.

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 In this review, the issue for determination is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. In considering this issue, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s file, as well as oral evidence given at the hearing. For the avoidance of doubt, the Tribunal notes that it has reviewed and considered information on the following Departmental files:·[Number 1] (the Department’s file with respect to the cancellation decision);·[Number 2] (the Department’s file for the processing of the applicant’s application for the Subclass 309 and Subclass 100 Partner visas); and·[Number 3], [Number 4] and [Number 5] (the Department’s files for the processing of [Mr B]’s application for a combined Subclass 820/Subclass 801 Partner visa). Due to the passage of time since the hearing, the Tribunal confirms that, a few days prior to making this decision, the presiding Member listened to the audio recording of the hearing in its entirety.The purported s 376 certificate The Department’s file [Number 5], which is part three of the Department’s file for the processing of [Mr B]’s application for a combined Subclass 820/Subclass 801 Partner visa, contains a non-disclosure certificate, dated 30 October 2017, said to have been made pursuant to s 376. The certificate relevantly provides:Public Interest foliosI notify the Administrative Appeals Tribunal that s 376 applies to:the document(s)/information contained in folio 260 of file number [Number 3],[4] and certify that disclosure of this material would be contrary to the public interest because:·folio 260 contains UK820 checklist which demonstrates the Department internal procedure; the document(s)/information contained in folios 156, 71–65, 21–14 of file number [Number 4],[5] and certify that disclosure of this material would be contrary to the public interest because:·folios 156, 71–65, 21–14 contains information on the Department internal procedure.[4] Part one of the Department’s file for the processing of [Mr B]’s application for a Partner visa.[5] Part two of the Department’s file for the processing of [Mr B]’s application for a Partner visa.… In Confidence foliosI notify the Administrative Appeals Tribunal that s 376 applies to:the document(s)/information contained in:folio(s) 193–189, 151–150, of file number [Number 4] (contain information related to the third parties); folio(s) 122–109 of file number [Number 5] (contain information on the third parties)because it was given to the Minister, or to an office of the Department, in confidence, and section 375A does not apply.… Unlike a non-disclosure certificate made pursuant to s 375A, a certificate validly made pursuant to s 376(1)(b) gives the Tribunal discretion to disclose this information to the applicant, having regard to any comments raised by the delegate in the certificate.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As has been noted, the delegate found that there was non-compliance in the way described in the NOICC. The delegate stated:Evidence before me indicates the visa holder provided conflicting information pertaining to her relationships with [the] sponsor and with her current spouse in [Mr B]’s Partner visa application and in her NOICC response. I also note the visa holder’s current spouse, [Mr B], provided inconsistent claims regarding the commencement of his relationship with the visa holder, which further undermines the credibility of the visa holder’s claims and indicates that they both provided inconsistent information to facilitate a positive outcome for their respective Partner visa applications.I consider the range of conflicting information provided by the visa holder and [Mr B] throughout the process of obtaining their visas raises a number of credibility concerns. I consider this conflicting information is strong indication that the visa holder and her sponsor did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others. While I acknowledge the visa holder’s claims that the exact details regarding when she commenced her relationship with [Mr B] are unclear, I consider it more significant that information has been provided which confirms the visa holder’s relationship with her sponsor [Mr A] ended in 2009 which was significantly prior to the grant of her partner visa in June 2010.As such, I consider that despite being legally married to her sponsor they had separated in 2009 and their relationship had broken down prior to the grant of her Partner (subclass 100) visa on 10 June 2010. I consider this to be more significant than the exact commencement of the visa holder’s relationship with [Mr B]. Furthermore, in response to the Notice, the visa holder has not provided any explanation as to why information has been submitted to the Department that her relationship with her sponsor [Mr A] had broken down in 2009. I do not find it credible that this would be an oversight. …Based on the evidence before me, I consider the visa holder’s reasons for disputing the non-compliance are not credible and she did not notify the Department regarding the changes to her relationship status prior to the visa grant, in order to meet the visa requirement and to secure a positive migration outcome. I consider that if the Department had known that [the applicant] had separated from her husband in 2009 her Partner visa would not have been granted.I consider the visa holder did not notify the Department regarding the changes in her circumstances prior to grant of her Partner visa, which made answers to questions on her Partner visa application form to be incorrect in the new circumstances. As such, I am satisfied the visa holder has not complied with section 104 of the Migration Act.The Tribunal’s consideration of non-compliance with s 104 As was explained in the written submissions of 13 October 2018:The non-compliance identified and particularised in s 107 was non-compliance with s 104 in the following respect:The applicant was not in a genuine and continuing relationship with her sponsor to the exclusion of all others at the time of her visa [grant] and did not comply with s 104 by failing to notify the Department of the change in her circumstances prior to the grant of her visa.