Brar (Migration)

[2024] AATA 4014

Brar (Migration) [2024] AATA 4014 (11 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kulbeer Singh Brar

REPRESENTATIVE:  Ms Thara Sujithkumar

CASE NUMBER:  2207101

HOME AFFAIRS REFERENCE(S):          BCC2020/1796784

MEMBER:Rachel Westaway

DATE:11 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the visa.

Statement made on 11 October 2024 at 12:46am

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – sponsor wife’s visa cancelled and decision affirmed by tribunal, with application for judicial review in progress – applicant unaware of incorrect information and bogus documents provided by wife – relationship ceased and claim of domestic violence by wife – length of residence, social and community ties and care responsibilities for Australian citizen child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 109(1), 140(2), 359(2)

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

2. The delegate cancelled the visa consequentially on the basis that the applicant’s wife, who had sponsored him for the Subclass 309, subsequently had her Regional Sponsored Migration Scheme (Subclass 119) visa cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 8 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Amrib Singh: The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the consequential cancellation of the applicant’s visa due to the cancellation of his sponsor’s visa should be affirmed.

   Background

7. The applicant is a citizen of India who is 32 years old. The applicant’s wife, Ranveer Kaur, was granted a Regional Sponsored Migration Scheme (RSMS) (subclass 119) visa on 20 May 2013.

8. The applicant applied for a Subclass 309 (Spouse (Provisional)) visa on 31 December 2014 on the basis of his spousal relationship with his wife.  The Subclass 309 visa was granted on 6 January 2017 and the applicant arrived in Australia on 28 January 2017.

9. On 6 May 2022 a delegate of the Minister made a decision to cancel the applicant’s wife’s RSMS visa pursuant to s. 109 of the Act on the basis that she provided incorrect information and bogus documents in her RSMS visa application. As the applicant was granted a visa only because his wife had been granted a RSMS visa and his wife’s visa was subsequently cancelled, it was determined that there were grounds for cancellation of the applicant’s partner visa under s. 140(2) of the Act.

   The Tribunal Application

10. The applicant lodged his application for review on 16 May 2022.

11. The applicant provided a copy of the Department of Home Affairs Notification of Cancellation letter and Decision Record with their application for review.

    Invitation to provide further information under s. 359(2) of the Act

12. On 6 July 2023 the Tribunal wrote to the applicant under s. 359(2) of the Act inviting the applicant to provide further information in regard to his visa cancellation.  Specifically, the applicant was invited to provide information about:

    ·The circumstances in which the ground for your visa cancellation arose

    ·The purpose of your travel to and stay in Australia

    ·The degree of hardship that may be caused to you, your family members or anyone else connected to your visa

    ·Whether there are any extenuating or compassionate circumstances that outweigh the grounds for cancelling your visa

    ·The links you may have to the Australian community, your family or social or business contributions

    ·Whether you have any other compelling needs to remain in Australia

    ·Your past and present behaviour towards the Department of Home Affairs including your compliance with visas and visa conditions

    ·whether there are any mandatory legal consequences that would arise because of your visa cancellation

    ·whether Australia would be breaching any obligations it has under any relevant international agreements because of your visa cancellation

    ·any other matter you consider relevant

13. The letter provided the applicant with 14 days to provide the requested information or request an extension of time to respond. The letter also stated that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information, and that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. On 18 July 2023, the applicant’s representative requested additional time to provide submissions.  This request was granted by the Tribunal on 19 July 2023, with the requested information now due by 31 July 2023.

15. On 30 July 2023, the representative provided the following material by way of online submissions:

    ·Family Violence Safety Notice [VP Form 423] issued 3 July 2022 with the applicant listed as the Protected Person and his wife listed as the Respondent

    ·Photographs of injuries sustained by the applicant following a claimed domestic violence incident on 3 July 2022

    ·Applicant’s statement to Victoria Police dated 2 February 2023 regarding an incident between himself and his ex-wife which occurred on 1 February 2023

16. On 31 July 2023, the representative provided additional submissions responding to the matters listed at paragraph 12 above.

17. On 4 August 2023 the applicant’s authorised representative made further submissions, these included:

    ·A Federal Family court order naming the applicant and his former partner and in relation to their child dated 24 May 2023.

    ·Payment made to a GKR karate dated 2 August 2023.

    ·Statement of entitlement from St Mary’s Youth Leadership dated 20 June 2023.

    ·Statement from the applicant’s representative in relation to the cancellation of the visa.

18. On 7 August 2023 applicant submitted a tax invoice from St Marys School dated 7 August 2023.

    Consequential Cancellation under s 140(2)

19. If a person’s visa is cancelled under ss 109, 116, 128, 133A, 133C or 137J and another person holds a visa only because the person whose visa is cancelled held a visa, and the other person did not hold the visa because of being a member of the family unit of the person whose visa was cancelled, the Minister may cancel the other person’s visa: s 140(2).

20. Section 140 of the Act states the following:

    Section 140 Cancellation of visa results in other cancellation
    
    

    (1)If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
    
    

    (2)If:
    
    

    (a) a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and
    
    
    (b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

    the Minister may, without notice to the other person, cancel the other person's visa.

21. On 16 February 2023, in a separate case, the Tribunal affirmed the decision to cancel the applicant’s wife’s RSMS visa (AAT case number 2206905).

22. In this case I am satisfied that the applicant held a Subclass 309 partner visa only because his wife held a subclass 119 visa. The delegate’s decision records that the applicant’s partner visa was cancelled under s.140(2) because his wife’s visa was cancelled on 6 May 2022. The applicant’s wife was the sponsor of the applicant for the Subclass 309 visa. The matter was appealed to the AAT and affirmed on 16 February 2023. The applicant confirmed at hearing that he is aware that the visa was cancelled and explained that it was on the basis of her providing a bogus document. He stated that this occurred before he has entered into the relationship with her, and he was unaware.

23. For these reasons, the Tribunal is satisfied that the ground for cancellation exists under s 140(2).

    Should the visa be cancelled?

24. As the Tribunal has decided that s.140(2) of the Act applies to the applicant, it is necessary to consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s guidelines.

    ·The circumstances in which the ground for your visa cancellation arose

25. The ground for visa cancellation arose when the visa holder’s then wife provided incorrect information in her Regional Sponsored Migration Scheme (RSMS) (Subclass 119) visa application and submitted bogus documents in support of her RSMS visa application and her visa was subsequently cancelled. Her visa was revoked on May 6, 2022, therefore she is no longer in possession of the one that allowed the grant of his Partner (Provisional) (subclass 309) visa. Due to this, the visa holder is liable for consequential cancellation of Partner (Provisional) (subclass 309) visa under s140(2) of the Act.

26. The applicant stated that his ex-wife’s visa was cancelled, and she had applied for her visa and was already in receipt of her visa when he met her and he had no idea what she had provided. He claimed he was unaware of the fraudulent documents that she was found to have submitted. He also claimed that he is not proficient in English is not good and he has limited English and is from a rural family. It was his understanding that there were fraudulent documents provided regarding her identity. He is not aware of where the review is at or whether judicial review has been sought as there is currently an interim intervention order in place and he has no contact with her. He stated that he feels he is being punished for something outside of his awareness and control. The Tribunal undertook its own enquiry and has been informed the matter is still before the court for review and has not yet been decided.

27. The Tribunal accepts that the applicant may not have been aware of the issues pertaining to his then wife’s visa application. Notwithstanding this, the applicant must be sponsored by and Australia Citizen or permanent resident and at the time of decision the applicant’s former wife has had her permanent visa cancelled.

28. He stated that his former wife is in a new relationship, and he confirmed that he sees her at school pickups and drop offs. They do not talk to each other. There is an interim intervention order in place.

29. The Tribunal has considered the circumstances in which the grounds for cancellation occurred and finds them unfortunate for the applicant but accurate and whilst the decision has been appealed these grounds remain.

30. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

    ·the purpose of the visa holder’s travel to and stay in Australia

31. The visa holder was granted the partner (Provisional) (subclass 309) visa on 6^th January 2017 on the basis of his spousal relationship with his ex-wife. They married in 2014 and applied for a partner visa on the basis that his ex-wife held a Regional Sponsored Migration Scheme visa. The purpose of the visa was to reside in Australia as the spouse of his former wife. He explained that they have a child now who is eight years of age. His son is an Australian citizen whom he states he has the major share of custody of.  In 2017, he was granted the Subclass 309 partner visa to enter Australia again. His submission stated that initially the relationship was good however problems started to arise. He claims that family violence occurred directed at him and his son. They are legally separated and there is an interim intervention order in place and parenting orders.

32. The Tribunal has considered the reasons why the applicant came to Australia and notes the relationship is no longer alive. Notwithstanding this the applicant does have custodial arrangements with his son. However, the sponsor’s visa is no longer alive to enable her to remain permanently in Australia and other options may be considered by the applicant to arrange shared custody of their child.

33. The Tribunal has considered the reasons why the applicant travelled to Australia and whilst the relationship has ceased, there remains unresolved issues about how the applicant and his former wife will share the custody of their child.

34. The Tribunal gives this consideration a little weight in favour of the applicant and not cancelling the visa.

    ·the degree of hardship that may be caused to the visa holder and any family members

35. The applicant claims that the cancellation of the visa will cause significant hardship and disruption to the visa holder and his child. He stated he has resided in Australia for approximately for seven years. He has established a range of ties and relationships, including with friends, colleagues, and members of his community. The cancellation of visa would not only harm his personal life and emotional wellbeing but would also have significant implications for his livelihood and future prospects. It would affect him leaving behind everything he has built over the past seven years.

36. He outlined in detail his care responsibilities for his son. He states that his ex-wife lives in close proximity to him. His son resides with him five nights per week and over the weekend and his ex-wife has his son two nights a week. He explained his son is at school and he assists him with his homework and prepares all meals for him.

37. He stated that the school provides a psychologist for his son who meets with him monthly and liaises with him on his son’s progress.

38. The applicant provided a submission regarding his child and stated that his son is an Australian citizen who has lived his entire life in Australia and if the visa is cancelled, he is the main carer of his child. He explained that his ex-wife was recently removed from the interim intervention order however she has allegedly abused the child. She has two evening a week with the child however he has been given the primary care of him. A court order was provided to confirm this. Further, the Tribunal notes that at the time of this decision, the child’s mother is now separated from the applicant and still living in Australia whilst her application for review of the visa cancellation is before the courts. The applicant claims that his visa cancellation will impact both the child's educational prospects and his mental well-being. It will also disrupt his learning, force him to leave behind friends and familiar environments, and create a sense of uncertainty about his future. It was argued that it is a harrowing experience for a visa holder to be face with such situation which occurred not of his own doing and his child will either need to relocate to India and be separated from his mother or remain in Australia and be separated from his father.

39. The applicant stated that his ex-wife is in a new relationship but he is unaware of the details of this and whether the new partner is an Australian citizen or if there is an intention for his wife to apply for a partner visa at some point. He stated there is no communication and he does not ask his son. He explained that as far as he is aware his ex-wife lives with her brother and in the same area as him.

40. The applicant stated that even if his ex-wife to return back to India she comes from a region which is 100kms away from where he comes from.

41. The Tribunal gives this consideration some weight in favour of not cancelling the visa.

    ·the visa holder’s past and present behaviour towards the department (for example, whether they have been truthful in statements or applications made to the department or have previously complied with visa conditions)

42. There is nothing before the Tribunal to indicate any breaches of conditions and the applicant has complied with all requests from the Department and the Tribunal.

43. The Tribunal gives this consideration a little weight in favour of not cancelling the visa.

    in the case of a permanent visa, the links that the person may have made to the community, for example, the strength of family, social, business and other ties in Australia

44. The applicant’s paternal cousin is like family and lives in Newcastle and helps him. He talks to them regularly and speaks often and when he burnt his leg they stayed and looked after him and he had no Centrelink support.

45. The applicant outlined his routine with his son and how he supports him with his daily routine for school. There is no doubt in the Tribunal’s mind that the applicant is involved in his son’s care and life.

46. He has outlined the many friends he has and the birthday party which he arranged for his son. He stated that his ex-wife did not attend.

47. The Tribunal acknowledges that the applicant has formed social and family ties in Australia and gives this consideration a little weight in favour of not cancelling the visa.

    whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

48. The Tribunal has considered the policy guidelines including the obligations in relation to non-refoulement pursuant to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol (the Protocol); the International Covenant on Civil and Political Rights (ICCPR); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the Convention on the Rights of the Child (CRC).

49. As the applicant’s wife’s visa has been cancelled and consequently the applicant’s visa has been cancelled, the applicant’s child is unlikely to be separated from his parents and the child’s citizenship would not be affected. His parents are citizens of India and he could reside with both of them in India.

50. Whilst the Tribunal acknowledges the custodial arrangements of the parents and the care that the applicant provides his child, this could still occur if they returned to India.

51. The applicant has not raised any protection claims and there is nothing before the Tribunal to suggest it would be in breach of any other international obligations.

52. The Tribunal has considered the circumstances and finds that it would not be a breach of Australia’s international obligations under the CRC as the family could maintain their custodial arrangements in India. The Tribunal also finds that it would not be in breach of any other international agreements.

53. The Tribunal gives this consideration a little weight in favour of not cancelling the visa.

    the impact of cancellation on any victims of family violence, if family violence is a factor

54. The applicant has confirmed that his ex-wife was recently removed from the interim intervention order but claims that she has abused the child. The Tribunal notes that there was not a final intervention order granted and the interim one has expired.

1. The Tribunal gives this consideration no weight in its considerations.

   any other relevant matters

2. The applicant explained that the cancellation of his wife’s permanent visa was out of his control and he is separate from the whole situation. He stated that it has ruined 9 years of his life and he was 25 when it occurred. He explained that if they lived in India her family and where she may live is 100km away from where he would live and his son is an Australian Citizen and in a stable school environment and this would cause significant disruption to him.

3. They currently live only 2km apart in Australia.

4. Whilst the Tribunal has empathy for the situation facing the applicant, the requirement of his visa is that he is sponsored by his wife who held a permanent visa and now longer does. Further, whilst the applicant claims she would live with her family in India which is much further away from his residence, they are currently living in a different country and have chosen to live close to each other and could emulate this situation in India. No reasons were put forward as to why they could not.

5. The Tribunal has considered the other factors raised by the applicant and an give them no weight either in favour or against cancelling the visa.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

7. The Tribunal affirms the decision to cancel the visa.

   Rachel Westaway
   Senior 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.

   102Passenger cards to be correct

   A non‑citizen must fill in his or her passenger card in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given.

   103Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

   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.