2214195 (Migration)

[2022] AATA 4282

2214195 (Migration) [2022] AATA 4282 (21 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr James Wardlaw

CASE NUMBER:  2214195

MEMBER:Margie Bourke

DATE:21 November 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 100 (Spouse) visa.

Statement made on 21 November 2022 at 5:03pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – consequential cancellation – husband’s visa cancelled for provision of incorrect information in visa applications – combined hearing of both reviews – discretion to cancel visa – not complicit in provision of incorrect information – work until births of children – one child an Australian citizen – best interests of children – cancellation of husband’s visa affirmed – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 109(1), 140(2)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the review applicant was granted a partner visa because she was sponsored by her husband, [Mr A], who was the holder of a visa at the time of the application for the review applicant’s visa. [Mr A]’s visa was cancelled pursuant to a decision of the Department on 15 September, 2022. The Department was satisfied there were grounds to cancel the review applicants visa under s.140(2) of the Act, and the Department’s decision record set out a consideration of all the relevant matters and decided the appropriate course was to cancel the review applicant’s visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Tribunal considered its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, in particular the imminent birth of her second child around the time of the hearing, and the nature of the review. The presiding member was also constituted the review in relation to the cancellation of the visa of the review applicant’s husband, [Mr A]. The review applicant and her husband had the same representative. At the invitation of the Tribunal the review applicant and [Mr A] consented to their matters proceeding by way of a combined hearing. The Tribunal considered the conduct of the hearing by video would give the applicants the opportunity to give evidence and present arguments, and would allow the hearing to be conducted fairly and effectively, and enable the Tribunal to properly assess the credibility of the evidence before it. The Tribunal noted that the hearing did not involve a large amount of paperwork to be put to the review applicant or her husband during the course of the hearing. The hearings were scheduled at a time when the availability of in person hearings was limited due to the ongoing pandemic. For all of the above reasons the Tribunal determined that this was an appropriate combined hearing to be conducted by way video.

4. The review applicant and her husband appeared before the Tribunal by video on separate devices on 21 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the [Country 1] and English languages, and the interpreter attended the hearing by video.

5. The applicants were represented in relation to the review, and the representative attended the hearing by video. This decision record applies only in relation to the application for review of the decision to cancel the visa of [the review applicant], who is referred to in this decision record as the review applicant.

6. The hearing commenced just before 11am, and there was a break at 12.30pm, to allow the review applicant to breastfeed her baby and to allow the applicants the opportunity to consult with the representative.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the review applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. If a person’s visa is cancelled under ss 109, 116, 128, 133A, 133C or 137J and another person holds a visa only because the person whose visa is cancelled held a visa, and the other person did not hold the visa because of being a member of the family unit of the person whose visa was cancelled, the Minister may cancel the other person’s visa: s.140(2).

9. Based on the oral and written evidence of the review applicant and her husband [Mr A], and the written and oral submissions of the representative, the Tribunal is satisfied that the review applicant’s husband’s visa was cancelled, and the grounds for that cancellation existed. Further the Tribunal is satisfied that the review applicant held a visa, namely a Partner subclass 100 visa, and she was sponsored by her husband [Mr A] when he was the holder of an Australian permanent resident visa which has subsequently been cancelled. The Tribunal is satisfied that the review applicant only held a visa because the person whose visa is cancelled held a visa, and therefore the visa held by the review applicant may be cancelled pursuant to s.140(2).  For these reasons, the Tribunal is satisfied that the ground for cancellation exists under s.140(2).

   Should the visa be cancelled?

10. As the Tribunal has decided that s.140(2) of the Act applies to the applicant, it is necessary to consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s guidelines: General visa cancellation powers.

11. The purpose of the review applicant’s travel to and stay in Australia: – the Tribunal is satisfied that the review applicant came to Australia after she married her husband and was sponsored by him to join him in Australia. The Tribunal is satisfied that the purpose of the review applicant’s wish to remain in Australia is to be with her husband and to raise her two children, born in Australia in [Year 1] and [Year 2]. The Tribunal gives this weight in favour against cancellation of the visa.

12. The degree of hardship that may be caused to the applicant and her family members if her visa is cancelled: – the Tribunal is satisfied that the review applicant is [an Occupation] in [Country 1] and has worked in [a work sector] in Australia. The Tribunal is satisfied that the review applicant considers that her children will be much better off if they can grow up, be educated and have careers in Australia. The Tribunal accepts that the review applicant, her Australian citizen [Age] year old child and her newborn baby have better access to healthcare and health supports in Australia. The Tribunal accepts that currently the review applicant has been placed on a mental health care plan and receives the support of her treating doctor and psychologist. The Tribunal accepts that the children have better access to education and career opportunities in Australia. The Tribunal accepts that at the moment the review applicant is not working as she is caring for her [Age] year old child and new born baby, but will be able to rejoin the workforce in the near future in Australia. The Tribunal accepts there would be financial hardship to the review applicant and her children if her visa is cancelled and she had to return to [Country 1]. The Tribunal accepts that the review applicant and her two children would suffer a significant degree of financial and potential health/medical hardship if her visa is cancelled. The Tribunal gives this consideration weight in favour against cancellation of the visa.

13. The circumstances in which the ground for cancellation arose: – the Tribunal accepts that the ground for cancellation of the applicant’s sponsor’s visa initially arose in 2013 when [Mr A] presented fraudulent identity documents to the Department when he applied for a partner visa sponsored by a previous partner. The Tribunal accepts that the review applicant’s husband continued to provide the information about his fraudulent identity when he sponsored the review applicant for her partner visa. The Tribunal accepts that the review applicant did not make significant enquiries as to why he obtained a second marriage certificate, and used a different first name on their marriage certificate presented to the Department. The Tribunal accepts that the review applicant’s husband prepared the documents for the application for the visa. The Tribunal accepts the review applicant understood that her husband used a different first name in Australia and did not make any concentrated enquiries in relation to this. The Tribunal accepts the explanation of the review applicant, that theirs was an arranged marriage and she did not question her husband about details of his date of birth or the use of his first name. The Tribunal is satisfied that the review applicant was not complicit in the fraud in relation to her husband’s identity or the false information presented to the Department. The Tribunal is satisfied that the review applicant had not herself purposefully or knowingly provided any incorrect information in relation to her application for the visa to the Department. The Tribunal gives this consideration weight in favour against cancellation of the visa.

14. The review applicant’s past and present behaviour towards the Department: – the Tribunal is satisfied that the review applicant has been honest in the information she knowingly provided to the Department. The Tribunal accepts the information in the review applicant’s statutory declaration signed 25 July 2022. The Tribunal notes that the review applicant’s husband also states that the review applicant had no knowledge of the fraudulent identity he had provided to the Department until they received the NOICC from the Department. I give this consideration weight in favour against cancellation of the visa.

15. Links that the applicant has to the community: – the Tribunal is satisfied that the review applicant has lived in Australia since she arrived in October 2019, and has given birth to 2 children since her arrival. The Tribunal is satisfied that the review applicant has worked in [a work] sector in Melbourne, and did so during the difficult times of the pandemic. The Tribunal gives this consideration weight in favour against cancellation of the visa.

16. Australia’s obligations under international agreements: – the Tribunal has considered Australia’s commitments as a signatory to the Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights. The Tribunal has considered that the best interests of the children would be to remain within their family unit with both their parents in Australia. However, although the Tribunal will give the best interests of the children priority, and give significant weight to the value of family unity, after consideration of all other factors, the decision of the Tribunal in relation to both these reviews may not make it possible for the children to remain with both their parents, and to remain in Australia.

17. The review applicant, her husband and their representative submitted that the best interests of the children would be to remain in Australia and be able to access the education opportunities, healthcare and medical system, and career opportunities that Australia has to offer. In response to a question from the Tribunal in relation to whether the review applicant would remain in Australia with her two children if her visa was not cancelled, but her husband’s visa was cancelled, the review applicant stated that she would prefer to remain in Australia if she could manage it, because that would be the best thing for her children. The review applicant also stated that she would be torn by making this decision because of the separation from her husband and the children’s father. The review applicant indicated that her ability to care for both the children and earn a sufficient income may not be possible and that she would, in all likelihood, return to [Country 1] with the children to keep the family together, as that may be the only way she could cope. The Tribunal notes that the review applicant’s husband stated that if he had to return to [Country 1] because his visa was cancelled and he was unable to remain in Australia via any other visa option, the review applicant and the children would return with him so they remained together.

18. The Tribunal is satisfied that the older child born in [Year 1] is an Australian citizen by descent because both his parents were the holders of permanent resident visas at the time of his birth. The Tribunal is satisfied that the child born in [Month] 2022 is not the holder of Australian citizenship by descent because of the time of his birth neither of his parents were the holders of a permanent resident visa, as they had both been cancelled. The Tribunal anticipates that if the review applicant’s visa is not cancelled, her second born child would be entitled to have Australian citizenship by descent granted.

19. The Tribunal has given serious consideration to the best interests of the children. In relation to consideration of the visa of the review applicant, the Tribunal accepts her submission that she considers it is in the best interests of her children to remain in Australia in relation to the education and career opportunities, and to access the benefits of the Australian healthcare system.

20. In relation to consideration of the visa of the review applicant, the Tribunal finds Australia would not be in breach of its international obligations if the visa of the review applicant was not cancelled, and therefore the children could remain with the review applicant in Australia, regardless of the decision in relation to the review applicant’s husband’s visa. The Tribunal notes that in the future if the decision of the review applicant was that the overriding priority should be that the children should be with both their parents, and, the ultimate decision of the Tribunal is that the visa of the review applicant’s husband (and the father of the children), should be cancelled, and he was not able to remain in Australia through another visa pathway, the decision in relation to family unity would be one that could be made by the parents of the children rather than by the Tribunal.

21. The Tribunal has carefully considered all these matters, and gives this consideration of Australia’s commitments to its international obligations weight in favour against cancellation of the review applicant’s visa.

22. Mandatory legal consequences: – the Tribunal is satisfied that there are mandatory legal consequences that ensue upon the cancellation of the visa, including the review applicant could potentially become unlawful, be detained or deported and there are future restrictions in relation to visa applications pursuant to s.48 of the Act. The Tribunal gives this consideration weight in favour against cancellation of the review applicant’s visa.

23. The Tribunal has considered all the relevant information before it, including the oral evidence of the review applicant and her husband in the hearing, the oral and written submissions of the representative and the information provided to both the Department and the Tribunal by the review applicant. The Tribunal is satisfied that consideration of all the circumstances as discussed above indicate that the visa of the review applicant should not be cancelled.

24. Therefore, the Tribunal concludes that the visa of the review applicant should not be cancelled.

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the visa.

    Margie Bourke
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.