Ivanka (Migration)

[2023] AATA 2089

Ivanka (Migration) [2023] AATA 2089 (19 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Stefanny Ivanka

REPRESENTATIVE:  Mr Alim Lim

CASE NUMBER:  2216423

HOME AFFAIRS REFERENCE(S):          BCC20211000946

MEMBER:SM Michael Cooke

DATE:19 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2023 at 1:23pm

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – ground for cancellation – incorrect information in visa application – dependent child – relationship status – de facto relationship – commitment aspect – juvenile romance – childhood sweethearts – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 101, 107, 109

Migration Regulations 1994 (Cth), r 1.09A

CASES
He v MIBP [2017] FCAFC 206

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

2. The delegate cancelled the visa on the basis that the applicant failed to comply with section 101(b) of the Act. 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 was represented in relation to the review.

4. 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

5. 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.

6. 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.

7. 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?

8. 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 by the delegate and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:

   ·If the delegate assessing the applicant’s and her mother’s combined Partner visa application form had been aware of the apparent incorrect information at the time of their decision, this would have prompted them to write to her and her mother to put the apparently incorrect information to them both and to also assess whether there were compelling reasons to waive that requirement.

   ·As it stands, because the delegate was unaware of the apparently incorrect information at the time, they were prevented from being able to properly assess whether the applicant or her mother met this requirement, or if it should be waived; and that in providing this incorrect information to the delegate, her mother has been granted a Partner (Provisional, subclass 820) visa to which she may not have been entitled.

   ·If the applicant’s mother were not granted her primary Partner (Provisional, subclass 820) visa the visa holder would not have been eligible to be granted her secondary Partner (Provisional, subclass 820) visa; her mother would not have been eligible to be granted a primary Partner (Residence, subclass 801) visa; and the visa holder would not have been eligible to be granted a secondary Partner (Residence, subclass 801) visa.

   Findings as to whether there was relevant non-compliance.

9. The Tribunal has had the benefit of reading the submission submitted by the applicant’s representative which was tendered to the Department in response to the NOICC. It appears that the delegate sought to categorize the applicant’s relationship with the person (who she has sponsored subsequently for migration) - as a de facto partner relationship. This was based on a number of conclusions from information tendered to the Department as part of a subsequent s.820/801 Partner visa application made by the applicant.

10. The conclusions were based on observations made by the delegate of the relationship between the applicant and her now de facto partner - as revealed in information sourced in the Subclass 820/801 application. In particular, the fact that the parties had instituted a joint bank account in 2019 (when taken into the perspective of their boyfriend/girlfriend relationship) led the delegate to the further conclusion that the parties were already in a de facto relationship at the time of the grant. This would have notionally prevented the applicant from claiming to be the ‘dependent child’ of her mother in that person’s application and which she had previously declared to the Department to be. Hence in making such a finding she was found to have breached s.101(b) of the Act by not revealing such compromising information (in the delegate’s view) to the Department. This led, inexorably, to the cancellation decision (the subject of this review).

11. It is the view of the Tribunal that a decision to make a finding that a de facto relationship exists is heavily dependent on a thorough analysis of the purported relationship pursuant to the rubric in the case called He v MIBP [2017] FCAFC 206 which applied (initiall)y to a married relationship. This reasoning would apply equally to the considerations in r.1.09A for de facto partner cases.

    The requirement that the Tribunal ‘consider’ the circumstances in r.1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a ‘married relationship’. In some cases, the answer may be that there is no material, or insufficient material, to be able to form a conclusion. However, there must be an answer, or a finding, even if the finding is that no conclusion can be reached upon the matter.

12. In the Tribunal’s view, this consideration was not done adequately enough by the delegate. In particular, there has been an erroneous assumption (based on two factors) that the primary criteria in reg.1.09A had been explored and were sufficient to ground a finding that the applicant’s (purported prior) de facto relationship satisfied s.5CB of the Act. The Tribunal disagrees and finds, specifically, that the commitment aspect of a genuine de facto relationship (‘not living separately and apart on a permanent basis’) as required by s.5CB had not been explored adequately enough. The finding that a de facto partner relationship was proven prior to the grant of the applicant’s mother’s visa was fatal to the applicant. This was because the conclusion was taken that the undeclared details of the applicant’s relationship with her later de facto partner were considered to be sufficient to ground a breach of s.101(b) of the Act for providing (previously) ‘incorrect information’. Effectively, this conclusion brought on the post facto cancellation (the subject of this review) of her previous visa grant where she was attached as a secondary applicant on her mother’s visa grant.

13. The history of the relationship is one where a juvenile romance (‘childhood sweethearts’) blossomed into an eventual life commitment. The eventual partner (following his arrival in Australia) lived at the applicant’s parent’s home and paid rent to the parents and lived in a separate room. The boyfriend/girlfriend relationship was patently acquiesced in by the applicant’s mother and stepfather. Sometime after the grant of her permanent residency she and her partner decided to take their boyfriend/girlfriend relationship to the next level. The made application to have it registered as a proper de facto relationship by the NSW authorities charged with that task. This was well after the decision to open a joint bank account in 2019 - which is only one of the many considerations found in reg.1.09A. As outlined in He, satisfying reg. 1.09A is the pre-emptive requirement for making a finding that a de facto relationship meets the requirements of s.5CB of the Act. The Tribunal finds that this was not done to the standard required by the decision in He.

14. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

15. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

    Michael Cooke
    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.

    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.