Dichoso (Migration)

[2019] AATA 1380

Dichoso (Migration) [2019] AATA 1380 (7 May 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Edwin Tugadi Dichoso

Ms Ethel De Guzman Sartorio

Mr Timothy Edward Marquez Dichoso Miss Marl Angela Edd Marquez Dichoso

CASE NUMBER:  1821327

DIBP REFERENCE(S):  BCC2018/3819824

MEMBER:  Wan Shum

DATE:  7 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 07 May 2019 at 4:46pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – incorrect information in visa application – parental rights to the children – legal impediment to travel – care and legal custody – consideration of discretion – biological mother has parental rights under the law of the Philippines – mother had not given her express consent or authorisation – the children’s desires to remain in Australia – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41

CASES
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 Immigration to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

1. The delegate cancelled the visa on the basis that the first named applicant had breached s.101(b) by giving incorrect answers on his visa application form. The visas of the other applicants were automatically cancelled as a consequence of that cancellation. The applicants have sought review in respect of the cancellation of their visas and were represented in relation to the review by a registered migration agent.

1. As the other applicants’ visas were cancelled not by a decision but by force of the operation of s.140(1) of the Act, the Tribunal has no jurisdiction with respect to the other applicants. The only decision that is before the Tribunal is the cancellation of the visa held by the first named applicant (the applicant).

1. The issue is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

1. The applicant appeared before the Tribunal on 12 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the other applicants who also attended and Mr Robert Vivian Hupputz, a friend of the applicants.

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

BACKGROUND

1. The applicant had applied for a Subclass 187 visa on 28 June 2017. The applicant completed and submitted the form ‘Application for Permanent Employer Sponsored or Nominated Visa’ and included details of family members. These being his de facto partner, Ms Ethel De Guzman Sartorio, and his two children from an earlier marriage. The visas were granted on 22 January 2018. His children were aged 16 and 17 at the time the visas were granted. They entered Australia on 24 April 2018.

1. Following correspondence received in June 2018 from Mrs Marlyn Dichoso, the children’s biological mother and the applicant’s wife from whom he is separated, it was apparent that she was not aware that their children had permanent visas for Australia. She advised the Department of Immigration that she had heard that her daughter was in Australia through a friend/relative. She informed the Department that in 2017 the applicant had sent her a form seeking her consent to grant a visa to her two minor children but that she did not sign that form. She has not signed any authorisation to allow her daughter to travel to Australia and does not consent to her daughter migrating to Australia permanently.

1. Based on this information, the delegate considered that, when completing the visa application form, the applicant had breached s.101(b) by giving incorrect answers to questions regarding custody and parental rights and obligations in relation to his two children. Specifically, the delegate considered the responses were incorrect to the following questions:

Is this child in the primary applicant's care and legal custody? Yes

Does any other person have custodial, access or guardianship rights to this child? Yes

Give details: Ms Ethel De Guzman SARTORIO

Are there any legal impediments to this child's travel? No

Critical data confirmation - Migrating family members: Is the above information correct?

Yes

1. The delegate sent the applicant a notice of intention to consider cancellation (NOICC) of his visa on 20 June 2018 setting out the alleged breaches.

1. The Department received a response on 9 July 2018 from the applicant’s representative, in which the applicant essentially claimed that the mother had abandoned the children and that she has not had any contact with him or their children or any input to the children’s care/custody/support since she and the visa holder separated in 2010. It was submitted that he did not attempt to hide the fact that the biological mother was Ms Marquez (her married name being Mrs Marlyn Dichoso). He referred to having tried to obtain her approval for the children to migrate, but that there was no impediment to travel when she declined to approve. The applicant claimed that he had answered the questions correctly based on his understanding of the questions.

1. A decision was made to cancel the visa on 18 July 2018. The delegate found that there was a breach of s.101(b). The delegate found that the applicant had provided incorrect information on the visa application form ‘Application for Permanent Employer Sponsored or Nominated Visa’, as set out above. The delegate considered that the applicant had not complied with s.101(b) because the information before the delegate indicated that the children’s’ biological mother, Ms Marquez, continues to jointly exercise parental authority over their common children in accordance with the Family Code of the Philippines. And that her lack of consent for the children to migrate to Australia and be granted the visas was a legal impediment to the children travelling to Australia once that visa was granted.

Relevant laws of the Philippines

1. According to the US Department of State, the law does not provide for divorce, although courts generally recognise the legality of divorces obtained in other countries if one of the parties was a foreign national. A legal annulment may terminate a marriage, and separation is possible but these options are complex and costly. Informal separations are common.1

1. The process for obtaining a legal separation and resolving subsequent custody issues is set out in The Family Code of the Philippines – Executive Order No.209 (‘The Family Code’). Article 55 of The Family Code sets out grounds for legal separation.

1. Section IX of the Family Code of the Philippines is entitled ‘Parental Authority’. Article 211 states that ‘the father and the mother shall jointly exercise parental authority over the persons of their common children’ and that ‘in case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary’. Article 210 states that ‘parental authority and responsibility may not be renounced or transferred except in the cases

1 US Department of State 2018, Country Reports on Human Rights Practices 2018 – Philippines, Section 6

authorized by law’. Article 213 states that ‘in case of separation of the parents, parental authority shall be exercised by the parent designated by the Court’ and that ‘the Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit’. Moreover, ‘no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise’.2 A Supreme Court of the Philippines resolution, the Rule on Guardianship of Minors, provides a legal means to petition for guardianship over a child. According to the resolution:

The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on guardianship.3

1. Sections 1.2–1.4 of Administrative Order No.2, Series of 2006, Amendments to Omnibus Guidelines for Minors Travelling Abroad, state that children are generally not required to obtain travel clearances when travelling abroad with one or both parents. A travel clearance is ‘a document issued by the DSWD to a Filipino child (below 18 years of age) traveling abroad alone or with someone other than his/her parents’.4

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

1. 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.

1. 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?

1. 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 ss.101(b) in the following respects:

   ·the applicant answered ‘yes’ to the questions ‘Is this child in the primary applicant's care and legal custody?’ and ‘Does any other person have custodial, access or guardianship rights to this child? Give details:’. In relation to the latter, he gave

2 The Family Code of the Philippines – Executive Order 209, Republic of the Philippines, effective 6 July 1987, 20190213145627.

3 ‘Rule on Guardianship of Minors’, Supreme Court of the Philippines, 1 April 2003, 20190213140813. 4 Department of Social Welfare and Development n.d. Travel Clearance for Minors, accessed 27 August 2013 < of Ms Ethel De Guzman Sartorio, but did not provide details of Mrs Marlyn Dichoso, the biological mother.

·the applicant answered ‘no’ to the question ‘Are there any legal impediments to this child's travel?’ in respect of each of his children;

·the applicant answered ‘yes’ to the question ‘Critical data confirmation - Migrating family members: Is the above information correct?’

1. The applicant claims that he had answered these questions correctly as he understood the questions. However, even if this was the case, which the Tribunal does not accept for the reasons given below, s.100 provides that for the purposes of Subdivision C, an answer to a question is incorrect even if the person who gave it or caused it to be given did not know that it was incorrect. In considering whether the questions identified in the notice were incorrect, the Tribunal has had regard to the applicant’s response and the laws of the Philippines regarding children whose biological parents are separated. The applicant claims that the mother abandoned the children and that she has not had any contact with him or their children or any input to the children’s care/custody/support since she and the visa holder separated in July 2010. He had lived in Japan from 2007 to 2010, returned to the Philippines, and then separated from his wife. He then moved to Australia from January 2012 when he was sponsored under the 457 program. The children had been living with his mother since they were born. The statutory declarations of the children, and the statement of his mother, are consistent with this claim. It is difficult for the Tribunal to ascertain with any certainty when the separation occurred as it was not a legal separation and there is no official record. The only evidence before it is their own claims. Nevertheless, it is prepared to accept that the biological mother is not actively involved in the children’s lives. This is because it is clear from the email correspondence between Mrs Dichoso and the Department in June 2018 that she had heard that her daughter was in Australia through a friend/relative. She thus did not have firsthand knowledge. Furthermore, there was no mention of her son. Based on this correspondence it does appear to the Tribunal that she is not in regular contact with her children.

1. Even so, regardless of whether the mother of the children has been involved in their daily care, the laws of the Philippines state that the mother continues to have parental rights, including access, until the children are emancipated or by order of the Court. The applicant confirmed to the Tribunal at the hearing that there is no order of the Court and he does not have sole legal custody of his children. The children were not yet 21, being the age of emancipation in the Philippines, when the decision to grant the visas was made.5 Therefore, Mrs Dichoso did have parental rights to both children under the law of the Philippines when the visa application form was submitted and when the visas were granted.

1. Having regard to these facts, the Tribunal will first consider the correctness of his answer to the question whether any other person has custodial, access or guardianship rights to the children. As the children’s mother, Mrs Dichoso had custodial or access rights. His answer to the question of ‘yes’ was thus correct. However, he had only given the name of ‘Ms Ethel De Guzman Sartorio’ in the details section. When asked about why he had given Ms Sartorio’s details in answer to this question, the applicant said the children’s schools had been informed that she was a guardian and provided evidence in the form of copies of school information and registration forms which had been completed for each of the children’s schools in the Philippines, referring to Ms Sartorio as a ‘parent/guardian’. This appears to be their representation to each of the schools and a reflection of their wishes, but there is nothing to indicate that this would be recognised in law in the Philippines. The Tribunal concludes that Ms Sartorio does not have custodial, access or guardianship rights which are

5 Refer Articles 234–237 of the Family Code of the Philippines.

rights in law. Therefore, the question was answered incorrectly. He should have given Mrs Dichoso’s name in the details section.

1. Given this finding, it is not necessary to consider whether he had also given incorrect answers to the other questions. However, the Tribunal notes the following – under the laws of the Philippines, there is a general requirement for minors travelling abroad to obtain a travel clearance from the Department of Social Welfare and Development unless they are travelling with one or both parents. There does not appear to be any legal requirement that both parents agree to the travel. It is further noted that certain children will not be issued with travel clearances, specifically ‘A minor who is the subject of ongoing custody battle between parents will not be issued a travel clearance unless a Court Order is issued to allow the child to travel abroad with either parent or authorized guardian OR A child whose name is included in the Bureau of Immigration’s watchlist of minors travelling abroad will be prevented from leaving the country.’6 However, there is no evidence before the Tribunal of an ongoing custody battle or that either child’s name was included in the watchlist of minors. Thus, as they were travelling with their father, no travel clearance was required for either child. It thus appears to the Tribunal that while their mother has said she did not agree to their remaining in Australia permanently, it was correct to say ‘no’ to the question whether there was a legal impediment to travel.

1. In terms of the question regarding care and legal custody, the delegate considered that the question was answered partially incorrectly in that the children were in the care of the grandmother and not the applicant who has been residing in Australia. The delegate recognised that the question did not refer to ‘sole legal custody’ and accepted that the applicant did have legal custody as the father. However, the delegate considered that the question was answered incorrectly on the whole. Having regard to their own evidence, the children were in their grandmother’s daily care when the visa application was lodged, and had been for some time. But there is no evidence that she has legal custody of the children. Prima facie it could be said that they were not in their father’s care as they were living with their grandmother, although their evidence is that it was the applicant who has provided financial support and paid for food, clothing and transport. However, the Tribunal notes the answers to the question require selecting ‘yes’ or ‘no’ and does not allow the separation of these two related but different concepts. It is not clear to the Tribunal whether it could be said the answer to the question is incorrect in circumstances where the question involved two distinct concepts and was correctly answered in part. But given its finding above regarding an incorrect answer being given to another question on the form; it is not necessary to reach a concluded view on this point.

1. In summary, the Tribunal finds that incorrect responses were given to the questions ‘Does any other person have custodial, access or guardianship rights to this child? Give details:’, and ‘Critical data confirmation - Migrating family members: Is the above information correct?’.

1. Given this, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

1. 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).

6 DSWD Travel Clearance for Filipino Minors, Embassy of the Philippines (Singapore), n.d., accessed 13 February 2019, 20190213144138.

1. 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 r.2.41 of the Regulations.

1. 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 Procedures 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.

1. The applicant’s response and relevant matters have been considered below.

The correct information

1. The applicant claims that he did answer the questions correctly as the children are in his primary care and custody because the biological mother has had no interest in their day to day care. He only gave the details of his de facto partner in response to the question whether there was any other person with custody, access or guardianship rights.

1. The correct information is that the children’s biological mother, while separated from the applicant, continued to have parental responsibility of the children who were not yet 21. This is the age of emancipation according to Articles 234–237 of the Family Code of the Philippines.7 The correct information is that Ms Sartorio, the applicant’s current partner, did not have custodial, access or guardianship rights to the children.

1. Given that the applicant had attempted to obtain Mrs Dichoso’s consent on two occasions, once prior to the visa application being lodged and once afterwards but prior to the visas being granted, the Tribunal does not accept his claim that he had answered the questions correctly as he understood them. While it accepts that he had provided copies of their birth certificates which list ‘Marlyn Marquez’ as the birth mother, it considers that his decision not to give details of Mrs Dichoso (nee Marquez) as a person who had custodial or access rights was deliberate so as not to draw attention to the need for consent of another party.

1. The Tribunal notes however that Article 211 of the Family Code of the Philippines provides that ‘the father and the mother shall jointly exercise parental authority over the persons of their common children’ and that ‘in case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary’. It is thus possible that if they disagreed on the issue of where the children were to live, the applicant’s decision would outweigh Mrs Dichoso’s.

The content of the genuine document (if any)

1. This is not relevant in this 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

1. The decision to grant the visas to himself and his children would have been based on this incorrect information, as no assessment was made as to whether public interest criterion (PIC) 4017 was met. It appears that no further inquiries were made regarding the biological mother, whose name appears on the birth certificates, and no requests were made for the

7 Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of twenty-one years.

‘Consent to grant an Australian visa to a child under the age of 18 years’ form. This is the usual practice of the Department where there are children under the age of 18 years included in the application and there is another parent or party with parental responsibility who is not a visa applicant.

1. It is clear that their mother had not given her express consent or authorisation. The Tribunal considers the applicant’s failure to provide the correct information a serious breach as the delegate was not in a position to ascertain whether (a) the law of the applicant's home country permits the removal of the applicant; (b) each person who can lawfully determine where the applicant is to live consents to the grant of the visa; or (c) the grant of the visa would be consistent with any Australian child order in force in relation to the applicant (PIC 4017).

1. These are part of the measures in place to prevent child abduction by one of the parents, although the Tribunal notes that The Hague Convention on the Civil Aspects of International Child Abduction 1980,8 only applies where the child is under 16.9

1. The Tribunal finds that the decision to grant the visas to the applicant was based, wholly or partly, on incorrect information and that the mother did not express her willingness to consent. But the Tribunal acknowledges that even if Australia had recognised the Philippines as a party to the child abduction treaty, the treaty would not have applied in this case given their ages.

The circumstances in which the non-compliance occurred

1. The applicant claimed in his response to the NOICC that he had not given an incorrect answer as the biological mother was not involved in the care/custody of their children since 2010. The applicant denied any non-compliance in these circumstances.

1. The applicant referred to having relied on the advice of a migration agent in terms of the issue of seeking visas for his children. It is apparent to the Tribunal that he was aware that he should obtain the consent of Mrs Dichoso being the other party who has parental responsibility in respect of the children. The Tribunal notes that the applicant attempted to obtain her consent on two different occasions, both before and after the visa application was lodged in June 2017. It thus does not accept that there was not any intention to withhold the information given its relevance to a decision whether or not to grant the visas to the children, and also himself and his de facto partner. It considers the attempt made to obtain her consent strongly suggests otherwise.

1. The applicant and his children claim that Mrs Dichoso refused to sign the forms because her demands for a house were not met. The Tribunal considers that it is possible that unreasonable demands were made but it appears that this demand was made when they met with the biological mother in November 2017. The applicant had already decided to proceed with the visa application before that date. The Tribunal has considered their

8 A multilateral treaty that ‘seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return’, from the Hague Conference on International Law website, accessed 17 April 2019

< According to the Attorney General’s website, the Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country. The Hague Convention also deals with issues of international child access.

9 Article 4 of Hague Convention on International Child Abduction: The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

evcidence that after the meeting, the children spent a few days with their biological mother and felt some connection with her during that time. But other than that, their relationship with their mother appears to be limited to sporadic and occasional communications.

1. Australia has obligations under the Hague Convention on International Child Abduction, and in circumstances where the questions are not correctly answered, persons who have an interest in (or responsibility for) the minor would not be able to take appropriate legal action should they wish to prevent the child from leaving the country. As the visas were granted without obtaining her consent, Mrs Dichoso was not aware that her children had been granted permanent visas and could not take such steps. (In terms of seeking their return, in this case, any attempts to have the children returned under the treaty would not be effective as not only is it not in force between the two countries, but also because of their ages (being over 16).10) Mrs Dichoso’s correspondence with the Department in June 2018 (as set out in the decision record) indicates that she did not consent to her daughter migrating to Australia. However, no further correspondence has been received by the Department from Mrs Dichoso as to the status of her enquiry.

1. While the Tribunal understands that the children agreed to leave Australia with their father and his new partner in April 2018, they were both under 18 at the time. The laws of the Philippines maintain the right of each biological parent until the child turns 21 or by order of the Court. Neither had occurred. It has taken into account their own desires to remain in Australia and does consider their views to be significant given their ages, 17 and 18. Nonetheless, their father should have waited until both children were over 18 (the children were aged 16 and 17 when the visas were granted) to obtain visas for their immigration.

The present circumstances of the visa holder

1. The applicant has lived in Australia for a total of 6 years and is currently working as a welder for Tru-Flo. The applicant’s de facto partner and three children live with him in Australia; the third child was born 3 months ago. The applicant himself has lived apart from his two eldest children except for visits to the Philippines between 2012 and 2018, and prior to that from 2007 to 2010, when he went to work in Japan.

1. The applicant had said that it was hard for him to find employment in the Philippines after he returned from Japan in 2010 due to his age. The applicant said that he would not be able to support his family if he was to return to the Philippines now and that they had no home, although when asked he indicated that they would be able to live in his mother’s home. This is where his children have grown up, having been left in the care of their grandmother since they were young. Following the hearing, the applicant claimed that they would not be able to live with his mother as another relative was living there and that there is no room for them in the small, three bedroom house. The Tribunal has taken into account his concerns as to where he would live, but did not consider this to be a strong reason for not cancelling the visa.

1. The applicant has also provided statements from community organisations regarding his involvement in the Filipino community in Bathurst and some friends in Australia.

1. The applicant’s employer has written a letter stating that he is a great asset to their organisation and losing such a great worker will be a big loss for the organisation. The

10 While the Philippines is a party to the treaty, Australia has not yet accepted its accession and thus does not recognise the Philippines as a party, accessed 17 April 2019

< onontheCivilAspectsofInternationalChildAbduction.aspx>

Tribunal accepts this evidence, and has taken this into account as a reason for not cancelling the visa.

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

1. The applicant denies giving incorrect information on the visa application form.

1. The applicant chose not to disclose that the biological mother had legal rights in respect of their children, in the Tribunal’s view to avoid any need to obtain her consent and to maximise his family’s chances of obtaining permanent visas to remain or come to Australia.

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

1. There is no evidence before the Tribunal of any other instances of non-compliance by the visa holder known to the Minister.

The time that has elapsed since the non-compliance

1. The applicant made the application for the Subclass 187 visa in July 2017. Less than two years have passed since the non-compliance. The children entered Australia in April 2018. The Tribunal considers that the non-compliance was relatively recent.

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

1. The applicant claims to have no criminal record, and there is no evidence before the Tribunal that the applicant has been charged with, or convicted of, any offences.

1. There does not appear to be any breaches of the law since the non-compliance.

Any contribution made by the holder to the community

1. The applicant states that he lives and works in Bathurst, a regional area of NSW, and is involved in Filipino community groups in the area. He has provided letters of support from friends, including Mr Huppatz who attended the hearing, who attest to his good character and a letter from the Bathurst Filipino-Australian Community, of which he is a member. The Tribunal accepts that he is actively involved with the Filipino community in Bathurst and gives this some weight in its consideration.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

1. In terms of mandatory legal consequences, if the applicant’s visa remains cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen. If he fails to depart Australia before the bridging visa expires, he may be detained and removed. There may be restrictions on the applicants’ future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. The Tribunal considers these considerations to be neutral matters that neither support nor undermine the decision to cancel the visa.

Whether there would be consequential cancellations under s.140

1. The applicant’s de facto partner and two of his children’s visas were granted as a dependent on his visa and their visas have been cancelled as a consequence. They have all expressed a desire to remain in Australia, for their futures and the future of the youngest child. The Tribunal has taken into account the impact of the cancellation on four others.

Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.

1. There is no evidence, and the applicant does not claim, that Australia has protection obligations towards him. The Tribunal is also mindful that the applicant is able to make an application for a protection visa if he believes Australia owes him protection obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents claims of harm being canvassed in a protection visa application.

1. The applicant now has three children, the youngest was born in Australia a few months ago. There do not appear to be any international obligations which would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. It notes that the children’s biological mother has lost her access rights to the children since they departed the Philippines, although it does not appear that they maintained a relationship with their mother when they lived there. The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached if the visa is cancelled.

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

1. The applicant claims that he and his de facto partner and three children would suffer hardship if their visas remain cancelled. He refers to the length of time he has spent in Australia and that it would be difficult to return to the Philippines, and secure employment to support his family. They do not appear to have any relatives in Australia, whereas the applicant’s mother (the children’s grandmother) who effectively raised the children remains in the Philippines. It notes that they have only lived in Australia as a family unit for about one year. The Tribunal acknowledges that they believe that they would all have better lives here, and better opportunities for the children in Australia.

1. In considering the matters raised, the Tribunal accepts that the cancellation of the visa could cause hardship to himself and his family and that they wish to remain in Australia.

Summary

1. The Tribunal has formed the view that there was a breach of s.101 of the Act in the way described in the NOICC and that there are grounds for cancelling the visa. The Tribunal has considered the totality of the applicant’s circumstances. While the Tribunal is only reviewing the cancellation of the applicants visa, the effect of the consequential cancellations of his de facto partner and children’s’ visas have also been taken into account.

1. The information before the Tribunal is that the Subclass 187 visa would have been granted to the applicant if Mrs Dichoso’s consent could not be obtained and his children were removed from the application. This is what should have occurred, and then other steps could have been taken to apply for visas for the children later. There are a number of reasons why

he may have decided not to take this route, including the expense of making a child visa application and the evidence required where a child is over 18.

1. The Tribunal considers that the applicant had avoided providing details of the biological mother’s details when completing the relevant section of the form, in the hope that her consent would not be requested by the Department. However, having considered all the matters carefully, the Tribunal is ultimately persuaded that the children’s desires are of significance in this matter. It is clear from the children’s birth certificates that their biological mother was not the applicant’s de facto partner, and that the applicant’s relationship with his de facto partner did not commence until 2015. But at no point did the Department request the consent form to be signed or that any other evidence of parental responsibility/guardianship be provided. The children have expressed their desire to remain in Australia and given their ages, the Tribunal has placed significant weight on this. It notes that, while children in the Philippines are not emancipated until they reach the age of 21, in the case of separation of the parents the children’s choice is taken into account once the child is over 7 years of age.11 Their views are thus relevant in this particular case. Furthermore, this is not a case where child abduction is an issue. While the biological mother’s parental rights have been affected by the children’s departure from the Philippines, the evidence before the Tribunal does suggest that she has maintained limited contact with them over the years. If the visas are reinstated, they could maintain contact with her, and return to the Philippines to see her, if they chose to do so. There is nothing before the Tribunal to suggest that the applicant did not meet the other substantive criteria for a Subclass 187 visa in terms of his employment and skills. He continues to work for the nominating company and is a valued employee. Given all of these matters, the Tribunal concludes that the applicant’s visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

1. The Tribunal has no jurisdiction with respect to the other applicants.

Wan Shum Member

11 Article 213, Family Code of the Philippines.

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

(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.

1. Interpretation

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).

1. Completion 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.

1. Information 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.

1. Incorrect 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.

1. Visa 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.

1. Notice 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.

1. Decision 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.

1. Cancellation 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.