2408700 (Migration)

[2024] AATA 2816

2408700 (Migration) [2024] AATA 2816 (2 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Chand Mukesh (MARN: 0962241)

CASE NUMBER:  2408700

MEMBER:Margie Bourke

DATE:2 July 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 801 (Spouse) visa.

Statement made on 02 July 2024 at 12:29pm

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect information – child and other name known by not declared in applications and forms – passport and visa applications for another country in another name – child now living with family members – discretion to cancel visa – did not consider information relevant after advice from local agent – decision to grant visa may have been partly based on incorrect information – correct information provided to department by applicant after advice from new agent before permanent visa granted – relationship ceased and no further contact – recent new relationship and partner’s adult daughter with special needs – applicant’s work with vulnerable people and length of employment – financial support to child and extended family – interests of child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1958 (Cth), r 2.41

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

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 801 (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 visa applicant had provided incorrect information to the Department, and the delegate was not satisfied that there were sufficient reasons that the visa should not be cancelled. 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 was invited to attend an in-person hearing at the Melbourne registry offices on Monday, 1 July 2024. The Melbourne registry offices building had been declared unsafe to enter on Tuesday 25 June, and the building remained closed the following week.

4. The Tribunal advised the applicant of the circumstances on 28 June 2024, and had sent a video connection link as a backup so the hearing could proceed in the circumstances that the building was not able to be entered. The Tribunal had had regard to 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 and the nature of the review. The Tribunal had regard to the submissions provided by the review applicant and the information available on the Department and Tribunal files. The Tribunal considered the review did not involve an extensive amount of paperwork to be put to the review applicant during the course of the hearing. The Tribunal determined that if the conduct of the hearing was changed to be conducted by video connection, the review applicant would have the opportunity to give evidence and present arguments, and the Tribunal would be able to conduct a fair and effective hearing, and to properly assess the evidence before it. The Tribunal considered any unnecessary delay in this review should be avoided. The Tribunal decided in the uncertainty in the circumstances of when the Melbourne registry offices building would be safe to enter, and therefore the uncertainty of when an in-person hearing would be able to be rescheduled, and in the circumstances where it considered a video hearing could appropriately be conducted in this review, that it was appropriate and proper to change the conduct of the hearing to a hearing to be conducted by video connection.

5. The applicant appeared before the Tribunal on 1 July 2024 by video to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's current partner, and who attended the hearing with the review applicant on the same device.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing by video.

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. In hearing the review applicant and his representative advised they accepted that the notification by the Department was valid and complied with the requirements of the legislation.

    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 s.101(b) which requires the applicant must fill in or complete his application form in such a way that no incorrect answers are given or provided. In the s.107 notice, the non-compliance with s.101(b) was identified as (1) the review applicant recorded that he had no dependent family members, he had no non-migrating dependent family members and that he had no children (excluding stepchildren listed in the form 80 dated 12 January 2017) in the application for the visa lodged 2 September 2014, in the form 80 provided 11 September 2015, the online application for partner visa permanent stage processing lodged 14 September 2016, and the form 80 provided 12 January 2017; and (2) the review applicant recorded that he had never been known by any other name or had a different date of birth in the application for the visa lodged 2 September 2014, in the form 80 provided 11 September 2015, in the online application for partner visa permanent stage processing lodged 14 September 2016, and in the form 80 provided 12 January 2017.

12. The s.107 notice records that in June and August 2019 the applicant provided statutory declarations and submissions that disclosed he had a daughter born on [Date], currently living in [Country 1] with his family members. The applicant provided a copy of the child’s birth certificate in which he is recorded as the father.

13. The s.107 notice records that the Department has information that the applicant has been known as [Alias] born [Date], and this information was used for a passport and to apply for visas to [Country 2] on 16 April 2009 and on 17 February 2012.

14. The applicant in written submissions and oral evidence before the tribunal states that the information that he has a daughter born on [Date] who currently resides in [Country 1] with his family members is correct. The applicant in written submissions and oral evidence before the tribunal states that this information was not disclosed to the Department in the application for the subclass  820/801 visa, lodged 2 September 2014, in the online application for the partner visa permanent stage processing lodged 14 September 2016 and in the two form 80’s provided on 11 September 2015 and 12 January 2017.

15. The applicant in written submissions and oral evidence before the tribunal states that the information that he applied for visas to [Country 2] using a passport with a different name and date of birth in 2009 and 2012 is correct. The applicant in written submissions and oral evidence before the tribunal states that this information was not disclosed to the Department in the application for the subclass 820/801 visa lodged 2 September 2014, and in the online application for the partner visa permanent stage processing lodged 14 September 2016, and in the two form 80’s provided on 11 September 2015 and 12 January 2017.

16. The applicant in submissions provided to the Department and to the Tribunal had expressed that he did not consider the incorrect information was relevant and therefore had not provided the information to the Department. I discussed with the applicant and his representative that the questions were asked of him in the application form, the form 80 and the online partner visa permanent stage processing, and it was not for the applicant to determine whether he should answer these questions incorrectly on the basis of what he decided was relevant or not relevant. The issue is that the applicant had provided incorrect information.

17. I am satisfied based on the information contained in the s.107 notice, the applicant’s response to the Department, the written submissions provided to the tribunal, the oral evidence of the applicant at the hearing and the submissions of the applicant’s representative that the applicant provided incorrect information to the Department with his application for the visa in the manner set out in the s.107 notice.

18. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

19. 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).

20. 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 content of the genuine document (if any)

    ·     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 circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

21. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

22. The correct information: – the correct information is that the applicant is the father of a daughter born on [Date], who resides with the applicant’s sister and mother in [Country 1]. I satisfied that the applicant is aware of the child, and recognises her as his daughter. I am satisfied that the applicant was involved in choosing the child’s name, was involved in the decision for the child to live with members of his family, and provides financial support for the child. The applicant did not declare the existence of this daughter in the application form, the online partner visa permanent processing form and the two form 80’s provided to the Department.

23. The correct information is that the applicant applied for two visas to go to [Country 2] in 2009 and 2012 using a fraudulent passport with a false name and false date of birth. The applications for the visas were not successful. The applicant did not declare that he had previously made visa applications under a different identity in his application for the partner visa or in the supporting documents including the online partner visa permanent processing form and the two form 80’s.

24. I give consideration of this factor of the correct information weight in favour of cancellation of the visa.

25. The content of the genuine document (if any): – there is no document applicable assessed and I therefore give neutral weight to consideration of this factor in my assessment of whether to cancel or not cancel the visa.

26. Whether the decision to grant a visa was based wholly, or partly, on the incorrect information: – it is relevant to the assessment of whether the decision to grant the visa was based on the incorrect information to analyse the chronological order of events. The review applicant consulted a new migration agent who advised him in 2019 that he should disclose the existence of his daughter to the Department. Accordingly on 12 June 2019 the applicant’s new representative made submissions to the Department, including a form 1023 Notification of incorrect answers which provided the details of the dependent child of the review applicant who resides in [Country 1], and the birth certificate of the child was also provided recording the review applicant as the father. The applicant also provided two statutory declarations both dated 14 August 2019 in relation to his paternity of the child and his awareness of the existence of the child in November 2013. The applicant provided a statutory declaration dated 20 August 2019 setting out the financial support that he provided on a yearly basis to his daughter.

27. As set out in the Notice of intention to consider cancellation under s.109 dated 28 February 2024, and in the Department’s decision record dated 18 April 2024, the review applicant was granted the subclass 801 visa on 13 March 2020. I am satisfied that the applicant had advised the Department that he had provided incorrect information in his application for the visa and not declared that he had a dependent child in [Country 1] who was born in [Year]. I am satisfied that the applicant had advised the Department in 2019 of the existence of this child. The Department was aware of being provided incorrect information, and had the correct information before it at the time the Department granted the subclass 801 visa to the applicant on 13 March 2020. I am therefore satisfied that the decision to grant the visa, both the subclass 820 and the subclass 801 was not based, either wholly or partly, on the incorrect information.

28. In the Notice of intention to consider cancellation under s.109 dated 28 February 2024, the Department advises that if the assessing officer of the partner visa application had been aware of the incorrect information that had been excluded, namely that the applicant had used an alias and alternative date of birth in relation to applications for visas to another country, the application for the partner visa may have required further examination and assessment. I am satisfied that it is a serious matter to have applied for visas using a fraudulent identity, and to have previously held a passport issued under a fraudulent identity. I accept that this would be a matter of concern to an assessing officer of a partner visa application, and may have impacted the assessment and grant of an Australian partner visa. I am satisfied that the applicant applied for the Australian subclass 820/801 visa using a correct identity, and not a fraudulent identity. However, I am satisfied that the decision to grant the visa may have been partly based on the incorrect information.

29. This consideration of whether the decision to grant the visa was based wholly or partly on incorrect information applies to two separate pieces of incorrect information, and on which I have reached two alternative conclusions. For this reason, I give this consideration of whether the decision to grant the visa was based wholly or partly on incorrect information, neutral weight, neither in favour for or against cancellation of the visa.

30. The circumstances in which the non-compliance occurred: – I am satisfied that the applicant followed the advice of his then migration representative, and did not disclose the existence of his daughter in his application for the visa in 2014. I am satisfied that the applicant was aware he was not providing correct information in the application for the visa in 2014. I am also satisfied that the applicant followed the advice of his subsequent migration representative and disclosed the existence of his daughter to the Department in 2019.

31. I am satisfied that the applicant wished to migrate to another country to earn money to support his family in [Country 1] and assist them to break out of the poverty cycle. I am satisfied that the applicant was encouraged by his father to assist the family. I am satisfied that the applicant sought advice from a local agent who provided the false papers and passport, in relation to the applications for the [Country 2] visas. I am satisfied that the applicant was aware that he had a false identity in relation to these applications.

32. I give the consideration of the circumstances in which the non-compliance occurred weight in favour of cancellation of the visa.

33. The present circumstances of the visa holder: – I am satisfied that the applicant has separated from his wife and sponsor of the subclass 820/801 partner visa. I am satisfied that the relationship between the applicant and the sponsor deteriorated due to financial pressure and mental illness. I am satisfied that the applicant is currently in a relationship with [Ms A] and they have resided together for approximately nine months, with [Ms A]’s adult daughter. I am satisfied that this relationship has had a significant positive impact on [Ms A], who is a carer for her adult daughter who has special needs.

34. I am satisfied that the applicant is currently employed as [an occupation] in [work sector] for [specified people]. I am satisfied that the applicant has been employed as [an occupation] for [Employer 1] since 2017 and his manager for the last six years wrote a reference in relation to the applicant’s diligence, care and empathy particularly to highly vulnerable people. I am satisfied the applicant works 30 hours a week as [an occupation] for [Employer 1], and another 16 hours a week as [an occupation] for another employer, [Employer 2]. I am satisfied that the applicant works very long hours to provide for his family in Australia and his extended family in [Country 1].

35. I give the consideration of the present circumstances of the applicant weight in favour against cancellation of the visa.

36. The subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958: – I am satisfied the applicant has been cooperative with the Department, and further I am satisfied the applicant is the person who provided the information to the Department in June and August 2019 that he had provided incorrect information in not disclosing that he had a dependent child in [Country 1]. I give consideration of the subsequent behaviour of the applicant in relation to his obligations to the Department weight against cancellation of the visa.

1. Any other instances of non-compliance by the visa applicant known to the Minister: – I am satisfied there are no other instances of non-compliance by the visa applicant known to the Minister and I give this consideration weight in favour against cancellation of the visa.

2. The time that has elapsed since the non-compliance: – I am satisfied that the non-compliance initially occurred on 2 September 2014, nearly 10 years ago, but was repeated in information provided to the Department on 11 September 2015, 14 September 2016 and 12 January 2017. Therefore I am satisfied that the time that has elapsed since the non-compliance is 7 ½ years. This is a significant period of time, and I give consideration of the time that has elapsed since the non-compliance weight in favour against cancellation of the visa.

3. Any breaches of the law since the non-compliance: – there is no evidence before the tribunal that the applicant has committed any breaches of the law, and I give this consideration weight in favour against cancellation of the visa.

4. Any contribution made by the holder to the community: – I am satisfied that the applicant is employed in [work sector], providing valuable assistance to vulnerable persons, and has been employed in this capacity with the same employer for seven years. I am satisfied the applicant makes a significant contribution to the community through his employment, and through the commitment and care he has demonstrated in his employment. I am satisfied the applicant also makes a contribution to the community in the support he provides to his now partner and her adult daughter. I give this consideration of the contribution made by the applicant to the community weight in favour against cancellation of the visa.

5. In addition to the prescribed factors which must be considered pursuant to reg 2.41, the tribunal has also considered the following matters

6. Consequential cancellations: – there would be no consequential cancellations under s.140 upon the applicant’s visa being cancelled. I give this consideration neutral weight in my assessment of whether to cancel or not cancel the visa.

7. Consideration of the interests of children: – the child of the applicant resides in [Country 1], with the applicant’s sister and mother, and the applicant provides ongoing financial support to his daughter and his extended family. To the extent that there would be financial hardship if the applicant was not able to continue to provide that financial support, I am satisfied that the interests of the applicant’s daughter would be affected by the cancellation of the applicant’s visa.

8. I am satisfied based on the evidence before me that the applicant does not have ongoing contact with the sponsor’s children (his stepchildren in relation to the relationship which was the base of the subclass 820/801 visa), and there would be no detrimental impact on these stepchildren if the applicant’s visa was cancelled.

9. I give the consideration of the interests of the applicant’s daughter in [Country 1], weight in favour against cancellation of the visa.

10. Australia’s international obligations: – I am satisfied that the relationship between the applicant and the sponsor has ceased, and the relationship between the applicant and his current partner is relatively new. I am not satisfied that the cancellation of the applicant’s visa would breach any of Australia’s international obligations.

11. Mandatory legal consequences: – I am satisfied that the cancellation of the applicant’s visa would mean mandatory legal consequences would insert ensue, including that the visa applicant may become unlawful and liable to detention, and that limitations in relation to further visa applications may apply pursuant to s.48 of the Act and PIC 4013. I give this consideration of the mandatory legal consequences weight in favour against cancellation of the visa.

12. Other relevant matters: – I have considered the evidence of the review applicant’s current partner, and the reference from the review applicant’s current manager. I am satisfied that the applicant’s current partner and the patients he assists as [an occupation] would be impacted and would suffer hardship and loss if the applicant’s visa was cancelled. I give this consideration weight in favour against cancellation of the visa.

13. Conclusion: – I have considered all the matters above, and give the most weight to the review applicant’s present circumstances, including his long-time employment as [an occupation] and his current relationship. I also give significant weight to the fact the incorrect information that the review applicant had not declared that he had a dependent child who resides in [Country 1] with his family became known because the review applicant provided this information to the Department in 2019, and that this fact did not change the Department’s decision to grant the applicant the subclass 801 visa in 2020. On balance after my assessment of all the above factors, I am satisfied that more weight should be given in favour against cancellation of the applicant’s visa.

14. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) 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.