Jokic (Migration) - [2023] AATA 3240

Jokic (Migration) [2023] AATA 3240 (9 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dragomir Jokic
REPRESENTATIVE:  Ms Adele Wan
CASE NUMBER:  2217390
HOME AFFAIRS REFERENCE(S):          BCC2021/1064754
MEMBER:Deputy President Justin Owen
DATE:9 August 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 09 August 2023 at 2:47pm

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – changes in circumstances not notified – two criminal charges and AVO between making of application and granting of visa – personal circumstances, language, mental health treatment and reliance on representative – genuineness of relationship at the time – charges withdrawn and dismissed, and AVO expired – sponsor took Australian citizen child overseas without applicant’s permission – best interests of child – possibility of indefinite detention and opportunity for applying for bridging visa – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 98, 104, 107, 109(1), 111, 501
Migration Regulations 1994 (Cth), r 2.41(c)
Crimes Act 1900 (NSW), ss 91P(1), 91Q(1)
CASES
CFE16 v Minister for Immigration; CFD16 v Minister for Immigration [2020] FCCA 1083
Feng Guo v MIBP [2018] FCCA 1173
MIAC v Khadgi (2010) 190 FCR 248
Promsopa v MICMSMA [2020] FCA 1480
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant is a 34-year-old male born in Croatia. He was granted a Subclass 801 (Spouse) visa on 20 April 2021. The delegate cancelled the visa on 18 November 2022 on the basis that the applicant had not complied with s 104 of the Act which states that changes in circumstances need to be notified to the Department.
The applicant had lodged his Combined Partner (subclass 820/801) visa application on 17 April 2020. In that form the applicant answered NO to the question ‘has any applicant ever been charged with any offence that is currently awaiting legal action?’ On 20 April 2021, on the basis of all the information the applicant provided to the Department, the applicant was granted both the Partner (Temporary) (subclass 820) and the Partner (Permanent) (subclass 801) visa. On 11 May 2021 the Department however received information that the applicant had been charged with two criminal offences on 8 March 2021, and that he was subject to an Apprehended Violence Order (AVO) issued on 19 March 2021.
The delegate noted that the applicant had not informed the Department of his criminal charges and the AVO between the charges being laid in March 2021 and the grant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 3240
Decision Date: 9 August 2023

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr. Jokic, against the Minister's delegate's decision to cancel his Partner (Residence) (Class BS) visa, Subclass 801. The cancellation was based on the delegate's finding that Mr. Jokic had failed to comply with section 104(1) of the Migration Act 1958 (Cth) by not notifying the Department of changes in his circumstances. These changes included two criminal charges and an apprehended violence order (AVO) that arose between the time of his visa application and its grant.

The primary legal issue before the Tribunal was whether Mr. Jokic had indeed failed to comply with section 104(1) of the Act, and if so, whether the visa should be cancelled. This required the Tribunal to determine if the circumstances described in the notice of intention to cancel, specifically the non-notification of the criminal charges and AVO, constituted a breach of his obligations. A further consideration was whether any incorrect information provided, or changes in circumstances not notified, formed the basis, or part of the basis, for the original grant of the visa.

The Tribunal reasoned that while the delegate had issued a valid notice under section 107 of the Act, the critical question was whether the non-compliance alleged in the notice had occurred. The Tribunal noted that section 104(1) requires a non-citizen to inform the Department of changes in circumstances that render an answer to a question in their application incorrect. The Tribunal found that the delegate was unable to be fully informed of all circumstances pertaining to the de facto relationship between Mr. Jokic and his sponsor due to the non-disclosure of the pending charges, which were laid as a result of the sponsor's complaint. Consequently, the Tribunal concluded that the incorrect information was part of the basis for the decision to grant the visa, weighing this consideration slightly in favour of cancellation. However, the Tribunal also considered the applicant's personal circumstances, including his mental health treatment and reliance on a representative, as well as the eventual withdrawal and dismissal of the charges and the expiry of the AVO. The Tribunal also noted that the sponsor had taken their Australian citizen child overseas without the applicant's permission, and the best interests of the child were a factor.

Ultimately, the Tribunal concluded that the decision to cancel Mr. Jokic's visa should be set aside. This outcome was influenced by the eventual resolution of the criminal matters, the applicant's personal circumstances, and the broader context of the relationship and the child's best interests, despite the initial finding of non-compliance with section 104(1).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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? 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(1). Particulars On 17 August 2022 the Minister’s delegate invited the applicant to comment on the delegate’s intention to consider cancellation of his permanent Partner (Subclass 801) visa. The applicant had been granted a Subclass 801 visa on 20 April 2021. He had been sponsored by his Australian citizen sponsor. The applicant responded on 7 September 2022 and provided further information on 3 October 2022. On 18 November 2022 the Minister’s delegate, having taken into account the applicant’s response, decided to exercise discretion under s 109 of the Act to cancel the applicant’s visa having decided that the applicant did not comply with s 104 of the Act. In that decision, the Minister’s delegate concluded the reasons for not cancelling the applicant’s visa did not outweigh the non-compliance. Section 104 of the Act states: (1)If circumstances change so that an answer to a question of the non-citizen’s application form or an answer under the 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 circumstances before the visa is granted. […] (4)Subsection (1) applies despite the grant of any visa. Claimed non-compliance The Tribunal notes that the applicant previously provided the Tribunal with a copy of the delegate’s decision as part of the review process. The delegate’s decision provides a summary of the process leading to the claimed non-compliance.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There is no evidence before the Tribunal of non-compliance by the applicant with s 103 of the Act. The Tribunal gives this consideration no weight. 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 The Tribunal notes the applicant’s written submissions, and oral testimony that if he had actually provided the correct information that he still would have been granted his 801 Partner visa after the charges were dismissed. The Tribunal notes from Feng Guo v Minister for Immigration and Border Protection [2018] FCCA 1173 that when applying reg 2.41(c) of the Regulations and considering whether to cancel a visa under s 109 of the Act, the Tribunal is required not to ‘speculate’ on what might be the delegate’s decision if they had been aware of the correct information, but instead to make an assessment of ‘whether the incorrect information or bogus document was the basis, or part of the basis, for the decision to grant the visa or immigration clear the person.’ What is required by the Tribunal is ‘consideration of the actual decision to grant the visa or immigration clear the person whose visa has been cancelled rather than to engage in speculation of what might have happened if there were correct information.’ The Tribunal has approached this consideration on this basis. The applicant raised s 501 of the Act and noted, when assessing the character test, policy guidelines state that if an applicant has an unresolved criminal matter that has not been finalised, then the delegate should generally wait until the charges are finally determined before considering whether the character test is satisfied. The applicant was granted his Partner visa on the basis he was in a genuine de facto relationship with his sponsor. The Tribunal considers the delegate did not have the opportunity at the time of assessment to inform himself of all the circumstances pertaining to the de facto relationship – such as the parties’ commitment to each other – given he was not aware of this information. In relation to the applicant’s submission that, following Departmental policy concerning the character test, the application would have been delayed had the delegate been aware of the pending charges, and the application ultimately proceeded successfully after the charges were withdrawn and dismissed, the Tribunal has some sympathy for this view. Nevertheless, the role of the Tribunal here is not to speculate but to consider whether the incorrect information was the basis, or part of the basis, for the decision to grant the visa. The Tribunal is of the view the incorrect information was part of the basis for the decision to grant the visa. The delegate was unable to be aware of all the circumstances of the applicant and sponsor’s relationship by not being informed of the pending charges that were laid as a result of the sponsor’s complaint. The Tribunal weighs this consideration slightly in favour of cancelling the applicant’s visa. The circumstances in which the non-compliance occurred