2214427 (Migration)

[2023] AATA 1849

2214427 (Migration) [2023] AATA 1849 (16 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Brett Li (MARN: 9792769)

CASE NUMBER:  2214427

MEMBER:Noelle Hossen

DATE:16 April 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

Statement made on 16 April 2023 at 3:02pm

CATCHWORDS

MIGRATION – cancellation – Skilled Nominated (Permanent) visa – Subclass 190 Skilled – Nominated – member of the family unit – genuine and ongoing relationship – international travel with former partner – relationship ceased – applicant later rekindled relationship with former partner – power to cancel the visa does not arise – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5CB, 101, 107, 109
Migration Regulations 1994, rr 1.09A, 1.12, 2.41; Schedule 2, cl 190.311

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 190 - Skilled - Nominated visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was granted the Skilled- nominated visa on the 10 December 2019 based on satisfying subclass 190:311 of the Regulations as the defacto partner and member of the family unit of [Mr A]. The Delegate of the Department found that the applicant was not the defacto partner of [Mr A] and that she was not in a genuine relationship with [Mr A] as she travelled to [Country 1] in the company of the ex-boyfriend [Mr B]. 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 applicant filed extensive submissions and documents including and not limited to:

   We chat screenshots

   Individual tax returns of [Mr B] for 2017/2018, 2018/2019

   Statutory Declaration and supporting documents of [Mr B]

   Certificate of We chat payment transaction details

   Statutory Declaration of [named individual]

4. The applicant appeared before the Tribunal on the 16 March 2023 to give evidence and present arguments.

5. The Tribunal has considered all of the documents filed in support of the application for review.

6. The applicant was represented in relation to the review.

7. 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

8. 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.

9. 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.

10. 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?

11. 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 101(b) of the Act referred to in the s 107 notice in the following respects:

12. Section 101: A non-citizen must fill in or complete his or her application form in such a way that:

    (b) no incorrect answers are given or provided.

13. The Delegate stated as follows in the Decision:

    Particulars of the ground for cancellation:

    On 7 November 2019, [Mr A] (DOB: [specified] lodged an application for a Skilled- Nominated visa as the primary applicant. The Visa holder was included in this application as a dependent applicant making a combined application with [Mr A].

    As the Visa holder was included in the application, she was considered to be an applicant in her own right and in law, to have made her own application. It is irrelevant that in her combined application only one application form was completed and lodged.

    As part of the secondary criteria for the Visa grant, and among other requirements, the Visa holder was required to meet subclause 190.3 of the Migration Regulations 1994 (the regulations) which states as follows:

    190.3 Secondary criteria

    Note: these criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

    190.31 Criteria

    190.311

    The applicant:

    a) is a member of the family unit of a person who holds the subclass 190 visa granted on the basis of satisfying the primary criteria for the grant of the Visa; and

    b) made a combined application with that person.

    Member of the family unit

    A member of the family unit of a person in subclause 190.311 has the meaning given by the regulations made for the purposes of this definition as per reg 1.12 member of the family unit.

    This regulation relevantly states as follows:

    Reg1.12 Member of the Family Unit

    Scope

    1) this regulation has effect for the purposes of the definition the main definition of member of the family unit in subsection 5(1) of the Act.

    2) a person is a member of the family unit of another person the family head if the person:

    a) is a spouse or de facto partner of the family head;

    In the visa holders Skilled- Nominated visa application she and [Mr A] declared that she was [Mr A]’s de facto partner.

    De Facto partner

    For the purposes of the Visa holder’s Skilled- Nominated visa application a De facto Partner had the meaning given by section 5CB of the act. This section relevantly states as follows:

    Section 5 CB De Facto partner

    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 about 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) lived together; or

    (ii) do not live separately and apart on a permanent basis; and

    (d) they are not related by family (see subsection (4))

    (3) the regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs 2 a BC and D exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

    The Visa holder’s ability to satisfy this schedule to criteria, as previously outlined above, depended on her and [Mr A] having a mutual commitment to a shared life and the relationship between her and [Mr A] being genuine nominated Visa was granted. The regulations referred to above in section 5 CB three are contained within regulation 1.0 9A De facto partner and de facto relationship which relevantly states as follows:

    Reg 1.09A De facto partner and de facto relationship

    (1) For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether one or more of the conditions in paragraphs 5 CB (2)(a), (b) (c) and (d) of the Act exist.

    Subsection 5 CB (2) sets out conditions about whether a de facto relationship exists , and subsection 5 CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist:

    (2) if the Minister is considering an application for:

    (a) a partner (Migrant) (Class BC) Visa or

    (b) a partner (Provisional) (Class UF) Visa or

    (c) a partner (Residence) (Class BS) Visa or

    (d) a partner (temporary) (class UK) Visa.

    the Minister must consider all of the circumstances of the relationship including the matters set out and sub regulation (3)

    (3) the matters for sub regulation (2) are:

    (a) the financial aspects of the relationship

    (i) any joint ownership of real estate or other major assets and

    (ii) any joint liabilities; and

    (iii) the extent of any pooling of financial resources especially in relation to major financial commitments; and

    (iv) whether one person in the relationship owes any legal obligation in respect of the other: and

    (v) the basis of any sharing of day-to-day household expenses and

    (b) the nature of the household including:

    (i) any joint responsibility for the care and support of children; and

    (ii) the living arrangements of the person; and

    (iii) any sharing of the responsibility for housework and

    (c)  the social aspects of the relationship, including:

    (i) whether the person represent themselves to other people as being in a de facto relationship with each other, and

    (ii) the opinion of the persons friends and acquaintances about the nature of the relationship; and

    (iii) any basis on which the person’s plan and undertake joint social activities; and

    (d) the nature of the person’s commitment to each other, including:

    (i) the duration of the relationship.

    (ii) the length of time during which the persons have lived together, and

    (iii) the degree of companionship and emotional support that the persons draw from each other and

    (iv) whether the person see the relationship as a long-term one.

    4) If the Minister is considering an application for a Visa of a class other than a class mentioned in sub regulation 2, the Minister may consider any of the circumstances mentioned in sub regulation 3.

14. In the form was submitted to the Department for the application for skilled migration Visa the applicant was deemed to be the spouse – de facto partner of [Mr A]. She had provided a statement of relationship dated 7 November 2019. The document was signed by the applicant and [Mr A] and provided details of the nature of their household. The document stated that they started to live together since May 2019 at their home address at [Address 1].

15. The delegate was of the view that that applicant should have been in a committed relationship with [Mr A] to the exclusion of all others in 2019.

16. On the 1 February 2021 [Mr B] lodged a Combined Partner (subclass 820/ subclass 801 visa application that listed the applicant as his sponsor and spouse.

17. The delegate concluded that [the applicant] and her present husband [Mr B] were in a committed relationship when the application for a skilled migration visa  was lodged by [Mr A] in 2019.

18. In her statement the applicant claimed that she met her present husband [Mr B] in October 2015 [in a named region] as they were both studying there. They dated as boyfriend and girlfriend. They lived together at [Address 2].

19. [The applicant] said in her submissions that when his parents came to visit their son in Australia there was a serious conflict between them and her and they wanted her to end the relationship with their son.

20. As a result of the difficulties that they faced their relationship was damaged and [the applicant] moved out of the shared accommodation. [The applicant] had wanted to travel to [Country 2] and [Mr B] had tried to stop her from leaving. She eventually left for [Country 2] [in] March 2018. She then announced that the relationship had broken down irretrievably.

21. She posted her announcement of the broken relationship on social media.

22. When [the applicant] returned to Australia she returned to live with [Mr B] as she said that all her belongings were still there and that she could not find alternate accommodation. She then met her second partner [Mr A] in August 2018. She said that she fell in love with him, and she moved to his home in May 2019.

23. [The applicant] told the Tribunal that she did travel to [Country 1] and to [Country 2] in the company of [Mr B]. Whilst in [Country 2] she stayed with her family in [a specified region], and he stayed with his family in [a different] Province. The 2 cities are quite far apart.

24. When [the applicant] returned to Australia, she returned to live with her partner [Mr A] until they broke up in May 2020.

25. [Mr B] rekindled the relationship with [the applicant] and they were married in January 2021.They now have 2 children who were born in Australia.

26. [Mr B] provided the following answers that are the applicant was married to him [in] January 2021.

27. He attached a two-page unsigned statement of relationship which was dated 14 January 2021 and, in that document, stated that they started to live together in January 2016, but we were broken up for 2 ½ years.

28. At the hearing the Tribunal questioned the applicant about her relationship with [Mr B] and [Mr A]. At the time she lodged her application in 2019, the subject of this hearing she was living with [Mr A] and she was only [age] years of age. When she travelled to [Country 1] to attend the wedding of a mutual friend of her present husband’s she said that they had both been invited and they had a cordial relationship. [Mr A] did not object to her travelling with [Mr B] to [Country 1].

29. Although it looks suspicious that they were together in [Country 1] and then travelled to [Country 2] the Tribunal accepts her evidence that she was not in a relationship with [Mr B] at the time of the travel to [Country 1] and [Country 2]. It is not unusual for young people to have an amicable relationship with a former partner and to have mutual friends after a relationship has ended. However apart from the record of travel from Australia to [Country 1] and [Country 2] and the IPC [in] July 2019 there is no other evidence that she was not in a defacto relationship with [Mr A] at the time of the travel.

30. She did not live at the same address as [Mr B] when the travel occurred, as she was living with [Mr A] in May 2019. Her relationship with [Mr A] was ongoing and exclusive to each other. This information is correct. The Tribunal spent time at the hearing to ascertain whether [the applicant] was telling the truth. The conclusion that the Tribunal came to is that she was telling the truth as she appeared to give her evidence in a forthright manner. She felt offended that it was implied that she was not faithful to [Mr A] whilst in relationship with him and that she had lied to the department.

31. It is plausible that she and [Mr B] travelled to [Country 1] together and were not in a relationship, as they stayed in [Country 1] for a very short period of time to attend a wedding. They had both been invited to the wedding and it is quite common for guests of international weddings to travel together. She then travelled to [Country 2] and the evidence that she supplied indicated that they did not spend time together in [Country 2]. She also confirmed to the Tribunal that she does not have a good relationship with her present husband’s family so they did not spend time together in [Country 2] as they both had sick parents in different provinces.

32. The Tribunal accepts her evidence. She said that [Mr B] had offered to filling her IPC upon arrival to Australia [in] July 2019 because she was exhausted. She had provided evidence to the department that are she and [Mr A] were in a genuine and ongoing relationship from friends that attested to their relationship.

33. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

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

    ·     any contribution made by the holder to the community.

34. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

    Noelle Hossen
    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.