2207686 (Migration) - [2023] AATA 762

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2207686 (Migration)

Details

AGLC: 2207686 (Migration) [2023] AATA 762
Case: [2023] AATA 762
Decision Date: 23 January 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a decision by the Minister to cancel a Skilled Independent (Permanent) (Class SI) visa, Subclass 189, held by a secondary applicant who was a member of a family unit. The dispute arose because the applicant's de facto relationship ceased before the visa was granted, and the applicant did not notify the Minister of this change in circumstances. The applicant had separated from their partner, with periods of reconciliation and living apart due to work commitments, and eventually departed Australia with their child without the partner's knowledge.

The Tribunal was required to determine whether the Minister had correctly exercised the discretion to cancel the visa. Specifically, the AAT needed to assess if the applicant had failed to notify the Minister of a change in their circumstances, and if so, whether the Minister's decision to cancel the visa was justified, taking into account the prescribed circumstances and the best interests of the child. The Tribunal also had to consider the applicant's work, church involvement, and mental health, as well as the fact that the former partner and child were now permanent residents and the importance of a meaningful relationship between the child and both parents.

The Tribunal found that while there may have been non-compliance, the Minister's decision to cancel the visa was not sound. The AAT reasoned that the circumstances surrounding the cessation of the de facto relationship, the subsequent living arrangements, and the impact on the child's best interests were not adequately considered. The Tribunal emphasised the importance of the child's relationship with both parents and concluded that the decision under review was not in accordance with the law.

Consequently, the Tribunal set aside the Minister's decision to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Decision about non‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

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