2309595 (Migration) - [2023] AATA 4715

2309595 (Migration) [2023] AATA 4715 (19 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ruslan Ahmadzai
CASE NUMBER:  2309595
MEMBER:Noelle Hossen
DATE:19 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 19 December 2023 at 2:25pm
CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – secondary applicant to claimed partner’s primary application – false and misleading information and bogus documents – relationship and residential addresses – rental contract and incoming passenger cards – indifference and complicity to agent’s dishonest and unlawful actions – discretion to cancel visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 98, 100, 101(b), 103, 107, 109(1), 375
Migration Regulations 1994 (Cth), r 1.12
CASE
MIAC v Khadgi (2010) 190 FCR 248
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 provided false and misleading information by stating that he was in a relationship with [Ms A], provided bogus documents and admitted his involvement in the fraudulent application. The delegate was satisfied that the applicant did not comply with s 101(b) and 103 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.
The applicant appeared before the Tribunal on 17 November 2023 by video as he was residing in Pakistan at the time of the hearing, to give evidence and present arguments. He had requested through his agent that he appear by video.
The hearing was held on the 17 November 2023 and the applicant was informed that the hearing could only take place by telephone and he agreed to the same.
The Department’s file contained a non-disclosure certificate dated the 4 July 2023 issued under s. 375A of the Act in respect of various documents. The applicant was informed of the existence of the certificate and a copy was sent to him by email to his nominated representative on the 16 November 2023.
The Certificate stated that the disclosure of the information contained in the specified document would be contrary to the public interest because it would disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law, which would be likely to prejudice the effectiveness of those methods. Having considered the nature of the documents covered by the certificate, it was still under obligation to disclose any information…

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.

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Details

AGLC: 2309595 (Migration) [2023] AATA 4715
Case: [2023] AATA 4715
Decision Date: 19 December 2023

CaseChat Overview and Summary

This decision concerns a review by the Administrative Appeals Tribunal of a decision to cancel a Skilled Independent (Permanent) (Class SI) visa, Subclass 189, held by the applicant. The applicant was a secondary applicant to his claimed partner's primary application. The cancellation was based on allegations of the applicant providing false and misleading information and bogus documents concerning his relationship and residential addresses.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of sections 101 and 103 of the Migration Act 1958 (Cth), as notified under section 107, and if so, whether the discretion to cancel the visa under section 109(1) should be exercised. The Tribunal was required to consider the applicant's response to the non-compliance notice and any prescribed circumstances, including the correct information, the content of any genuine document, and whether the visa was granted based on incorrect information or a bogus document.

The Tribunal found that the applicant had failed to comply with sections 101 and 103 of the Act. It was satisfied that the applicant and the primary applicant were not in a de facto relationship at the time of the visa application, and their relationship was contrived to allow the applicant to be included as a secondary applicant. The Tribunal also determined that a rental contract submitted as evidence was a bogus document, having been altered to include the applicant. In exercising its discretion under section 109(1), the Tribunal placed significant weight on the fact that the correct information was that no genuine relationship existed and that the applicant was complicit in the migration agent's fraudulent and dishonest actions.

The Tribunal affirmed the decision to cancel the applicant's 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

The Tribunal has weighed his statement and a statement provided by his agent dated the 9 November 2023 with his oral evidence and is satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of Act.Conclusion on non-compliance For these reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 by the applicant in the way described in the s 107 notice.Should the visa be cancelled? As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:· the correct information The correct information was that the applicant and [Ms A] were not in a de facto relationship or any relationship at the time that the Visa Application was lodged. They were never in a relationship in Australia. The applicant ‘s relationship was contrived so that he could be included as a secondary applicant on [Ms A]’s permanent visa application. The correct information was that they were not in a relationship and the Tribunal places significant weight on those facts in favour of cancelling the visa.· the content of the genuine document (if any) The rental contract dated 3 January 2019 stating that the applicant and [Ms A] agreed to lease the property at 1708/17 Wentworth Place, Wentworth Point NSW 2127, from the 3 January 2019 to 2 January 2020, was a bogus document as per s5 (1)(b) of the Act, because it had been altered. In a message from [Mr C] to the applicant on the 8 November 2019 he indicates that [Ms A] would change the agreement to include him in it. This indicates that the document should only include [Ms A]’s details in it and that the correct information was different to the original document. The rental contract is a bogus document provided to the Department in support of the Application for a Visa. The Tribunal places weight on those facts against the applicant’s case as the applicant was complicit in the migration agent’s fraud and was indifferent to the agent acting unlawfully and dishonestly.· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document The Skilled (Independent) (Subclass 189) was granted to the applicant as he held himself out to be a member of the family unit of the primary applicant as contained in the terms of 189.3 Secondary criteria. Member of the Family Unit has the meaning at Regulation 1.12 which includes (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.Section 5 CB De facto Partner(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 another person.(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 5 F) with each other 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 (1) live together: or(ii) do not live separately and apart on a permanent basis; and (d) They are not related by family

Ratio Decidendi

Legal Principle Established

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