2000642 (Migration) - [2021] AATA 5332

2000642 (Migration) [2021] AATA 5332 (15 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2000642

MEMBER:Kate Millar
DATE:15 December 2021
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 15 December 2021 at 10:30am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – bogus document – parents deceased – family composition – Pakistan citizenship – DNA testing – non-refoulement obligations – Hazaras in Pakistan – best interests of the child – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 197, 198, 359
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Migration Regulations 1994, rr 2.12, 2.41
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
COT15 v Minister for Immigration and Border Protection [2015] FCACA 190
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration, Citizenship and Multicultural Affairs v FAK19 [2021] FCAFC 153
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

[The applicant] came to Australia as the holder of a Partner (Provisional) visa as the spouse of [Mr A] [in] April 2010. She was later granted a Partner (Migrant) (Subclass 100) visa. On 7 December 2016, [the applicant] was granted a Resident Return (Subclass 155) visa.
[The applicant’s] Subclass 155 visa was cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 2 January 2020 on the basis that she had provided incorrect answers on her visa application and had provided a bogus document.
In her visa application to come to Australia, [the applicant] claimed she was a citizen of Afghanistan who had not been previously married and did not have any children. She claimed her parents were deceased, and she had two siblings: her sister [Sister A] and brother [Brother A]. [The applicant] claimed to have lived in Afghanistan until she travelled to Pakistan in 2003.
In 2014 the Department received information that:
·[Mr A] is not [the applicant’s] real husband.
·Her actual husband is [Mr A’s] brother [Mr B], who arrived in Australia by boat in May 2010.
·[The applicant] has two children with [Mr B].
·Her parents are alive and well.
·She has two other brothers; [Brother B] who arrived in Australia by boat and [Brother C] who lives in Pakistan.
·They are all citizens of Pakistan.
The Department records show that [the applicant’s] alleged brother [Brother B] arrived in Australia in December 2012 and declared he was a citizen of Pakistan.
The Department obtained information that [the applicant], [Brother A] and [Mr B] have transferred money to a person with the same name…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] AATA 5332
Decision Date: 15 December 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Return (Residence) (Class BB) visa, subclass 155 (Five Year Resident Return) visa. The dispute arose from allegations that the applicant had provided incorrect answers and a bogus document in her visa application, leading to the cancellation of her visa under section 109 of the Migration Act 1958 (Cth). The case was heard by Kate Millar.

The primary legal issues before the Tribunal were whether the notice of intention to cancel the visa complied with the requirements of section 107 of the Act, whether the applicant had failed to comply with sections 101 (answering all questions correctly) and 103 (not providing a bogus document) of the Act as particularised in the notice, and if so, whether the applicant's visa should be cancelled. The Tribunal was also required to consider the discretionary factors relevant to cancellation under section 109, including prescribed circumstances, government policy, and any potential breaches of international obligations such as non-refoulement obligations, family unity, or the best interests of a child.

The Tribunal found that the notice issued under section 107 was valid and that the applicant had indeed failed to comply with section 101 by providing incorrect answers regarding her child's existence, her marital status, her parents' status (specifically, that her father was deceased when he was not), and her siblings. Furthermore, the Tribunal found that the applicant had contravened section 103 by providing a bogus document concerning her father's death. In exercising its discretion under section 109, the Tribunal considered the prescribed circumstances and relevant policy, noting that cancellation was not mandatory. The Tribunal also considered the potential impact on international obligations, including non-refoulement, family unity, and the best interests of a child, although the specific findings on these matters are not detailed in the provided text.

The Tribunal concluded that there had been non-compliance with sections 101 and 103 of the Act as specified in the notice. Consequently, the Tribunal found that the visa should be cancelled. The decision under review was set aside, implying that the Tribunal substituted its own decision, which was to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As [Brother A] came to Australia as a dependent of [the applicant], and the hearings involved the cancellation of both his sisters’ visas, it was put to [the applicant] that it was surprising he did not attend to give evidence to support her case due to the gravity of the consequences of cancelling her visa. The Tribunal draws an inference that his evidence would not assist [the applicant] to establish her case. CONSIDERATION OF CLAIMS AND EVIDENCE As it applies in this case, s 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101 or 103 of the Act. Section 101 requires a non-citizen to complete his or her application form in such a way that all questions on it are answered and no incorrect answers are given or provided. Section 103 states a non-citizen must not provide a bogus document. 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. Extracts of the Act relevant to this case are attached to this decision. Did the notice comply with the requirements in s 107? As the Department received an allegation that [the applicant] was married to a different person and had information to show she had provided false information about her family composition, the Tribunal is satisfied that the delegate had reached the necessary state of mind to issue a notice 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 issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice is non-compliance with s 101 and s 103.Alleged non-compliance with s 101 of the Act The s 107 notice specifies that the following answers were incorrect on [the applicant’s] visa application:·Question 39 of form 47SP. This asks the names of any children and was left blank. The delegate states [the applicant] has a child named [Child C] born in [year].·Question 19 of form 47SP. At this question, [the applicant] said she was a citizen of Afghanistan. The delegate found this was incorrect because she is a citizen of Pakistan.·Question 20 of form 47SP asks whether she had been previously married and the answer provided is “no”. The delegate found this was incorrect because she was married to [Mr B].·Question 37 of form 47SP. This asks for details of her parents and [the applicant] declared her parents [Father A] and [Mother A] were deceased. The delegate found this was incorrect due to information that her father was not deceased.·Question 38 of form 47SP. This asks for details of all her brothers and sisters. [The applicant] lists her [Sister A] and [Brother A]. The delegate found this answer was incorrect because information available to the Department indicated she had a brother [Brother C] and a brother [Brother B].·Question 74 of form 47SP. This question asks whether she had entered a relationship with her partner solely to gain permanent residence. [The applicant] answered no. The delegate considered this was incorrect as her husband is [Mr B] and not [Mr A].·Question 83 of form 47SP which asked which country she had lived in for the 12 months or more during the last 10 years. [The applicant] answered that she resided in Afghanistan prior to 2003. The delegate considered this was incorrect as she had lived all her life in Pakistan.

Decision

Reasons for decision

The Tribunal has found her father has not passed away and finds she has provided a bogus document. Conclusion – non-compliance in the way specified in the notice issued under s 107 of the Act For these reasons, the Tribunal finds that there was non-compliance with s 101 of the Act by the applicant in the way described in the s 107 notice:·Her father is living and her answer to question 37 of form 47SP was incorrect.·She has two brothers; [Brother B] and [Brother C] who were not declared on her visa application. Her answer to question 38 of form 47SP was incorrect.·She is a citizen of Pakistan and her answers to questions 17 and 19 were incorrect. The Tribunal also finds there has been non-compliance with s 103 of the Act in providing a bogus document regarding the death of her father. Should the visa be cancelled? As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are: · the correct information· the content of the genuine document (if any)· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document· the circumstances in which the non-compliance occurred· the present circumstances of the visa holder· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act· any other instances of non-compliance by the visa holder known to the Minister· the time that has elapsed since the non-compliance· any breaches of the law since the non-compliance and the seriousness of those breaches· any contribution made by the holder to the community. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters. Under s 140 of the Act, if a person’s visa is cancelled under s 109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa. There are no consequential cancellations in this case. Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child

Ratio Decidendi

Legal Principle Established

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