2112710 (Migration) - [2022] AATA 689

2112710 (Migration) [2022] AATA 689 (8 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2112710
MEMBER:Kira Raif
DATE:8 March 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 08 March 2022 at 12:01pm
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – incomplete or incorrect answers in visa application – previous visa under different name and date of birth, overstay and departure on bridging visa not declared – facial image comparison – non-compliance on most grounds conceded – discretion to cancel visa – application completed by then partner with applicant’s knowledge – unable to obtain genuine birth certificate and passport for first visit – family violence and relationship ceased – Australian citizen child – safety and support – Family Court parenting order may prevent child from leaving Australia – best interests of child – applicant’s previous sexual abuse and physical and mental health – long residence and limited or no links to home country – no consideration of possibility of serious harm in home country – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(a), (b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41
CASES
Parata v MHA [2020] FCCA 1582
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 Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a national of Zimbabwe, born in [Year]. She was granted the Partner (Migrant) visa in June 2012. In January 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view she did not comply with s. 101 of the Act. It appears the applicant did not respond to the NOICC and her visa was cancelled in February 2018.
The application for review was made in September 2021. Despite the lateness of the application, the Tribunal has formed the view that the notification of the primary decision contained an error of the nature described in Parata v MHA [2020] FCCA 1582. As such, the Tribunal has formed the view that the primary notification was invalid and therefore, the time for review did not commence. The Tribunal has considered the applicant’s submission concerning the validity of the application dated 2 March 2022.
The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law

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: [2022] AATA 689
Decision Date: 8 March 2022

CaseChat Overview and Summary

The applicant sought review of a decision by the Migration Review Tribunal to cancel her Partner (Residence) (Class BS) Subclass 801 visa. The cancellation was based on alleged non-compliance with visa application requirements, specifically the provision of incomplete or incorrect answers. The applicant had previously held a visa under a different name and date of birth, had overstayed a previous visa, and had departed Australia on a bridging visa, none of which were declared in her current application. A facial image comparison also indicated a discrepancy.

The primary legal issue before the Tribunal was whether the applicant had failed to meet the criteria for the visa, and if so, whether the Tribunal should exercise its discretion not to cancel the visa, considering all relevant circumstances. The applicant conceded non-compliance on most grounds. The Tribunal was required to weigh the factors favouring cancellation against those favouring the retention of the visa, particularly in light of the applicant's personal circumstances and the best interests of her child.

The Tribunal found that while there was non-compliance as alleged, it ultimately concluded that the visa should not be cancelled. In reaching this decision, the Tribunal considered that the visa application was completed by the applicant's then-partner with her knowledge. It also took into account the applicant's inability to obtain genuine birth certificates and passports for her first visit, her experience of family violence which led to the cessation of her relationship, and the existence of an Australian citizen child. The Tribunal noted that a Family Court parenting order might prevent the child from leaving Australia, and that the best interests of the child were a significant consideration. Furthermore, the Tribunal acknowledged the applicant's history of sexual abuse, her physical and mental health, her long residence in Australia with limited links to her home country, and the absence of consideration regarding the possibility of serious harm in her home country.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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