2116083 (Migration)

[2023] AATA 3327

2116083 (Migration) [2023] AATA 3327 (4 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Victoria Lita Eastwood

CASE NUMBER:  2116083

MEMBER:K. Chapman

DATE:4 September 2023

PLACE OF DECISION:  Brisbane

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 04 September 2023 at 5:04pm

CATCHWORDS

MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – failure to inform change of circumstances – child with man other than sponsor and no longer in genuine relationship – dob-in information of DNA paternity test – administrative error by testing facility – applicant’s sample used for test, not child’s – second test and divorce order establish sponsor as father – subsequent marriage before relationship ceased – new relationship – direct and comprehensive evidence – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 104, 109(1)

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 5 November 2021, to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. On 8 October 2021, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of her Subclass 801 visa, on the basis that she failed to comply with s 104 of the Act. The delegate formed the view that the applicant had a child to a man other than the visa sponsor, she was not in a genuine relationship with the sponsor and therefore she failed to inform the Department of a change in her circumstances. The delegate formed this view largely due to the submission of an initial paternity test, by way of ‘dob in’ information. The applicant did not respond to the NOICC, as it ended up in her ‘junk’ email box. She learned of the visa cancellation decision when she subsequently applied for Australian citizenship.

3. With the effluxion of time, additional evidence has been acquired that conclusively demonstrates the visa sponsor is the father of the applicant’s child. Such evidence includes, a second paternity test, a Divorce Order and a Child Support Agency assessment. Indeed, an administrative error with the initial paternity test has been acknowledged by the testing facility. Most regrettably, this error was not brought to the attention of the Department prior to the visa cancellation decision. Accordingly, a grave injustice has befallen the applicant with regard to her visa status.

4. The applicant appeared in person before the Tribunal on 30 August 2023 to give evidence and present arguments. The Tribunal also took evidence in person from [Ms A] (a friend of the applicant) and [Mr B] (the applicant’s fiancé). Both of the witnesses are Australian citizens. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. The applicant confirmed she understood the interpreter (noting also she provided most of her evidence utilising the English language). The applicant was represented in relation to the review by her solicitor (‘the representative’), who was permitted to make submissions.

5. The Tribunal was impressed with the manner in which each person provided their evidence at the review hearing. They each gave evidence in a direct and comprehensive fashion. Having directly observed each person give their evidence, the Tribunal is most satisfied they are truthful and honest people. Accordingly, the Tribunal affords their evidence high weight.

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

   ISSUES AND LAW

7. The issues in the present review are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

8. 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 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 circumstances.

9. 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.

10. The Tribunal also notes that a Certificate pursuant to s 376 of the Act, dated 12 November 2021, is contained in Departmental file [Reference]. The Tribunal provided a copy of the Certificate to the applicant, through the representative, prior to the hearing. During the review hearing, submissions were invited upon the validity of the Certificate and no objection to its validity was made. The Tribunal notes that the material under cover of the Certificate pertains to ‘dob in’ material, regarding the paternity of the applicant’s young child. Given this material is generally referred to in the delegate’s visa cancellation decision, in combination with the context of this review, the Tribunal does not place any weight upon it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence at the review hearing

11. The Tribunal had the benefit of taking the evidence of the applicant, her friend ([Ms A]) and her fiancé ([Mr B]) in person at the review hearing. The Tribunal is in no doubt that they each provided truthful evidence and are credible witnesses. Additionally, key documentary material is of crucial importance in this review, including the second DNA paternity test of 19 June 2020, Divorce Order of [April] 2021, Child Support Agency assessment of [July] 2023 and a Queensland Birth Certificate issued [in] October 2019. In summary, the evidence before the Tribunal establishes the following matters.  

12. The applicant and the visa sponsor were in a genuine cohabitating relationship from 2016 until 2 November 2019. During that time the applicant married the visa sponsor and provided care to the sponsor’s son of a previous relationship. The applicant was granted the Subclass 801 visa on 16 February 2019. In [Month], a child was born of the relationship. That relationship then soured as the sponsor failed to adjust to the realities of caring for a newborn. On 2 November 2019, the applicant escaped the relationship and the sponsor effectively cut off support to her and the child. Family law proceedings ensued.

13. An initial DNA paternity test result, dated 7 April 2020, excluded the sponsor as the father of the applicant’s child. He alleged infidelity. The applicant denies this. In due course, the Department received ‘dob in’ information advising of this test result. Thereafter, the Department proceeded to cancel the applicant’s Subclass 801 visa. The Tribunal accepts the applicant did not read the NOICC and therefore the Department was not appraised of subsequent evidence confirming the sponsor to be the father of the child.

14. A second DNA paternity test result, dated 19 June 2020, confirmed the sponsor and the applicant to be the biological parents of their child born in [Month] 2019. Indeed, this result clarifies that the purported DNA sample for the child in the earlier test, was actually that of the applicant. It is apparent that this administrative error by the testing facility was to have grave consequences for the applicant’s visa status. In due course, the applicant and sponsor divorced. The Divorce Order dated [April] 2021 confirms their child is a child of the relationship. An assessment from the Child Support Agency, dated 19 July 2023, provides contemporary evidence of the sponsor’s financial obligations towards the child.

15. Important evidence was provided to the Tribunal by [Ms A], who met the applicant through the sponsor. She informed the Tribunal that the relationship between the applicant and the sponsor was at all times genuine. She further opined that the relevant child is the child of their relationship. [Mr B], the applicant’s fiancé, advised the Tribunal of his present relationship with the applicant. He further explained how he has become the father figure for the child, with the sponsor having no contact. [Mr B] outlined his plans for the future with the applicant, including having a child together.

    Was there non-compliance as described in the s 107 notice?

16. In the present matter, 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.

17. 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 of the Act, in that the applicant purportedly did not inform the Department of a change in her circumstances.

18. In this review, the crucial issue is whether the applicant was in a genuine de facto relationship with the visa sponsor at the time of the Subclass 801 grant on 16 February 2019. Indeed, the paternity of the applicant’s child is critical to the determination of that issue. Having regard to the evidence presented at the review hearing, in combination with the submitted documentary evidence, the Tribunal is wholly satisfied that the visa sponsor is the biological father of the applicant’s child. Furthermore, the Tribunal has no hesitation in finding that the applicant was in a genuine de facto relationship with the sponsor at the time of the Subclass 801 visa grant. Indeed, she subsequently married the sponsor in March 2019 and remained in a genuine spousal relationship with him until 2 November 2019. Therefore, the Tribunal is satisfied that no change of circumstances, within the ambit of the visa cancellation decision, took place. The Tribunal so finds.

19. Following careful consideration of the evidence, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice.

    CONCLUSION 

20. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

21. For the sake of completeness, the Tribunal records that the applicant was subject to a grave injustice as a result of ‘dob in’ information, tainted by administrative error, being submitted to the Department without subsequent correction. The Tribunal is wholly satisfied that the applicant is a person of good character with respect to migration matters. In the view of the Tribunal, the applicant will make a positive contribution to Australia as a citizen in due course.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

    K. Chapman
    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.