2119159 (Migration)

[2022] AATA 1920

2119159 (Migration) [2022] AATA 1920 (17 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2119159

MEMBER:Margie Bourke

DATE:17 February 2022

PLACE OF DECISION:  Melbourne

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 17 February 2022 at 9:01am

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect information provided in visa application – place of birth – no record of birth in birth country – refugee in third country from young age and change of name – information from authorities in birth country refers to current name but not previous name – no record under current name does not establish no record under previous name – destruction, loss and relocation of records – ground for cancellation not made out – decision made without hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 360

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

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information about his place of birth. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Tribunal has considered the information in the Department file, the information in the record of decision dated 14 December 2021 and submissions from the applicant. Based on information available to the Tribunal, the Tribunal has decided it can make a decision favourable to the applicant without proceeding to a hearing pursuant to s.360(2)(a) of the Act.  

4. The following are the written reasons that the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

7. 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.

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

8. 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.101.(b) in the following respects:. In the application form for the subclass 801 partner visa, the applicant stated his full name is [the applicant], he was previously known as [Alias], he was born on [Date] in [Town] Kosovo. The Department recorded they had verified with the Kosovar authorities that there is no record of civil registration of the birth in Kosovo of [the applicant] (aka [Alias]). The Department recorded in the s.107 Notice that based on the official verification with the Kosovar authorities which confirmed there was no record of the civil registration of [the applicant] (aka [Alias]) born on [Date] in [Town] Kosovo, that the applicant had provided incorrect information in the application for the subclass 801 partner visa.

9. There are various forms of the spelling of the town [Town] in the documents, and in this decision record of the Tribunal has used the spelling from the particular documents, to which it is referring.

10. The Tribunal has considered the response of the applicant to the Department and to the Tribunal in which the applicant states that to his knowledge, and as advised by his mother he was born in Kosovo and migrated as a refugee with his mother and two brothers to [Country] when he was aged [Age] years old. The applicant stated he had never seen his birth certificate. The applicant stated he was advised that his father had registered his birth in Kosovo and his father was now deceased. The applicant stated he could not understand why his birth was not registered in Kosovo. The applicant provided an affidavit sworn by his mother confirming this information.

11. Submissions were also provided to the Tribunal from the applicant that addressed the loss of records, and destruction and relocation of citizenship records after the conflict in Kosovo.

12. The applicant provided the refugee data centre form detailing information about the relatives of Kosovar Albanians in relation to the applicant dated [May] 1999. The information records that [Alias] date of birth [Date] in [Town] and his [brothers] were travelling together with their mother [Ms A].

13. The Department file records that an email dated 11 March 2020 was sent to the Belgrade referral centre requesting confirmation of record of civil registration as a Kosovon citizen of “[The applicant] ([Date] M) aka [Alias Surname], place of birth [Town]”.

14. There is no record on the Department file to indicate why the Department wish to confirm whether there was any record of the civil registration of the applicant.

15. The response received by email dated 12 March 2020 stated that after verification, of a person with the name [the applicant] born [Date] was not recorded in the civil registration and is not a citizen of the Republic of Kosovo.

16. By email dated 25 November 2021 the Department requested advice as to how it was determined that the applicant was not born in Kosovo, including advice as to the process of registration.

17. The Department file includes a thank you for the response but not the response.

18. The information before the Tribunal is that the Kosovar authorities have confirmed that the person known as [the applicant], a male, born on [Date] was not born in Kosovo and has not been registered as a citizen of Kosovo. The reports available to the Tribunal do not refer to or include that a person known as [Alias], a male, born on [Date] was not born in Kosovo and has not been registered as a citizen of Kosovo.

19. The information provided by the applicant in his application for the subclass 801 partner visa was that his name, at the time that he lived in Kosovo and the time that he left as a refugee aged [Age] in 1999 with his mother and brothers to go to [Country], was [Alias]. The registration of his birth in [Year] would have been under the name of [Alias].

20. The verification response that was provided to the Department, advising there is no record in the civil registration of a person with the name of [the applicant], and that [the applicant], born [Date] is not a citizen of Kosovo, does not equate to evidence that the information that [Alias], was born on [Date] in [Town], Kosovo is incorrect information.

21. I am not satisfied that the evidence of the verification report is evidence that the applicant has provided incorrect information. The applicant has provided evidence that he is now known as [the applicant], and was previously known as [Alias]. The information contained in the Department file is limited to advice that there is no civil registration of a person known as [the applicant]. There is no information provided to the Tribunal that a person with the name of [Alias], born on [Date] in [Town] Kosovo is not recorded in the civil registration and is not a citizen of the Republic of Kosovo.

22. For these reasons, the Tribunal is not satisfied that the applicant has provided incorrect information as described in the s.107 Notice.

23. 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. 

24. 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.

    DECISION

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

    Margie Bourke
    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.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    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.