2207686 (Migration)

2207686 (Migration) [2023] AATA 762 (23 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Charles Ukaegbu
CASE NUMBER:  2207686
MEMBER:Namoi Dougall
DATE:23 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 23 January 2023 at 1:25pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – secondary applicant member of family unit – no notification of change of circumstances – de facto relationship ceased before visa granted – several separations and reconciliations, and living separately for partner’s work – departed with child without partner’s knowledge – discretion to cancel visa – work, church and mental health – former partner and child now permanent residents – best interests of child – meaningful relationship with both parents – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 104, 107, 109(1), 376
Migration Regulations 1994 (Cth), rr 1.12(2)(a), 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133

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 189 - Skilled - Independent 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 not notified the Department of her change of circumstances being that her de facto relationship had ceased prior to being immigration cleared and that this information rendered her answers in her Subclass 189 visa application form incorrect. 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 appeared before the Tribunal on 20 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former de facto spouse, [Mr A].
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.

CONSIDERATION OF CLAIMS AND EVIDENCE

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.
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.
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?

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 section 104 in the following respects:

· On 10 April 2018, [Mr A] lodged a subclass 189 visa application which stated that the relationship status of the applicant and him was de facto and that this relationship started [in] June 2016.

· On 14 April 2018, the applicant provided to the Department a signed Form 80 in which the applicant stated that she and [Mr A] were married traditionally [in] June 2016 and that they had a child together [Miss B] born on [Date].

· On 17 August 2018, a delegate of the Department requested from the applicant further evidence as to her de facto relationship with [Mr A].

· On 25 August 2018, the applicant provided additional information as to the genuine nature of her de facto relationship with [Mr A].

· On 16 November 2018 the applicant and her daughter were granted a Subclass 189 visa on the basis she was a member of the family unit of [Mr A].

· [In] December 2018, the applicant and her daughter arrived in Australia on the Subclass 189 visas, however, [Mr A] arrived at a later date.

· Subsequently, information became available to the Department which indicated [Mr A] and the applicant had not been in a de facto relationship since 22 June 2018. Further, the traditional marriage between [Mr A] and the applicant ceased on 30 October 2018.

· The delegate in the Notice then stated that they considered that the applicant from 22 June 2018 was no longer a member of [Mr A]’s family unit which was before the applicant became immigration cleared on 11 December 2018.

· The Notice stated that to be a member of the family unit of [Mr A] as prescribed by reg.1.12(2)(a), the applicant needed to continue to be his de facto partner as deified in sec.5CB of the Act. The Department had information that indicates that the de facto relationship ceased to be genuine and continuing on 22 June 2018, therefore, the applicant and [Mr A] were no longer had a mutual commitment to a shared life to the exclusion of all others and therefore, the applicant was no longer a member of the family unit of [Mr A].

· The delegate noted that neither [Mr A] nor the applicant notified the Department of the change in their relationship status and deliberately provided further evidence of relationship on 25 August 2018 to falsely claim the relationship was ongoing.

· The applicant by not notifying the Department of the change in circumstances as agreed by the applicant in the declaration, the applicant allowed a grant of a visa that she may not have been entitled to if the correct information and circumstances were known to the Department.

· The delegate considered the applicant failed to notify the Department of a change in circumstances before she was immigration cleared, which rendered the answers in the visa application incorrect and therefore it appears that the applicant had not complied with sec.104 of the Act and that the applicant’s Subclass 189 visa was liable for cancellation under s.109 of the Act.

Relationship of the applicant and [Mr A]

The applicant’s evidence

In the applicant’s statutory declaration dated 3 May 2022, in response to s.107 Notice, the applicant stated that she met [Mr A] at university as they had both been at school together. They were friends until January 2012 when they stated dating. In 2013 there was a misunderstanding and she left for a year. In 2015 there was another minor misunderstanding that led to another temporary break where she did not accept his apology both to her or her family and after a long time the made up and got back together. [In] June 2016 they married, which the applicant stated was the beginning of their de facto relationship, but she also stated that shortly afterwards they had a misunderstanding and he left in anger but later he returned, and she accepted his apology and they got back together.
In the applicant’s statutory declaration, in relation to the argument in June 2018, stated that there was a minor argument. She was angry and upset but knew that it was a temporary separation and, although they lived in separate places, they did not consider it as a permanent breakdown as they were attached emotionally and cared for each other and emotionally attached to their child. The applicant also stated that [Mr A] performed his role as a partner and father and checked on their well being and took care of them. The applicant also stated that they continued to communicate with each other, and he used to call on video calls to see the applicant and their child. This is at odds with the applicant and [Mr A]’s evidence at the hearing as to the communication after their argument in June 2018.
As to what happened when the Subclass 189 visas were granted the applicant stated in her statutory declaration that when the visas were granted [Mr A] was not ready to relocate to Australia at that point in time and would arrive later due to work commitments. This statement glosses over the full facts of what happened in particular that the applicant left for Australia with their child without informing [Mr A] as the evidence at hearing from both the applicant and [Mr A] establishes. The applicant stated that as they were married traditionally and had a child she did not expect him to end the marriage on 30 December 2018, Nigerian time or 31 December 2018, Australian time.
At the hearing the applicant stated that they met in school at the drama group and started dating in 2012 when the relationship became serious. In 2012 the applicant was working at the [Workplace 1] and [Mr A] was working in [Work sector]. The applicant was not living with [Mr A] before their traditional wedding, and they started to live together in June 2018 after the ceremony. The applicant was working in [a Workplace 2] in Onitsha and the applicant was living Asaba which is about 10 to 15 minutes away. The family house where [Mr A] lived was in Port Hacket about 1.5 hours away from Asaba. Shortly after they were married [Mr A] was transferred to Lagos about 8 hours from Asaba. [Mr A] started to live in Lagos from before their daughter was born.
At the hearing the applicant stated that after her daughter was born the applicant stayed in Asaba. She wanted to move but [Mr A] told her that he had just moved and started his career and if she also moved to live with him there would be a lot of financial stress. The applicant continued to work after her daughter was born. The applicant did not like being separated but she understood the financial implications of having a daughter. They did start to discuss relocating and starting afresh.
At the hearing the applicant stated that in 2016 they communicated all the time when they were not fighting. Similarly in 2017 they communicated when not fighting. The Tribunal referred to fights being extended, and the applicant stated that in 2016 they did not speak for about 3 months and there was not much fighting in 2017 and they spoke all the time. During 2018, they were not speaking with each other for about 3 months.
At the hearing the Tribunal asked about financial support and the applicant stated that in her culture it was the man’s responsibility to look after the family and he provided for them. It was regular amounts from 2012 of N5,000, and then in 2013 to 2014 the amount increased N10,000. After the traditional ceremony he started to give N30,000 and from when their daughter was born the amount increased to N50,000.
At the hearing the Tribunal referred to the Department asking for additional information in August 2018 and the applicant stated that [Mr A] emailed her to ask for the additional information. They provided photographs, the birth certificate of their daughter and bank statements. The applicant provided her bank statements to [Mr A] so he could provide them to the Department.
At the hearing the application stated that after August 2018, the applicant wanted to start living together and she asked him about the status to of the application. The applicant stated that they spoke once or twice a day. The applicant stated that she found out the visa was granted in November 2018. The Tribunal asked when in November 2018, the applicant stated that she found out the day the visa was granted by logging into the application using her own details. The Tribunal asked what prompted her to log in on that day and the applicant stated that some of her friends who also applied had already received their grants, so she decided to check. The Tribunal asked if she rang [Mr A] and she stated that she had not as she sent him an email. The Tribunal asked why an email and the applicant stated no reason. She could not remember when she called him after the email. The applicant stated that [Mr A] emailed her back to say he had not received it. As she was at work she did not call until the evening, but he did not pick up his phone, so she did not speak with him that day. The Tribunal asked again when the applicant spoke with [Mr A], and she stated that she cannot remember, and the applicant added that she called but he did not pick up so she sent him emails. Also, she cannot remember if she sent him a WhatsApp message.
At the hearing the Tribunal asked if she discussed with the applicant the granting of the visa and the applicant said yes but it was by email. At the time they had some challenges, and she was very upset. Whenever she tried to call, he would not pick up the phone. The applicant stated that they already discussed that he was not ready to relocate as he had started something new, and it was agreed that she would leave first. She just kept thinking that this would force him to move so they could start afresh. The applicant did not tell him that she was leaving as he would come up with excuses for her not to leave. The applicant wanted them to live together as the distance to travel was much longer since he moved to Lagos. Due to the issues, they were having she thought that moving with the child would force him to relocate.
The Tribunal asked if she thought that the lack of communication showed there was issues in the relationship and the applicant stated that there were always issues with their relationship and it was just their way. There were always issues. They would fight but they always resolve the issues. The Tribunal explained that it did not seem to be a committed relationship and the applicant stated that she was used to the fights and not living together, and she thought this would push him to move as he always gave excuses for not seeing her. [Mr A] got very upset, and she understood that he was afraid of relocating and starting afresh and as she knew it was the best thing to do but she thought it would push him to not being scared and to just do it.
At the hearing the Tribunal asked when did she find out about [Mr A]’s other relationship and the applicant stated that after she moved to Australia. [Mr A] blocked her on Facebook, and he told his family that she was not submissive and he could not control her. He asked the applicant how could she take his child and his family were very upset and, therefore, he would not stay in the relationship. He said these things to her and that he could not stay in the relationship, and he will ask his family to meet with hers to dissolve their marriage as there cannot be two captains in the boat. The applicant stated that [Mr A] said these things to her in December 2018, around late December after she told him she had moved.

[Mr A]’s evidence

At the hearing [Mr A] stated that he met the applicant in school around 2005 and 2006. They started to be couple in 2012 and then got serious when they decided to get married in 2016. The Tribunal asked when they started to live together and [Mr A] stated that they never lived together because they worked in different places. The Tribunal asked what he thought about not living together and [Mr A] stated that it was due to the demands of their jobs, in different states and different localities. The Tribunal asked if any efforts were made for them to live together and how often did he see the applicant and his daughter and [Mr A] stated that there were plans for them to live together. The plans included emigrating to Australia and try to legalise their marriage. [Mr A] stated he would see them once a month or once every two months. In Australia, before the visa cancellation, it was every weekend or second weekend but after the visa cancellation he did not see his daughter for about 5 months and found this very emotionally draining. He hopes things will improve. His daughter is doing very well, and he is happy about that and hopes to see her during Christmas.
At the hearing the Tribunal asked how often he contacted the applicant when in Nigeria and [Mr A] stated that communication was very easy, they spoke on the phone and by online chat every day.
At the hearing the Tribunal asked about the argument in June 2018, the applicant visited him and some days he went out but when he came home, she was not there. [Mr A] called her but could not get to speak with her and sent a message. He found out what was wrong through another person, a colleague called him to say that she had been told what the applicant had been saying about [Mr A]. He tried again to contact the applicant to discuss the concerns but could not get through. Then things degenerated. The colleague stated she was being threatened by someone she did not know to have nothing to do with him and he could not understand what was going on so he wanted to speak with the applicant to find out what was going on and why. [Mr A] stated that he wanted to contact the applicant to find out if she had anything to do with the threats made on his colleague. Eventually much later he discussed with the application, and he believed the applicant when she stated that she did not threaten his colleague. The Tribunal asked how long it took to resolve the argument and [Mr A] stated that it did not get resolved as it led to the end of the relationship. The colleague that was threatened was not his now spouse.
At the hearing the Tribunal asked how often they communicated from June 2018 until the applicant arrived in Australia and [Mr A] stated that the communication was very scanty. The discussions were centred on their daughter, and they did discuss moving to Australia. Those discussions were about additional information required at the time which was about their relationship. The information they provided was photos and WhatsApp conversations. Financial information was also provided.
At the hearing [Mr A] stated he met his current spouse in May 2018, and they were colleagues at the time. They started to go out in early December 2018. The Tribunal referred to the sponsorship application for his current spouse and that it stated that on 2 December 2018 they committed to a shared life together to the exclusion of all others. The Tribunal asked when he told the applicant about his new relationship and [Mr A] stated that he never got to tell her about the new relationship as communication was scanty and the families were trying to resolved the relationship issues which did not help much at the time. Then the family eventually decided that the best thing was to end the relationship as it was not working out and they could not get us back together.
At the hearing the Tribunal asked when he found out that the applicant and his daughter had emigrated to Australia and [Mr A] stated in January 2019. He felt very bad as he did not know how he would see his daughter or communicate with her as the applicant and he were not in the same headspace. He felt very bad about the development as it would affect his access to her. The applicant had contacted him and requested some details from him, but he could not understand why she was asking for the details when she was still in Nigeria. He then asked where she was and then he told her. [Mr A] stated that he did not inform the applicant of his new relationship as he had ended his relationship with the applicant. [Mr A] told the Department that his relationship was over in June or July 2019 when he applied for the visa for his current spouse.

At the hearing [Mr A] stated that he arrived in Australia for the first time in March 2019 and stayed in Perth for a few says then left. He did not return to Australia until 2021. He travelled without his current spouse who came to Australia one or two months later.
At the hearing the Tribunal referred to the sponsorship application stating that he believed it was the applicant who walked out of the relationship and asked if he still thought that. [Mr A] stated yes as the applicant did not give him the opportunity to hear him out, she would not communicate, and she was not at home when he returned home.
At the hearing the Tribunal asked what the effect on him would be if the applicant and their daughter left Australia and he stated it would have a devastating effect on him. He loves his daughter and his family say she looks like him. He had a good time as a child, and he sees that in her eyes. His daughter is a rallying point for my family. His current spouse and his daughter laugh with each other and the few times she came to his house it was some of the best time for his spouse, they have a good time together and his spouse buys toys for his daughter. The family was sorting things out until the cancellation of the visa when access and communication became limited. If the applicant’s visa remains cancelled it will affect his family, he is having a lot of emotional moments and down time not having access to his daughter. His daughter has not been to his house and there is a room for her which is empty with only toys. It is a big house, and they hope that his daughter come around so he can see how she is doing.
After [Mr A]’s evidence, the applicant stated at the hearing that she is not sure what he is talking about in relation to what was said about his colleagues. She did not think that what happened on that day was such a big thing and she asked him what was going on. These arguments had happened in the past, for example, when she was pregnant, they argued and he drove off, leaving her to get home herself. The applicant confirmed she left the home on that day, but she did not refuse to talk to him. She left the house because he had been at an interview, and he was angry, so angry she was concerned he would hit her, and she had to return to work, so she left. The applicant stated that she spoke with him that day and he was abusive so she told him she would not talk to him. After he cooled down, she ‘unblocked him’ which was in about a week. The Tribunal asked if the commutation returned to normal and applicant stated they were communicating but not as well as before as she was waiting for an apology. The Tribunal asked when they resolved the issues, so they were talking again, and the applicant stated that in August 2018, they had put it behind them. Also, as they were married, she felt that when they were together the issues would be resolved. The applicant stated that she did not know that he was in another relationship she discussed with him about studying and trying to get back together. She reached out to get his tax file number and she told him that they had a place, and he should not worry about starting over and they could start afresh. [Mr A] stated no, and he still did not tell her that he had another relationship until she saw his new spouse on Facebook.

Section 376 certificate

The Tribunal wrote to the applicant requesting, amongst other things, a comment on whether the applicant considered the s.376 certificate issued by the Department was valid. The applicant did not respond to that part of the Tribunal’s letter, however, the applicant’s representative conceded at the hearing that the certificate appeared on its face to be valid and that the most relevant information the subject of the certificate had been discussed at the hearing. The Tribunal is also satisfied that the s.376 certificate is valid.

Conclusions on non-compliance

The applicant applied for the Subclass 189 visa on the basis she was a member of the family unit of [Mr A] as she was his de facto partner. ‘De facto partner’ and ’De facto relationship’ are defined in sec.5CB of the Act as follows:
De facto partners
(1)  For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2)  For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a)  they have a mutual commitment to a shared life to the exclusion of all others; and
(b)  the relationship between them is genuine and continuing; and
(c)  they:
(i)  live together; or
(ii)  do not live separately and apart on a permanent basis…
The Tribunal accepts that the relationship between the applicant and [Mr A] formally ended 30 December 2018 as set out in a number of statutory declarations from the relatives and friends of the applicant and [Mr A]. However, the formal ending of a de facto relationship is not necessarily when a relationship has ended so that there is not a mutual commitment to a shared life to the exclusion of all others and they do not live separately and apart on a permanent basis. By the time the applicant was granted the subclass 189 visa, [Mr A] was already in another relationship and the Tribunal is satisfied that there was not a mutual commitment to a shared life to the exclusion of all others when the applicant entered Australia. However, on the evidence at the hearing from both the applicant and [Mr A] and the statutory declarations from their family and friends the Tribunal accepts that the applicant was not aware of [Mr A]’s new relationship until after his marriage in May 2019.
After the hearing the Tribunal was provided with a submission from the applicant’s representative dated 13 January 2023 (the second submission). The second submission referred to [Mr A] stating at the hearing that the applicant ought to have known the relationship was over after the argument in June 2018 but then went on to submit that the relationship had endured conflicts and challenges since it started in 2012. The submission referred to the financial support provided by [Mr A] and that they presented themselves to other people as being in a de facto relationship until December 2018. As to the nature of the household, it was submitted that the applicant and [Mr A] only lived apart on a temporary basis due to work commitments. The Tribunal notes that the couple lived apart from before and after their traditional marriage in June 2016 and never lived together although they did visit each other.
Although the Tribunal accepts there has been financial support provided by [Mr A] for the applicant and their daughter and they travelled to visit each other periodically, the applicant and [Mr A] had never lived together after their customary marriage, even after their daughter was born and the relationship was affected by arguments after which communication was limited or non-existent. The applicant and [Mr A] agree they argued again in June 2018 but have provided differing versions as to the degree and cause of that argument, but both agree that communication became limited. The applicant confirmed that they did not speak on the phone as [Mr A] would not answer so she had to communicate by email. Although the applicant did state that after August 2018 she spoke with [Mr A] once or twice a day, however, later during the hearing the applicant referred to email and online messaging as how they communicated. Further, the applicant stated that she and [Mr A] had some problems and that whenever she tried to call him, he would not pick up. [Mr A]’s evidence at hearing was that after June 2018 their communicating was scanty and centred around their daughter and moving to Australia, but this was limited to what additional information was required establish their relationship. Also, both confirmed that the applicant emigrated to Australia with their daughter without informing [Mr A] of her plans. Further, the applicant was aware that [Mr A] had not finally decided to move to Australia as she referred to him making excuses. The scant communication and that the applicant had decided to move to Australia with their daughter but without informing [Mr A] indicates that, and the Tribunal is satisfied that, the applicant had decided to live separately from [Mr A] on a permanent basis particularly as she was aware that he had not finally decided to emigrate to Australia.
The applicant stated in her statutory declaration that she did not expect the applicant to end their traditional marriage on 31 December 2018, however, the Tribunal puts little weight on this statement. The marriage was formally ended only 19 days after the applicant and her daughter arrived in Australia, and as referred to above, there had been very little communication since June 2018 and the applicant knew that [Mr A] was not ready to move to Australia, but she went ahead and relocated with their daughter without informing him.
Therefore, on the above the Tribunal is satisfied that the applicant’s de facto relationship with [Mr A] had ended and they were no longer in a genuine and continuing relationship when the applicant decided to emigrate to Australia with her daughter and before she entered Australia. In reaching this finding the Tribunal has taken into account the applicant’s statements at the hearing that she wanted to force [Mr A] to move so they could start afresh.
Further, on the above the Tribunal is satisfied that the applicant did not notify the Department of her change in circumstances before she entered Australia being that the was no longer in a genuine and continuing de facto relationship with [Mr A].
For these reasons, the Tribunal finds that there was non-compliance with s.104 of the Act by the applicant in the way described in the s 107 notice.

Should the visa be cancelled?

As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

· the correct information

The Tribunal has found that the correct information was that prior to the applicant entering Australia on a Subclass 189 visa her de facto relationship with the primary applicant, [Mr A] was no longer genuine and continuing.
The Tribunal considers that if the Department had been notified of the correct information which was a change of circumstances, then the applicant would no longer have satisfied the requirements for a grant of a Subclass 189 visa. This consideration weighs in favour of cancelling the applicant’s visa.

· the content of the genuine document (if any)

There is no suggestion that any non-genuine (or bogus) documents have been provided. Therefore, this factor is not relevant in this case.

· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

The applicant applied for the Subclass 189 visa on the basis of being a member of the family of [Mr A]. At the time of the application, the definition of ‘member of the family unit’ in reg.1.12 included a de facto partner. However, by the time the applicant and her daughter entered Australia the Tribunal is satisfied that the applicant’s circumstances had changed so that she was no longer in a de facto relationship with the primary applicant. Therefore, the decision to immigration clear the applicant was based on incorrect information. This consideration weighs in favour of cancelling the applicant’s visa.

· the circumstances in which the non-compliance occurred

The Tribunal considers that the applicant was indifferent to her responsibilities to notify the Department of her change in circumstances. The applicant did not rely on [Mr A] to inform her of the grant of the Subclass 189 visa but went online herself to find that the visas had been granted. Having received the grant of the visa, the applicant did not notify the Department of her change in circumstances but instead left for Australia in just under a month. The Tribunal is concerned that the applicant did not notify the Department of the change in her circumstances to ensure a migration outcome for her daughter and herself in light of the break down of her relationship with [Mr A]. This consideration weighs in favour of cancelling the applicant’s visa.

· the present circumstances of the visa holder

Currently the applicant and [Mr A] both reside in Australia. The applicant is the carer of her daughter who is aged [Age] years. [Mr A] had spent time with his daughter until the applicant’s visa was cancelled. Provided with the second submission was a statutory declaration from the applicant dated 11 January 2023 (the January declaration) which also dealt with the arrangements made between the applicant and [Mr A] for [Mr A] to have time with his daughter. Further details are set out below.
The applicant has obtained Certificate IV in [Subject] from [College] and, as indicated by her Notices of Assessment, has been working from 2019.
In the submission from the applicant’s current representative dated 9 September 2022 (the first submission) it was stated that the applicant has had mental health concerns and was diagnosed with depression on 27 April 2022 and place on a mental health plan. Provided was a report from a psychologist who stated the applicant’s symptoms are due to the matter before the Tribunal. The Tribunal is aware that the uncertainty as to the outcome of the Tribunal’s review is stressful.
The Tribunal considers that the applicant’s present circumstances, including her personal, health, family and employment ties in Australia weigh in favour of not cancelling the applicant’s visa

· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

There is no information before the Tribunal which indicates any other instances of non-compliance known to the Minister.

· any other instances of non-compliance by the visa holder known to the Minister

There is no information before the Tribunal which indicates any other instances of non-compliance known to the Minister.

· the time that has elapsed since the non-compliance

The non-compliance in relation to notifying the Department of change in her circumstances occurred over 4 years ago The Tribunal accepts that a not inconsequential period of time has passed since the non-compliance and gives this circumstance some weight, albeit limited, in favour of not cancelling the visa.

· any breaches of the law since the non-compliance and the seriousness of those breaches

There is no evidence before the Tribunal which suggests that the applicant has breached any laws since the non-compliance.

· any contribution made by the holder to the community.

It was submitted in the applicant has contributed to the Australian community by paying tax. The applicant is employed at [Employer] as [an Occupation]. The Tribunal has been provided character references from some of her work colleagues.
Further, it was submitted that the applicant is a member of the [named] Church Sydney and that at the regular weekend services for children, the applicant promotes emotional, physical, spiritual and communal growth of children in the [Church] community. Provided with the first submission was a character reference from another member of the [Church].
The applicant’s contributions provide some support against cancelling the applicant’s visa.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

Whether there would be consequential cancellations under s.140

If the applicant’s visa is cancelled no other visas would be subject to consequential cancellation.

Mandatory legal consequences of cancellation

If the applicant’s visa is cancelled and she is not granted another visa, she will become an unlawful non-citizen and subject to detention. There is limited information before the Tribunal which suggests that indefinite detention is a possible consequence of cancellation as the applicant can voluntarily return to Nigeria. It appears that the applicant would not be eligible to apply for any other substantive visa in Australia if the visa is cancelled. The cancellation may also adversely impact future visa applications lodged by the applicant for travel to Australia.
The Tribunal considers that the legal consequences of cancellation, which may result in the applicant or [Mr A], an Australian permanent resident, being separated from their daughter, who is also an Australian permanent resident, weights in favour of not cancelling the visa.

Best interest of the children

Departmental policy provides that decision-makers should consider the best interests of children as a primary consideration when deciding whether to cancel the visa. The question that must be considered by the Tribunal is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
The applicant has a [Age]-year-old daughter who is an Australian permanent resident, as is her father [Mr A]. The Tribunal accepts that the daughter is dependent on her mother and would be separated from her father if the applicant returns to Nigeria.
It was submitted in the first submission that [Mr A] prior to the cancellation of the applicant’s visa saw his daughter every weekend or second weekend. [Mr A] stated at the hearing that he had a room for his daughter which is filled with toys and that he and his current spouse love his daughter.
The applicant in her January declaration stated that if she had to return to Nigeria with her daughter, under Igbo culture, the applicant will no longer have parental responsibility as a child belongs to the father and his family. The applicant stated that this would “obliterate the ‘best interest of the child’’ in so far as having a meaningful relationship with both parents.
The applicant also stated in the January declaration that she and [Mr A] have agreed to further plans for pentanal arrangements which relate to: where their child will live; how much time she spends with both parents; and how they contact each other about their daughter’s welfare. Further, they will jointly and gradually make decisions about choosing a school for their daughter, special days such as birthdays and holidays and other issues as to raising their daughter. The declaration attached emails which set out the negations and agreements as to what days [Mr A] will have with their daughter and who will drop off and pick up their daughter from her activities. Although there is some tension apparent in the email correspondence, there also appears to be genuine efforts on the part of both parents to compromise in the best interests of their daughter.
The evidence indicates that the applicant has the primary care of her daughter, but [Mr A] is to be involved in the care and development of his daughter and parental arrangements have been agreed between the applicant and [Mr A] which will allow him time with his daughter. The Tribunal considers that it is in the best interest of their daughter, an Australian permanent resident, that she be cared for and nurtured by both parents. It is, therefore, in the best interest of the child that the applicant’s visa is not cancelled. For these reasons, the Tribunal gives significant weight to this consideration in favour of not cancelling the visa.

International obligations

The applicant is a citizen of Nigeria. There is no evidence before the Tribunal, and the applicant has not claimed, that cancellation of his visa would lead to his removal from Australia in breach of Australia’s non-refoulment obligations.
In relation to family unity obligations, the Tribunal accepts that if the applicant’s visa is cancelled, it is likely she will have to return to Nigeria. The Tribunal also accepts that the applicant’s daughter will return with the applicant and the daughter would be separated from her Australian permanent resident father. In the circumstances, the child will be separated from their father, which would be contrary to the principles of family unity under the Convention on the Rights of the Child (CROC). This consideration therefore weighs in favour of not cancelling the visa.

Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

The applicant gave evidence that her mental state has not been very good. The Tribunal accepts that cancellation of the applicant’s visa would cause significant personal, psychological and financial hardship for her and her daughter.

Conclusion

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. While the provision of incorrect information led to the applicant being granted visas for which he was not entitled, a circumstance which strongly favours cancellation of the visa, the Tribunal considers that this would not be the preferable decision in all the circumstances of this case. Having carefully considered all the evidence and weighed up all the relevant factors, the Tribunal considers that present circumstances of the applicant and the best interest of the applicant’s Australian permanent resident children, which favour not cancelling the visa, outweigh other consideration in favour of cancelling the visa. For these reasons, 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 189 - Skilled - Independent visa.

Namoi Dougall
Member

ATTACHMENT – Migration Act 1958 (extracts)

Interpretation
(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.
Interpretation
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).
Completion 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.
Information 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.
Incorrect 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.
Changes 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.
Notice 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.
Decision 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.
Cancellation 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.

[2023] AATA 762

23 January 2023

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