KAUR (MIGRATION) - [2024] ARTA 141

KAUR (MIGRATION) [2024] ARTA 141 (25 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Prisha Jayveen Kaur
Respondent:  Minister for Home Affairs
Tribunal Number:  2441413
Tribunal:Kira Raif
Place:Sydney
Date:25 November 2024
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 25 November 2024 at 4:29pm
CATCHWORDS
MIGRATION – Cancellation – Subclass 801 (Spouse) visa – incorrect answers were given or provided – sponsor failed to inform the Department of the changes in her circumstances – not the basis specified in the NOICC – not satisfied there was non-compliance with s. 104 of the Act – decision under review set aside
LEGISLATION
Migration Act 1958, ss 107, 109, 116
CASES
Salama v Minister for Immigration & Anor [2017] FCA 2
STATEMENT OF 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 national of Fiji, born in April 1995. She was granted the permanent Partner visa in November 2021. In September 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant had not complied with s. 104 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.
No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
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.
Applicant’s de facto relationship
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in April 2020 the applicant’s father made an application for a Partner visa and the applicant was included as a dependent child. In the application form 47SP the applicant stated that she was never married. She also signed a declaration undertaking to inform the Department of any changes in her circumstances.
The applicant was granted the temporary Partner visa in April 2021 and the permanent visa in November 2021.
The primary decision record notes that in June 2022 the applicant’s de facto partner, Francisco Andres Rigamoto made the application for a Partner visa and the applicant was the sponsor in that application. In the application form, Mr Rigamoto claimed that he and the applicant first met in March 2018 and began their de facto relationship in August 2020. They also claimed to have started living together in 1 April 2021.
In June 2022 the applicant provided a Relationship Statement in support of Mr Rigamoto’s application. In that statement, the applicant claimed that she and Mr Rigamoto had been in a relationship for 1 year and 9 months. The applicant claimed that she and Mr Rigamoto first met in March 2018, became friends on social media in June 2018, had reconnected after she came to Australia in August 2020 and started seeing each other almost on a daily basis. Their ‘official relationship to the exclusion of all others’ started on 24 August and on 1 April 2021 they started living together. The applicant stated that the relationship has existed for 1.10 years and they have been living together for 1.2 years.
The delegate noted that the above evidence indicated that the applicant’s circumstances had changed once she entered a de facto relationship with Mr Rigamoto in April 2021 and she had not informed the Department of the changes in her circumstances. The delegate noted that once the applicant entered a de facto relationship, she was no longer considered a dependent child, within the meaning of r. 1.03 (which refers to dependent child being a child other than a child who has a spouse or de facto partner).
In her response to the NOICC the applicant denied the information provided earlier in Mr Rigamoto’s Partner visa application and offered a different timeline to their relationship. The applicant claimed that in 2020 she and Mr Rigamoto had ‘reconnected’ and in April 2021 she had moved in with Mr Rigamoto’s family due to domestic violence in her own home, but she and Mr Rigamoto were not in a romantic relationship at that time. The applicant stated that Mr Rigamoto’s family provided her with a spare room and she lived separately from Mr Rigamoto. They were friends at the time and did not enter a de facto relationship until much later. The applicant refers to emotional hardship during that period and Mr Rigamoto providing her with comfort and support. She stated that the de facto relationship with Mr Rigamoto started in December 2021 and on that date they began living together as a couple.
The applicant claims that when Mr Rigamoto was preparing the Partner visa application, he was assisted by a migration agent who was facing serious health issues, impacting his ability to manage the case, and he advised the couple to mention 1 April 2021 as the date the relationship started because that was the date the applicant had moved to Mr Rigamoto’s family home.
The Tribunal finds the applicant’s submissions in response to the NOICC unconvincing. The Tribunal notes that these completely contradict the evidence she and Mr Rigamoto provided in support of his partner visa application. In that application the couple expressly stated that their relationship began in August 2020 and that they had been living together since April 2021. The applicant did not refer to living in Mr Rigamoto’s home, in a separate room, but she did refer to the existence of a committed and exclusive de facto relationship from that time. Further, in her declaration prepared in June 2022, quoted above, the applicant also expressly referred to the period of their relationship, stating the relationship has been in existence for 1 year and 10 months, consistent with the claim that the relationship commenced in August 2020. That is independent of the claim that the couple started cohabitation in April 2021 (even if applicant’s present claims are accepted that she moved into Mr Rigamoto’s family home at that time but did not commence a relationship).
The delegate also notes in the primary decision record that there is other evidence of the applicant’s relationship with Mr Rigamoto that was submitted in support of his visa application. The delegate refers to Facebook Messenger communication between the applicant and Mr Rigamoto which suggests close interactions. The delegate refers to the joint bank account for the period from August 2021 (which, in the Tribunal’s view, contradicts the applicant’s present claim that the de facto relationship did not commence until December 2021) and a number of social photographs, including some photographs depicting Mr Rigamoto kissing the applicant labelled 2020, photographs with Mr Rigamoto having his arms around the applicant dated January 2021 and the photos depicting the couple at a relative’s party in February 2021. On their own, that evidence may not indicate that the applicant’s de facto relationship with Mr Rigamoto started prior to December 2021 but when considered together with all the other information provided in support of Mr Rigamoto’s Partner visa application, summarised above, the Tribunal is of the view that there is strong evidence that the applicant did commence a de facto relationship with Mr Rigamoto at the time claimed in his Partner visa application.
The Tribunal is of the view that the earlier evidence provided in support of Mr Rigamoto’s visa application is the more truthful version of events and that the applicant’s response to the NOICC is a falsified version of events prepared to ensure the applicant is able to retain her visa.
The Tribunal also does not consider the applicant’s claim that her previous migration agent had misunderstood the claims. The information throughout Mr Rigamoto’s visa application is quite consistent and sets out a consistent timeline as to when the relationship commenced and when the couple had moved in together. The applicant had prepared and signed a declaration. In the Tribunal’s view, if the agent had misunderstood the claims, the applicant would have been well aware of that when completing and signing her declaration. The fact that she did sign and submit the declaration offers strong evidence that she believed the information in that declaration to be accurate. Mr Rigamoto also provided with his application documentary evidence to support the claimed relationship (such as photographs and the evidence of a joint bank account) which pre-dates the timeline now proposed by the applicant. Again, if the information in Mr Rigamoto’s application was incorrect, there would be no reason for the submission of that evidence. The Tribunal notes that at that time Mr Rigamoto applied for his visa, there was little benefit for the couple in falsifying their claims of the relationship. However, there is a significant benefit in the applicant now providing a different timeline of the relationship to avoid the cancellation of her visa.
For all these reasons, the Tribunal finds that the applicant entered a de facto relationship with Mr Rigamoto around August 2020. The Tribunal finds that the applicant was in a de facto relationship with Mr Rigamoto at the time she was granted her permanent visa in November 2021. By that time, the couple were living together, operating a joint bank account and jointly attending social functions, as is evidenced by the photographs submitted by Mr Rigamoto.
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 of the Act. The delegate found that once the applicant entered a de facto relationship with Mr Rigamoto, which was prior to the grant of her Partner visa, the applicant’s circumstances had changed and she failed to inform the Department of the changes in her circumstances.
For the reasons set out above, the Tribunal has also formed the view that the applicant had commenced a de facto relationship with Mr Rigamoto prior to the grant of her Subclass 801 visa. The Tribunal has considered whether there was non-compliance with s. 104 of the Act.
The s. 107 Notice refers to non-compliance with s. 104 only and the only instance of non-compliance is identified as the failure by the applicant to advise that she had entered a de facto relationship with Mr Rigamoto in April 2021 and had stated she was ‘never married’ on the application form and so that her circumstances changed.
On the application form, under the heading ‘relationship status’, the applicant was required to indicate her relationship status. She stated ‘never married’. It is notable that once the applicant commenced a de facto relationship with Mr Rigamoto, that answer did not necessary become incorrect, because it is not in dispute that there was no valid marriage between the applicant and Mr Rigamoto prior to the applicant being granted the visa.
The Tribunal has considered the reasoning in Salama v Minister for Immigration & Anor [2017] FCA 2. In that case, Perry J considered whether an incorrect answer was given when an applicant was divorced from his Australian partner but also in a de facto relationship with another partner. Her Honour noted that in these circumstances, there was more than one correct answer and the Tribunal failed in its task by not making a finding whether the applicant’s answer that he was ‘divorced’ was incorrect. Her Honour noted that unless the Tribunal found that the answer ‘divorced’ was ‘incorrect’, the discretion to cancel did not arise.
The Tribunal finds this reasoning to offer helpful guidance in the present case. The applicant’s answer on the application form was that she was ‘never married’. Once she commenced a de facto relationship with Mr Rigamoto, it may be that a more accurate description of her circumstances was that she was in a de facto relationship. However, she was still ‘never married’ and that answer was not incorrect. Importantly, the applicant’s answer on the application form was not that she was never married or that she was never in a de facto relationship. If that was her answer, then that information became incorrect once she commenced a de facto relationship. However, she simply stated that she was ‘never married’ and while ‘de facto’ would have been more accurate once the relationship with Mr Rigamoto started, the answer did not become “incorrect” with the commencement of that relationship. The Tribunal is mindful that s. 104 requires there to be not only a change in the applicant’s circumstances but such a change must render a previous answer incorrect. In the Tribunal’s view, that was not the case here.
The delegate found that once the de facto relationship commenced, the applicant was no longer able to meet the definition of being a dependent child, and a member of the family unit, of the primary visa applicant. The Tribunal accepts that is the case. That is, the applicant was not eligible to the grant of the Partner visa on the basis of being a dependent child of her father. However, this circumstance cannot establish non-compliance with s. 104 (it may have been relevant to the exercise of discretion, if there was a breach). Here, the breach is not established once the applicant was no longer able to meet the requirements for visa grant and that was not the basis specified in the NOICC.
The Tribunal is not satisfied that the change in the applicant’s circumstances (that is, the commencement of a de facto relationship with Mr Rigamoto) was such that an answer to a question on the applicant’s application form was incorrect in the new circumstances. It follows that the Tribunal is not satisfied there was non-compliance with s. 104 of the Act and finds that the ground for cancellation is not made out. The discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Date(s) of hearing n/a
Representative for the Applicant: Mr Emad Fuad Khraim