Chou (Migration)

[2022] AATA 2307

Chou (Migration) [2022] AATA 2307 (28 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Sebastian Chou

REPRESENTATIVE:  Mr Donald Chi Ho Chen

CASE NUMBER:  2111452

HOME AFFAIRS REFERENCE(S):          BCC2017/2688341

MEMBER:Antoinette Younes

DATE:28 April 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 820 (Spouse) visa.

Statement made on 28 April 2022 at 10:23 AM

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – ground for cancellation – consequential cancellation – mother’s visa cancellation set aside – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 78, 140

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 Immigration and Border Protection to cancel the applicant’s Subclass 820 (Spouse) visa under s 140(2) of the Migration Act 1958 (Cth) (the Act).

2. This matter was previously before the Tribunal (differently constituted). On 29 July 2021, the Court remitted the matter to the Tribunal for reconsideration and determination according to law. On the first occasion, the applicant appeared before the Tribunal on 18 January 2018.  With his mother, he also appeared before the Tribunal on 21 April 2022.

3. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

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

   BACKGROUND

5. The applicant is a minor child born in August 2014. On 15 June 2012, the applicant’s mother, Ms Chandy Chou and Luis Alberto Benavides lodged an application for a Combined Partner (UK 820/BS 801) visa. On 21 June 2012, Ms Chou was granted the first stage, the temporary Class UK Subclass 820 Partner visa. On 5 May 2014 and in relation to the second stage of the visa application, that is the permanent Class BS Subclass 801 Partner visa, the Department requested evidence from Ms Chou that the relationship with Mr Benavides was ongoing and continuing. She responded on 28 May 2014 and she provided several documents. One of those documents was a Statutory Declaration dated 26 May 2014, referring to, among other things, being pregnant with the applicant.

6. Subsequent events revealed that the applicant’s biological father was not Mr Benavides but Mr Ben. Ms Chou claimed the pregnancy was a result of a one-night stand with Mr Ben in Cambodia. The delegate considered all the material and decided that the ground for cancellation arises and that Ms Chou’s visa should be cancelled. In essence, the delegate was satisfied that Ms Chou had breached ss 101 and 104 of the Act and cancelled Ms Chou’s visa. For the reasons outlined in the delegate’s decision, the delegate was satisfied that Ms Chou had ceased to be in a spousal relationship with Mr Benavides prior to the grant of the Subclass 801 visa. The delegate was satisfied that the spousal relationship with Mr Benavides ended by the time Ms Chou provided her Statutory Declaration in May 2014, prior to the grant of the Subclass 801 visa. Consequently, the delegate cancelled Ms Chou’s visa under s 109 of the Act. On review, the delegate’s decision was affirmed by the previous Tribunal Member.

7. The applicant’s visa was cancelled pursuant to s 140(2) on 28 July 2017, on the same day as the cancellation of Ms Chou’s visa.

   RELEVANT LAW

8. Sections 140(1), (2) and (3) provide three distinct circumstances in which the cancellation of a visa could occur subsequent to the cancellation of another visa.

9. Section 140 of the Act provides:

   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.

   (3)      If:

   (a)a person’s visa (the cancelled visa) is cancelled under any provision of this Act; and

   (b)      the person is a parent of another person; and

   (c)the other person holds a particular visa (the other visa), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;

   the other visa is also cancelled.

10. Section 78(1) of the Act provides that where a child born in Australia is a non-citizen at the time of birth and one of the child’s parents holds a visa and the other parent does not hold a visa, the child is taken to have been granted at birth the same kind and class of visa, and on the same terms and conditions, as the visa of that parent. Therefore, Sebastian was deemed at the time of his birth to hold a Subclass 820 visa by operation of s 78(1).

11. The Tribunal is satisfied that ss 140(1) and 140(3) do not apply to the applicant.  There have been earlier submissions to the Tribunal contending that the delegate had incorrectly identified the statutory provision under which the applicant was granted the partner visa and argued that the applicant may have continued to hold a Subclass 801 visa. The decision under review is the cancellation of the temporary visa, Subclass 820. Any other possible visa entitlements are not matters for this Tribunal.

12. In the Tribunal Decision relating to Ms Chou, dated 28 April 2022, the Tribunal found that although the ground for cancellation arose, on consideration of the relevant discretionary grounds, the Tribunal decided that Ms Chou’s visa should not be cancelled.  In the review relating to Ms Chou, the Tribunal was satisfied that on balance, the matters in favour of Ms Chou outweighed the other aspects in favour of cancellation. Consequently, the Tribunal decided that although there was non-compliance by Ms Chou in the way described in the notice given under s 107 of the Act, having regard to all the relevant circumstances, the Tribunal concluded that Ms Chou’s visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel Ms Chou’s visa.

13. Considering the Decision relating to Ms Chou, the Tribunal finds that there are no grounds for cancelling the applicant’s visa under s 140(2) of the Act. The Tribunal is satisfied that the statutory criteria for the exercise of power under s 140(2) are not met in the applicant’s case. Accordingly, the correct decision is to set aside the cancellation decision under s 140(2).

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

    Antoinette Younes
    Senior Member