1901227 (Migration)

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 they become aware and of any relevant changes in circumstances. Extracts of the Act relevant to this case are attached to this decision.
The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate made the decision to cancel the applicant’s Five Year Resident Return visa because the delegate was not satisfied that the applicant had complied with s 104 of the Act, which provides that changes in circumstances are to be notified. The delegate explained:
It appears that the visa holder [that is, the applicant in this review] did not inform the Department regarding the changes to her circumstances in relation to the relationship breakdown with her sponsoring partner, [Mr A], prior to the grant of her Partner (subclass 100) visa on 10 June 2010.
In particular, evidence provided in [Mr B]’s Partner visa and BVE[2] applications indicate that the visa holder separated from her sponsoring partner, [Mr A], in 2009 and she commenced a new relationship with her current spouse, [Mr B], in May 2010 prior to the grant of her Partner (subclass 100) visa. As such, it appears that the visa holder and her sponsor, [Mr A], did not have an ongoing spousal relationship at the time of decision to grant her Partner (subclass 100) visa and she was granted a visa to which she was not entitled.[3]
[2] That is, Bridging E visa.
[3] The Notice of Intention to Cancel Visa (NOICC) also contained two paragraphs in near identical terms.
Section 107A allows a ground for cancellation of a current visa if there is non-compliance in connection with a previous visa. As the delegate explained:
By operation of section 107A of the Migration Act, if the visa holder did not comply with section 104 before her Partner (Migrant) (class BC subclass 100) visa was granted to her on 10 June 2010, then her Resident Return (subclass 155) visa she currently holds, may be cancelled.
On 2 October 2018, the delegate issued a Notice of Intention to Cancel Visa (NOICC) pursuant to s 107.
On 12 October 2018, the applicant’s then representative requested an extension of time to respond to the NOICC so as to enable receipt and review of information requested under Freedom of Information provisions. However, the Department refused the request, explaining that, in the circumstances of this case, the Migration Act does not contain provisions allow an extension.
Accordingly, thereafter and within the relevant time period, the applicant submitted information and evidence in response to the NOICC: written submissions dated 13 October 2018; a statutory declaration made by the applicant on 18 October 2018; a signed, undated statement made by [Mr B] (together with a copy of the bio-pages of his Vietnamese passport); and evidence relating to the applicant’s employment at and income from a [Workplace] in Darwin.
In the primary decision of 10 January 2019, the delegate noted and considered the applicant’s response to the NOICC.
The delegate noted that the applicant did not agree that there was non-compliance with s 104 (detailing key points from the written submissions dated 13 October 2018) and detailed the applicant’s reasons why she disputes that there was non-compliance, including the key contents of her statutory declaration of 18 October 2018 and [Mr B]’s statement (said to be of 17 October 2018).
Essentially, the applicant claimed that, as at 10 June 2010, when she was granted the Partner (Subclass 100) visa, her relationship with her sponsor, [Mr A], was genuine and continuing. Similarly, she claimed that she was not in a relationship with [Mr B] before she was granted the Subclass 100 visa. Accordingly, the applicant claimed that, during the relevant period, there were no changes in her circumstances and that the information provided in her application form was not incorrect.
However, the delegate found that there was non-compliance in the way described in the NOICC. Accordingly, the delegate considered whether the visa should be cancelled pursuant to s 109(1). After considering the applicant’s response, the various prescribed circumstances in reg 2.41 and other matters (specifically, additional policy considerations set out in the Department’s guidelines, namely PAM 3), the delegate exercised her discretion under s 109 of the Act and made a decision to cancel the visa.
On 18 January 2019, the applicant applied to the Tribunal for review of the decision to cancel the visa. The applicant was represented in relation to the review by her registered migration agent.
On 19 July 2019, the Tribunal wrote to the applicant, by way of her representative, to inform her that her case was being processed by the Melbourne Registry and that it is possible that the processing times at some of the Tribunal’s other Registries may be faster. The letter asked the applicant whether she would be willing to have her case transferred to, and heard, in another Registry and she was informed that this may expedite the processing of her case. The applicant was informed that, if her case was transferred to another Registry, she could still attend the Melbourne Registry for her hearing, but the Member and interpreter may be in another state and conduct the hearing by video.
On 25 July 2019, the representative wrote to the Tribunal to inform that the applicant was not willing to have her case transferred to another Registry.
On 22 January 2020, the Tribunal sent a letter to the applicant inviting her to attend a hearing on 27 March 2020 to give evidence and present arguments.
On 23 March 2020, the Tribunal wrote to the applicant, again by way of her representative, stating that, as part of the Tribunal’s response to Coronavirus (COVID-19) the Tribunal had decided to postpone the hearing. The letter stated that this was to minimise the risk of the transmission of Coronavirus.
On 1 July 2020, the Tribunal wrote to the applicant to inform her that, as a result of the COVID-19 pandemic, there would be a delay in the consideration of her matter.
The Tribunal’s ability to list the matter for an in-person hearing in Melbourne was hindered by the disruption caused by the COVID-19 pandemic.
On 27 April 2021, the applicant appeared, in person, before the Tribunal in Melbourne to give evidence and present arguments. The Tribunal also received oral evidence from [Mr AA], who also attended in person. Evidence was submitted that [Mr AA] was formerly named [Mr A]. Evidence was also submitted that [Mr AA] is an Australian citizen. The Tribunal is satisfied that [Mr AA] was the sponsor of the applicant’s application for the Partner visa. In the response to the hearing invitation, the applicant had also listed [Mr B] as a witness to provide oral evidence by telephone from Vietnam. However, at the hearing, the applicant informed the Tribunal that [Mr B] was unable to provide oral evidence as he was working (engaged as a driver in one long distance trip). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Three other people attended the Tribunal hearing: the representative, another migration agent and ‘[Mr C]’, a friend of the applicant.
On 4 November 2021, the Tribunal sent a 13-page letter to the applicant, by way of her representative. The letter explained that the Tribunal was writing to the applicant about three matters. First, to invite the applicant to provide information pursuant to s 359(1). Secondly, to inform the applicant about a non-disclosure certificate said to have been made pursuant to s 376. Thirdly, to inform the applicant about adverse information and to invite her to comment on or respond to that information pursuant to s 359A. The letter requested that the information and comments or response be provided by 18 November 2021 and outlined the consequences of failing to provide the information and comments or response or requesting an extension of time by this date. In these reasons, the Tribunal acknowledges the error in such statements. As the invitation to provide information was made pursuant to s 359(1) and not s 359(2), the letter should have referred to the consequences of failing to provide comments or response (that is, regarding s 359A) or requesting an extension of time by this date in respect of the provision of such comments or response only—not also in respect of provision of information.
On 18 November 2021, the representative responded to the letter, requesting a 21-day extension of time, explaining that the applicant needed further time to provide her response and gather supporting documentation and information. That same day, the Tribunal replied in writing, noting that the presiding Member granted an extension of time until 9 December 2021.
On 9 December 2021, the representative requested, on behalf of his client, a further extension of time, of 28 days. The letter stated that the applicant was committed to providing a response but that it had been ‘difficult to gather all information within the time frame’. It was submitted that
this is a very complex case where the information is coming from multiple sources with large volume of documents and information to review and it also involves information from 2010–2011 onwards.
The letter noted that, the previous day (8 December 2021), the applicant had instructed the representative to request a copy of the audio file for the hearing given that the Tribunal’s letter of 4 November 2021 was sent a number of months after the hearing and the applicant believed that the audio recording would assist her to respond to the Tribunal. The representative had immediately acted upon those instructions. In addition, the letter noted that the applicant was based in Melbourne while the representative was located in Brisbane. It was submitted, ‘[d]ue to the nature of the case, it is very important that we discuss the matter in detail with our client face-to-face which has not been possible so far due to border closures and quarantine requirements of Queensland’.
Given the matters raised (including the time of year), on 9 December 2021, the Tribunal granted the applicant an extension of time until 13 January 2022.
On 13 January 2022, the representative submitted written submissions on behalf of the applicant.
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 folios
I 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 folios
I 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.
Accordingly, the Tribunal must:
·assess the validity of the certificate;
·act in accordance with procedural fairness, including disclosing the existence of the certificate to the applicant, providing her with a copy of the certificate and affording her with an opportunity to make submissions in relation to the validity of the certificate; and
·comply with the procedural code, including affording the applicant with an opportunity to seek a favourable exercise of the discretion in s 376(3)(b) and complying with s 359A or s 359AA, that is, giving the applicant clear particulars of information that is adverse to the case and inviting her to comment on or respond to the information.
At the hearing on 27 April 2021, the Tribunal did not provide the applicant with a copy of the certificate, discuss the content of the certificate, invite the applicant to make submissions about the validity of the certificate or invite her to seek a favourable exercise of the discretion in s 376(3)(b). Rather, as noted above, the Tribunal wrote to the applicant about the certificate on 4 November 2021. A copy of the certificate was provided at that time.
The Tribunal’s letter of 4 November 2021 relevantly stated:
The Tribunal has considered the certificate and the material sought to be protected from disclosure by the issuing of the certificate.
The Tribunal has the discretion to disclose this information to you, or may withhold the information, having regard to any comments raised by the delegate in the certificate.
With respect to validity, the certificate contains both a date and a signature by the delegate, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840. However, the Tribunal considers that only part of the certificate is validly made.
The so-called public interest folios
The Tribunal considers that the part of the certificate concerning so-called public interest folios is not validly made because the delegate has not provided sufficient reasons for non-disclosure on public interest grounds. The Tribunal considers that the particular explanations—namely, ‘demonstrates the Department internal procedure’ and ‘contains information on the Department internal procedure’—are mere descriptions rather than public interest immunity reasons. In the Tribunal’s view, these descriptions could not form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matters contained in the documents should not be disclosed.
The Tribunal notes that, in this part of the certificate, the delegate sought to protect the disclosure of folio 260 (on the first part of the Department’s file) as well as folios 14–21; folios 65–71 and folio 156 (all from the second part of the Department’s file). The Tribunal has considered the relevance of this information to the review and whether any of the information engages the Tribunal’s obligations under s 359A of the Act.
Folio 260 is an internal departmental checklist for the processing of [Mr B]’s application for the Subclass 820 Partner visa. The delegate appears to have used the checklist to assist with administrative matters. The Tribunal considers that this internal checklist is not relevant to the review and does not raise s 359A obligations.
Folios 14–21 contain an internal departmental record of an allegation received by the Department by telephone on 13 October 2014 that you and [Mr B] were in a contrived relationship; that [Mr B] is married to another person, who is pregnant, and that you and [Mr B] visit each other on occasion only so as to give the impression that you are in a relationship. The Tribunal considers that this information is relevant to the review and raises s 359A obligations. The next part of this letter concerns s 359A obligations.
Folios 65–71 contain an internal departmental record of an allegation received by the Department by mail on 25 June 2015 that you and [Mr B] were in a contrived relationship for, respectively, money and permanent residency. Further, it was alleged that your real husband is [Mr D], who lives in Vietnam. In addition, it was alleged that [Mr B] was living with his real wife (who was named) and had a baby daughter (whose date of birth was given). The Tribunal considers that this information is relevant to the review and raises s 359A obligations. The next part of this letter concerns s 359A obligations.
Folio 156 is an internal departmental email. It notes that there have been repeat allegations that the relationship between [Mr B] and you is contrived. It also refers to a record which notes that previously, in 2014, you had told Victoria Police that you were single. It also notes that no charges had been laid against you. The Tribunal considers that this internal departmental email is not relevant to the review. However, some of the information referred to in the email does raise s 359A obligations. The next part of this letter outlines the gist of the information which engages the Tribunal’s obligations under s 359A of the Act.
The in-confidence folios
The Tribunal notes that, in this part of the certificate, the delegate sought to protect the disclosure of folios 150–151 and 189–193 (all from the second part of the Department’s file) and folios 109–122 (from the third part of the Department’s file).
The delegate was correct to state that these folios relate to third parties and that the material was given to the Minister, or to an officer of the Department, in confidence, and that s 375A does not apply. Accordingly, the Tribunal considers that this part of the certificate is validly made.
Folios 150–151 are part of the record from the Australian Government Department of Human Services (Centrelink) with respect to your former husband [Mr A] (known by other names at various points in time), including his address and his marital status at various points in time. Some of the information in these folios is relevant to the review and engages the Tribunal’s obligations under s 359A. The next part of this letter outlines the gist of the protected material and concerns compliance with s 359A.
All of the other folios concern third parties (that is, not you, [Mr B] or [Mr A]). The Tribunal has reviewed the information in these folios and considers that none of it is relevant to the review and does not raise s 359A obligations.
Process
The Tribunal is not proposing to provide you with copies of the protected material. However, as noted above, relevant material (whether protected or not) which engages the Tribunal’s obligations under s 359A of the Act, is particularised in the next section and you are invited to comment on or respond to the information.
If you wish to make any submissions in relation to the validity of the certificate and/or you seek the release of the protected material beyond the gist that is outlined in Part 2 below (that is, you seek a favourable exercise of the discretion in s 376(3)(b)), please forward written submissions to the Tribunal by 18 November 2021.

The written submissions of 13 January 2022 detailed the applicant’s submissions with respect to these matters.
The so-called public interest folios
With respect to the so-called public interest folios, it was submitted that the applicant does not object to non-disclosure of folio 260 (that is, the Department’s internal checklist form), agreeing with the Tribunal’s assessment that this internal checklist is not relevant to the review and does not raise s 359A obligations.
The submissions continued:
The applicant agrees with the Tribunal’s finding that the information contained in Folios 14–21 and 65–71 (internal departmental records) is relevant to this merit review and raises s 359A obligations.
The applicant also agrees with the Tribunal’s finding that the information contained in Folio 156 is an internal departmental email that is not relevant to the merit review but some of the information referred to in the email does raise s 359A obligations. Our client is satisfied with the outlining of the gist of the information which engages the Tribunal’s obligations under s 359A of the Act.
The in-confidence folios
With respect to the in-confidence folios in folios 150–151 ([Mr A]’s Centrelink records), it was submitted, in the written submissions of 13 January 2022, that the applicant agrees with and accepts the Tribunal’s decision to outline the gist of this information as it concerns compliance with s 359A.
However, with respect to the in-confidence folios in folios 189–193 and folios 109–122 (concerning third parties (that is, not the applicant, [Mr B] or [Mr A])), the written submissions of 13 January 2022 requested the Tribunal to outline the gist of the protected material so that the applicant can make appropriate comments and provide further submissions.
The submissions stated:
Our client agrees that these folios [that is, folios 150–151; folios 189–193 and folios 109–122, essentially, all those listed under the heading of in-confidence folios] relate to the third parties and that the material was given to the Minister, or an officer of the Department, in confidence but with an intention to influence the visa cancellation decision of our client.
However, our client wishes to claim that the information contained in these folios obtained from the third parties may form or become the basis of the reasons for the Tribunal’s decision and this information directly relates to our client and is likely to have great impact on her future and on this review application.
The submissions requested the Tribunal to exercise its discretion pursuant to s 376(3)(b) and release the protected information in folios 150–151 (that is, the Centrelink information) and folios 189–193 and folios 109–122 (that is, the third-party information) on the basis that this information is highly relevant to the review application and raises s 359A obligations. The submissions continued:
The protected information contains the documents that was the basis for the visa cancellation by the Department and is also likely to become basis for the affirmed decision by the Tribunal.
We plead that no harm is likely to be done to the nation or to the public service by the disclosure of the protected document or information.
We also plead that the administration of justice would be frustrated by withholding of the documents and information which must be disclosed if justice is to be done.
The Tribunal has considered the above-mentioned submissions and whether to exercise its discretion pursuant to s 376(3)(b).
With respect to the requested release of the protected information in folios 150–151 (that is, particular Centrelink information), the Tribunal notes that these particular folios concern records held by Centrelink for [Mr AA] (known by other names at various points in time). As has been explained, the Tribunal has provided the applicant with the gist of this information (as well as information in the records held by Centrelink for the applicant), as it concerns compliance with s 359A. The Tribunal has no in-principle objection to the release of folios 150–151 to the applicant. However, the Tribunal notes that it would need to comply with its privacy obligations. In any event, as will be discussed below, the Tribunal has determined that the decision under review should be remitted so, in these circumstances, it is doubtful that the applicant would still request the release of these folios. Accordingly, the Tribunal has not taken steps to release the information.
With respect to the requested release of the protected information in folios 189–193 and folios 109–122 (that is, information related to third parties), the Tribunal acknowledges that it has not provided the applicant with the gist of the protected information. This is because the Tribunal considers that, while the information is contained on the Department’s files for the processing of [Mr B]’s application for a combined Subclass 820/801 Partner visa, none of this information is relevant to the present review and does not raise s 359A obligations. Notwithstanding, the submission has been made that this information formed part of the basis for the delegate’s decision to cancel the visa and is ‘also likely to become basis for the affirmed decision by the Tribunal’. The Tribunal notes that the certificate states that the information was given to the Minister, or to an officer of the Department, in confidence and that s 375A does not apply. The Tribunal is mindful that if it released these folios, it would need to comply with its privacy obligations. As the Tribunal has determined that it is remitting the decision under review, the Tribunal considers it unnecessary to determine whether to exercise its discretion pursuant to s 376(3)(b).
The Tribunal considers that it has complied with its obligations with respect to the certificate and the material sought to be protected from disclosure, and that if it has not, that this has resulted in no practical injustice to the applicant.
Was the NOICC validly issued pursuant to s 107?
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.
At the hearing, the Tribunal asked the representative whether the applicant was claiming that the NOICC was defective. The representative confirmed that the applicant was not.
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 non-compliance identified and particularised in the s 107 notice was non-compliance with s 104.
Section 104 provides that changes in circumstances are to be notified and relevantly states:
(1)If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
...
(4)Subsection (1) applies despite the grant of any visa.
The delegate’s consideration of and finding of non-compliance with s 104
The NOICC detailed evidence of the alleged non-compliance, stating:
In support of his Partner visa application, [Mr B] provided a statutory declaration dated 31 October 2013, which indicated that he met and commenced a relationship with you in May 2010.
[Mr B] also provided your statutory declaration dated 1 November 2013, in which you declared the following:
·You met [Mr B] in May 2010. You went with friends for a coffee in [Suburb 1] and [Mr B] and you have mutual friends.
·You just wanted to be with friends and be distracted because you were unhappy about what had happened with your husband as you and your husband had separated.
·[Mr B] asked for your number and you were happy to give it to him. [Mr B] asked you whether you had a husband and you said yes, and that you were already separated because you were crying all the time and very sad. [Mr B] said ‘that’s not a good husband – how about me?’ and told you that he would like to make you happy.
·From that day, you and [Mr B] started spending time together going out for coffees and dinners, visiting each other.
·By August you and [Mr B] had fallen in love and started a relationship.
·You married [Mr B] [in] August 2013.
[Mr B] also provided a submission letter from his lawyer [Ms E] dated 22 November 2013 with the following information:
·You married [Mr A] in September 2005 but you separated in 2009 and your divorce took effect [in] May 2013.
·You met [Mr B] in May 2010. [Mr B]’s Form 47SP stated that you met [Mr B] in September 2010 but this was incorrect and a mistake made due to the urgency in preparing his application. You and [Mr B] met through mutual friends while having coffee in [Suburb 1]. [Mr B] was interested in you straight away and made that clear to you, asking for your number on that first occasion and pursuing you romantically.
On 27 November 2017, [Mr B] also provided a statement titled ‘Chronology of Relevant Events’ in support of his Bridging Visa E (BVE) application which included the following information:
·May 2010 – [Mr B] met his now wife [the applicant], and commenced a relationship with her.
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.
In this review, as was the case before the delegate, the applicant has claimed that, as at 10 June 2010, when she was granted the Subclass 100 visa, she continued to be in a spousal relationship with [Mr A] and accordingly, there was no non-compliance with s 104 of the Act.
The submissions
In this review, the Tribunal has considered the written submissions of 13 October 2018 (filed in response to the NOICC and prepared by a different firm to subsequent submissions); the written submissions of 20 March 2020 and the written submissions of 13 January 2022, as well as the documentary evidence submitted in support of the various submissions.
The written submissions of 13 October 2018 submitted that the evidence provided in the NOICC was insufficient to establish that:
·in May 2010, the applicant and [Mr B] were in a genuine and continuing relationship; or
·up to and including 10 June 2010, the applicant and [Mr A] were in a non-genuine relationship.
Rather, it was submitted that the applicant’s and [Mr B]’s statements in the various documents referred to in the NOICC were ‘inconsistent, vague and at times illogical’. For example:
In Form 47SP [Mr B] first states that he was in a committed relationship with [the applicant] in December 2010. He then contradicts this answer by stating he met and commenced a relationship with [the applicant] in May 2010.[6] [The applicant], by contrast, states in her statutory declaration that she met [Mr B] in May 2010 and that they were just friends as she was married to [Mr A] at the time. She further stated that it wasn’t until August 2013 that they were in a committed relationship.
[6] See also his statutory declaration of 31 October 2013.
Similarly, the written submissions of 20 March 2020 directed the Tribunal to review the applicant’s statutory declaration of 1 November 2013 in which she ‘correctly describe[s] that she had met [Mr B] in May 2010 and they became friends’.
The Tribunal understands the applicant’s claim, as detailed in the submissions in this review, to be that:
·in May 2010, the applicant and [Mr B] met through mutual friends at [Suburb 1] and subsequently developed a friendship;
·in July 2011, the applicant and [Mr A] separated—in some way—due to irreconcilable differences;
·in September 2011, the applicant moved out of the marital home to live with her sister ([Ms F]);
·in September 2011—not earlier, the applicant’s relationship with [Mr B] developed beyond a friendship; and
·as at 10 June 2010, when the applicant was granted the Subclass 100 visa, there had been no change in the applicant’s circumstances such that the information provided in her application form was incorrect. Accordingly, she did not fail to comply with s 104 and there are no grounds for cancelling her visa pursuant to s 109.
In the submissions of 20 March 2020 and 13 January 2022, it was submitted that while some incorrect information had been provided to the Department with respect to [Mr B]’s visa application, this had been provided by mistake.
With respect to the applicant’s statutory declaration of 1 November 2013, it was submitted:
At the time that the statutory declaration was drafted and signed, the Applicant was facing significant uncertainty of her husband’s [that is, [Mr B]’s] future in Australia and had recently learned that he would remain in a detention centre for an indefinite period of time. In addition to the stress and uncertainty, the Applicant struggled with a language barrier as she was unable to communicate adequately in English at the time.
The Applicant provided instructions through a Vietnamese speaking translator named [G], who relayed the information to the Applicant’s solicitor in English. We provide a copy of an email sent by [Ms H], a migration lawyer and agent with [Law firm], translated and provided to the Applicant by [G] dated 20 November 2013 …
In her statement [of 20 March 2020], the Applicant describes how the exact meaning of her instructions was misinterpreted and recorded incorrectly as a result of the language barriers she faced.
We submit that in consideration of the circumstances in which the Applicant provided information in support of [Mr B]’s visa application, that it was reasonable for her to mistakenly provide incorrect dates of when her previous relationship ceased.
We submit that the cancellation of the Applicant’s visa as a result of an administrative error on the part of another person is unjustified and patently unfair. Specifically, as the Applicant has built a life in Australia and has been contributing positively to the Australian community for more than ten years.
With respect to certain statements that had been made by [Mr B] in various documents submitted to the Department in respect of his application for the partner visa and for a BVE, it was submitted:
[Mr B] stated in his visa application that he commenced a relationship with the Applicant in May 2010 as he was unable to correctly understand the application form.
[Mr B] meant to state that he first met the Applicant in May 2010, which is correct. The error was a result of [Mr B]’s deficient understanding and abilities of communicating in English.
The errors made by [Mr B] are further illustrated by the inconsistencies he provided in his application forms, he signed and included with his Partner (Subclass 820/801) Visa application. [A]s described in the Department’s letter dated 10 January 2019,[7] in the Form 47SP completed by [Mr B], he first states that he was in a committed relationship with the Applicant in December 2010 and later in the same form states that he met and commenced a relationship with the Applicant in May 2010.
[7] That is, the delegate’s cancellation decision.
At the hearing, the representative reiterated a number of these submissions. He submitted that the case for cancellation was based upon submissions and other documents made in a ‘poor’ and ‘rushed application’, noting that, when an applicant is in immigration detention, there are only 48 hours in which an application for a substantive visa, such as a Partner visa, could be made. He submitted that the various documents, referred to in the NOICC, contain some factual errors because ‘some of the facts got lost in the translation’.
With respect to the information provided by [Mr B], which is referred to in the NOICC, the representative requested the Tribunal to disregard it altogether. He noted that, at the time, [Mr B] had non-Vietnamese speaking lawyers and migration agents and that he had been in immigration detention so he speculated that there may have been poor communication between him and his advisers. He noted that [Mr B] had provided some inconsistent answers in his Form 47SP and that, at the time, his agents had failed to pick up on these inconsistencies.

In this respect, the Tribunal notes that the delegate’s decision states that on 22 November 2013 [Mr B]’s representative, [Ms E], had written to the Department to inform that [Mr B] and [the applicant] had met in May 2010—not September 2010—and that the earlier answer was ‘a mistake made due to the urgency in preparing his application’.
At the hearing, the representative also referred the Tribunal to the following passages on page 5 of the delegate’s decision.
· At question 57 of Form 47SP, which asked “When did you first meet? and “Where did you first meet? [Mr B] answered “1 September 2010” and “[Suburb 1]”.
· At question 58 of Form 47SP, which asked “When did you and your fiancé(e) or partner commit to a shared life together to the exclusion of others? [Mr B] answered “25 December 2010.”
With respect to question 57, the representative submitted that the answer ‘1 September 2010’ was ‘totally incorrect’. As noted above, [Mr B]’s representative also submitted that this was incorrect information.
With respect to question 58, the representative submitted that [Mr B] probably meant to answer ‘25 December 2011’—not ‘2010’, noting that the applicant had given oral evidence at the hearing that it was in December 2011 that she and [Mr B] had commenced ‘romantic relations’.
With respect to the applicant’s statutory declaration of 1 November 2013, the representative submitted that, at the time she made her declaration, she had been unaware that it contained some translation errors. He acknowledged that there may have been some error on her part in making such a statutory declaration, but he submitted that the error was due to her poor English and ‘the error itself is not sufficient enough in terms of banishing her from Australia’. The representative again submitted that the applicant ‘should not be punished by the mistakes made by the third party’.
As will be explained, having reflected on all the information and evidence before it, the Tribunal accepts the claims made in the various written submissions.
Factors supporting a finding of no non-compliance
The applicant’s evidence
At the hearing, the Tribunal asked the applicant a number of questions about the inception, development and cessation of her relationship with [Mr A]/[Mr AA] and with [Mr B].
The applicant gave oral evidence that, in October 2004, she first met [Mr A] at the Ben Thanh market in Ho Chi Minh City when he was visiting Vietnam; that afterwards, they spent time together sightseeing and over meals; that, following [Mr A]’s return to Australia, they remained in contact—‘we kept talking’; that, a year later, [Mr A] returned to Vietnam to see her and that, [in] September 2005, they married. The applicant also gave oral evidence about the couple’s living arrangements in Australia. The Tribunal notes that, when it asked her when her relationship with her sponsor had ended, she replied that it was in September 2011 because that is when she had moved out of the common property. She said that the relationship ended because [Mr A] had been unfaithful.
The applicant told the Tribunal that, in May 2010, she first met [Mr B] at a café in [Suburb 1] with a group of friends as one of the friends had invited him. She said that they exchanged phone numbers and that, afterwards, they continued to talk. She said that the relationship developed over talking, explaining that, at first, it was ‘purely socialising and chatting’. The Tribunal asked her when the relationship developed from friendship to mutually romantic and she replied that it was in 2011, after [Mr B] had escaped from the detention centre and came to find her. The Tribunal asked her when they started living together and she explained that it was in September 2011, after he had found her and was in need of accommodation that her sister had felt sympathy for him so let him stay at her house. She gave oral evidence that they lived in different rooms of the house and that it was not until December 2011 that they started living together as partners. She said that they married [in] August 2013.
When the Tribunal asked the applicant whether there had been a reason for the gap of almost two years between starting a romantic relationship and marrying [Mr B], she said that, after the cessation of her marriage, she had been hesitant to start a new relationship. In her own words, ‘it was good for me to live with him for a bit first, to see whether he really loved me more than [Mr A] or not and whether he was really into the relationship’. At this point of the hearing, the applicant’s friend and support person ‘[Mr C]’ interrupted to dispute the interpretation. He stated that the applicant had said that she was not ready to enter another ‘marriage’. The Tribunal then clarified these points with the applicant.
The applicant said that, in August 2018, [Mr B] had returned to Vietnam voluntarily and that he had not been deported. She said that she had not seen him since then, that they have talked on the phone but, in 2019, they divorced. When asked why the relationship had ceased, she said that it was due to the distance, explaining that he had been in detention for a year and then returned to live in Vietnam. She said, ‘the emotions faded somehow’ and that she had heard that he had a girlfriend in Vietnam, so she decided to end the relationship. She said that it was not true to say that, when he had left for Vietnam, she had not wanted to return with him. Rather, she said that soon after he departed, she had received the correspondence about the possible cancellation of her visa and that she needed to stay in Australia to challenge the decision.
The Tribunal asked the applicant why there was some information before the Department which suggests that her relationship with [Mr B] began before she was granted her Subclass 100 visa.
She said that [Mr B] had been incorrect to state that, in May 2010, they had met and commenced a relationship because they had only met at that time. She was adamant that it was simply a friendship and not an intimate relationship. She speculated whether there had been a problem with translation, such as a misunderstanding between an intimate or emotional relationship compared with a general relationship or friendship.
With respect to information the applicant provided in her statutory declaration of 1 November 2013, the representative directed the Tribunal to ask the applicant about the first paragraph, which concerns the first meeting with [Mr B] in May 2010, specifically the statement, ‘I was unhappy about what had happened with my husband—we had separated—and [Mr B] made me laugh a lot’. The Tribunal referred the applicant to this statement and her statement, ‘[h]e asked me whether I had a husband, and I said yes, and that I was already separated because I was crying all the time and very sad’. The Tribunal noted that these statements differ from her oral evidence at the hearing and asked her about this.
The applicant gave oral evidence that, at the time, she had been upset with her husband ([Mr A]) so she had gone out for coffee with friends. She said that, at the time, she had not wanted to have a detailed conversation with her friends, including some people there who were new, about why she was upset with her husband, so she found it simpler to say that she had separated.
The Tribunal also referred the applicant to statements made in the third paragraph of her statutory declaration such as, ‘[b]y August we had fallen in love and started a relationship’. The Tribunal noted that while the applicant had not given a year, the context of the statement suggested that she meant August 2010.
The applicant replied, ‘to be honest, we are not really in love. We just feel each other as suitable; talk to each other a lot and including send messages to each other’. She speculated that ‘it could be the problem of my interpretation or translation’, saying, ‘it could have been interpreted by the interpreter as “we fall in love and started a relationship”’. She said that, at the time (August 2010), she was still living with her husband. She also said that, at the time, while she had a ‘good sense’ towards [Mr B], she did not know about his feelings towards her. In her own words, ‘I can’t predict what he was thinking about me’. She said that when he had asked to kiss her or spoke about having a child together, she had said ‘no’, because she was still in a relationship with [Mr A].
When asked again when her relationship with [Mr B] had become a serious and intimate one, she said that it was in December 2011.
At the hearing, the Tribunal sought to test the applicant’s oral evidence about her claimed relationships in a number of ways and was satisfied with her consistent and credible responses to all questions asked.
Indeed, since the applicant was sent the NOICC, she has given broadly consistent evidence about her relationships.
In the applicant’s statutory declaration of 18 October 2018, she provides further detail of her claimed first meeting with [Mr B] in May 2010. She declared that ‘[Mr B] and I were just friend’.
She declared that, subsequently, after [Mr B] had proposed that she leave her husband ([Mr A]) for him, she and [Mr B] had fought and ‘I had not met him again’. She further declared that:
·In July 2011, she had learned that her husband [Mr A]] had been unfaithful and that then she had stayed at her sister’s house ‘temporarily’.
·In September 2011, after she returned from a trip to Vietnam, and ‘after a year no contact [with [Mr B]] at all’, he had surprised her by visiting her after he had escaped from the detention centre. She said that she had ‘showed no interest in’.
·In mid-September 2011, she had moved her belongings to her sister’s house.
·From September to November 2011, she had lived at her sister’s house ‘in private room, only me’, reiterating, ‘I didn’t share my room with anyone’.
·In November 2011, she and [Mr A] ‘officially separated’.
·In December 2011, she and [Mr B] ‘have been in relationship and [Mr B] moved into my room and we were living together in a same room from that time’.
·In April 2013, she and [Mr A] divorced.
In the applicant’s statutory declaration of 20 March 2020, filed in this review, she sought to explain certain statements made in her statutory declaration of 1 November 2013. She explained that Vietnamese was her first language and relevantly declared:
I was in a relationship with my former partner, [Mr A] (now known as [Mr AA]) from October 2004 until July 2011 when we separated. We were divorced [in] April 2013.
On 5 September 2013, I sponsored [Mr B] for an Australian Partner Visa. As part of the application I provided a statutory declaration that I signed on 1 November 2013.
In [Mr B]’s partner visa application, we mistakenly advised that our relationship commenced in May 2010 and I mistakenly provided the incorrect date that I separated from [Mr A].
This incorrect information was provided to the Department because of language difficulties and because we submitted [Mr B]’s visa application in a rush when I was stressed and frightened after he was arrested.
I met [Mr B] in May 2010 when I went out for coffee with my friend [I], in [Suburb 1], Victoria. I felt upset that day as I had recently had a quarrel with [Mr A], however we were still in a genuine committed relationship.
In paragraph 1 of my statutory declaration dated 1 November 2013, I described that [Mr B] asked me whether I had a husband and I said ‘yes, and that I was already separated because I was crying all the time and very sad’.
I didn’t mean that [Mr A] and I were separated permanently, I meant to express that I had left my husband at home and went out without him that day because I had been upset with him recently. The meaning of my statement was conveyed differently than I intended in my statutory declaration because of the miscommunication through my translator [G]. When I signed the statutory declaration, I meant to express that I was angry with my husband [Mr A].
Later in the same paragraph I describe how I stopped seeing [Mr B] because I thought it wasn’t appropriate. [Mr B] had said that he wanted to kiss me and said that he would want to have children with me. I found this inappropriate as we were only friends and I was in a committed married relationship with [Mr A].
I stayed in contact with [Mr B] after this meeting however, a romantic relationship did not begin between us until September 2011, when [Mr B] escaped from the detention centre where he was being kept and visited me. By this time my relationship with [Mr A] had ended.
I describe in paragraph 3 [of] the statutory declaration that by August we had fallen in love and started a relationship. This also was not accurate. [Mr B] and I had gone out for coffee together by ourselves, however we were still friends at this time. We were developing romantic feelings for one another at this time which started after my relationship with [Mr A] ended.
[Mr B] was arrested [in] September 2013, very soon after we were married. After [Mr B] was arrested, we applied for his partner [visa] in order to try to get him out of immigration detention. I was very stressed at the time because I was uncertain of what would happen to [Mr B] and felt shocked when I learned that he had been arrested.
…
As the lawyers at [Law firm] were not Vietnamese speaking, [G][8] acted as my translator and assisted me to correspond with [Ms H], the migration lawyer who worked for [Law firm]. With the help of both [Law firm] and [G], we lodged [Mr B]’s partner visa application.
I provided instructions, including the details of when my previous relationship ended, to [G] in Vietnamese who then provided the details to [Law firm].
I mistakenly provided incorrect dates of when my relationship with [Mr A] ended because of the difficulty of providing information through a translator. I did not realise the information was incorrect at the time because of the rush that the application was lodged in and because of the stress I was experiencing at the time prevented me from being able to think clearly.
[8] The migration agent whom the applicant declared that she had approached first and whom, given the complexity of the issues, had referred her to contact [Law firm].
The Tribunal notes some slippage in the applicant’s evidence over time about when the claimed romantic relationship with [Mr B] began—September 2011[9] or in December 2011.[10] (It will be recalled that the submissions stated that it was in September 2011, no doubt reiterating the applicant’s instructions). The Tribunal is not troubled by this slippage in dates. The Tribunal is mindful that the applicant has been giving evidence about events that took place around 10 years prior and that some inability to recall with precision is to be expected. In addition, the Tribunal is mindful that it may be difficult for a person to precisely explain the development of a relationship from friendship only to ‘romantic’ and then to ‘committed’ because the development might have been gradual rather than demarcated by specific and memorable events. Further, nuance of language may have played a part in the applicant’s evidence. Arguably there are subtle differences between ‘more than friendship’, ‘romantic’ and ‘committed’. The Tribunal is unaware whether the Vietnamese language accommodates such subtle differences.
[9] Statement made in the applicant’s statutory declaration of 20 March 2020.
[10] Statement made by the applicant at the hearing on 27 April 2021.
The Tribunal notes that at the hearing, ‘[Mr C]’ had queried the interpretation of some of the applicant’s oral evidence, specifically whether she had said ‘relationship’ or ‘marriage’. Further, the Tribunal notes that, at another point in the hearing, when the representative had been making some comments about what the applicant had meant in her statutory declaration of 1 November 2013 when discussing how, in May 2010, she responded to the question of whether she was still in a relationship/married/has a husband, the interpreter had told the Tribunal that it was very challenging for him to interpret these statements accurately.
Considering all of the submissions, information and evidence before it, the Tribunal considers that it is plausible that incorrect information was provided to the Department by mistake and that the reasons given for this are plausible too.[11] Accordingly, the Tribunal accepts the submissions and the applicant’s evidence.
[Mr A]’s/Mr [AA]’s evidence
[11] For example, the Tribunal observed another possible mistake in interpretation/translation. In [Mr B]’s representative’s submissions of 1 November 2013, ‘[Ms F]’ is described as [the applicant]’s ‘cousin’. However, the Tribunal understands that ‘[Ms F]’ is [the applicant]’s sister.
In this review, the applicant submitted [Mr AA]’s signed statement of 20 March 2020 where he relevantly stated that, until a certain date in 2014, he had been known as [Mr A]; that, on 12 October 2004, he had met the applicant in Ho Chi Minh City while he was visiting Vietnam; that their relationship commenced in May 2005; that they married [in] September 2005; that, on 5 October 2005, he sponsored the applicant for an Australian Partner visa; that their relationship ended in July 2011 ‘because our values and belief are different’ and that the marriage ended [in] May 2013.
At the hearing, [Mr AA] gave oral evidence about the inception, development and cessation of his relationship with the applicant. He told the Tribunal that they had been in love, that it had been a legitimate and genuine relationship for the full length of time and that he had wanted it to be an even longer relationship—‘20, 30 years together’. He said that they had lived together and that he had witnessed the ‘good news’ when the applicant had been granted her visa. In his own words, ‘I didn’t predict that a year after, things would go sour’.
When the Tribunal asked him to give oral evidence about when the relationship had ended, the Tribunal observed a noticeable pause before [Mr AA] said that he thought that it was in 2011, specifying that it was after the applicant had been granted her visa. He said that they had experienced conflict over personal issues (mentioning various things such as tension over his employment—him not being viewed as good enough by people in the Vietnamese community—and starting a family, saying that he did not want children but that the applicant did and also stating, after some time in the course of giving his oral evidence, that he had been seeing someone else). When asked, he said that they had divorced in 2013.
The Tribunal discussed with him the delegate’s concerns that the relationship between him and the applicant had ended before she was granted the Subclass 100 visa and that she had been in a partner relationship with [Mr B] before she was granted the visa.
[Mr AA] told the Tribunal that the applicant had told him about [Mr B] and that he had believed that it was ‘just friendship’. He said that, at the time, he had thought that it was ‘ok’ for the applicant to have a friend because she had her sister in Australia only and because it would assist her to practice her English. He was clear in giving oral evidence that, it was not until after the cessation of their own relationship that the applicant commenced a relationship with [Mr B]. In his own words, ‘I don’t think she was smart enough to have an affair before her visa was granted’; ‘there is no way she would have taken off’. He said that her visa had been granted in 2010, when ‘she was with me’.
When he left the hearing room, the Tribunal observed and heard [Mr AA] tell the applicant to ‘take care’ in a gentle and kind way. Accordingly, the Tribunal has considered the possibility that [Mr AA] may have been so motivated by a desire to assist the applicant in this review that he may not have been truthful in giving his oral evidence. However, the Tribunal has reflected upon the fact that, when the then Migration Review Tribunal had a hearing in respect of the refusal of the applicant’s Subclass 309 visa (MRT case number 060797300), the then presiding Member had been so satisfied with the evidence before her—including [Mr A]’s/[Mr AA]’s oral evidence given at an in-person hearing—that the Tribunal made a decision to remit the application to the Department without hearing from the applicant at all. In the Tribunal’s experience, this is a very unusual course of action in a review of a Subclass 309 refusal. In the circumstances, the Tribunal accepts [Mr AA]’s evidence provided in the present review.
[Mr B]’s evidence

100. In [Mr B]’s signed, undated[12] statement made and filed in response to the NOICC, he detailed his claimed first meeting with the applicant in May 2010. He also stated that they exchanged mobile numbers and that they had talked on the phone ‘several times’ and met ‘a few times’. He stated that:
[12] Said by the delegate to have been made on 17 October 2018.
·     In about September 2010, he had suggested that the applicant leave her husband, marry him and they should have a baby. This had angered the applicant, who reiterated her commitment to her marriage.
·     In November 2010, he was ‘caught up in the camp for marijuana related offences’ and that, from that time, he could not contact the applicant.
·     After escaping from ‘the camp’, he found a way to contact one of the applicant’s friends so as to find out her whereabouts so he could contact her and apologise.
·     In September 2011, after the applicant returned to Australia from Vietnam, he approached the applicant, whom he stated had moved to her sister [Ms F]’s house in mid-September 2011, apologised and explained his situation. He said that ‘it seemed [the applicant] did not care who I was’ and that ‘[the applicant] just said everything was over and she did not want to repeat the old story’.
·     On 5 October 2011, he met the applicant at her niece [Ms J]’s birthday and they ‘became closer’.
·     At the end of October 2011, as the applicant had no official accommodation (having escaped from ‘the camp’), he asked the applicant’s sister whether he could move into her house. He stated that ‘I stayed in one room and [the applicant] stayed in another room separately’. He said that he paid $200 a month for his room.
·     From December 2011 to June 2013, he and the applicant were ‘officially in relationship’ and staying together in the one room at the applicant’s sister’s house.

101. He also detailed other matters not relevant to this review. He stated that, after signing the form with respect of voluntary removal from Australia and returning to Vietnam, he had been ‘really shocked’ to learn of the intention to cancel the applicant’s visa. He stated:
when I was in the camp I did not remember what I had said because my English was so bad, the time in the camp was my worst time, I was stressed, my head was weak and my health was not good.

102. While there are some differences between some of the dates in [Mr B]’s and the applicant’s explanatory accounts—for example, with respect to when [Mr B] had moved into the applicant’s sister’s house, he stated that it was in October 2011 whereas she stated that it was in September 2011—the Tribunal considers these to be minor and in the realm of what may be expected when parties are trying to recall events from many years before. Overall, the Tribunal considers that [Mr B]’s explanation is plausible and, accordingly, the Tribunal accepts his evidence.
Factors that could be said to support a finding of non-compliance
103. The Tribunal is restricted to consideration of whether there was non-compliance in the manner particularised in the s 107 notice.[13] However, the Tribunal is not precluded from considering evidence relevant to the non-compliance, as particularised, that was not referred to in the s 107 notification.[14]
[13] SZEEM v MIMIA [2005] FMCA 27.
[14] Sheptitskaya v MIBP [2015] FCCA 159 at [10]–[16] where it was confirmed that while the Tribunal must determine whether there has been non-compliance of the kind identified in the s 107 notice, it is not restricted to information referred to in the s 107 notice. In that case, the Tribunal sent to the applicant a s 359A letter which identified four additional pieces of information which had not been identified in the s 107 notice, none of which identified any likelihood that the Tribunal would exceed its jurisdiction by going beyond the particular properly identified in the s 107 notice.
104. As noted earlier, the Tribunal is required by the Act to invite the applicant to comment on or respond to certain information which the Tribunal considers would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. This section outlines the various information put to the applicant for comment pursuant to s 359A and her comments or response to the information.
Information in [Dr K]’s report

In the cancellation decision, the delegate mentioned [Dr K]’s report in the context of considering the prescribed circumstances set out in reg 2.41, specifically reg 2.41(f). The delegate stated:
I also note that the visa holder provided a psychologist report dated 14 November 2013 as part of [Mr B]’s partner visa application, which stated she separated from her sponsor in 2009 … and her marriage had permanently broken down in May 2010.
However, in response to the NOICC, the visa holder submitted she moved out from her home in mid-September 2011 and officially separated from the sponsor in November 2011 … I note the significant disparity in the dates and do not find it credible that the inconsistent information would have been provided due to the details of her relationship breakdown with the sponsor being unclear.

106. The Tribunal’s letter to the applicant of 4 November 2021 stated:
[Dr K] records in his report of 14 November 2013, written after you had attended a number of psychological and counselling sessions with him, that:
· ‘She [that is, you] settled in [Suburb 2] until she separated from her ex-husband, [Mr A] in 2009’ and that ‘Her [that is, your] marriage was obsoleted in May 2010’.
This information is relevant to the review for the following reasons.
Section 104 of the Act provides that changes in circumstances are to be notified. Where an applicant is in Australia at the time the visa is granted, they are required to inform an officer in writing of changes in circumstances before the visa is granted.
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 104.
Section 107A allows a ground for cancellation of a current visa if there is non-compliance in connection with a previous visa.
As the Notice of Intention to Consider Cancellation explained:
By operation of section 107A of the Migration Act, if you did not comply with section 104 before your Partner (Migrant) (class BC subclass 100) visa was granted to you on 10 June 2010, then your Resident Return (subclass 155) visa you currently hold, may be cancelled.

The Notice of Intention to Consider Cancellation referred to specific information before the Department, including in:
·     your completed Form 47SP: Application for migration to Australia by a partner which you lodged with the Department on 5 October 2005 in support of your application for a Partner (Provisional) Subclass 309 visa;
·     your marriage certificate to [Mr A];
·     your relationship statement dated 4 October 2005;
·     your statutory declaration of 19 October 2009;
·     your and [Mr A]’s movement records;
·     [Mr B]’s completed Form 47SP: Application for migration to Australia by a partner lodged with the Department on 5 September 2013 in support of his application for a combined Partner (Subclass 820/801) visa;
·     your Form 40SP: Sponsorship for a partner to migrate to Australia which you signed on 5 September 2013 and which [Mr B] lodged in support of his application for the Partner visa;
·     [Mr B]’s statutory declaration of 31 October 2013, lodged in support of his application for the Partner visa;
·     your statutory declaration of 1 November 2013, which [Mr B] lodged in support of his application for the Partner visa;
·     a submission letter from [Mr B]’s lawyer [Ms E] dated 22 November 2013, which [Mr B] lodged in support of his application for the Partner visa; and
·     a statement titled ‘Chronology of Relevant Events’ which [Mr B] provided to the Department on 27 November 2017 in support of his application for a Bridging Visa E (BVE).
The Notice did not refer to the information in [Dr K]’s report.
If the Tribunal relies on the information that has been particularised above (under the heading ‘Information in [Dr K]’s report’) in making its decision, it may find that:
·     your spousal relationship with [Mr A] ceased prior to the grant of your Partner (Subclass 100) visa on 10 June 2010; and
· you have not complied with s 104 of the Act because you did not inform the Department regarding the changes to your circumstances which made an answer to a question on your application form for the Partner visa to be incorrect in the new circumstances before the grant of your Partner (Subclass 100) visa on 10 June 2010.
The consequence of the Tribunal relying on this information, in the event that the Tribunal finds that there was non-compliance with s 104 by you in the way described in the Notice of Intention to Consider Cancellation and after having had regard to your response and to the prescribed circumstances, is that the Tribunal may conclude that your visa should be cancelled pursuant to s 109(1) and the Tribunal may affirm the decision under review to cancel your Five Year Resident Return (Subclass 155) visa.
You are invited to give comments on or respond to the above information in writing.

107. The applicant responded to this adverse information in the written submissions of 13 January 2022. It was submitted:
Our client claims that [Dr K]’s report was organised in a rush by the previous immigration agent ([G] and lawyer [Ms H] at [Law firm]) and the date, and the wording was misunderstood, and the review applicant explained this during the Tribunal’s oral hearing on 27 April 2021.
Our client says that language and communication barriers has caused inconsistent information being provided in [Dr K]’s report.
On instructions, the Applicant and [Mr A] separated in July 2011 due to irreconcilable differences and were divorced [in] April 2013 and the divorce took effect [in] May 2013.

108. As noted earlier, the Tribunal has listened to the audio recording from the hearing. [Dr K]’s report was not discussed. Accordingly, the Tribunal understands the written submissions to refer to the applicant’s general evidence that, in the course of [Mr B] applying for a Subclass 820/Subclass 801 Partner visa ‘in a rush’, various documents were provided which contained some mistakes, including dates, due to ‘language and communication barriers’.
109. The Tribunal has considered the submission.
110. From review of the information on the Department’s files, the Tribunal is mindful that:
·On 8 October 2013, the Department wrote to [Mr B] requesting further evidence in support of his application for a Subclass 820/Subclass 801 Partner visa, including evidence of any ‘compelling reasons’ for waiving the Schedule 3 criteria.
·On 22 November 2013, in response to the Department’s request, [Mr B]’s representative submitted written submissions and evidence, including [Dr K]’s report as evidence of the psychological distress that [the applicant] would experience if [Mr B] was required to depart Australia.
·[Dr K]’s report states that [the applicant] attended three consultations, the first being on 15 October 2013, which the Tribunal notes was shortly after the Department had sent its request to [Mr B] for further evidence.
·[Dr K]’s report does not provide any detail as to whether the consultations were conducted in English or with the assistance of an interpreter.

111. As noted earlier, in this review, the Tribunal has accepted the general claim and evidence that some of the information, specifically that particularised in the NOICC, [Mr B] submitted to the Department in respect of his visa applications was factually incorrect and that such errors were included by mistake due to the urgency in which the materials were prepared and due to mistakes in translation due to language and communication barriers.

In these circumstances, noting the tight timeframe in which [Mr B] and his advisers were working to respond to the Department and given that there is no evidence that an interpreter was used or that [Dr K] speaks Vietnamese, the Tribunal accepts the applicant’s claim that the statements in [Dr K]’s report that, ‘[s]he settled in [Suburb 2] until she separated from her ex-husband, [Mr A] in 2009’ and that ‘[h]er marriage was obsoleted in May 2010’, contain inaccuracies and that the correct information about these key events are in the terms that she has given evidence in this review. These particular statements in [Dr K]’s report are not the reason, or a part of the reason, for affirming the decision that is under review.
Centrelink information

113. The Tribunal’s letter of 4 November 2021 relevantly stated:
As noted above, the Department’s file for the processing of the application for a Partner visa made by [Mr B], for which you were the sponsor, contains information from Centrelink with respect to your former husband [Mr A] (known by other names at various points in time), including his marital status and his address at various points in time.
The Department’s file also contains information from Centrelink concerning declarations and information that you made to Centrelink.
However, various other information before the Tribunal is inconsistent with some of the information that you and [Mr A] gave to Centrelink.
Please note, however, that we have not made up our mind about the information.

114. The letter then gave particulars of the information.
115. The letter concluded by stating:
This information is relevant to the review because it may cause the Tribunal to impugn your general credibility and [Mr AA]’s (formerly known as [Mr A]) general credibility in the Tribunal’s consideration of both of your evidence in response to the Department’s claim that there was non-compliance with s 104 by you in the way described in the Notice of Intention to Consider Cancellation.
The consequence of the Tribunal relying on this information, in the event that the Tribunal finds that there was non-compliance with s 104 by you in the way described in the Notice of Intention to Consider Cancellation and after having had regard to your response and to the prescribed circumstances, is that the Tribunal may conclude that your visa should be cancelled pursuant to s 109(1) and the Tribunal may affirm the decision under review to cancel your Five Year Resident Return (Subclass 155) visa.
You are invited to give comments on or respond to the above information in writing.

116. The written submissions of 13 January 2022, which were filed in response to the s 359A invitation, state the following.
On instructions, the review applicant was not eligible for any Centrelink benefits before 2011 since she was on a temporary partner visa and then she needed to be on a permanent visa for at least two (2) years before becoming eligible for any Centrelink benefits. Therefore, Centrelink information of the applicant before 2011 is likely to be incomplete because she didn’t lodge any form or information with the Centrelink.
Our client says that she contacted Centrelink only in the year 2014 when she applied for the unemployment payments after she has divorced [Mr A].

117. The Tribunal accepts this submission.
118. For ease of comprehension, the Tribunal has paired the remaining submissions with the particulars of the information in the Tribunal’s letter of 4 November 2021.
119. The first bullet point under the heading ‘Centrelink information’ in the Tribunal’s letter of 4 November 2021, states:
Both you and [Mr A] informed Centrelink that your relationship started [in] October 2007. However, the Tribunal notes that you and [Mr A] signed your marriage certificate [in] September 2005 in Vietnam and that you entered Australia [in] October 2007 as the holder of a Subclass 309 visa.

120. With respect to this information, it was submitted:
It may be possible that [Mr A] updated his Centrelink records stating that his wife has joined him in Australia [in] October 2007. It’s the day when the applicant entered Australia as a holder of a subclass 309 visa.

121. The Tribunal accepts this submission and draws no negative inference from the information particularised in the Tribunal’s letter. Further, the Tribunal notes that, at the hearing, the applicant gave oral evidence that she first arrived in Australia in October 2007 as the holder of a Subclass 309 visa. The Tribunal’s file contains a copy of the applicant’s movement records. These records evidence her as first having entered Australia [in] October 2007 as the holder of a Subclass 309 visa.
122. The second bullet point under the heading ‘Centrelink information’ in the Tribunal’s letter of 4 November 2021, states:
You informed Centrelink that your relationship with [Mr A] ended [in] May 2013 whereas he informed Centrelink that it ended on 1 September 2013.

123. With respect to this information, it was submitted:
The applicant informed Centrelink that her relationship with [Mr A] ended [in] May 2013 miscalculating one month from the divorce grant date [in] April 2013 by just one (1) day.[15]
[15] The divorce order of [April] 2013 states that the divorce took effect [in] May 2013. Please note that this footnote is not in the original document.
Our client is unable to comment on why [Mr A] informed Centrelink that [the relationship] ended on 1 September 2013 because his actions was outside the control of the applicant after the divorce.

124. The Tribunal accepts this submission and draws no negative inference from the information in the second bullet point under the heading ‘Centrelink information’ in the Tribunal’s letter of 4 November 2021.

The second bullet point under the heading ‘Centrelink information’ in the Tribunal’s letter of 4 November 2021 contains a number of indented bullet points. Essentially, the Tribunal listed other information before it that caused it to question whether the applicant’s relationship had ended [in] May 2013. Each of these indented bullet points is dealt with in turn.

126. The first one states:
In your statutory declaration of 1 November 2013, you declared that ‘By August [2010] we [that is, you and [Mr B]] had fallen in love and started a relationship’.

127. With respect to this information, it was submitted:
As described in the Applicant’s statement [of 20 March 2020], she remained in a genuine, committed relationship with her visa sponsor [Mr A] from October 2004 until July 2011 when they separated. The Applicant states that her romantic relationship with [Mr B] commenced in September 2011, after her relationship with [Mr A] ceased.
As explained in the Applicant’s statement in support, she provided the statutory declaration to the Department while [Mr B] was in immigration detention, which caused her to provide the information relating to their relationship in a state of urgency while experiencing significant stress and anxiety as a result of her husband being arrested and detained.

128. The submissions then reiterated a number of submissions that had been made previously (see paragraph 64 of these reasons).
129. The Tribunal accepts this submission and draws no negative inference from the information put to the applicant for comment or response.
130. The second indented bullet point of the Tribunal’s letter states:
In your sister [Ms F]’s Form 888 statutory declaration of 15 December 2016 she declared, ‘My sister introduced her husband [Mr B] to our family in 2010 when they started dating’.

131. With respect to this information, it was submitted:
Our client says that the Form 888 by [Ms F] was not translated properly because the applicant and [Mr B] just got to know each other as friends in May 2010 and he went to her sister’s house for dinner and [Mr A] was also there at the time.

132. The Tribunal notes that [Ms F]’s Form 888 statutory declaration of 15 December 2016 is written in Vietnamese and an English translation provided. The English translation is stamped that it was translated by a professional Vietnamese to English translator with the National Accreditation Authority for Translators and Interpreters (NAATI).

If the Tribunal relies on the information that has been particularised above (under the heading ‘[Social media] information’) in making its decision, it may find that during the period that you claimed to be in an exclusive, genuine and continuing relationship with [Mr B] you were in a relationship with ‘[Mr D]’ on [Social media], who lives in Vietnam.
This information is relevant to the review because, if true, it may cause the Tribunal to impugn your general credibility in the Tribunal’s consideration of your evidence in response to the Department’s claim that there was non-compliance with s 104 by you in the way described in the Notice of Intention to Consider Cancellation.
The consequence of the Tribunal relying on this information, in the event that the Tribunal finds that there was non-compliance with s 104 by you in the way described in the Notice of Intention to Consider Cancellation and after having had regard to your response and to the prescribed circumstances, is that the Tribunal may conclude that your visa should be cancelled pursuant to s 109(1) and the Tribunal may affirm the decision under review to cancel your Five Year Resident Return (Subclass 155) visa.
You are invited to give comments on or respond to the above information in writing.

176. As was the case with respect to the anonymous allegation contained in the dob in of June 2015 that the applicant’s real husband is ‘[Mr D]’ on [Social media], who lives in Vietnam (referred to above), the written submissions of 13 January 2022 stated that the applicant denies that she was in a romantic relationship with [Mr D].
177. As noted above, on 9 January 2017, the Department wrote to [Mr B] (again) about the allegations. This letter also stated:
The Department also received information that your sponsor has a real partner in Vietnam. This information is supported by evidence from social media where your sponsor is pictured with another man at the time she travelled to Vietnam. The photographs posted in social media suggest that your sponsor is in a romantic relationship with this other man.

178. It was submitted, in the submissions of 13 June 2017 which [Mr B]’s representative filed with the Department, that [the applicant] strongly denied that she was having an affair. The submissions stated that ‘[w]e are instructed that the photographs on [Social media] were intended as jokes between the two and their broader social network of friends’. The submissions continued:
it is not disputed that the photographs appear romantic in nature, but given the … statements explaining the context surrounding them, they simply cannot be taken as sufficient evidence to conclude that [the applicant] and [Mr D] are in a romantic relationship, let alone an ongoing relationship.

179. Similarly, in her statutory declaration of 8 June 2017 (which [Mr B] filed), the applicant denied that she was in a relationship with [Mr D]. Amongst other things, she declared:
[Mr D] and I are just close childhood friends. He is like a brother to me. We are in no way romantically connected to each other.

180. In addition to the statements listed earlier, [Mr B] had also provided the Department with a signed statement made by [Ms R], the applicant’s niece, being the daughter of the applicant’s sister [Ms S]. The statement is dated 19 May 2017 and as with the other statements, both the original document in the Vietnamese language and the English translation were provided to the Department. Essentially, [Ms R] states that she is a freelance businessperson and makeup artist and that, in the course of learning about bridal makeup and photography, during the 2015 Tet holiday, she asked the applicant and [Mr D] to help her by being models for the photographs. She stated, ‘[Mr D] used my image to post on social networks, mainly for showing, teasing and attracting like[s]’.
181. The Tribunal also notes that a number of the persons who made statements about the platonic nature of the applicant’s relationship with [Mr D], referred to above, also provided their knowledge of the [Social media] photographs and their knowledge of the reasons why they had been taken and posted. The applicant also gave detailed evidence about it in her statutory declaration of 8 June 2017.
182. In the delegate’s decision of 26 September 2017, refusing [Mr B]’s application for a Subclass 801 Partner visa, the delegate stated that the photographs of [the applicant] and [Mr D] on [Social media] ‘display affection and a body language that suggests their relationship is deeper than friendship’. The delegate expressed the view that this was especially the case when one compared these photographs to the photographs of [the applicant] and [Mr B] together.
183. The delegate also noted the submissions and declaratory evidence in respect of the photographs but, having noted that the submissions and [the applicant] had ‘stated that the photographs were taken on three different occasions: from 11 February to 23 March 2014, 14 July to 4 September 2014, and 8 February to 18 March 2015’, ‘the explanation that the photographs in question were taken for a portfolio creation might apply only to one set of photographs’, those relating to the Tet holiday in 2015.
184. The delegate continued:
I might consider the claim that the pictures were taken for a photographer’s portfolio and exhibited as a joke provided it was a single occurrence. However, as these photographs were taken in the space of one year during several visits to Vietnam and a trip to [Country], I find this explanation untenable. This conclusion is strengthened by the fact that [the applicant]] and [Mr D] went on holiday [to] [Country]. Moreover, I note that [the applicant’s mother] also stated that [the applicant] not only travelled to [Country] with [Mr D] in 2015, but also Da Nang City and to The Shrine of Our Lady of La Vang in 2014.

185. The Tribunal has reviewed and considered the various photographs that were taken from the [Social media] profiles for ‘[Mr D]’ and ‘[Profile name]’. The Tribunal takes a different view to the delegate about these photographs. The photographs taken from the period 14 July to 4 September 2014 are not clearly romantic. It is plausible that they show physical interaction that could be expected of childhood friends spending time together when one usually lives in a different country. Other photographs are more suggestive of a closer bond; however, it is not possible for the Tribunal to determine whether these photographs are from 11 February to 23 March 2014 or 8 February to 18 March 2015 as the years are not given in the [Social media] posts. In the circumstances, the Tribunal considers that the photographic evidence on [Social media] is not sufficiently strong for the Tribunal to disbelieve the applicant and/or make adverse credibility findings.
186. Accordingly, the Tribunal accepts the submission and draws no negative inference from the information put to the applicant for comment or response.
Correspondence from Victoria Police[17]
[17] Folio 156.

In the cancellation decision, the delegate mentioned some interaction with Victoria Police in the context of considering the prescribed circumstances set out in reg 2.41, specifically reg 2.41(j). The delegate stated:
Departmental records indicate the Victorian Police interviewed the visa holder in 2013 regarding her investment property in [Town] VIC where they found hydroponic equipment used for cultivation of commercial quantities of cannabis. However, following this police investigation the visa holder was not charged with any offences.
As there is no information before the Department to indicate there have been any breaches of the law by the visa holder since the non-compliance, I give this consideration a little weight in the visa holder’s favour.

188. The Tribunal’s letter of 4 November 2021 relevantly stated:
The Department’s file for the processing of the application for a Partner visa made by [Mr B], for which you were the sponsor, also contains correspondence from a named officer of the Victorian police force to the Department dated 25 April 2014. The officer states that you had been interviewed in relation to an investigation into the cultivation of a commercial quantity of cannabis that had been located at a property in [Town], Victoria. You were identified as the owner of the property. (As noted above, the email notes that no charges had been laid against you).
Please note, however, that we have not made up our mind about the information.
The particulars of the information are that:
·     The officer believed that you married [Mr B] ‘primarily to assist him with staying in Australia’.
·     The officer stated, ‘[the applicant] lives with her sisters [Ms F] DOB: [Date 1] and [Ms Q] DOB: [Date 2], both these women own houses where drug crops have been discovered’.
·     The officer stated, ‘I also suggest the [Surname] family to be persons of bad character and I can supply evidence if necessary to support this claim’.
This information is relevant to the review for the following reasons.
As you are aware, the delegate found that you had not notified the Department of the change to your circumstances—namely the cessation of your claimed relationship with [Mr A]—prior to the grant of your Partner (Subclass 100) visa and that, accordingly, you were granted a visa to which you were not entitled.
If the Tribunal relies on the information that has been particularised above (under the heading ‘other adverse information’) in making its decision, it may find that:
·     you contrived your relationship with [Mr B] for migration purposes (his); and
·     your family (including your two named sisters, and possibly you too) are persons of bad character.
The information in the first bullet point is relevant to the review because, if true, it may cause the Tribunal to impugn your general credibility in the Tribunal’s consideration of evidence in response to the Department’s claim that there was non-compliance with s 104 by you in the way described in the Notice of Intention to Consider Cancellation.
The information in the second bullet point is relevant because, in the event that the Tribunal finds that there was non-compliance with s 104 by you in the way described in the Notice of Intention to Consider Cancellation, in addition to considering your response to the Notice about the non-compliance, the Tribunal must have regard to the prescribed circumstances set out in reg 2.41, including reg 2.41(j). This paragraph concerns any breaches of the law since the non-compliance and the seriousness of those breaches. The information, if true, may cause the Tribunal to give weight to this prescribed circumstance (that is, reg 2.41(j)).
The consequence of the Tribunal relying on this information, in the event that the Tribunal finds that there was non-compliance with s 104 by you in the way described in the Notice of Intention to Consider Cancellation and after having had regard to your response and to the prescribed circumstances, is that the Tribunal may conclude that your visa should be cancelled pursuant to s 109(1) and the Tribunal may affirm the decision under review to cancel your Five Year Resident Return (Subclass 155) visa.
You are invited to give comments on or respond to the above information in writing.

189. It was submitted, in the written submissions of 13 January 2022, that the applicant strongly denied the claim that she married [Mr B] ‘primarily to assist him with staying in Australia’.
190. It was further submitted:
Our client … claims that the police officer may have provided his or her opinion that could be biased without any investigation or analysis of the facts.
Our client claims that it is a police prejudic[ial] view about her and her sisters. She also claims that she did own a house in [Town] that she rented out and she explained this in the Tribunal’s hearing. She says that the tenants were growing weeds there and did not pay the rent and abandoned the house, so she had to get the police to gain access to the house after she came back from Vietnam. Once they were there, they found the crops and since she is the owner of the house, she got interviewed by police but obviously it is nothing to do with her hence no charges laid against her.
Our client also confirms that her sister [Ms F] also owned an investment property and the tenants in her investment property grew cannabis hence she was also interviewed by police, but no charges laid.
Our client’s other sister, [Ms Q] has nothing to do with police.

191. The Tribunal notes that, at the hearing and in the context of discussing reg 2.41(j), the applicant had given oral evidence as described in the written submissions. She told the Tribunal that, when she had travelled to Vietnam, the tenants stopped paying rent at her investment property. She said that, when she had returned to Australia, the real estate agent had told her about this and had told her to contact the police to obtain orders so that she could inspect the property to see whether the tenants were still living there or not. She said that, when she had contacted the police, that they had told her that she did not need such permission because she owns the property. She said that, subsequently, the police contacted her, and she attended an interview. She said that she was asked a lot of questions such as, ‘do you know what is happening at this house?’ She said that she could not remember all the questions that she was asked but that she had been asked whether she was married and about her employment. She said that she was asked for her fingerprints and that the police had told her that they would contact her if they needed to but that she had never heard from them again.
192. As was the case with the earlier-mentioned adverse information, the Tribunal accepts the applicant’s response denying the truth of the various information put to her for comment in this respect. Accordingly, the Tribunal draws no negative inference from the information put to the applicant for comment or response.
Conclusion on non-compliance
193. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
CONCLUSION
194. 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
195. 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.
Justine Clarke
Member

ATTACHMENT – 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.

97Interpretation
In 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 application
A 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 answer
Any 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 answers
For 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.
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.

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‑compliance
The 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.

[2022] AATA 964

4 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies