1908976 (Migration)

[2022] AATA 3818

1908976 (Migration) [2022] AATA 3818 (3 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Hassan Izadnia (MARN: 1571846)

CASE NUMBER:  1908976

MEMBER:Alison Murphy

DATE:3 October 2022

PLACE OF DECISION:  Melbourne

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 03 October 2022 at 3:19pm

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – member of the family unit – applicant’s father’s visa cancelled – incorrect information in his protection visa application – father’s cancellation set aside upon review – visa taken never to have been cancelled – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 109, 114, 140
Migration Regulations 1994

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 on 9 April 2019 to cancel the applicant’s Subclass 100 Partner (Migrant) (Class BC) visa under s.140(2) of the of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.140(2) on the basis that the applicant held the visa only because [his father], who had sponsored [him] for the dependent partner visa, held a permanent protection visa and that visa had subsequently been cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 28 September 2022 to give evidence and present arguments. The review was heard jointly with the related reviews of the applicant’s father, [Father A] (AAT proceedings 1908918), mother [Mother A] (AAT proceedings 1908971) and [details deleted]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

4. The applicant in this case and each of the related cases was represented in relation to the reviews by the same migration agent.

   Background

5. The applicant is [an age]-year-old male from Iran. His father, [Father A], was granted a Subclass 866 protection visa on 6 April 2011 which enabled him to sponsor his family members for the purpose of the partner visa. The applicant was granted a dependent partner visa on the basis of his relationship with his father and arrived in Australia together with his mother and sister [in] August 2013.

6. On 9 April 2019 a delegate of the Minister made a decision to cancel the applicant’s father’s resident return visa pursuant to s.109 of the Act on the basis that he had provided incorrect information in his protection visa application. As the applicant was granted a visa only because his father had been granted a protection visa which was subsequently cancelled, it was determined that there were grounds for cancellation of the applicant’s partner visa under s.140(2) of the Act and a decision was made to cancel his partner visa on 9 April 2019.

7. On 3 October 2022 this Tribunal set aside the decision to cancel the applicant’s father’s protection visa, not being satisfied that he gave incorrect information in his protection visa application (AAT case number 1908918).

   ISSUES FOR determination

8. The issues in this case are:

   ·    whether the ground for cancellation is made out in respect of the applicant; and if so,

   ·    whether the visa should be cancelled.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and a decision substituted that the power to cancel the visa under s 109 was not enlivened.

   DOCUMENTS BEFORE THE TRIBUNAL AND NON-DISCLOSURE CERTIFICATE

10. The Tribunal has been provided with the Department’s files in relation to the grant and cancellation of the applicant’s father’s protection visa ([file number]). The Tribunal has also been provided with the Department’s files in relation to the cancellation of the partner visas held by the applicant, his mother [Mother A] and his sister [Sister A] ([file number]). The delegate has placed restrictions on some of the material contained in that file by issuing a certificate under s 438 of the Act dated 8 March 2022.

11. The certificate states that disclosure of these documents would be contrary to the public interest because disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The certificate records that the documents also contain information pertaining to parties or persons who are not directly associated with this particular application.

12. Where a certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

13. In this case the certificated information contains details of a Departmental investigation including substantial amounts of personal information about a number of persons not the subject of the current reviews who have been investigated by the Department on suspicion of providing incorrect information about their nationality and citizenship. I have had regard to the public interest in protecting the Department’s investigative methods and the confidentiality owed to third parties and weighed that up against the requirements of procedural fairness owed to the applicants in the current review.

14. At hearing I provided the applicant’s representative with a copy of the s 438 certificate and he indicated he had no submissions to make as to its validity. The document is signed and the certificated information clearly correlates with the stated public interest reason on the certificate.

15. Ultimately the Tribunal considers that the information in the certificated documents is of little relevance to the current review. To the very limited extent it is personal to the applicant in the current proceedings, it does nothing more than recount the information he has provided to the Department about his nationality and citizenship. Except in so far as it was discussed in broad terms at hearing, the certificated information has not been provided or otherwise disclosed to the applicant by the Tribunal.

    CONSIDERATION OF EVIDENCE

16. 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.

17. In this case the Tribunal is satisfied that the applicant held a dependent partner visa only because his father held a protection visa. The delegate’s decision records that the applicant’s partner visa was cancelled under s.140(2) because his father’s protection visa was cancelled under s.109.

18. It would appear then that at the time of the decision to cancel the applicant’s visa, the ground for cancellation existed under s.140(2). However this Tribunal set aside the cancellation of the applicant’s father’s resident return visa on 3 October 2022.

19. Pursuant to s.114, 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. Further, the Department’s Policy Guidelines relevantly state:

    Set aside of s109 cancellation decisions

    Section 114(1) of the Act states that if a s109 cancellation is set aside by the Federal Court, Federal Circuit Court, the AAT, the visa is taken never to have been cancelled.

    The Act does not expressly set out how this affects any consequential s140 cancellation. It is policy, however, that a consequential s140 cancellation would also be set aside in the same manner as the s109 cancellation. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled.

20. In these circumstances I consider it appropriate to set aside the decision to cancel the applicant’s visa under s.140(2) on the basis that the power to cancel the visa under s 140(2) is not enlivened.

    DECISION

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

    Alison Murphy
    Member