2119364 (Migration) - [2022] AATA 1269

2119364 (Migration) [2022] AATA 1269 (14 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2119364

MEMBER:Alison Murphy
DATE:14 April 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 309 (Spouse (Provisional)) visa.

Statement made on 14 April 2022 at 2:42pm
CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – subsequent visa cancellation – applicant’s husband’s protection visa cancellation set aside – visa is taken never to have been cancelled – ground for cancellation not made out – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 2A, 66B
Migration Act 1958, ss 5(1), 97-101, 107-109, 114, 140, 360, 378, 431, 440
Migration Regulations 1994
CASES
Akter v MIBP [2018] FCCA 3604
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
Re Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Sankey v Whitlam (1978) 142 CLR 1
Singh v MIBP [2020] FCA 783
SZMTA v MIBP [2017] FCA 1055

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 309 (Spouse (Provisional)) visa under s 140(2) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant’s husband, who had sponsored her for the partner visa, had subsequently had his protection visa cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review. This matter was constituted and decided together with the related cases of the applicant’s husband [Husband A] (AAT proceeding 2119363) and his [Relative A] (AAT proceeding 2119365).
In addition to the material on the Departmental file, further submissions and documents were provided to the Tribunal on 4 April 2022.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside pursuant to s 360(2)(a) of the Act.
Background
The applicant is [an age]-year-old female of Afghan nationality, formerly resident in Iran. Her husband [Husband A] was granted a class 866 protection visa on 15 January 2009. The applicant applied for a partner visa on 10 December 2012 on the basis of her spousal relationship with her husband. She was granted the visa on 10 May 2013 and arrived in Australia together with her children [in] June 2013.
On 9 December 2021 a delegate of the Minister made a decision to cancel the applicant’s husband’s protection visa pursuant to s.109 of the Act on the basis that he had provided incorrect information in his protection visa application. As the applicant was granted a visa only because her husband had been granted a protection visa and her husband’s visa was subsequently cancelled, it was determined that there were grounds for cancellation of the applicant’s partner visa under s.140(2) of the Act.
On 14 April 2022 I set aside the decision to cancel the applicant’s husband’s protection visa (AAT case number 2119363).
Non-disclosure certificates
The Tribunal has before it the Departmental file relating to the cancellation of the applicant’s spouse visa and the files relating to the cancellation of the visas of the applicant’s husband and his [Relative A]. The delegate has purported to place restrictions on some of the material given to the Tribunal by the Department under s 375A of the Act by issuing a certificate dated 21 December 2021 relating to three documents held on the Departmental file.
The certificate dated 21 December 2021 states that disclosure of the information subject to the certificate would be contrary to the public interest the Department considers the documents or information should not be disclosed to the applicant or the applicant’s representative because such disclosure might make known lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods.
Where a valid certificate is issued under s 375A, the Tribunal must do all that is necessary to ensure the document or information is not disclosed to any person other than to a member of the Tribunal. For the following reasons the Tribunal is not satisfied that the s 375A certificate dated 21 December 2021 is valid.
Generally speaking, public interest immunity operates to restrict the disclosure of otherwise relevant evidence in legal proceedings where that disclosure would be against the public interest. Determining whether public interest immunity applies is a balancing exercise between the principles that:
·no harm should be done to the nation or to the public service by the disclosure of the material; and
·the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. [1]
[1] Sankey v Whitlam (1978) 142 CLR 1 at 39.
Where these two principles conflict, it is necessary to consider which of the two competing principles predominates.[2] In order to determine whether the certificate is valid, the Tribunal will have regard to the information covered by the certificate to determine whether the information in fact falls within the stated public interest reason. If it does not, the certificate may not be valid.[3]
[2] Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.
[3]Akter v MIBP [2018] FCCA 3604 at [58
The information covered by that certificate consists of an Identity Assessment Report in respect of the applicant’s husband dated 14 August 2017 and a Priority Caseload Assessment. The Identity Assessment Report contains a comparison of information provided by the applicant’s husband in his various visa and citizenship applications and at an identity interview conducted by a Departmental officer. It records at some length the questions asked of the applicant’s husband at an identity interview and the responses given by him to adverse information that was put to him at that interview. It is apparent that the adverse information that forms the basis of the assessment was also put to the applicant’s husband in writing in the context of his citizenship application.
The certificate also covers a priority caseload assessment and record of correspondence, an internal working document recording various administrative events in the processing of the visa applications of the applicant, her husband and her husband’s [Relative A].
Unlike the certificate in the applicant’s husband’s case, the certificate in the current review does not suggest any of the information in those documents was given in confidence, although the certificates in each case applies to the same documents.
The Federal Court has held that it is not sufficient that the reason stated in the certificate would be a public interest reason but, having regard to the material subject to the certificate, there must be a logical, probative or rational basis for finding that disclosure of that material would be contrary to the public interest.[4]
[4] Singh v MIBP [2020] FCA 783 at [55]–[59]
I can see no such basis in this case, given that the vast majority of the information referenced in the Identity Assessment Report was provided by the applicant’s husband to the Department. To the extent that the Department has added its own analysis to that information it is apparent that has already been disclosed to him at the identity interview and in writing in the citizenship proceedings and in the s 107 notice. Given the applicant’s ongoing spousal relationship with her husband and the fact they share a legal representative who has made joint submissions in relation to all three related cases about the issues raised in these cases, I am satisfied that the information has also been disclosed to the applicants in the related cases.
While the [social media] posts of the applicant and his family members appear to have been sourced by the Department, they were discussed with [Husband A] at interview and so to the extent that the Department’s use of social media may be said to constitute an investigative method, it has already been disclosed to the applicants. Nor can those [social media] posts be said to be confidential as the Department’s ability to view them on [social media] indicates that they were publicly available.
I have considered whether disclosure of the certificated documents might otherwise make known lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. I do not consider that they do. In making that assessment I note that the Identity Assessment Report is merely an officer’s analysis of the information provided by the applicant at various times, much of which has already been disclosed to the applicants. Nor does the Priority Caseload Assessment and Record of Correspondence disclose methods for preventing, detecting and investigating breaches or evasions of the law rather it is merely a record of various communications internal to the Department and with the applicant’s legal representative. Internal communications between Departmental officers are not ‘given’ to the Minister or an officer of the Department in confidence.[5]
[5] SZMTA v MIBP [2017] FCA 1055 at [52]–[54]
For these reasons the Tribunal is not satisfied the information falls within the stated public interest reason and finds the s 375A certificate to be invalid. It follows that the applicant is entitled to see the documents and the Tribunal has directed that the names and contact details of the departmental officers be removed and the documents otherwise released to the applicant.
CONSIDERATION OF EVIDENCE
Subsection 140(2) of the Act provides that the Minister may, without notice, cancel a visa where:
·another person’s visa is cancelled under ss.109 (incorrect information), 116, 128, 133A, 133C or 137J (student visas); and
·the visa holder, to whom s.140(1) does not apply, holds a visa only because the person whose visa is cancelled held a visa.
In this case I am satisfied that the applicant held a partner visa only because her husband [Husband A] held a protection visa. The delegate’s decision records that the applicant’s partner visa was cancelled under s.140(2) because her husband’s protection visa was cancelled under s.109.
It would appear then that at the time of the decision to cancel the applicant’s visa, the ground for cancellation existed under s.140(2). However I set aside the cancellation of [Husband A’s] visa on 14 April 2022.
Pursuant to s.114, if a decision made under s.109 to cancel a person’s visa is set aside by the Tribunal, then the visa is taken never to have been cancelled. Further the Department’s Policy Guidelines relevantly state:
Set aside of s109 cancellation decisions
Section 114(1) of the Act states that if a s109 cancellation is set aside by the Federal Court, Federal Circuit Court, the AAT, the visa is taken never to have been cancelled.
The Act does not expressly set out how this affects any consequential s140 cancellation. It is policy, however, that a consequential s140 cancellation would also be set aside in the same manner as the s109 cancellation. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled.
In these circumstances the Tribunal determines to set aside the decision to cancel the applicant’s visa under s.140(2) on the basis that her husband’s visa is taken never to have been cancelled and therefore the ground for cancellation is not made out.
NON-PUBLICATION DIRECTION
The Tribunal has been asked to make a direction prohibiting the publication of the Tribunal decisions in the current and related reviews, because of the impact publication would have on the family, in particular the applicant who is concerned about the ability of people to identify herself and the children.
The AAT is authorised to publish its decisions and the reasons for them by section 66B of the Administrative Appeals Tribunal Act 1975 (AAT Act). However, it must not publish information if its disclosure is prohibited or restricted by the AAT Act or by any other legislation that gives the AAT jurisdiction.
The Tribunal may also make a direction in a Part 5 review under s 378 of the Migration Act 1958 to limit or prohibit the publication of information relating to the case. The Tribunal may only make an order under s 378 if satisfied that it is in the public interest to do so.[6]
[6] Section 440 of the Act
In the absence of a non-publication direction under s 378, decisions of the Tribunal are published in accordance with the Tribunal’s Publication of decisions policy. In the Migration and Refugee Division of the Tribunal, that policy sets out that 100% of decisions relating to a substantive review of a decision to cancel a visa will be published by the Tribunal. It follows that publication of the Tribunal’s reasons in the current review will necessarily follow unless the Tribunal makes a direction under s 378 of the Act that the decision not be published.
The applicant has understandable concerns that she and her family members may be identified if the Tribunal’s decisions in the current review and the two related cases are published. For these reasons I will make a direction under s.378 to the effect that information that would identify the applicant or any relative or dependant of the applicant must not be published by the Tribunal. I am satisfied that these processes are sufficient to ensure that publication of the Tribunal’s reasons will not lead to the identification of the applicant or her family members.
The material before the Tribunal does not indicate that there is any other public interest reason why the decisions should not be published once those decisions are de-identified. Further, the Tribunal has a statutory obligation to pursue the objective of providing a mechanism of review that is accessible and promotes public trust and confidence in our decision-making.[7] The Australian courts have held that publishing decisions contributes to achieving this objective and promotes the transparency of the Tribunal’s operations.[8] In these circumstances I am not satisfied that prohibiting publication of the Tribunal’s reasons in this case or the related cases is in the public interest.
[7] Sections 2A(a) and (d) of the AAT Act
[8] Re Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83 at [16]–[29]; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33: at 54.
I note however that the related review of [Husband A] is reviewable under Part 7 of the Act and therefore already subject to s 431 which prohibits the Tribunal from publishing information that may identify an applicant or their relative or dependent. In these circumstances it is not necessary to make a further order pursuant to s 440.
It follows that once de-identified, the Tribunal’s decision statement in the current review and the related reviews may be published by the Tribunal.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Alison Murphy
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.