Antonio (Migration)

[2023] AATA 327

Antonio (Migration) [2023] AATA 327 (10 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Carlos Jason Antonio

REPRESENTATIVE:  Mrs Marilyn Miro Bacus (MARN: 1464231)

CASE NUMBER:  2215939

HOME AFFAIRS REFERENCE(S):          BCC2021/732992

MEMBER:K. Chapman

DATE:10 February 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 10 February 2023 at 3:02pm

CATCHWORDS

MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – de facto relationship not declared in previous visa application – boyfriend and girlfriend relationship start date provided inadvertently – cohabitation started later – power to cancel the applicant’s visa does not arise – decision under review set aside   

LEGISLATION

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

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, on 28 October 2022, to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s 109(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. On 24 August 2022, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 186 visa, on the basis that he failed to comply with s 101(b) of the Act. The delegate formed the view that the applicant had not declared he was in a de facto relationship, with his now wife, in his Subclass 186 visa application in 2017 whilst a secondary visa applicant. The delegate formed this view largely upon the basis of answers given by the applicant in a subsequent Partner visa sponsorship made in 2019, in respect of his now wife.

3. The applicant responded to the NOICC indicating that an honest mistake had been made regarding the date of commencement of their de facto relationship. On 28 October 2022, the delegate cancelled the visa on the basis that the applicant had not complied with s 101(b) of the Act. On 31 October 2022, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with his application.

4. The applicant appeared by video before the Tribunal on 18 January 2023 to give evidence and present arguments. The Tribunal also took evidence by video from the applicant’s wife, Mrs Jovi Antonio and his sister, Ms Clarizze Antonio. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages. The applicant confirmed he understood the interpreter. He was represented in relation to the review by his registered migration agent, who was permitted to make submissions.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   ISSUES AND LAW

6. The issues in the present case are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

7. 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.

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence at the review hearing

9. The Tribunal had the benefit of taking the evidence of the applicant, his wife (Jovi) and his sister (Clarizze) through a clear video link at the review hearing. The Tribunal observed each individual to provide direct and comprehensive answers to its questions. The Tribunal is in no doubt that they each provided truthful evidence and were credible. Accordingly, the Tribunal places high weight upon their evidence.

10. In summary, the evidence before the Tribunal establishes the following matters. The applicant moved to Australia from The Philippines in 2013 with his family as a teenager. He was a secondary visa applicant, dependent upon his father who was the primary visa holder then. Prior to departing The Philippines, the applicant had dated Jovi (who would later become his wife) in secondary school. Their relationship ceased for a time, due to the tyranny of distance. 

11. The applicant’s sister, Clarizze, was friends with Jovi in The Philippines and remained so when she moved to Australia with her family. In 2016, the applicant and other family members began sending remittance income to Jovi, as she had encountered family problems which created straitened circumstances. At this point, the applicant and Jovi were not dating. The remittance income was provided to Jovi on an ad hoc basis and is best characterised as funds provided by family friends to assist during difficult times.

12. In around 2014, the applicant and his family returned to The Philippines for a holiday. The applicant and Jovi saw each other, but at that point he had another girlfriend. It was not until 5 April 2017 that the applicant and Jovi recommended their relationship on a long distance basis. At that time, their relationship is best characterised as that of boyfriend and girlfriend. Indeed, they resided in separate countries then.

13. On 27 June 2017, the applicant applied for a Subclass 186 visa as a secondary applicant, dependent upon his father. As is relevant to the applicant, to obtain the visa in those circumstances he had to demonstrate dependency upon his father, including not being in a de facto or spousal relationship of his own. The applicant provided information in his Subclass 186 visa application indicating he was not in any such relationship at that time. On 8 May 2018, the Subclass 186 visa was granted to the applicant.  

14. Following the grant of the Subclass 186 visa, the applicant and Jovi remained in a boyfriend and girlfriend relationship. With the effluxion of time, Jovi arrived in Australia. Given Jovi’s strict parents, she did not cohabitate with the applicant until 2019. On 6 April 2019, they married in Perth, two years after they recommenced their relationship in 2017 as boyfriend and girlfriend.

15. On 18 April 2019, the applicant sponsored Jovi for a Partner visa. The applicant explained to the Tribunal that the date of 5 April 2017 was mistakenly listed in the relevant visa application documentation, as the date at which they commenced a de facto relationship and shared a mutual commitment to the exclusion of all others. The applicant was confused with the questions asked and listed 5 April 2017, the date he resumed a boyfriend and girlfriend relationship with Jovi, without a proper understanding. Furthermore, the applicant maintained that the financial assistance he had rendered to Jovi in The Philippines was merely to assist her in difficult times, rather than to support her in a de facto relationship sense.

16. The Tribunal canvassed the financial and social aspects of the relationship, the nature of the household and the nature of commitment, pertaining to the applicant and Jovi up to the time of application for the Subclass 186 visa. The applicant, Jovi and Clarizze all gave evidence to the Tribunal consistent with there being no de facto relationship in existence at that time. Indeed, at that point the applicant and Jovi had never cohabitated, the financial aspects were limited to ad hoc remittances, the social aspects pertained to similar friendship circles and the nature of their commitment is best characterised as that of boyfriend and girlfriend. The Tribunal notes that it has formed this view largely based upon its favourable credit assessment of the applicant, Jovi and Clarizze.

17. The applicant outlined that he presently works in regional Western Australia as a qualified painter and decorator. Jovi is employed as an Assistant in Nursing. They are happily married and reside together in regional Western Australia. They reside in their own their home, encumbered by mortgage. They plan to start a family in the near future. It is most apparent to the Tribunal that the applicant and Jovi have been in a genuine spousal relationship since 6 April 2019 and remain so.  

    Was there non-compliance as described in the s 107 notice?

18. 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.

19. 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) of the Act, in that the applicant purportedly gave incorrect answers in his Subclass 186 visa application indicating he was not in a de facto relationship.

20. In this review, the crucial issue is whether the applicant was, on or around 27 June 2017, in a de facto or spousal relationship with Jovi. The evidence overwhelmingly points to him not being in such a relationship at that time. Rather, it is apparent the applicant and Jovi were in a long distance boyfriend and girlfriend relationship at the time of his application for the Subclass 186 visa. Therefore, the Tribunal is satisfied that no incorrect answers were provided in the applicant’s Subclass 186 visa application pertaining to his relationship status. The Tribunal so finds.

21. Following careful consideration of the evidence, 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.

    CONCLUSION  

22. 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

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

    K. Chapman
    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.