2215688 (Migration)

Case [2023] AATA 1050

2215688 (Migration) [2023] AATA 1050 (19 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Tianran Liu

CASE NUMBER:  2215688

MEMBER:Meena Sripathy

DATE:19 April 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 (155) (Five Year Resident Return) visa.

Statement made on 19 April 2023 at 12:53pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in the visa application – excusive relationship – child born to the applicant’s former partner – relationship ended in divorce – accounts continued in joint names – paternity claim unsupported – power to cancel the visa does not arise – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 116
Migration Regulations 1994, r 2.41

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336
Cao v Minister for Immigration and Anor (2007) FMCA 225
Gido-Christian v MIAC [2007] FMCA 825
Kumar v MIMA [1999] FCA 156
McDonald v D-G of Social Security (1984) 1 FCR 354
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
NBDY v MIMA [2006] FCAFC 145
Saleem v MRT [2004] FCA 234
SCAN v MIMIA [2002] FMCA 129
Singh v MIEA [1994] FCA 1534
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Tarasovski v MILGEA (1993) 45 FCR 570
Yesmin v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 483
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235

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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

  2. The delegate cancelled the visa on the basis that the visa holder did not comply with s101(b) and 104 of Subdivision C of the Act and having considered the prescribed matters set out in r.2.41. 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 appeared before the Tribunal on 30 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Supervisor A], her supervisor at her present workplace. Her aunt was also available if necessary to give evidence by phone from China, but the Tribunal did not consider it necessary. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

  5. For the following reasons, the Tribunal has concluded that the…

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2215688 (Migration) [2023] AATA 1050
Case
[2023] AATA 1050
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was initiated due to allegations of incorrect information provided in statutory declarations supporting a previous partner visa application, specifically concerning the exclusivity of the applicant's relationship with her sponsor, Mr. A. The Department of Home Affairs alleged that Mr. A was the biological father of a child born to another person during the period the applicant and Mr. A claimed to be in an exclusive de facto relationship, thereby rendering their declarations false and constituting non-compliance with sections 101(b) and 104 of the Migration Act 1958.

The Tribunal was required to determine whether the applicant had failed to comply with the provisions of the Migration Act as particularised in the Notice of Intention to Consider Cancellation (NOICC). Specifically, the Tribunal had to assess whether the applicant's statutory declarations, asserting a mutual commitment to a shared life to the exclusion of all others with Mr. A, were indeed incorrect. Furthermore, the Tribunal needed to consider whether the birth of Mr. A's child constituted a change in circumstances that the applicant failed to notify the Department of, as required by section 104 of the Act, prior to the grant of her partner visa.

The Tribunal found that the power to cancel the visa under section 109 of the Act did not arise because it was not satisfied that the applicant had engaged in non-compliance in the manner described in the NOICC. While acknowledging the validity of the NOICC itself, the Tribunal concluded that the evidence before it was insufficient to establish that the applicant and Mr. A were not committed to a shared life to the exclusion of all others. The Tribunal noted that the relationship between the applicant and Mr. A was found to be genuine and continuing to the exclusion of others, even after the grant of the partner visa and up until their formal separation. Crucially, there was no evidence suggesting Mr. A had entered into a spousal relationship with the mother of his child.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 The applicant applied for a Prospective Marriage (Subclass 300) visa on 3 July 2013, sponsored by [Mr A], an Australian permanent resident, which was granted on 6 May 2014. She arrived in Australia [in] May 2014. On 2 July 2014, the applicant lodged an application for a Combined Partner (subclass 820/801) visa. On 3 July 2014 she was granted the temporary partner (Subclass 820) visa. In September 2016 the applicant provided documents and evidence to the Department in support of the second stage processing of the Partner application, including Statutory Declarations dated 2 July 2016 from herself and her partner, [Mr A]. On 17 June 2017 the applicant was granted the permanent partner (Subclass 801) visa. On 10 July 2022 the applicant was granted a Resident Return (Subclass) 155) visa.Notice of Intention to Consider Cancellation (NOICC) On 13 September 2022 the applicant was issued a NOICC in relation to her Resident Return (Subclass 155) visa. The non-compliance identified and particularised in the s 107 notice was non-compliance with s101 and s104 of the Act in the following respects: ·The following information contained in Statutory Declarations dated 2 July 2016 provided by the applicant and her partner is incorrect and constitutes non compliance with s101(b) of the Act: “I, [applicant’s name] of [Address 1], [stated occupation], make the following declaration under the Statutory Declarations Act 1959: That I have a mutual commitment to a shared life as a husband and wife, or as a de facto partner, or as an interdependent partner, to the exclusion of all others, with [Mr A]; That our relationship is genuine and continuing That [Mr A] and I live together That our relationship began in 2012 and we have lived together for 2 years….. “I, [Mr A] of [Address 1], [stated occupation], make the following declaration under the Statutory Declarations Act 1959: That I have a mutual commitment to a shared life as husband and wife, or as a de facto partner, or as an interdependent partner, to the exclusion of all others, with [the applicant]. That our relationship is genuine and continuing. That [the applicant] and I live together That our relationship began in 2012 and we have lived together for two years….We are definitely committed to a long-term relationship….” It was alleged the applicant and her partner provided incorrect information because information before the Department indicates her partner was the biological father of a child born on [a day in] 2016 and was therefore not in an exclusive relationship with the applicant in this period. ·The answers provided in the applicant’s Form 47SP at Questions 53 (Your fiancé or partner’s children (including from previous marriages/relationships)) and Question 54 ( All your fiancé or partner’s dependents (including any dependent children)) became incorrect on [the date in] 2016 when [Child A] was born. It was alleged the applicant failed to comply with s104 of the Act because she did not advise of the change of circumstance of the birth of the sponsor’s child prior to the grant of the visa.

Decision

Reasons for decision

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 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.Meena SripathyMemberATTACHMENT – 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.101Visa applications to be correctA 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.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.

Ratio Decidendi

Legal Principle Established

The representative concludes by reiterating their submission that the evidence before the Tribunal is simply insufficient for it to be satisfied that [the applicant] and [Mr A] was not committed to a shared life to the exclusion of all others. The evidence shows that the spousal relationship between [the applicant] and [Mr A] was genuine and continuing to the exclusion of all others prior to the grant of partner visa, after the grant of partner visa and to the time when the applicant and [Mr A] formally separated in September 2019. There has been no evidence suggesting that [Mr A] and her cousin have even entered any spousal relationship. It is submitted that considering the applicant’s state of mind in filling her applications and evidence in support of the martial relationship between her and [Mr A], it is submitted that these factors should weigh in favour of the applicant and her visa should not be cancelled under s109 of the Act. CONSIDERATION AND FINDINGS 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 s107? The Tribunal has considered the validity of the NOICC. It observes the applicant has not raised any issues or otherwise contested the validity of the notice. Her response to the notice indicates that she received it and understood the allegation contained in it. 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? Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1] 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. [1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004). In the present case, the non-compliance identified and particularised in the s 107 notice is non-compliance with s101(b) and s104 of the Act in the following respects: ·That the declarations contained in the applicant’s and her then sponsor, [Mr A’s] Statutory Declarations dated 2 July 2016 that they each had a mutual commitment to a shared life as a husband and wife, or as a de facto partner, or as an interdependent partner, to the exclusion of all others were incorrect on the basis of information before the Department suggesting [Mr A] is the biological father of a child with another person, and the applicant therefore failed to comply with s101(b) of the Act.·That the change of circumstances of the birth of this child led the answers provided in the applicant’s Form 47SP at Questions 53 (Your fiancé or partner’s children (including from previous marriages/relationships)) and Question 54 ( All your fiancé or partners’s dependents (including any dependent children)) to became incorrect on [the day in] 2016 when [Child A] was born and the applicant failed to comply with s104 of the Act by not advising of the change of circumstance of the birth of the sponsor’s child prior to the grant of the visa.