Ashouripour Ariaee (Migration) - [2022] AATA 3485

Ashouripour Ariaee (Migration) [2022] AATA 3485 (13 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Monica Ashouripour Ariaee
REPRESENTATIVE:  Mr Ryan Lasaki (MARN: 1575928)
CASE NUMBER:  2200381
HOME AFFAIRS REFERENCE(S):           BCC2019/6383931
MEMBER:Kira Raif
DATE:13 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 13 September 2022 at 3:40pm

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Iran, born in December 1984. She was granted the Skilled visa in January 2018 and entered Australia in April 2018. In May 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 104 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in December 2021. The applicant seeks review of the delegate’s decision.
The application appears to have been made outside of the prescribed period. However, the Tribunal has formed the view that the primary notification contains an error of the type identified in Parata v MHA [2020] FCCA 1582. The Tribunal thus finds that the time for review did not start to run and the application has been validly made.
The applicant appeared before the Tribunal on 7 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 3485
Decision Date: 13 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Skilled Independent (Permanent) visa (Subclass 189) held by Ms Ashouripour Ariaee. The dispute concerned whether the applicant had failed to maintain a genuine and continuing relationship with her partner, which was a condition for her visa.

The primary legal issue before the Tribunal was whether the applicant had failed to meet the criteria for a genuine and continuing relationship as required by the Migration Act 1958 (Cth) and associated regulations. This involved determining if the applicant's circumstances constituted a failure to comply with the conditions of her visa, thereby triggering the power to cancel it.

The Tribunal found that the applicant had not engaged in conduct that would justify the cancellation of her visa. It was accepted that the applicant had been blackmailed into marrying another person in Iran, which led to the withdrawal of her second partner visa sponsorship. Crucially, the Tribunal determined that this situation did not constitute a failure to maintain a genuine and continuing relationship in the manner contemplated by the cancellation provisions, nor did it represent a change in circumstances that would invalidate her original visa. Consequently, the discretionary power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal 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.decision The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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