2107312 (Migration)

[2022] AATA 5218

2107312 (Migration) [2022] AATA 5218 (10 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2107312

MEMBER:Andrew McLean Williams

DATE:10 February 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

Statement made on 10 February 2022 at 3:37pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – notifying a change of circumstances – member of the family unit – relationship ceased – validity of cancellation notice – indeterminate language in the notice – applicant’s committed and exclusive relationship until after the visa was issued – no non-compliance – power to cancel visa did not arise – decision under review set aside 

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994

CASES

Zhong v MIAC (2008) 171 FCR 444
Zhong v MIAC (2008) FCA 507         

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 28 May 2021 cancelling the Applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s 109(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Delegate cancelled the visa on the basis of the Delegate concluding that the Applicant had not complied with s.104(1) of the Act, which requires that the Applicant notify the Department in relation to a change of circumstances relevant to the information provided by the Applicant when applying for the visa.

3. The Applicant’s Regional Sponsored Migration Scheme (‘RSMS’) visa had been granted to her on 21 December 2017 on the basis that she was at that time the de-facto partner of the primary RSMS visa holder, a [Mr A].  Yet, other evidence that was provided to the Department after the date of the granting of the RSMS visa shows that [Mr A] was in a relationship with another woman, declared by him as having commenced in October 2017; and that [Mr A] had also declared (in a partner-visa sponsorship application referable to his new partner), that his de-facto relationship with the Applicant had ended on 30 June 2017.  

4. Other evidence available to the Department - in the guise of in-bound passenger card declarations made by the Applicant’s now husband [Husband A] - suggests that the Applicant had also commenced her relationship with [Husband A] before the date of the grant of the her RSMS visa on 21 December 2017.  If the Applicant knew that she was no longer in a de-facto relationship with [Mr A] before the date of the granting of the RSMS visa (as was suggested to the Department by the new information), then that ought to have been advised by her to the Department, in accordance with the requirements of s.104(1). The issue in the present case is therefore whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Applicant appeared before the Tribunal on 4 November 2021 to give evidence and make submissions. The Tribunal also received oral evidence from the Applicant’s husband [Husband A], and also from [Witness A]; [Witness B]; and Mr [Witness C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s visa should now be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 provisions 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 their circumstances.

8. 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?

9. The Applicant was sent a Notice of Intention to Consider Cancellation (‘NOICC’) under s.107 of the Act on 16 April 2021. On 29 April 2021, the Applicant provided a written response to the NOICC, which was duly considered by the Delegate as part of making the cancellation decision on 28 May 2021. The NOICC response did not seek to challenge the validity of the NOICC in terms of its conformity with the requirements of s.107.

10. As part of this application for review the Applicant has filed written submissions, which are dated 27 October 2021. Paragraphs 13 – 40 (inclusive) of those written submissions do however now seek to challenge the validity of the NOICC, and contend that the NOICC does not comply with the requirements of s.107. Whether the NOICC complies with s.107 therefore becomes a necessary preliminary matter for the Tribunal’s determination.

11. The Applicant submits that for a notice to issue under s.107, the Departmental officer issuing the NOICC must have reached a positive state of mind wherein they consider that the Applicant had not complied with (in this instance) s.104; and that it is insufficient to consider that the Applicant ‘may have’ failed to comply with that provision: Zhong v MIAC (2008) 171 FCR 444 at [73], & [77].

12. The Applicant submits that the use of indeterminate language in the NOICC in the form of “it appears you have not complied” (etc) has the result that the Delegate had not attained the crystallised state of mind regarding a breach of the Migration Act that is necessary in order to issue a notice under s.107. Next, the Applicant submits that the NOICC was also insufficiently particularised for her to be able to respond to the alleged breach of s.104.

13. The Tribunal observes that under the sub-heading Particulars of the possible non-compliance the Departmental officer responsible for the issuing of the NOICC positively asserts ‘I consider there has been non-compliance with the following sections of the Migration Act 1958’, before then setting out the requirements of s.104 of the Act. Next, under the sub-heading Evidence of non-compliance, the NOICC sets out that the visa application had expressed that [Mr A] and the Applicant were in a de facto relationship which had commenced on 1 April 2013, resulting in the grant of the RSMS visa on 21 December 2017 to the Applicant as [Mr A’s] dependent partner. 

14. The NOICC then sets out that [Mr A] had also sponsored a new female partner, and on that visa application he and his new de facto partner had each declared their being in a de facto relationship that had commenced in October 2017, (a date obviously prior to 21 December 2017).  The NOICC then goes on to particularise that the Applicant had travelled overseas on each of [a day in]  November 2016 and on [a day in] December 2016 on flights between Australia and [Country 1] at the same time as did [Husband A] (the Applicant’s now husband), and that each of the Applicant and [Husband A] had also travelled on the same inbound flight from [Country 1] [in] July 2017; and on that occasion [Husband A] had nominated the Applicant as his emergency contact in Australia and had provided the Applicant’s address as his intended address in Australia on his in-bound passenger card. The NOICC then alleges (on pages 4 – 5) as follows:

    ·‘The above factors appear to indicate that you were no longer in a mutually committed de facto relationship to the exclusion of all others with [Mr A] at the time of grant of your RSMS visa since you were in a relationship with [Husband A], and as such you were no longer eligible for the grant of the RSMS visa’

    ·‘It appears you have not complied with s.104 of the Migration Act because you failed to inform the Department of your changed circumstances’

    ·As it appears you have not complied with s.104 of the Migration Act, your visa is liable for cancellation consideration under s.109’  

    [emphasis not in the original, yet included here, by the Tribunal]

15. The Tribunal has considered the effect of Zhong v MIAC (2008) FCA 507. In light of the positive assertion of non-compliance provided at the commencement of the NOICC by the Delegate: ‘I consider there has been non-compliance with the following sections of the Migration Act 1958’, the Tribunal considers that the Delegate had reached the necessary state of mind showing her prima facie belief that the Applicant was in breach of s.104: thus giving grounds for the issuing of a notice under s.107. The Delegate’s subsequent use in the NOICC of the indeterminate language that has now been emphasised by the Tribunal (above) is then to be construed as no more than the Delegate remaining open to the possibility that other evidence, subsequently furnished by the Applicant in response to the NOICC invitation may eventually be enough to displace that prima facie view. In that light, the Tribunal does not regard the manner of expression used by the Delegate in the NOICC as derogating from the state of mind required to issue a notice under s.107.

16. In relation to the claimed inadequacy of the particulars of non-compliance with s.104, the Tribunal does not accept the Applicant’s contention that the particulars given in the NOICC were insufficient to enable the Applicant to identify and address the issues. The essential contention contained in the NOICC was that the Applicant was no longer in a de facto relationship with [Mr A] as at 21 December 2017 and that each of the Applicant and [Mr A] were already in relationships with other people, as indicated by the evidence referred to in the NOICC.  The purpose of particulars is to define the issues and ensure the basic procedural fairness requirement that a party should have an opportunity of meeting the case against him or her.  In the Tribunal’s view the information as provided in the NOICC was sufficient to meet that need and to put the Applicant on notice of the basis for the Delegate believing there were grounds to cancel her visa.   

17. Accordingly 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?

18. 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 was non-compliance with s.104, by reason of the Applicant allegedly having failed to notify the Department of the cessation of her de-facto relationship with [Mr A], which the evidence available to the Department suggests occurred prior to the grant of her RSMS visa on 21 December 2017.

19. The Applicant’s evidence before the Tribunal was that she arrived in Australia from her native Taiwan on a working holiday visa in December 2012.  The Applicant soon found employment working in a [business 1] on the Gold Coast.  In February 2013, the Applicant met [Mr A] at work in the [business 1] and, on 1 April 2013, they commenced a de facto relationship. 

20. In May 2014, the Applicant and her then de facto partner relocated to Cairns in order to work for the same employer.  In December 2014, [Mr A] lodged a Subclass 457 visa application and the Applicant was the secondary (dependent) applicant.  This visa was granted on 28 September 2016.  On 22 June 2017, [Mr A] lodged a RSMS (Subclass 187) visa application, with the Applicant again listed as the secondary (dependent) applicant.  This visa was issued on 21 December 2017.

21. The Applicant says that [Mr A] had been secretly having an affair with his now partner, a woman whom he had first met in a [business 2] in Cairns, in about May of 2017.  This was completely unknown to the Applicant until [Mr A] confessed it to her, on 22 December 2017 by telephone.  At that time the Applicant was overseas in Taiwan visiting her family, and she says that she was completely devastated by this unexpected and unforeseen confession from her partner.

22. There is a statutory declaration in evidence before the Tribunal from [Mr A].  In it, he admits to his having commenced a relationship with another woman in about October 2017, with his romantic interest in her having started in about July 2017.  [Mr A] says that he did not reveal this relationship to the Applicant because he felt guilty, and also because he felt sorry for the Applicant, and only finally raised the courage to inform her about his unfaithfulness on 22 December 2017.

23. In relation to her relationship with her now husband [Husband A], the Applicant says that she had first met [Husband A] in Cairns in 2016, and they became friendly, on the basis that they came from the same small town in Taiwan.  [Husband A] later became a sub-tenant in a rental apartment leased by the Applicant and two others at [Town 1] for use as a studio and office, with the third bedroom oftentimes sub-let to other Taiwanese people who were in Cairns on working holidays.  The Applicant says that she continued to reside at [Address 1] with her then de facto partner [Mr A], and that she did not reside at the second unit at [Town 1] with [Husband A].

24. The Applicant further says that she was aware that [Husband A] may have been romantically interested in her, yet this was not at that stage reciprocated by her in any way because she was in a committed relationship with [Mr A], and because [Husband A] was a few years younger than her.  Throughout 2016 and 2017 they were on friendly terms, but that is all.  It was only after [Mr A] had finally broken the news to the Applicant that he was already seeing another woman that the Applicant commenced her relationship with [Husband A], which the Applicant says did not commence until early January 2018 when she returned to Cairns from Taiwan.  The Applicant then fell pregnant very early in their relationship, such that they were married in Taiwan [in] July 2018.

25. There is a statutory declaration before the Tribunal from [Witness B], who also gave evidence before the Tribunal.  [Witness B] informed the Tribunal that she lived with the Applicant and [Mr A] at [Address 1 variant] until she left for the Gold Coast in December 2017.  Although [Witness B] says that she has more recently been informed that [Mr A] was in a relationship with another woman commencing in about July 2017, she says that there were no signs whatsoever of this, right up until December 2017 when she left Cairns for the Gold Coast.

26. The evidence before the Tribunal from each of [Witness A] and [Witness C] is to the effect that they are each social and work acquaintances within the Cairns [community] of [Husband A].  Each of them gave evidence that [Husband A] and the Applicant did not form a romantic relationship until as recently as January 2018. 

27. In relation to the overseas travel, the Applicant says that she did travel on the same flights between [Country 1] and Cairns as [Husband A], as those now particularised by the Department, however she was not in a relationship with [Husband A] at the time, and it was commonplace for Taiwanese people residing in Cairns to all return home on visits to Taiwan on the same heavily discounted Jetstar flights, whenever these were advertised in the media.

28. In his evidence before the Tribunal [Husband A] says that he first met his now wife the Applicant in January 2016 in Cairns, at a time when she was in a de facto relationship with [Mr A].  At one stage he became a sub-tenant in a unit in [Town 1] leased by the Applicant and two others, although the Applicant did not live in that unit with him at that time. Although [Husband A] says that he was definitely romantically interested in the Applicant, he says that this was not reciprocated by the Applicant until after her return to Cairns from Taiwan in early January 2018, after [Mr A] had already called off their relationship.  [Husband A] also says that he did organise to fly on the same flights as the Applicant on a number of occasions due to the heavily discounted airfares being offered by Jetstar, and so he could have a companion on the plane.

29. The Tribunal accepts the evidence presented before it by all these witnesses and accepts that the Applicant remained in a committed relationship with [Mr A] until he broke it off on 22 December 2017.  Particularly by reason of it having had the opportunity to see and hear the evidence of the Applicant, the Tribunal formed an entirely favourable view of her truthfulness and honesty.  The Tribunal completely accepts that [Husband A] and the Applicant were never more than acquaintances within the Taiwanese community in Cairns, at least until the commencement of their romantic relationship, in January 2018. 

30. Although [Mr A] may have declared as part of his new partner’s sponsored visa application that his relationship with the Applicant had ended on 30 June 2017, this was not a matter that was positively communicated by him to the Applicant until as late as 22 December 2017.  The Tribunal accepts that the Applicant remained of the view that she was in a committed and exclusive relationship with [Mr A] until after the date of the RSMS visa having been issued, when he broke his news to her.  The Tribunal accepts that [Mr A’s] admission of his affair came as shocking and entirely unforeseen news to the Applicant. It follows therefore that the Applicant did not fail to notify the Department of a relevant change to her circumstances of which she was aware, prior to the date of the RSMS visa being issued.

31. 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.

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

    Andrew McLean Williams
    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.