2440308 (Migration) - [2025] ARTA 518

2440308 (MIGRATION) [2025] ARTA 518 (24 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2440308

Tribunal:Senior Member A Murphy
Place:Melbourne
Date: 24 March 2025
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 24 March 2025 at 10:41am
CATCHWORDS
MIGRATION – Cancellation – Subclass 801 (Spouse) visa – incorrect answers were given or provided – sponsor failed to inform the Department of the changes in her circumstances – sponsor had a long history of family violence – relationship with the sponsor was ongoing until December 2022 – applicant did not fail to notify the Department of a relevant change to her circumstances – there was no non-compliance by the applicant in the way described in the s 107 notice – decision under review set aside
LEGISLATION
Migration Act 1958, ss 104, 107,109, 359, 375
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 21 October 2024 to cancel the applicant’s Subclass 801 Partner (Residence) (Class BS) visa under s 109 of the Migration Act 1958 (the Act).
The applicant appeared before the Tribunal on 18 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A], Mr [B], Ms [C], Ms [D] and Ms [E]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages, although the applicant elected not to use the services of the interpreter.
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
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.
The applicant’s migration history
The applicant first arrived in Australia on [date] January 2019, departing and…

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.

Continue reading 2440308 (Migration)

Details

AGLC: 2440308 (Migration) [2025] ARTA 518
Case: [2025] ARTA 518
Decision Date: 24 March 2025

CaseChat Overview and Summary

The matter before the Tribunal involved the applicant, who had been granted a Subclass 801 (Spouse) visa, and the Minister for Home Affairs, who sought to cancel the visa on the basis of non-compliance with the Migration Act 1958 (Cth). The Tribunal was tasked with determining whether the decision to cancel the visa was valid and whether there had been any non-compliance by the applicant warranting such action.

The primary legal issue for the Tribunal to decide was whether the Minister had issued a valid notice under section 107 of the Act to the applicant, specifying the alleged non-compliance. The Tribunal also had to consider whether the applicant had indeed failed to comply with her obligations under the Act by not informing the Department of relevant changes to her circumstances. Additionally, the Tribunal needed to assess the validity of a section 375A certificate issued by the Department, which restricted the disclosure of certain information.

The Tribunal found that the notice issued under section 107 did not accurately describe the non-compliance by the applicant. The Tribunal determined that there had been no non-compliance by the applicant in the manner specified in the section 107 notice. Consequently, the power to cancel the visa did not arise. The Tribunal also concluded that the section 375A certificate was invalid in relation to the majority of the information, as the primary informant had provided consent for disclosure to the applicant. Therefore, the Tribunal was not satisfied that there had been any non-compliance by the applicant warranting the cancellation of her visa.

In light of the findings, the Tribunal set aside the decision to cancel the applicant’s Subclass 801 (Spouse) visa and substituted a decision not to cancel the visa. The Tribunal determined that the exercise of the cancellation power under section 109 of the Act was conditional on the Minister issuing a valid notice under section 107 of the Act, which had not been achieved in this case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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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 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. The applicant’s migration history The applicant first arrived in Australia on [date] January 2019, departing and re-entering on several occasions during 2019 each time as the holder of a visitor visa. She applied for a combined partner (subclass 820/subclass 801) visa on 31 January 2020 and she was granted the Partner (Temporary) (subclass 820) visa on 11 June 2021. On 8 February 2022, the applicant completed the online form ‘Partner visa application – information for permanent stage processing’, in support of the second stage of the Partner (Permanent) (subclass 801) visa. In that form she stated that she was still in a genuine and continuing relationship with the sponsor and she was granted the permanent visa on 14 September 2022. The Department subsequently became aware of information indicating that the applicant’s de facto relationship with her sponsor had ended five months prior to the grant of the permanent partner visa. As a consequence it issued her with a Notice of Intention to Consider Cancellation of the permanent partner visa granted to her on 14 September 2022 (the s 107 notice).The s 375A certificate The Tribunal has before it the Departmental file relating to the visa cancellation. The delegate has placed restrictions on some of the material given to the Tribunal by the Department by issuing a certificate under s 375A of the Act. That certificate is dated 13 November 2024 and relates to a number of documents held on the Departmental file. It states that disclosure of the information subject to the certificate would be contrary to the public interest because the information was provided in confidence and the provider of that information has not consented to the disclosure of the information to the review applicant. Where a valid certificate is issued under s 375A, the Tribunal must do all that is necessary to ensure the document or information is not disclosed to any person other than to a member of the Tribunal. In this case the Tribunal considers the s 375A certificate to be invalid in relation to the majority of the information and documents covered by that certificate. This is because the departmental file indicates that the primary informant did in fact provide consent for the information to be disclosed to the applicant, contrary to the statement on the certificate.

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 801 (Spouse) visa.Date(s) of hearing: 18 March 2025Representative for the Applicant: Miriam Tanag

Ratio Decidendi

Legal Principle Established

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. The applicant’s migration history The applicant first arrived in Australia on [date] January 2019, departing and re-entering on several occasions during 2019 each time as the holder of a visitor visa. She applied for a combined partner (subclass 820/subclass 801) visa on 31 January 2020 and she was granted the Partner (Temporary) (subclass 820) visa on 11 June 2021. On 8 February 2022, the applicant completed the online form ‘Partner visa application – information for permanent stage processing’, in support of the second stage of the Partner (Permanent) (subclass 801) visa. In that form she stated that she was still in a genuine and continuing relationship with the sponsor and she was granted the permanent visa on 14 September 2022. The Department subsequently became aware of information indicating that the applicant’s de facto relationship with her sponsor had ended five months prior to the grant of the permanent partner visa. As a consequence it issued her with a Notice of Intention to Consider Cancellation of the permanent partner visa granted to her on 14 September 2022 (the s 107 notice).The s 375A certificate The Tribunal has before it the Departmental file relating to the visa cancellation. The delegate has placed restrictions on some of the material given to the Tribunal by the Department by issuing a certificate under s 375A of the Act. That certificate is dated 13 November 2024 and relates to a number of documents held on the Departmental file. It states that disclosure of the information subject to the certificate would be contrary to the public interest because the information was provided in confidence and the provider of that information has not consented to the disclosure of the information to the review applicant. Where a valid certificate is issued under s 375A, the Tribunal must do all that is necessary to ensure the document or information is not disclosed to any person other than to a member of the Tribunal. In this case the Tribunal considers the s 375A certificate to be invalid in relation to the majority of the information and documents covered by that certificate. This is because the departmental file indicates that the primary informant did in fact provide consent for the information to be disclosed to the applicant, contrary to the statement on the certificate. By email dated 17 May 2024, the Department wrote to that informant advising that if the Department were to pursue the issues raised by the information provided, it would need to be presented to the applicant for comment and response. It noted that while the Department would not name the informant, the nature of the information may allow the applicant to identify the informant regardless and the department sought the informant’s written consent for this to occur. On the same date the informant provided that written consent. In so far as the certificate relates to information provided by that informant, the Tribunal finds it to be invalid.