Arumadura (Migration)
[2018] AATA 1168
•30 January 2018
Arumadura (Migration) [2018] AATA 1168 (30 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Sameen Dharshaka De Silva Arumadura
CASE NUMBER: 1613203
DIBP REFERENCE(S): BCC2016/2081163
MEMBER:Karen Synon
DATE:30 January 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.
Statement made on 30 January 2018 at 1:30pm
CATCHWORDS
Migration – Cancellation – Skilled Nominated (Permanent) visa – Subclass 190 (Skilled) (Nominated) – Requirement to notify Department of change in circumstances – Whether there was non-compliance as described in s 107 notice – Whether the applicant was in a “de facto relationship” before and during the visa application process – Where the applicant has undertaken sexual infidelity – Sexual infidelity not necessarily determinative of relationship status – Genuine de facto relationship maintained during relevant period – No non-compliance as described in s 107 notice – Power to cancel does not ariseLEGISLATION
Migration Act 1958, ss 5CB, 65, 104, 107, 109(1)
Migration Regulations 1994, Schedule 4, PIC 4020CASES
Sevim v MIMA (2001) 114 FCR 126
You v MIAC [2007] FMCA 1064
Cao v MIAC [2007] FMCA 225Any 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 Immigration and Border Protection to cancel the applicant’s Subclass 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.104 of the Act as he failed to notify the Department of Immigration and Border Protection (the department) of changes in his circumstances as required by s.104. 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 11 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] his former de facto partner and [Ms B], the woman with whom the applicant conceived a child. The Tribunal noted that it had specifically requested in the hearing invitation that the other parties to the relationship namely, [Ms A], his former de facto spouse and [Mr C], be present to give witness evidence and asked why they were not present at the hearing. The applicant responded that [Mr C] is out of the country and he has no idea where he was living and that he is no longer on communication terms with his former de facto, [Ms A]. He provided a telephone number for her but said she may not give evidence because they are not on good terms. The Tribunal explained that he had requested the opportunity to take evidence from these two people as they may have been in a position to give more objective evidence.
The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages. The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.
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.
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.
Was there non-compliance as described in the s.107 notice?
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.104 – changes in circumstances to be notified – in the following respects:
104 (1) if circumstances change so that an answer to a question on the 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 circumstances before the visa is granted.
The section 107 notice relevantly set out:
On 3 June 2016 the department received adverse information regarding your family relationship. The relationship you declared with your sponsor, [Ms A] may have ceased during the process of the application and you may not have been a ’member of the family unit’ of [Ms A] at the time of grant of your subclass SN 190 Skilled Nominated visa.
Information received indicates that although you may have resided in the same household, you were in a relationship with (and not to the exclusion of) another person before the decision was made to grant you the visa as a ‘member of the family unit’ of [Ms A].
On 17 June 2016 you voluntarily provided a statement to the department in which you stated that while you were residing at the above address [Ms B] and her husband…moved into the property in May 2015 and that you had known [Ms B] previously as you attended the same university in 2008.
You declared in your statement that you eventually commenced a close relationship with [Ms B] and that neither your partner nor [Ms B]’s husband were aware of this relationship. You also declared that as a result of this relationship [Ms B] conceived a child with you in November 2015 and that your relationship with [Ms B] is ongoing and that “once [Ms B] finalises her divorce we are planning to get married”.
From the above information it appears that you have not notified the department of the change in your circumstances; that you were no longer a ‘member of the family unit’ of [Ms A] for the purposes of section 5CB of the Act, to the exclusion of others, before your subclass SN 190 Skilled Nominated visa was granted.
You appear to have not complied with section 104 of the Migration Act because you failed to inform the department of the new circumstances and provide the correct information to the department before the grant of your visa.
In making this decision the Tribunal has considered all of the information before it including: the relevant documents on the department file; a post hearing submission provided by the applicant’s representative; the Birth Certificate of the applicant’s child which names him as the father, the results of a ‘Paternity Testing Procedure‘ which concludes that the applicant has a Relative Chance of Paternity of 99.9999990%; and a non-contemporaneous report written by someone self-described as a ‘professional counsellor’, Sirini Kularatne-Samarapathi.
After explaining the definition of de facto partner in s.5CB of the Act the Tribunal asked the applicant to explain what his relationship was with [Ms A] on and before 21 January 2016. In response to this and related questions the applicant gave the following evidence:
· On 22 January 2016, after the residency visa was granted, he accompanied [Ms A] to the airport because she was going to Sri Lanka that day. It was originally planned that they would travel together but she went alone because [one of her parents] was having health issues. Asked if he followed her later he said no; the main reason she was going was because they were having wedding objections from her parents.
· Asked when his former de facto relationship ceased with [Ms A], the applicant said it was on 16 April 2016 after she returned from Sri Lanka. Asked what happened then the applicant said that they planned to move to a different residence but she refused to move with him. At this stage she did not know about his relationship with [Ms B] but found out about it after his visa was cancelled when he told her about it, around 17 June 2016. She refused to move with him because the plan was, after they received their permanent residency, to go to Sri Lanka and get married but [Ms A]’s father did not see him in a good light because firstly, he is of a lower caste and secondly, he was a person with drinking habits.
· Invited to explain what happened on 16 April 2016 the applicant said when he picked [Ms A] up from the airport she told him not to have any hopes about their relationship and she needed to think about it. She lived in [Suburb 1] until the end of April. He had moved to Oakleigh East at the end of February. The Tribunal asked if they were living apart from February 2016. He said yes, as he believed she would join him in the new residence. He said that after she went back to Sri Lanka, she changed her mind and, at the beginning of February, advised him not to take her belongings to their new place and as she needed to think about the relationship and solve the objections from her old friends and family. Later, after he told [Ms A] about his visa cancellation, her response was that she took the correct decision in not moving in with him. He does not know if she has married or has another partner.
· At this time [Ms B] was living in the [Suburb 1] house with her husband. They had moved into their home in May 2015 and moved out in June 2016 when the husband had to leave Australia. He is not aware who else was living with them as he moved to Oakleigh in February 2016. He lived alone until he went to Sri Lanka to attend his sister’s wedding around 21 May 2016 returning on 10 June 2016. It was while he was in Sri Lanka that he received a call from [Ms B] who told him the child was his. He first met [Ms B] in 2008 when they were studying. Asked how she and her husband came to be living with him and his de facto the applicant responded “I do not know how she came to my home” and that there were other occupants who were paying rent when she came in search of a room. He had a sexual relationship with [Ms B] in November 2015 when their partners were not around and he was under the influence of alcohol. At the time he was having issues with [Ms A] and was depressed. They had a few sexual encounters until the end of January 2016 when their relationship ended. Asked why it ended he said he wanted to reflect on his life and his addiction to alcohol because, after receiving his permanent residency, he wanted to have a better life. Asked to explain how he ended the relationship, the applicant said it was not a relationship of that sort and he thought having an affair in secret was not the right thing. He told her he was moving out and she said “that’s fine”. Following this they spoke to each other but had no sexual relationship. After he returned from Sri Lanka where he found out about the impending birth, he brought [Ms B] to live with him and supported her until the baby was born in August 2016. After this she went to live with her [relative]. They did a DNA test to confirm his paternity.
· “He got to know” [Ms B] was pregnant in February 2016 when he went to get some of his stuff from the house in [Suburb 1]. She quietly told him she was pregnant. The applicant confirmed he was living in the same house as [Ms B] between November 2015 and February 2016. The applicant repeated that she told him the baby was his, by telephone, when he was in Sri Lanka. At this stage she had to leave Australia as her visa had been cancelled but, due to her pregnancy, she was allowed to stay in Australia on a bridging visa on the basis of special circumstances. [Ms B] knew the baby was his because she had not been with her husband during that period. The applicant came back to Australia on 10 June 2016 and she requested some support to bring up the child. She had no facility to give birth in this country and said she had been asked to leave the country. [Ms B] told him “this child belongs to you and you have the residency and I want you to be fair to this child”. The child was born [in] August 2016. His intention was to give this child a future but they were not lovers. Asked if he was in a de facto relationship with [Ms B] the applicant responded that he would not call it a de facto relationship and his aim was to give the child a future. He ceased living with the child and [Ms B] from September 2016. He still financially supports the child. [Ms B] has applied for a divorce from her husband.
· The applicant was invited to explain the circumstances in which he provided the statement to the department (referred to in the primary decision) and what prompted him to attend the department and make this statement. He explained that because [Ms B] did not have a visa to remain in the country she was told by a lawyer that she could apply for a visa to stay in Australia. The lawyer requested him to change what he had written in the statement from ‘casual relationship’ to ‘affair’. He had written his statement saying it was a sexual relationship and crossed it off with one single stroke as instructed by [Ms B]’s lawyer. The applicant said that “whatever was written was not his doing” because he was requested by [Ms B] to give the statement and he did not have a mind to write it. He said there are a few truths in the letter but it was constructed by her lawyer’s will. His intention in attending the department was to say that if the paternity test is proved he will do everything he can for the child. [Ms B’s] lawyer requested that he be present at the department interview and they went in together. [Ms B] had already been to a lawyer by the time he came back from Sri Lanka and was advised that if the child was to stay in Australia it would only be through him having residency. He believes that [Ms B] may have told the department that the child is his.
· The applicant was invited to comment on the contents of [Ms B]’s statement and in particular her assertion that she intends to make an application for a partner visa on the basis of her relationship with him, a permanent resident of Australia, that they love each other and that the relationship commenced in May 2015. He responded “it is a total lie” and that she had never told him anything of that sort. She just wanted him to tell the department that the baby is his. He had no idea what she had given in writing to the department but only told her that if his paternity was confirmed by the DNA test he was prepared to marry her as he wanted to do justice to the child. His only intention is how he can keep the child here.
· The applicant was invited to comment on the contents of [Ms B]’s husband’s statement to the department that she left him [in] April 2015, that he stopped seeing her permanently [in] May 2015 and that he believes that [Ms B]’s main intention was to stay in Australia and get married to the applicant and that getting pregnant was used as an excuse to facilitate this. The applicant said that if this was a ploy he was not involved. He understands [Ms B] may have had problems with her husband but he did not have time to think about those. He did not understand that it was her intention to have a child to remain in Australia. It might have been her intention to get pregnant as the only pathway to stay in this country.
· The applicant said [Ms B] is on a bridging visa as she has a child who is an Australian citizen. He has not applied for any partner visa for her. They are not in a relationship.
· The Tribunal invited the applicant to comment on the differing evidence about where [Ms B] and her husband were living and that [Ms B] had left her husband to move in with him. The applicant said that most of the time, when they had altercations, they stayed separately.
The following oral evidence was taken from [Ms B] by telephone. It was not pre-organised by the applicant prior to the hearing:
· [Ms B] moved into the [Suburb 1] house in May 2015 with her husband. The statement she gave to the department was originated by her lawyer who asked her to give it this way. She and her husband lived together in one room until May 2015.
· Asked when the relationship with the applicant commenced [Ms B] responded it was not a relationship; basically they were under the influence of alcohol. Commenting that this was not what she had written in her signed statement given to the department, [Ms B] responded that the statements made to the department were done as advised by the lawyer and if she had said it was a sexual relationship she could have been sent out of the country.
· The Tribunal asked [Ms B] if she understood that if she gives information or documents to the department which contain false information or misleading information, she can be subject to public interest criterion (PIC) 4020 of the Migration Regulations 1994. [Ms B] responded that she did write this because her lawyer advised her to do that. Asked if she wrote that she intended to apply for a partner visa because she had been in a relationship with the applicant since May 2015, she responded that she was advised by the lawyer to write this. Asked if she intended to apply for a partner visa she responded no, it was a sexual relationship only. Asked when the sexual relationship commenced she said it was at the end of September 2015.
· Asked how she intends to stay in the country [Ms B] responded that after she receives her child’s passport she intends to go out of the country to Sri Lanka as she does not want to stay as an illegal however, if she can get a visa that is legal, she would like to stay here. She will not be applying for a partner visa with the applicant as they do not have a relationship. She said she made a mistake; they were drunk and had sex. She did not want to abort the baby and has now given birth. She managed to keep the baby and is giving a life to her. She does not want to have a relationship with the applicant but she loves her child and wants her to grow up in Australia as she is a citizen of this country. [Ms B] said that she “knows it is a mistake that [I] wrote all that according to [my] lawyer” but Australia has been like a home for the last 10 years.
The following oral evidence was taken from the applicant’s former de facto partner, [Ms A] by telephone. It was not pre-organised by the applicant prior to the hearing and, when the Tribunal asked to speak with her, the applicant said she might not want to give evidence as they are not on good terms.
·[Ms A] commenced by saying anything that what happened between the applicant and “the other lady” was nothing to do with her and that she did not want to be disturbed at work. The Tribunal apologised for the interruption to her day and stressed that it was requested she provide witness evidence.
·[Ms A] said she and the applicant were together since 2009 but they had issues and he would sometimes abuse her.
·[Ms A] did not know about the applicant’s relationship with [Ms B] or what it was. She went to Sri Lanka when [one of her parents] was sick. She waited until she received her permanent residency before leaving. When she came back on 16 April 2016 she decided she did not want to stay with the applicant due to their relationship issues. She wanted to marry him but her parents brought up a lot of issues including that he was sometimes abusive and aggressive and her father especially did not want her to marry him.
·It was a few weeks after this that she found out the applicant had moved to a different place and was having a kid with “that lady”. She knew this meant he had cheated on her when he was with her. She went to work each day and this lady was a housemate and her husband was also living with them as they were a couple. She truly loved the applicant and wanted to be with him and sort the issues out. At the end of 2015 when they started talking about marriage with her parents, their situation became worse. She told the applicant she would go to Sri Lanka and settle the issues with her parents but when she was in Sri Lanka her father said no, he did not want her to marry him. When she was in Sri Lanka she argued with the applicant on the phone and felt stuck between him and her parents. When she returned from Sri Lanka the applicant asked her to move with him to his new home but she said no because she could not go against her parents, especially her dad who really did not like the applicant. She still loved the applicant at this stage but he did not treat her well and she did not understand what was going through his mind. She fought with her parents about him. When she returned to Melbourne she told the applicant that she did not think it was going to work because she could not go against her parents.
·By the end of April it was all over and finished. After the relationship broke up she found out about the baby and realised she had made the right decision and “got saved because this guy [the applicant] was not with her” at all and he had cheated on her. She got depressed when she learnt that he was going to have a baby with a lady who lived in the same house as them. When the applicant phoned her to tell her his visa was cancelled she said “good luck; God has punished you for whatever you did”. Asked if she believed that the applicant had a commitment to her for a shared life to the exclusion of all others, [Ms A] responded yes, because she felt like that and that he was “truly to her”. Once she got to know that the applicant was going to have a baby with another lady who lived in their house, she thought he wasn’t true. She thought, that’s good, because of her dad, she made a decision that was hard for her, but a good decision. She considers that they ceased to be de facto partners at the end of April 2016 because even after she returned from Sri Lanka she still visited him.
The issue the Tribunal must consider is if the applicant was in a de facto relationship as defined by s.5CB of the Act for the period of time up until when the visa was granted on 21 January 2016. In doing so the Tribunal has considered if the parties in the de facto relationship had a mutual commitment to a shared life together to the exclusion of all others. This consideration must include an assessment of the subjective intention of the parties. The Tribunal notes that the level of commitment to the relationship does not need to be of equal strength or quality between the parties, although a reciprocal commitment, at some level, is required. A genuine relationship does not require parity of commitment between the parties, but rather a commitment by each to the other, to the exclusion of all others. There may be relationships where the parties have different levels or degrees of commitment to each other, or where the commitment of the parties to each other is of a different quality. Such differences do not matter in the application of this requirement as long as each party has a commitment of the kind described in the test.[1]
[1] Sevim v MIMA (2001) 114 FCR 126 at [71]. See also You v MIAC [2007] FMCA 1064 (Riethmuller FM, 6 July 2007) in which Riethmuller FM stated at [35] that spouses demonstrate different levels of mutual commitment ‘ranging from barely sufficient to enable a marriage to subsist to levels of commitment akin to devotion’.
In order for the de facto partner definition requirements to be met, there can be only one genuine partner relationship. The de facto relationship requires a factual assessment of whether any other spousal or de facto relationship is ongoing. However, relevantly to this case, sexual infidelity by one of the parties to the relationship does not necessarily take the relationship outside the definition of de facto. The Tribunal must consider the facts and degree in this case, along with all the other circumstances of the relationship, in determining whether the parties had the requisite commitment to a shared life to the exclusion of all others at the relevant time.[2]
[2] Cao v MIAC [2007] FMCA 225 (Riley FM, 21 March 2007) at [36] and [42].
There are several concerns in this respect most notably that the day following the grant of permanent residency, the applicant’s de facto partner travelled to Ski Lanka and, upon her return, on 16 April 2016, ended their relationship (although his former de facto gave evidence that while they did not live together from 16 April their actual relationship ended at the end of April 2016). In this respect the timing of her departure and subsequent ending of the relationship appears to lend weight to the view that the de facto relationship may have been over before the grant of the Subclass 190 - Skilled - Nominated visa on 21 January 2016. The Tribunal also found the applicant’s evidence that he did not know how [Ms B] and her husband came to be living with him and his de facto in their [Suburb 1] house from 2015, when it is undisputed evidence that he knew [Ms B] since 2008 when they studied at the same college, unconvincing. Serious concerns also arise on the basis of the statements provided to the department by the applicant, [Ms B] and her former husband and the Tribunal spent considerable time exploring these at the hearing although was not able to take evidence from [Ms B]’s former husband as he appears to have departed Australia.
The Tribunal found the evidence of the applicant’s former de facto, [Ms A] to be sincere and credible. This was especially so as she had not been pre-arranged to give evidence and it was therefore wholly uncontrived and spontaneous. Her evidence about why she left Australia immediately after being granted permanent residency was consistent with the applicant; [one of her parents] was ill and she needed to discuss her parents’ objections to their proposed marriage. After taking [Ms A]’s evidence the Tribunal was left in no doubt that she was genuinely committed to the applicant, to the exclusion of all others before and during the processing of the visa application and that, at the time the visa was granted, she had no knowledge of the applicant’s sexual relationship with their housemate. Indeed, the Tribunal accepts [Ms A]’s evidence that, at the time the visa was granted and when she departed for Sri Lanka, she loved the applicant and fully intended to marry him and only ended their relationship when her parents’, particularly her father’s, objections could not be overcome and she was not prepared to go against their wishes. The Tribunal further accepts that this was the reason why she ended their relationship when she returned to Australia on 16 April 2016 and that she was not aware of the applicant’s sexual relationship with their housemate until after his visa was cancelled.
However, to find that a genuine de facto relationship existed at the relevant time, the Tribunal must be satisfied that the parties had a mutual commitment to a shared life to the exclusion of all others and thus now turns to the state of mind of the applicant throughout the period he was having a sexual relationship with [Ms B]. The applicant stated that this sexual relationship commenced in November 2015 when they were both intoxicated. He cited one of the reasons for this was that he was having some problems in his relationship with [Ms A] and was depressed. The applicant claims he had “a few” sexual encounters with [Ms B] between November 2015 and January 2016. He denied it was a relationship but rather described it as “an affair in secret” however he knew it was not the right thing and, after receiving his permanent residency, ended the relationship as he wanted to reflect on his life and his alcohol addiction. There has been no sexual relationship between him and [Ms B] since then. He found out [Ms B] was pregnant in February 2016 when he went to his old home to collect some belongings but did not know he had fathered the child until [Ms B] telephoned him when he was in Sri Lanka in May/June 2016. She knew the applicant was the father because she had not been with her husband during the period in question. Around the time [Ms B] phoned him, her visa had been cancelled and she had to leave Australia however had been told that due to her circumstances including being pregnant and the father being an Australian permanent resident, she may be able to stay here. The applicant claims that [Ms B] told him “this child belongs to you and you have the residency and I want you to be fair to this child“. She also requested support to bring up the child. The child was born [in] August 2016 and subsequent paternity tests, which were provided to the Tribunal, confirm the applicant’s paternity. The applicant categorically denied that he ever intended to make an application for a partner visa on the basis of his relationship with [Ms B] and consistently asserted that, while he is prepared to financially support the child they have not had any sexual relationship since January 2016. [Ms B] and her child have lived with one of her [relatives] since just after the baby’s birth.
This evidence was wholly supported by [Ms B] who said she would not describe what she had with the applicant as a relationship as they were “under the influence of alcohol”. Although there is some difference in when she and the applicant say their sexual relationship commenced (he in November 2015 and she in September 2015), both described it as going on in secret and as a sexual relationship only. [Ms B] said she and the applicant will not be applying for a partner visa as they do not have a relationship and they made a mistake when they were both drunk and had sex. She did not and does not want to have a relationship with the applicant but loves her child and wants her to grow up in Australia as she is a citizen of the country.
The Tribunal asked [Ms B] about the statement she made to the department dated 2 June 2016 which directly contradicts her oral evidence in several critical respects including when she states that she intends to make a partner visa application with the applicant, that she has been in a de facto relationship with him since May 2015 and that they love each other. [Ms B] essentially contended that her lawyer directed her to write and had “originated” the statement. Specifically she said she wrote as advised by her lawyer and if she had said it was a sexual relationship she could have been sent out of the country.
This accords with the applicant’s explanation for his statement to the department which he contends was orchestrated by [Ms B]’s lawyer. He said he understood that he was going to the department to make a statement that, should the paternity test demonstrate he is the father of [Ms B]’s child, he will financially support it and marry her if necessary. His only reason for going to the department was because [Ms B] did not have a visa to remain in the country and her lawyer requested him to change his statement in which he had said that he had “a casual relationship” with [Ms B] to read “an affair”. He was not in a de facto relationship with [Ms B] and his only aim was to give the child a future. He said he was requested by [Ms B]’s lawyer to give a statement and, while there are some truths in the letter, it was constructed according to her lawyer’s will. The applicant said that by the time he returned to Australia from Sri Lanka, [Ms B] had already been to see a lawyer and been advised that the only way she could stay in Australia would be through the applicant’s permanent residency.
In contrast to the applicant’s, [Ms B]’s and [Ms A]’s evidence which as a whole satisfies the Tribunal that the relationship between the applicant and [Ms B] was a secret, short-term sexual affair, the primary decision records the statement of [Ms B]’s former husband who provides some directly contradictory assertions. The Tribunal was not able to take evidence from him and so could not in any way test these assertions. In summary he contended (in the course of applying for a new student visa) that the relationship between the applicant and [Ms B] commenced in April 2015 and that he ceased seeing her permanently [in] May 2015. He also claims that he found a birthday card and the resume belonging to the applicant on her computer in May 2015 and that one day he went to the applicant’s house to open the door and became highly depressed to see her in his bedroom. He stated she was staying with the applicant and his wife in a room. He asserts that [Ms B] had planned from the beginning to stay in Australia by marrying the applicant and that getting pregnant was an excuse to facilitate this motive.
The Tribunal asked both the applicant and [Ms B] about this statement. The applicant said that if [Ms B]’s intention was to get pregnant and married to the applicant this was a ploy in which he was not involved. While he understands [Ms B] had problems with her husband, he did not have to time to think about this. The applicant said that both [Ms B] and her husband lived in the [Suburb 1] house but when they had altercations they stayed separately. However, the Tribunal found the evidence of [Ms A] to be most credible and objective and she stated that both [Ms B] and her husband shared a house with them. The Tribunal does not see any reason or motivation for her to give false evidence. Therefore, given that the Tribunal was not able to test [Ms B]’s former husband’s evidence and the applicant and both witnesses claimed the four of them lived together in one house, the Tribunal is not satisfied that the assertions made in his statement, specifically that [Ms B] left him [in] April 2015 and stop seeing him [in] May 2015 are true.
In summary, after considering all of the evidence before it, the Tribunal has formed the view that notwithstanding a sexual relationship occurred between the applicant and [Ms B] over a period of three months, this was conducted in secret and without the knowledge of their respective partners, and that the applicant and [Ms A], throughout the period of the visa processing did maintain a committed relationship to the exclusion of all others. The Tribunal is persuaded that while a sexual relationship existed between the applicant and [Ms B] it was not, certainly from the perspective of the applicant, considered to be anything other than a casual arrangement, and accepts the evidence of both the applicant and [Ms B] that these sexual encounters occurred when they were both intoxicated and that neither considered they had a committed relationship.
Conclusion on non-compliance
For these reasons, 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.
Department Note
When taking witness evidence from [Ms B], it became clear that her oral evidence and the written statement she made to the department were contradictory in significant ways. The Tribunal asked [Ms B] if she understood that in giving information or documents to the department which contain false information or misleading information, she can be subject to PIC 4020. [Ms B] responded that she wrote this because her lawyer advised her to. Asked if she wrote that she intended to apply for a partner visa because she had been in a relationship with the applicant since May 2015, she responded that she was advised by her lawyer to write this. Asked if she intended to apply for a partner visa she responded no, it was a sexual relationship only. [Ms B] said she “knows it is a mistake that [I] wrote all that according to [my] lawyer” but Australia has been like a home for the last 10 years. This may be an issue the department could choose to pursue should it consider it necessary.
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 190 - Skilled - Nominated visa.
Karen Synon
MemberATTACHMENT – Relevant extracts from the Migration Act 1958
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.
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.
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