2111435 (Migration) - [2022] AATA 2251

2111435 (Migration) [2022] AATA 2251 (28 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Donald Chi Ho Chen
CASE NUMBER:  2111435
MEMBER:Antoinette Younes
DATE:28 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s.
Statement made on 28 April 2022 at 9:44 AM

CATCHWORDS
MIGRATION – Cancellation – Subclass 801 (Spouse) visa – child was not the biological child of sponsor – applicant provided incorrect information – applicant had ceased to be in a spousal relationship with sponsor prior to the grant of the Subclass 801 visa – applicant failed to inform the Department about changes in her circumstances – incorrect information about son’s true paternity – relationship with sponsor was not to the exclusion of all others by the time her visa was granted – failed to inform the Department about the relationship breakdown – a loving and a committed mother – cancellation would adversely affect the child’s best interests – decision under review set aside
LEGISLATION
The Births, Deaths and Marriages Registration Regulation 2017 (NSW), s 15
Migration Act 1958, ss 78, 99, 101, 104, 109
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had breached ss 101 and 104 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
This matter was previously before the Tribunal (differently constituted). [In] July 2021, the Court remitted the matter to the Tribunal for reconsideration and determination according to law. On the first occasion, the applicant appeared before the Tribunal on 18 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from several witnesses nominated by the applicant.
The applicant appeared before the Tribunal on 21 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
RELEVANT LAW
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…

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

AGLC: 2111435 (Migration) [2022] AATA 2251
Case: [2022] AATA 2251
Decision Date: 28 April 2022

CaseChat Overview and Summary

This matter concerned an appeal against the cancellation of a Subclass 801 (Spouse) visa. The applicant had initially applied for a Subclass 820/801 Partner visa with Mr. A, declaring their relationship had not ceased and commenced in May 2012. She was granted the temporary Subclass 820 visa on 21 June 2012. In support of the permanent Subclass 801 visa application, the applicant provided a Statutory Declaration on 26 May 2014, affirming a mutual commitment to a shared life with Mr. A to the exclusion of all others, that their relationship was genuine and continuing, and that they had lived together for two years. She also stated she was pregnant and preparing for their baby boy. The Subclass 801 visa was granted on 9 September 2014. However, on 21 January 2016, the applicant notified a change of circumstances, seeking a visa for her son, Master B, whose birth certificate listed Mr. B as the father. This triggered a review of the applicant's visa status.

The primary legal issues before the court were whether the applicant had provided incorrect information and failed to notify the Department of changes in her circumstances, thereby breaching the conditions of her visa. Specifically, the court had to determine if the applicant's relationship with Mr. A was genuinely to the exclusion of all others at the time of the Subclass 801 visa grant, and if she had failed to inform the Department about the breakdown of that relationship and the true paternity of her child. The court also considered the impact of the cancellation on the best interests of the child.

The court found that the applicant had provided incorrect information regarding the paternity of her son and had failed to inform the Department of the breakdown of her relationship with Mr. A. The Statutory Declaration of 26 May 2014, which stated the relationship was to the exclusion of all others, was found to be inaccurate given the subsequent notification of Master B's paternity by Mr. B. The court acknowledged the applicant's role as a loving and committed mother and considered the adverse effect cancellation would have on the child's best interests. Applying the principles of migration law concerning the provision of accurate information and notification of changes in circumstances, the court determined that the decision under review should be set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101 and 104.CONSIDERATION OF CLAIMS AND EVIDENCE The delegate’s decision record During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided in support of the application for review. Relevantly, the decision record refers to the following:·On 15 June 2012, the applicant and [Mr A] lodged an application for a Combined Partner (UK 820/BS 801) visa. The applicant completed a Form 47SP as part of the application – Application for migration to Australia by a partner. In response to question 77, the applicant indicated that her relationship with [Mr A] had not ceased.·As part of the application, the applicant provided a Form 40SP and in response to question 13 asking about, among other things, the commencement of the relationship and whether it is genuine and continuing, the response was that the relationship commenced in [Suburb 1] on [date] May 2012. On the basis of the information that the applicant provided, on 21 June 2012, she was granted the first stage, the temporary Class UK Subclass 820 Partner visa. In support of the second stage of the visa application, that is the permanent Class BS Subclass 801 Partner visa, on 5 May 2014, the Department requested evidence that the relationship was ongoing and continuing. The applicant responded on 28 May 2014 and she provided several documents. One of those documents was a Statutory Declaration dated 26 May 2014. In the Statutory Declaration dated 26 May 2014, the applicant confirmed: I, [name deleted]… That I have a mutual commitment to a shared life as husband and wife, or as de facto partner, or as an interdependent partner, to the exclusion of all others, with [Mr A]. That our relationship is genuine and continuing. That [Mr A] and I: (a) Live together; or (b) Live separately and apart of a permanent basis That our relationship began in 2012 and we have lived together for 2 years… I am pregnant for [number] months… We both now preparing things for our new member is a baby boy coming in [month]… Since I am pregnant all our friends and family have recognised and accepted us as family. We both still finding the name for our baby boy. On 9 September 2014, the applicant was granted the permanent Partner visa, Subclass 801.Subsequent events The delegate’s decision record indicates that on 21 January 2016, the applicant provided a Form 1022 – Notification of change of circumstances. The applicant requested that her son, [Master B] (date of birth [date]) be granted a visa. In support, the applicant provided an Australian birth certificate for [Master B] referring to [Mr B] as being [Master B]’s father. Relevantly, s 78(1) of the Act provides that where a child born in Australia is a non-citizen at the time of birth and one of the child’s parents holds a visa and the other parent does not hold a visa, the child is taken to have been granted at birth the same kind and class of visa, and on the same terms and conditions, as the visa of that parent. Therefore, [Master B] was deemed at the time of his birth to hold a Subclass 820 visa by operation of s 78(1).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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