Galapon (Migration)

[2019] AATA 5654

Galapon (Migration) [2019] AATA 5654 (19 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Christine Joy Galapon

CASE NUMBER:  1908442

DIBP REFERENCE(S):  BCC2018/510946 CLF2013/9180

MEMBER:Russell Matheson

DATE:19 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Partner (Residence) (Class BS) Subclass 801 visa.

Statement made on 19 August 2019 at 8:36am

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – failed to notify department regarding changes in circumstances – genuine mistake regarding de facto relationship commencement date – credible witness – no non-compliance – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 109
Migration Regulations 1994 (Cth), rr 1.03, 2.03A

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 applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of the Philippines, born in December 1993. She was granted the Partner (Residence) (Class BS) Subclass 801 visa on 31 October 2015. On 24 September 2018 the applicant was issued with a notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.104 of the Act. The applicant provided a response in regard to the NOICC on 5 October 2018. The applicant’s visa was cancelled on 29 March 2019. The applicant seeks review of the delegate’s decision.

3. The delegate cancelled the visa on the basis that the applicant did not comply with s.104 of the Act because she did not notify the Department of Immigration in regard to changes in her circumstances. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 6 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband.  

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Departmental case files and the Tribunal’s case file and the evidence provided at the Tribunal hearing.

   Section 109

8. 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.

9. 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.

10. 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?

11. 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.104 of the Act, changes in circumstances to be notified.

12. Information detailed in the NOICC, on 24 September 2018 and mirrored in the delegate’s decision record on 3 March 2019, is as follows:

13. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

14. On 30 August 2012 the visa holder entered Australia holding a Prospective Marriage (Subclass 300) visa as a dependent visa holder of her father, Mr Guilmar Marshall Reyes Bicera.

15. On 31 December 2012 the visa holder’s father lodged an onshore visa application for a combined Partner (Temporary) Partner (Residence) visa, sponsored by his wife Ms Racquel Calabazaron. The visa holder was included as a dependent visa applicant with the application.

16. A Form 40SP ‘ Sponsorship for a partner to migrate to Australia’ was completed and signed by the sponsor (Ms Calabazaron) on 30 December 2012 as follows;

    Question 34

    Give details of ALL your fiancé(e) or partner’s dependent family members who are included in this sponsorship:

    Family name  Galapon

    Given names  Christine Joy Vea

    Date of birth  2 December 1993

    A tick was placed in the box beside ‘female’

    Country of residence             Australia

    Citizenship  Filipino

17. In support of this visa application, Form 47A ‘ details of child or other dependent family member aged 18 years or over’ was completed and signed by the visa holder, her father and the sponsor (Ms Calabazaron) on 30 December 2012.

    Question 4

    Dependents full name

    Family name  Galapon

    Given names  Christine Joy Vea

    Question 16

    Dependent’s current relationship status

    Never married or been in a de facto relationship

    A tick was placed in the box beside this field.

    Question 17

    Does this dependent live at the same address as the main visa applicant?

    A tick was placed in the box beside ‘no’

    Provide this dependent’s address

    Unit 3/15 Mascot Drive, Eastlakes NSW 2018

18. On 4 July 2013, based on the information provided above the departmental delegate granted the visa holder a partner visa as a dependent visa holder. The delegate was satisfied the visa holder was a dependent child of the primary applicant, as per the definition in r.1.03 of the Migration Regulations 1994 (the Regulations) which stated:

19.      dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

(a)  has not turned 18; or

(b)  has turned 18 and:

(i)  is dependent on that person; or

(ii)  is incapacitated for work due to the total or partial loss of the child’s or step-child's bodily or mental functions.

1. On 29 November 2014 the visa holder submitted a Form 929 ‘Change of address and/or passport details’ to the Department which the visa holder completed and signed. At question 8 the visa holder stated that she had changed her current residential and postal address to ‘2/1171 Botany Lane, Mascot NSW 2020’.

2. On 9 April 2015 the visa holder gave birth to her son.

3. On 22 April 2015 the visa holder’s appointed registered migration agent sent an email to the Department which declared the visa holder’s son’s birth. On 31 October 2015 the visa holder’s son was granted a Partner (Temporary) visa and was added as a dependent to her father’s pending Partner (Residence) visa application.  On the same day the visa holder and her son Deon were subsequently granted Partner (Residence) visas, as dependent visa holders.

4. On 22 December 2015 the visa holder’s now husband, Mr Alan Kirsley Appadoo, lodged an application for a Partner (Temporary)/ Partner (Residence) visa, sponsored by the visa holder.

5. The information the visa holder and her husband provided as part of this visa application states that their de facto relationship commenced on 29 May 2013, as follows:

   1.    Form 47SP ‘Application for migration Australia by a partner’ – At Part G on page 14 which the visa holder’s husband completed, he stated as follows:

   Question 57

   Have you and your fiancé (e) or partner met in person?

   A tick was placed in the box beside ‘yes’.

   When did you first meet?

   6/2/2013

   Question 58

   When did you and your fiancé (e) or partner commit to a shared life together to the exclusion of all others?

   29/5/2013

   Question 59

   Since you and your fiancé (e) or partner committed to a shared life to the exclusion of all others, have you lived separately and a part for any periods of time?

   A tick was placed in the box beside ‘No’.

   2.    Form 40 SP ‘ Sponsorship for a partner to migrate to Australia’ at part D on page 8, the visa holder responded as follows:

   Question 21

   What is your current relationship status with the visa applicant?

   Married

   A tick was placed in the box beside this field

   De Facto

   A tick was also placed in a box beside this field

   Date relationship began

   29/5/2013

   Question 23

   Have you and the visa applicant met in person?

   A tick was also placed in a box beside ‘yes’.

   When did you first meet?

   6/2/2013

   Where did you first meet?

   Sydney

   Question 24

   When did you and the visa applicant commit to a shared life together to the exclusion of all others?

   29/5/2013

   3.    Form 888 ‘statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application’ Completed and signed by Guilmar Marshall Reyes Bicera on 23 December 2015. He relevantly stated as follows:

   Question 3

   State how you know the applicant and the applicant’s partner or fiancé (e), and indicate how often you have been in contact with them.

   THE APPLICANT, ALAN APPADOO, WAS THE PARTNER OF MISS CHRISTINE JOY GALAPON WHO IS MY DAUGHTER. THEY HAVE BEEN TOGETHER SINCE 06/02.2013. THEY HAVE LIVED TOGETHER SINCE MAY 2013 IN BOTANY AND THEN MOVED TO MASCOT …

6. It appears that the visa holder on the evidence above failed to advise the Department after she applied for a partner visa of a change of circumstances which rendered the answers in her visa application form incorrect. Further, the visa holder failed to advise that she commenced a de facto relationship on 29 May 2013 and she changed her residential address on this date. 

7. The delegate determined that the visa holder failed to comply with the requirements of s.104 of the Act as she did not advise of a change of circumstances prior to the grant of her partner visa.

8. The delegate also determined that the visa holder commenced a de facto relationship with her husband on 29 May 2013, and it appears she did not satisfy the legislative definition of ‘dependent child’ as per the definition in r.103 of the Regulations at the time of the grant of her partner visa on 4 July 2013.

9. The Applicant in her response dated 5 October 2018 provided a clear timeline in relation to their relationship that can be summarised as follows:

   ·6 February 2013: The Applicant started dating her current partner

   ·22 March 2013: They became a couple ‘officially’.

   ·15 May 2013: The Applicant moved in to Mr. Appadoo’s neighbouring house and her father was paying her rental cost when she moved into the unit located at 177 Kings Street, Mascot, NSW 2020.

   ·24 May 2013: The Applicant and Mr Appadoo were required to vacate their individual units after receiving a notice from the Botany Bay Council that both premises next to one another were illegally altered for the purpose of shared accommodation. Both the applicant and Mr Appadoo decided to jointly lease a unit together.

   ·29 May 2013: The Applicant commenced shared accommodation with her partner and both individuals were paying separate rents and living in separate bedrooms while leasing the property located at 11/4 Banksia Street, Botany NSW.

   ·28 May 2014: The Applicant and her partner entered into a de facto relationship and decided to take the relationship to another level. They registered their de facto relationship at the Registry of Births, Deaths and Marriages in the State of New South Wales on that day. (Registration number: 77136/2014).

   ·30 May 2014: The Applicant and her husband moved in together as de facto partners into the unit located at Flat 2/1171 Botany Lane, Mascot NSW 2020.

   ·9 April 2015: Their son, Deon Timothy Appadoo, was born in the State of New South Wales.

   ·31 October 2015: The Applicant and her son, Deon, were granted Partner (Resident) visa as dependent visa holders.

   ·19 December 2015: The Applicant and her husband registered their marriage at the Registry of Births, Deaths and Marriages in the State of New South Wales.

   ·29 March 2018: The Applicant and her husband bought their first home in the local suburb of Liverpool.

10. In her written response to the Tribunal of 26 July 2019 the applicant emphasised the fact it was an honest mistake on their part stating that they had committed to a shared life to the exclusion of all others on 29 May 2013. She further stated that the error is fundamentally attributed to their inaccurate recollection of events as some years had passed since the actual event. The applicant and husband gave oral evidence at the review hearing that the parties were not in a de facto relationship at the time and were living in separate rooms in a shared arrangement as boyfriend and girlfriend. They further stated that they never became intimate until they entered into a committed relationship when they decided to take their relationship to another level on 28 May 2014. They registered their de facto relationship at the Registry of Births, Deaths and Marriages in the state of New South Wales on the same day.

11. The Applicant and her husband submitted, at the time of commencement of living in the same property, they did not have any joint ownership of real estate or other major assets, nor did they have any joint liabilities. They did not pool their financial resources and neither had any legal obligation to the other with regard to their finances. It was just a sharing of accommodation type of arrangement. The applicant and her husband gave evidence that they paid separate shares of weekly rent for separate rooms to the real estate agent. The real estate agent provided a statement (TF folio 44) to confirm the parties were living in a shared arrangement. They also submit their relationship at the time did not show any attributes of a de facto relationship.

12. The applicant and her husband do not deny that they were in an intimate relationship but said this only occurred after they registered their de facto relationship and they had not been intimate prior to this because of their religious beliefs. The applicant claims that her father’s response on the Form 888 was given under a false belief of them being in a partner relationship because of their shared living arrangements. The Tribunal accepts that this may be the case based on the evidence presented. The applicant and her husband also provided evidence that their Facebook pages did not indicate that they were living in a de facto relationship and they did not present themselves to others as being in such a relationship when socialising with friends and acquaintances. There is little evidence before the Tribunal to indicate the parties represented themselves to others as being in a de facto relationship.  

13. The applicant and her husband both claim to have made a genuine mistake as to when their de facto relationship commenced. They claim that in May 2013 they were purely in a shared accommodation arrangement and certainly did not satisfy the legal definition of a de facto relationship. The applicant also emphasised the fact that she also lived in a shared arrangement next door to her now husband before moving in with him and remained dependent upon her father for financial support. She further stated that they moved in together after being simultaneously evicted from their individual premises by the local council. 

14. The applicant and her husband maintained that the time when they were committed in a de facto relationship was around the end of May 2014, which is well after her permanent visa was granted by the Department and there was no change in her circumstances until then and therefore she believed that there were no reasons to notify the Department. The Tribunal found the applicant and her husband evidence believable and persuasive.

15. The applicant in her written response also referred to ‘Division 1.2 Interpretation/ Reg 1.09A De facto partner and de facto relationships’ Procedures Advice Manual 3. These requirements are set out in r.2.03A and the policy elaborates on this requirement which imposes a minimum length of relationship requirements (12 months) on persons claiming a de facto relationship, unless the relationship has been registered in accordance with the Acts Interpretation (Registered Relationships) Regulations 2019. By the fact that the Applicant had only been in a relationship with her partner for three months and had not registered their relationship in accordance with the relevant Act, a de facto relationship is not established in May 2013. The Tribunal accepts this is the case.

16. The Tribunal finds on the evidence provided that the applicant was not in a de facto relationship in May 2013 and that she was living in a shared accommodation arrangement that did not represent an exclusive commitment to a shared life together with her now husband. The Tribunal accepts the date 29 May 2013 marked the commencement of the applicants shared accommodation arrangement. The Tribunal accepts the applicants and her husband’s explanation as being an honest mistake and not deliberate when completing their partner visa application lodged on 22 December 2015.

17. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. The Tribunal is of the view there was no non-compliance because the applicant was not in a de facto relationship, and there was no requirement to notify the Department of a change in circumstances under s.104 as she was not in a de facto relationship until 24 may 2014. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

18. The Tribunal has decided that there was no non-compliance by the applicant in the way described in the notice given under s.107 of the Act. The Tribunal concludes that the visa should not be cancelled.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Partner (Residence) (Class BS) Subclass 801 visa.

    Russell Matheson
    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.

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    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.