1907909 (Migration)

[2019] AATA 6116

1907909 (Migration) [2019] AATA 6116 (31 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907909

MEMBER:Antoinette Younes

DATE:31 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 31 October 2019 at 5:03pm

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – ground for cancellation – consequential cancellation under s 140(2) – Tribunal’s jurisdiction – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 109, 114, 140

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 100 (Spouse) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The applicant is married to [Mr A] whose visa was cancelled under s.109(1) for not  complying with s.101 of the Act. He has sought review of the delegate’s decision to cancel his Subclass 866 visa and the Tribunal has set aside the decision and substituted it with a decision not to cancel the visa (matter number 1907820).

3. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. [Mr A]’s Protection visa was cancelled on basis of non-compliance with s.101.

8. Section 101 of the Act provides that:

   Visa applications to be correct

   A non-citizen must fill in or complete his or her application form in such a way that:

   (a)  all questions on it are answered; and

   (b)  no incorrect answers are given or provided.

9. Subsection 140(2) of the Act provides that the Minister may, without notice, cancel a visa where:

   ·another person’s visa is cancelled under ss.109 (incorrect information), 116, 128, 133A, 133C or 137J (Student visas); and

   ·the visa holder, to whom s.140(1) does not apply, holds a visa only because the person whose visa is cancelled held a visa.

10. The word ‘only’ in s.140(2) means that the fact of another person holding a visa was a condition precedent to the grant of the visa.

11. In the current matter, the applicant’s visa was cancelled under s.140(2) because she was sponsored by her husband whose visa was cancelled. Unlike s.140(1), discretionary cancellations under s.140(2) do involve a ‘decision’, and the Tribunal generally has jurisdiction where the visa cancellation decision is a Part 5-reviewable decision under s.338 or a Part 7-reviewable decision under s.411. The Tribunal is satisfied that it has jurisdiction to review the decision.

12. In matter number 1907820 relating to the applicant’s spouse, [Mr A], the Tribunal found:

    When the applicant applied for a protection visa, he claimed that he feared harm essentially on political grounds.  He claimed that the authorities of Lebanon could not protect him from the harm he feared at the hands of Hezbollah.  He feared that he would be harmed in case of his return and that the authorities could not protect him. Central to the applicant’s claims are that his family had a profile of being connected with the SLA which led to him being perceived to have an anti-Hezbollah profile. The Tribunal observes that the RRT and the delegate had accepted the essence of the applicant’s claims.  The applicant was granted the Protection visa on that basis. 

    Apart from the applicant’s returns to Lebanon, there is no other evidence before the Tribunal to raise doubts about the applicant’s central claims. Although it is plausible that the applicant has embellished some of those claims, that potential embellishment cannot in itself discredit the entirety of the applicant’s claims…

    The Tribunal considers the cancellation of a visa to be serious and significant, requiring a state or level of satisfaction reached subsequent to the proper consideration and critical evaluation of probative material. In Sullivan v CASA,[1] the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences, the Tribunal “would express greater caution in evaluating the factual foundation for the decision to be reached.”[2]

    [1] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

    [2] Ibid, at [120].

    …

    The delegate’s decision to cancel the applicant’s Subclass 866 visa is based on the fact that the applicant had returned to Lebanon on three occasions, contrary to the protection claims he had made that he could not return. The delegate considered that returning to Lebanon undermined the applicant’s claims to such a degree to mean that the applicant had provided incorrect answers when he applied for the Protection visa.

    There is no dispute that the applicant subsequent to being granted the Protection visa, had returned to Lebanon on three occasions. In the application for a Protection visa, the applicant claimed that he could not return to Lebanon for fear of being harmed on the grounds, amongst other things, of his actual and imputed anti-Hezbollah profile.

    The Tribunal acknowledges that the returns to Lebanon raise doubts about the applicant’s claims as well as his fear of potential harm in case of return. The returns arguably raise legitimate questions about the applicant’s subjective fear of harm. The applicant has provided a number of explanations for the returns. The applicant went to Lebanon on the first occasion primarily to marry. He went to Lebanon on subsequent two occasions to see his wife and gather supportive evidence and to accompany her to see her ill mother.  The Tribunal considers those reasons to be reasonable and the Tribunal has given them weight. The Tribunal is nevertheless concerned about the applicant’s returns to Lebanon and about the fact that he did not disclose that return on his incoming passenger card. However, there is no other probative evidence before the Tribunal, apart from the returns, to support a finding that the applicant has provided incorrect answers when he applied for the Protection visa.

    The Tribunal appreciates that returning to the country of claimed persecution raises legitimate questions about the subjective claimed fear of harm as well as the truthfulness of the claims made. However, without more, the Tribunal is not satisfied that the returns mean that the applicant has provided incorrect answers to the relevant questions identified by the delegate. Although the Tribunal has doubts, those doubts are not sufficient for the Tribunal to reach a level of satisfaction to make a finding that the applicant has indeed provided incorrect answers.

    In consideration of the evidence as a whole and for the stated reasons, the Tribunal is not satisfied that the applicant’s returns to Lebanon mean that the applicant has provided incorrect answers to the relevant questions in the Form 866C.

    For the stated reasons, the Tribunal has not reached the state of satisfaction required to find that the applicant had provided incorrect answers in the application for a Protection visa. 

    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. 

    Even if the Tribunal were wrong about the finding that there was no non-compliance by the applicant in the way described in the notice given under s.107 of the Act, the Tribunal is of the view that there are strong factors including but not limited to, the fact that the applicant has two Australian citizen children, the mental health of his partner, the cancellation of his partner’s visa pursuant to s.140, and his contribution to the Australian community would mean that the Tribunal would exercise discretion not to cancel the visa.

    The Tribunal has decided that there was no non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.[3]

    [3] AAT Decision Number 1907820, at pages 10-12.

13. Pursuant to s.114 of the Act, if a decision made under s.109 to cancel a person’s visa is set aside by the Tribunal, then the visa is taken never to have been cancelled.

14. The Tribunal concludes that the decision to cancel the applicant’s visa under s.140(2) should be set aside on the basis that [Mr A]’s visa is not cancelled.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

    Antoinette Younes

    
    Senior 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.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)      giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑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.