2208501 (Migration) - [2024] AATA 4338

2208501 (Migration) [2024] AATA 4338 (9 October 2024)
DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mark Northam, Northam Lawyers
CASE NUMBER:  2208501
HOME AFFAIRS REFERENCE(S):          BCC2021/2246628
MEMBER:Michael Ison
DATE:9 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 09 October 2024 at 6:02pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – relevant changes in circumstances not notified to department – relationship ceased, new relationship and children while application in progress – claim of translation error by non-certified translator – casual affair rather than relationship or cohabitation – travel to care for father rather than visit partner – affair/relationship ceased, with some contact through children – some relationship with children, financial support and child visa applications – some downplaying of significance of affair/relationship – grounds not made out on evidence – present circumstances including new relationship and young adult step-children not relevant – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 104(1), 107, 109(1), 359A, 375A
Migration Regulations 1994 (Cth), r 1.09A
CASE
Cao v MIAC [2007] FMCA 225
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
Background
The applicant in this review is [the applicant], who is a [Age]-year-old Vietnamese national. [The applicant] is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows.
On 17 October 2003 the applicant applied for an offshore Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa on the basis that the applicant was the fiancé of [Ms A], whom the applicant claims to have first met on 28 September 2002 in Saigon when [Ms A] was [Age] years of age, and the applicant was [Age] years of age. [Ms A] was born in Vietnam but had Australian citizenship conferred on her [in] September 1987.
[Ms A] had been married once previously on [Date] to [Mr B] and that marriage produced one child, [Miss C] born on [Date]. [Ms A] and [Mr B] divorced on [Date].
The Subclass 300 visa was granted to the applicant on 10 June 2004. The applicant first arrived in Australia [in] July 2004 as the holder of the Subclass 300 visa, which was valid to 10 March 2005.
On [Date] the applicant and [Ms A] were married in Melbourne. On 27 October 2004 the applicant…

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 2208501 (Migration)

Details

AGLC: 2208501 (Migration) [2024] AATA 4338
Case: [2024] AATA 4338
Decision Date: 9 October 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under section 109(1) of the *Migration Act 1958* (Cth). The applicant, a Vietnamese national, had a history of obtaining various visas based on his relationship with Ms A, culminating in the grant of a permanent partner visa and subsequently several Subclass 155 visas. The cancellation was based on allegations that the applicant had failed to notify the Department of changes in his circumstances, specifically a new de facto relationship with Ms F and the birth of their children, while his Subclass 801 Permanent Partner visa was being processed.

The primary legal issue before the Tribunal was whether the applicant had contravened section 104 of the Act by failing to notify the Department of his new relationship and the resulting pregnancy and birth of children, thereby rendering his previous statements about his relationship with Ms A incorrect. This alleged non-compliance formed the basis for the delegate's decision to cancel the applicant's Subclass 155 visa. The Tribunal was required to determine if the notice of intention to cancel the visa complied with section 107 of the Act and, if so, whether the grounds for cancellation were made out on the evidence.

The Tribunal found that while the notice of intention to cancel complied with section 107, the grounds for cancellation were not made out. The Tribunal considered the applicant's statement provided in support of child visa applications for his children with Ms F, which indicated a divorce from Ms A and a de facto relationship with Ms F from 2005 to 2020. However, the Tribunal concluded that the applicant's statements to the Department regarding his relationship with Ms A were correct at the time they were made and assessed. The Tribunal noted that the applicant's current circumstances, including a new relationship and step-children, were not relevant to the alleged non-compliance that occurred during the processing of his Subclass 801 visa application.

Consequently, the Tribunal set aside the decision under review. The Tribunal substituted a decision not to cancel the applicant's Subclass 155 (Five Year Resident Return) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).Background The applicant in this review is [the applicant], who is a [Age]-year-old Vietnamese national. [The applicant] is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows. On 17 October 2003 the applicant applied for an offshore Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa on the basis that the applicant was the fiancé of [Ms A], whom the applicant claims to have first met on 28 September 2002 in Saigon when [Ms A] was [Age] years of age, and the applicant was [Age] years of age. [Ms A] was born in Vietnam but had Australian citizenship conferred on her [in] September 1987. [Ms A] had been married once previously on [Date] to [Mr B] and that marriage produced one child, [Miss C] born on [Date]. [Ms A] and [Mr B] divorced on [Date]. The Subclass 300 visa was granted to the applicant on 10 June 2004. The applicant first arrived in Australia [in] July 2004 as the holder of the Subclass 300 visa, which was valid to 10 March 2005. On [Date] the applicant and [Ms A] were married in Melbourne. On 27 October 2004 the applicant applied for an onshore Combined Partner (Class UK) (Subclass 820) Provisional Partner visa and (Class BS) (Subclass 801) Permanent Partner visa on the basis he was the spouse of [Ms A]. On 20 April 2005 the applicant was granted a Subclass 820 Partner Provisional visa that was valid to 6 August 2007 when he was granted a Subclass 801 Partner Permanent visa. On 2 August 2012 the applicant applied for his first onshore Five-Year Resident Return (Class BB) (Subclass 155) visa as a permanent resident of Australia, which was granted the same day and was valid to 16 October 2017. The applicant was granted five subsequent onshore Subclass 155 visas on:·16 October 2017;·19 January 2019;·7 November 2019;·23 October 2020; and·23 November 2021. On 11 December 2019 the applicant applied for conferral of Australian citizenship, however, on 12 December 2019 the Department determined the application was invalid. On 31 March 2021 the Department received two Child (Migrant) (Class AH) (Subclass 101) visa applications for [Miss D] and [Miss E] respectively, which were sponsored by the applicant on the basis that the applicant is the father of both children. In support of those two Child visa applications, the applicant provided to the Department the birth certificates, which state the applicant is the biological father and [Ms F] is the biological mother of both children. [Miss D] was born on [Date] and [Miss E] was born on [Date]. In support of the applications for the Child visas the applicant provided a written statement to the Department which had been translated from Vietnamese into English. In his statement to the Department the applicant stated:·[Ms A] and he were divorced on [Date];·Their marriage produced no children; ·From 2005 to 2020 he was in de facto relationship with [Ms F] having travelled back to Vietnam since 2005;·He and [Ms F] cohabited together and had two children who he now wishes to sponsor to Australia to live.

Evidence

Evidence Before The Court

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. Did the notice comply with the requirements in s 107? A delegate of the Minister sent the applicant a NOICC on 17 May 2022. Having reviewed the NOICC and considered the requirements of s 107 of the Act, the Tribunal finds:·the delegate reached the relevant state of mind that there was non-compliance with the Act;·the NOICC contains sufficient particulars of the non-compliance; and·the NOICC complies with the statutory requirements of s 107 of the Act.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 ss 104 in the following respects: ·The applicant commenced a new de facto relationship with [Ms F] in 2005;·In November 2007 [Ms F] gave birth to their first child;·In October 2004 as part of the applicant’s application for Subclass 820 and Subclass 801 Partner visas sponsored by [Ms A], the applicant answered questions in the application that he was married to [Ms A], they had a mutual commitment to a shared life together to the exclusion of all others from 25 September 2002, they intend to maintain a lasting relationship and their relationship has not ceased;·In completing the provisional and permanent visa applications, the applicant declared he would keep the Department informed of any changes to his personal circumstances when both of his visa applications were being considered;·The applicant also declared in his visa application that he would inform the Department if his relationship with his partner breaks down or ends in divorce, separation or death before his visa applications are decided;·The answers provided by the applicant referred to above were correct at the time the visa applications were lodged and at the time of assessment of his application for the Subclass 820 visa;·On 28 September 2006 as part of the applicant’s response to a request for information in relation to the processing of his Subclass 801 visa application, the applicant informed the Department that he and [Ms A] have a genuine and continuing relationship and that all information he has provided in responding to the Department is complete, correct and up-to-date in every detail;·On 31 March 2021 the applicant sponsored [Ms F]’s daughters for Child (Subclass 101) visas, providing the statement paraphrased in paragraph 13 of these reasons;·This information caused the delegate to find that the applicant’s following answers in his combined visa application in October 2004 were no longer correct at the time of the processing of his Subclass 801 visa application:oThat he and [Ms A] intended to maintain a lasting relationship; andoTheir married relationship had not ceased;·The applicant provided a statutory declaration on 28 September 2006 stating he was in a genuine and continuing relationship with [Ms A] and they had a mutual commitment to a shared life as husband and wife to the exclusion of all others which was incorrect and he failed to keep the Department informed that he was in a new de facto relationship with [Ms F] and that [Ms F] was pregnant with their child and his relationship with [Ms A] had broken down.

Decision

Reasons for decision

[Mrs G] has two children from a previous relationship who lived with her at the time the applicant moved into their premises, but who have recently moved out for different reasons. [Mrs G]’s eldest child is [Mr H] who was born and raised as female but identifies as male and is referred to in these reasons, now being aged [Age] years, as [Mr H]. [Mrs G]’s youngest child is [Ms I], who is aged [Age] years, and is referred to in these reasons as [Ms I]. [Mr H] and [Ms I] are both Australian citizens. The primary decision of a delegate of the Minister The applicant provided the Tribunal with a copy of the primary decision. The delegate cancelled the visa on the basis that the applicant failed to keep the Department informed about the circumstances of his new relationship with [Ms F] and failed to inform the Department that [Ms F] was pregnant with his child at the time his application for the Subclass 801 Permanent Partner visa, which was based on his spousal relationship with [Ms A], was being processed. As a result, the delegate found the applicant breached s 104 of the Act at the time of processing his application for the Subclass 801 Permanent Partner visa and therefore there was a ground to cancel the applicant’s current Subclass 155 visa for his previous breach of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.Tribunal hearings on 19 September 2023, 20 October 2023 and 14 March 2024 The applicant appeared before the Tribunal on 19 September 2023, 20 October 2023 and 14 March 2024 to give evidence and present arguments, in person. The first Tribunal hearing had to be adjourned after only a short period due to technology issues associated with the interpreter participating by video. The Tribunal also received oral evidence from:·[Ms F] and [Ms A] during the 20 October 2023 hearing; and·[Mrs G], [Mr H] and [Ms I] during the 14 March 2024 hearing. [Mrs G], [Mr H] and [Ms I] attended all three of the Tribunal hearings in person to give evidence and support the applicant. Each of the Tribunal hearings was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by a migration lawyer, Mr Mark Northam of Northam Lawyers. Mr Northam is referred to in these reasons as the applicants’ representative or the representative. The representative attended each of the Tribunal hearings in-person and was assisted by [Ms J] who also attended each of the Tribunal hearings. The representative provided extensive oral and written submissions to the Tribunal throughout this review. The representative’s written submissions were of high quality providing the Tribunal with relevant and probative evidence. The representative’s submissions were overall of considerable assistance to the Tribunal in the conduct of this review. At the commencement of each Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and at the commencement of each hearing the Tribunal asked the applicant whether the applicant could understand the interpreter and whether he had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated each time he could understand the interpreter and did not have any objection to the interpreter retained by the Tribunal.

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.Michael IsonSenior MemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.104Changes in circumstances to be notified(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.(4)Subsection (1) applies despite the grant of any visa.107Notice of incorrect applications(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non‑compliance; and(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i)if the holder disputes that there was non‑compliance:(A)shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or(ii)if the holder accepts that there was non‑compliance:(A)give reasons for the non‑compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f) requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b) otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a) visas of a stated class; or(b) visa holders in stated circumstances; or(c) visa holders in a stated class of people (who may be visa holders in a particular place); or(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.108Decision about non‑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.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.