Asuncion (Migration)

[2022] AATA 4129

Asuncion (Migration) [2022] AATA 4129 (23 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Marivel Sarmiento Asuncion

CASE NUMBER:  2211956

HOME AFFAIRS REFERENCE(S):          BCC2020/2734838

MEMBER:Kira Raif

DATE:23 November 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 100 (Spouse) visa.

Statement made on 23 November 2022 at 2:44pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) incomplete information in visa application form – three children and former de facto relationship not declared – discretion to cancel visa – circumstances of non-compliance – former partner took children without applicant’s knowledge and threatened to withhold access – access allowed when applicant stopped providing financial support, and children now in Australia on tourist visa – Australian citizen child with husband has developmental disorder and applicant is main carer – special education and other support – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(a), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASE
MIAC v Khadgi (2010) 190 FCR 248

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 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of the Philippines, born in October 1980. She was granted the Partner (Migrant) visa on 1 September 2016. In July 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she did not comply with s. 101 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 11 August 2022. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 23 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

6. 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?

7. 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 of the Act.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that she made the application for a Partner visa on 13 August 2014. The applicant completed the application form 47SP and in that form, she provided no response to questions 31 (requiring her to list all her children, including from previous marriages / relationships) and 32 (requiring to list other dependants, including dependent children).

9. In Part G of the application form the applicant was required to provide information of her previous relationships. The applicant gave the following answers

   a.In response to Question 61, have you been married to a person other than your current sponsor, the applicant stated ‘no’

   b.In response to Question 62, have you ever been in a … de facto relationship with a person other than your current sponsor’ the applicant stated ‘no’.

10. The applicant also signed a declaration that the information she gave in the application was complete and correct.

11. The applicant was granted the Partner visa on 1 September 2016. On 11 March 2020 the applicant sponsored her three children, Edrick, Ervin and Gabriel (born in 2003, 2008 and 2011 respectively) for Child visas, claiming they were her biological children. The applicant provided the children’s birth certificates which identified her as the mother and Mr Edwin Soson Montipolca as the father of the children. The birth certificate of the eldest child shows that the parents were married in October 2002 but the birth certificates of the younger two children show that the parents were not married. The Department subsequently received advice from the applicant’s current partner that the applicant was not previously married and the Department was provided with a statement from the Philippine Statistics Authority indicating the applicant has only registered marriage with her current partner.

12. The delegate concluded that the applicant did not comply with s. 101(a) of the Act because she completed the application form in a way that not all questions on it were answered. In her response to the NOICC the applicant concedes that she failed to provide information about the children when completing the application form. She provided an explanation for that in her written submissions to the delegate and the Tribunal, as well as the oral evidence to the Tribunal. The applicant’s explanations are addressed more fully below.

13. The Tribunal  finds, having regard to the above evidence, that the applicant had three biological children at the time the application form was completed. The applicant did not provide an answer to questions 31 and 32 of Form 47SP in relation to her children. The Tribunal finds that the applicant completed the application form in a way that not all questioned on it were answered. The Tribunal finds that the applicant did not comply with s. 101(a) of the Act in the way described in the s 107 notice.

    Should the visa be cancelled?

14. 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).

15. 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. They are:

    The correct information

16. The correct information is that the applicant had three biological children at the time the application for the Partner visa was made. The correct information also is that the applicant  did have a de facto relationship previously.

    The content of the genuine document (if any)

17. This is not relevant in the present case.

    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

18. The presence of three children may suggest that the applicant had another relationship prior to her relationship with the sponsor. The existence of that relationship would have been relevant to the assessment of whether the applicant’s relationship with the sponsor was genuine and to the exclusion of all others.

19. Further, if the children were dependent children, they may have been assessed as being members of the applicant’s family unit and would have been required to undertake health checks and meet the health criteria before the applicant could be granted the visa.

20. The applicant states that if the children completed their medicals, they would have passed. The Tribunal acknowledges that it cannot be said that the applicant would not have been granted the visa if she did declare the children. However, that is not an issue. The question before the Tribunal is not whether the applicant would have been granted the visa if the correct information was known but whether the decision to grant was based, even in part, on incorrect answers. In this case, the Tribunal is of the view that the decision to grant the visa was based on incorrect information because the children did not undertake the health examinations as they would have been required to do if they were members of the applicant’s family unit, and also because the existence of three children may imply the existence of another relationship, which would have been relevant in assessing the nature of the applicant’s relationship with the sponsor.

21. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

22. In her submission to the delegate the applicant explains, essentially, that her former de facto partner (the father of the children) took the children to his hometown province without her consent and used that situation to ‘blackmail’ her that she would not see the children again if she planned to take them to Australia. The applicant states that when her former partner learned about her marriage, he took the children away without her consent. The applicant states that she was torn between being with her husband and the prospect of not being able to see the children and she decided not to declare the three children as it seemed ‘the most convenient solution’ and they thought it would be easier to get advice once she was in Australia. If she knew her former partner would have a change of heart, they would have waited.

23. In oral evidence to the Tribunal the applicant also stated that the children’s father took the children away without her knowledge or consent and he threatened that she would not be able to see the children again if she declared them on the application and she believed that he would do it. Later on she realised that he only took the children for the money and she stopped sending money to her ex-partner. He did not have the means to support the children, so he agreed to the children living with her. The applicant  states that the children live with her mother who is no longer able to look after them, and they are presently in Australia on a Tourist visa.

24. The Tribunal finds that  the applicant was aware she did not answer the questions about the children and about her pervious relationship when completing the application form. The Tribunal acknowledges the applicant’s concerns about not being able to see the children but is of the view that  the applicant simply chose the most convenient or expedient way to obtain her Australian visa. The Tribunal finds the breach was deliberate.

    The present circumstances of the visa holder

25. The applicant continues to be in a relationship with her Australian partner and they have a child. The applicant provided to the Tribunal medical evidence relating to the child, and his school reports. In oral evidence the applicant  spoke about the child’s special needs. He is now part of the NDIS. The applicant told the Tribunal that she is the main carer of her son because she has casual jobs but her husband has a full-time job and cannot take care of the child. The applicant told the Tribunal that if she has to leave Australia, she does not believe her husband would be able to care for the child and the child may have to come with her to the Philippines. The applicant did not know what services her son may be able to receive in the Philippines. The Tribunal accepts the applicant’s evidence.

26. The applicant told the Tribunal that her mother is no longer able to take care of her children. If she retains her visa, she plans to sponsor the children for the Australian visas. The Tribunal accepts that this may not be possible if the applicant’s visa is cancelled.

27. The applicant works as a cook at a regional hotel and she also refers to her husband’s employment. She states that they are saving for a deposit to purchase a house. The applicant provided to the Tribunal evidence relating to her and her husband’s work, taxation and other financial records and other materials in relation to herself and her husband. The Tribunal accepts that evidence.

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

28. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations under the Act.

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

29. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

30. The application for the visa was made in August 2016. A little over six years passed since the non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

31. There are no known breaches of the law.

    Any contribution made by the holder to the community.

32. The applicant refers to her employment as a cook and her voluntary work. The Tribunal accepts that the applicant has made some contribution to the community.

33. 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.

    Whether there would be consequential cancellations under s 140.

34. There are no persons whose visas would be subject to consequential cancellation. The applicants evidence to the Tribunal is that her elder three children are holding Tourist visas for which they were sponsored by her husband.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

35. The applicant and her current partner have a child Marvern, born in January 2016. He is an Australian citizen. The applicant states in her submission that Marvern has been diagnosed with pervasive developmental disorder and needs special care (the Tribunal has been provided with medical and school records) and she is the primary caregiver to her son. The applicant submits that she cannot be separated from the child and separation may adversely affect his health and schooling while her husband may not be able to cope with taking care of the child and his work commitments.

36. The applicant states that if the child is to leave Australia, he may miss out on the opportunities provided by NDIS and he would not have the special schooling opportunities that he receives at present. The applicant states that if the child is to move to the Philippines, he may be kidnapped as the family may perceive as being healthy.

37. The Tribunal accepts that it is in the best interests of the applicant’s child that he receives care from both parents. The Tribunal also accepts that participation in the NDIS scheme, access to health and allied professionals in Australia would be of benefit to the child. The Tribunal acknowledges that the child now receives special schooling and other support and is of the view that it is in his best interests for that support to continue.

38. The Tribunal acknowledges the applicant’s submission that she is the primary caregiver to the child (the Tribunal accepts the evidence about her husband’s employment commitments) and the Tribunal also accepts the evidence that if the applicant was required to leave Australia as a result of her visa being cancelled, that may either lead to the applicant being separated from the child or the child being denied access to the support that he now receives and being separated from his father. The Tribunal does not consider these options to be in the child’s best interest.

39. The Tribunal has formed the view that it is in the best interests of the child to be able to remain in Australia with both of his parents. The Tribunal has formed the view that it is the best interests of the child that the applicant’s vias not be cancelled.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

40. The applicant told the Tribunal that her former de facto was very angry that she has the children and he no longer has any source of income. She claims there is a possibility that he would get in touch with her and ask for money. The applicant states that it is not safe in the Philippines. To the extent that these claims may give rise to Australia’s non-refoulement obligations, the Tribunal is of the view that these claims may be more appropriately considered if the applicant  was to make an application for a protection visa and there is nothing preventing her from doing that. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

41. In relation to the principles of family unity, the Tribunal notes that the applicant’s spouse and minor child are in Australia and Australian citizens. She has three children living overseas.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

42. If the applicant’s visa is cancelled, and unless she is granted another visa, the applicant would become an unlawful non-citizen and may be subject to detention and removal from Australia. There is no suggestion the applicant would be detained indefinitely. The applicant would have limited options of seeking other visas in Australia due to the operation of s. 48 and would be subject to an exclusion period in relation to some offshore visa applications due to operation of PIC 4013. If the applicant’s visa is cancelled, she would lose any entitlements she had acquired as a permanent resident of Australia. In particular, the applicant will be unable to sponsor her three children for the Australian visas if she does not hold a permanent visa.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

43. In her response to the NOICC the applicant refers to the hardship that may be caused to her son, who has special needs, if he was to relocate to the Philippines. The applicant  told the Tribunal that if her visa is cancelled, she would have no option but to return to the Philippines with a child with special needs and to be separated from her partner. The Tribunal accepts that, given the child’s special circumstances, relocation to the Philippines may cause significant hardship to the family and if the child is to remain in Australia, it would cause the child to be separated from his mother and primary caregiver.

1. The applicant refers to her husband’s career as a lecturer at a university, his position and responsibilities, and states that there are very limited opportunities for similar work in the Philippines. The Tribunal is prepared to accept that and accepts that if the entire family was to relocate to the Philippines, it is likely to cause her partner to lose her employment (which is said to be of benefit to Australia) and the applicant herself may give up her job.

2. The applicant’s spouse Dr Asuncion gave evidence to the Tribunal that he had left the country at the age of 12 and would not be able to re-settle there. He also refers to lack of employment opportunities in his field. Dr Asuncion states that he supports his wife in caring for their child with special needs and he does not want to miss out in supporting his child.

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s. 101 of the Act and that there are grounds for cancelling her visa. The Tribunal places significant weight on the fact that the decision to grant her the Partner visa was based, in part, on the incorrect information and also that the applicant  was aware that she was providing incorrect information and that she had deliberately failed to provide answers to some questions on the application  form. While the Tribunal acknowledges the applicant’s circumstances (her children being in the care of their father), the Tribunal does not consider that such circumstances justify the provision of incorrect answers and misleading information (by failing to declare children) on the application  form. These factors weigh strongly in favour of the cancellation.

4. However, in the circumstances of this case, the Tribunal has decided to place greater weight on other consideration. In particular, the Tribunal places greatest weight on the interests of the applicant’s child. The Tribunal accepts the applicant’s evidence that she is the primary carer for the child and that the cancellation of her visa may result in the child being separated from one of the parents. The Tribunal also accepts that if the child is to return to the Philippines with the applicant, he may not have access to the NDIS and the support services that he requires. The Tribunal considers the best interests of the child weigh strongly against the cancellation.

5. The Tribunal also accepts that the applicant and her present partner appear to be in a genuine relationship (that is, the applicant is fulfilling the purpose of the visa grant) and the Tribunal accepts the evidence of the applicant’s spouse that it would be difficult if not impossible for him to return to the Philippines. The Tribunal accepts that significant hardship would be caused to the family if the applicant’s visa is cancelled and that the cancellation of the applicant’s visa is likely to result in the separation of the family unit.

6. Overall, the Tribunal has decided to give greatest weight to these factors that are against the cancellation.

7. 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

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

   Kira Raif
   Senior Member