KANJ (Migration)

[2019] AATA 1290

KANJ (Migration) [2019] AATA 1290 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs FATME KANJ
Mr Hayssem Abdul Jalil
Mr Ahmad Abdul Jalil

CASE NUMBER:  1719395

DIBP REFERENCE(S):  BCC2016/1592481

MEMBER:Kira Raif

DATE:5 April 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 836 (Carer) visa.

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

Statement made on 05 April 2019 at 2:56pm

CATCHWORDS
MIGRATION – cancellation – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ground for cancellation – incorrect information in visa application – answers provided in telephone interview – generalised non-specific questioning – omission – lengthy periods of time overseas – continuous provision of care – change in circumstances – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140

CASES
Chhuon v MIMIA (2003) 198 ALR 500
Mian v MILGEA (1992) 28 ALD 165
Zhao v MIMA [2000] FCA 1235

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 836 (Carer) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The first named applicant (‘the applicant’) is a national of Lebanon born in May 1982. She was granted the Class BU Carer visa in December 2015. On 9 August 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 109 because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided her response in writing and on 25 August 2017 the applicant’s visa was cancelled. The visas held by her family members have also been cancelled as a consequence of the cancellation of the applicant’s visa. The applicants seek review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

   Relevant law

4. 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.

5. 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.

6. 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.

   Did the notice comply with the requirements in s.107? 

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

9. 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. 101 of the Act.

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

    a.The applicant made the application for the Carer visa on 16 October 2012 and claimed to be a carer of her grandfather, Mr Kanj Mohamad Kanj.

    b.The applicant submitted with her application a statutory declaration dated 6 November 2015 in which she stated that since the lodgement of the application, her circumstances had not changed and she has been continuously caring for her grandfather Kanj Mohamad Kanj.

    c.The applicant was interviewed by telephone on 3 December 2015. In the course of that interview

    i.The applicant was asked if any of her circumstances changed, including the address of the sponsor, her capacity to provide care or if care was no longer required or being provided by another person. The applicant stated ‘no changes’. The applicant stated that she stayed overnight with her grandfather most of the time.

    ii.The applicant was asked to describe her daily routine in relation to the sponsor’s needs. The applicant described the daily routine in providing care to the sponsor.

    iii.The applicant was asked if she was still willing and able to meet the care needs of the sponsor. The applicant stated ‘yes’.

    iv.The applicant was asked if her family supports her decision to be the carer. The applicant stated ‘yes’.

    v.The applicant was asked if the sponsor was currently in her care / home care. The applicant stated ‘he is at home – not in hospital or care’.

    d.The applicant was granted the Carer visa on 15 December 2015.

    e.The primary decision record indicates that the sponsor was not residing in Australia for periods when the application was being processed. It is stated that the sponsor had spent 3 months in Lebanon in 2012, 2013 and 2014; 6 months in 2015, 4 months in 2016 and departed Australia in May 2017 for an intended six months stay overseas. The applicant did not travel with the sponsor.

11. The delegate found that the applicant provided incorrect answers during her telephone interview in December 2015 when she stated that her circumstances had not changed and that she stayed overnight with her grandfather most of the time. The delegate noted that the sponsor had not resided in Australia for six months prior to the interview and had spent 13 months offshore since the visa application was lodged. The delegate also found that the applicant gave an incorrect answer when she described her daily routine of caring for the sponsor during the interview. The delegate notes that the sponsor has not resided in Australia for six months prior to the interview and had spent 13 months offshore during the processing of the application.

12. The delegate found that the applicant gave an incorrect answer when stating that the family help her a lot, given the sponsor’s absence from Australia. The delegate also found that the applicant gave an incorrect answer when stating that the sponsor was at home (rather than in hospital), given his absence from Australia. The delegate found that the sponsor gave an incorrect answer when stating that the sponsor was used to her caring for him, given his absence from Australia.

13. The delegate found that the applicant’s statement of 6 November 2015 in which she refers to continuous care for the sponsor to be an incorrect answer as the sponsor was not in Australia at the time the statement was written.

14. In her written response to the NOICC the applicant submitted that she complied with s. 101 of the Act. The applicant stated that there had been no change in her circumstances and, with respect to each of the issues raised in the NOICC, the applicant explained why her answers had not been incorrect. In oral evidence to the Tribunal (as previously constituted) the applicant confirmed that the sponsor travelled to Lebanon frequently and during such travels, he was looked after by his extended family in Lebanon. She said that because of her visa, she could not accompany him. The applicant stated that her grandfather spent more time in Australia than he did overseas and when he was here, she was his carer. That is the reason she stated in her declaration that she looked after the sponsor ‘continuously. The applicant also said that at the time she was interviewed, her grandfather had returned to Australia, so when she described the care she provided, she referred to the present care she was providing. The applicant states that the primary decision was based on the generalised questioning at the interview when the questions were not very specific and she was accused of providing incorrect answers, which was unfair.

15. The Tribunal has considered whether there was non-compliance as described in the Notice. Essentially, the Notice refers to the answers the applicant gave in her interview and in a declaration in which she described the care she provides to the sponsor. The delegate found those answers to be incorrect because the sponsor had spent significant periods of time overseas. However, continuous presence in Australia and uninterrupted provision of assistance are not requirements for the grant of the Carer visa. It would not have been obvious to the applicant that these matters were relevant to her application or the answers she gave in the interview. While the applicant could have been more forthcoming and truthful in her dealings with the Department by mentioning the sponsor’s overseas travel, the Tribunal has formed the view that there was no obligation on her, under s. 101, do to so as continuous provision of care and continuous residence in Australia are not required for visa grant.

16. The Tribunal has considered the specific instances of non-compliance set out in the NOICC. The delegate refers to the applicant’s declaration of 6 November 2015 in which she stated that her circumstances had not changed and that she has been caring for her grandfather continuously. The applicant’s evidence is that when her grandfather resided in Australia, she did provide care to her grandfather. There is nothing in the primary decision that indicates that information was incorrect. As for the use of the word ‘continuously’, the Tribunal is mindful that this word can be subject to different interpretation. It is not a defined term. The applicant’s explanation is that while the sponsor lived in Australia, she cared for him continuously. She also did so for the majority of the year, as the sponsor had spent most of his time in Australia. It was not against common sense, in the Tribunal’s view, to interpret the care as being ‘continuous’ in such circumstances.

17. The delegate refers to the answers the applicant gave in her interview when describing the sponsor’s residence and the care she provided. The Tribunal notes that at the time of the interview, the sponsor was in Australia. It is not apparent that the applicant was expressly asked about a particular timeframe, so it was reasonable for her to assume that the questions related to the present circumstances. Her answers were correct. If, on the other hand, the applicant was asked about the care she provided at a time when the sponsor lived overseas, her answers may have been incorrect but the primary decision record does not indicate this was the case. It also explains why the applicant stated that she was willing and able to provide the required care and that the care was provided at home rather than at a hospital. The Tribunal is not satisfied that any of these answers were incorrect at the time they were given.

18. The Tribunal acknowledges that in some circumstances, an omission may give rise to a breach of s. 101 of the Act (Chhuon v MIMIA (2003) 198 ALR 500). However, in this particular case, the Tribunal has formed the view that the applicant’s omission in not referring to the sponsor’s travel and residence overseas was not misleading because despite such travel, the applicant continued to provide substantial assistance to the sponsor throughout the periods of his residence in Australia and the sponsor was resident in Australia for the majority of time. As the legislation does not prescribe a minimum duration of care required for the grant of the Carer visa, it was not unreasonable for the applicant to assume that periods of overseas residence would not affect her eligibility for the visa. The delegate also pointed out that given the sponsor’s capacity to travel, he may not have been in need of substantial care. The Tribunal does not accept that proposition. The application was accompanied by a Carer certificate which met the statutory requirement and certified that he sponsor required care due to his condition. There is no probative evidence to indicate that Carer certificate has not been properly issued or is otherwise invalid.

19. The onus of establishing the facts that give rise to the cancellation rests with the decision-maker (Mian v MILGEA (1992) 28 ALD 165 at 169). Although the visa holder must be invited to show that the ground does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA [2000] FCA 1235, the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

20. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.

21. Having considered all the circumstances, the Tribunal is not satisfied that the applicant completed her form in a way that incorrect answers were given. It may be that when the sponsor travelled overseas and stayed overseas for lengthy periods, the applicant’s circumstances had changed, giving rise to an obligation to inform under s. 104. However, that is not the ground for cancellation set out in the NOICC.

22. 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.

    Conclusion

23. 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

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 836 (Carer) visa.

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

    Kira Raif
    Senior Member