Ladignon (Migration)

[2021] AATA 5538

Ladignon (Migration) [2021] AATA 5538 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Girlie Manacop Ladignon

CASE NUMBER:  2015742

HOME AFFAIRS REFERENCE(S):          BCC2019/2785282

MEMBER:Bridget Cullen

DATE:25 October 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 25 October 2021 at 2.58pm

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa – Subclass 187 – applicant has not advised the Department of change in the marital status – relationship ceased – applicant provided incorrect answer – Australian permanent residents children – sole carer of her two children – decision under review set aside 

LEGISLATION
Migration Act 1958, ss 107, 109, 376
Migration Regulations 1994, r 1.12, Schedule 2, cl 187.311

CASES
Dou v MIBP [2016] FCCA 682
MIAC v Khadgi (2010) 190 FCR 248

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

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 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not notify the Department of a change in circumstances before the grant of her visa, which made answers in her visa application incorrect, and the delegate, after weighing up relevant factors, decided that it was appropriate to cancel the applicant’s visa. The issue in the present case is whether the that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent, Mr Glenn Wellburn of GW Migration (MARN 0850908). The representative attended the Tribunal hearing.

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. The Tribunal has before it the following evidence in determining the application for review before it:

   ·   BCC2019/2785282, which is the Department file, containing all information before the delegate at the time of their decision to cancel the applicant’s visa;

   ·   Submissions made on 5 November 2020 (including evidence of two 457 visa grants, and the explanatory statement for the Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016);

   ·   Expedition request and reasoning for it made on 14 December 2020, and follow up request on 26 July 2021;

   ·   Supplementary submissions made on 9 August 2021.

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

8. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107.

9. The applicant’s representative following the lodgement at the Tribunal, made submissions in relation to the validity of the Notice of Intention to Consider Cancellation (‘NOICC’). The most recent submissions of the representative on 9 August 2021, argue the following:

   “While we provided extensive detail, we note our previous submission 5 November 2021 (sic) failed to identify a key aspect (highlighted) of the above sub-regulation. Reg 1.12(2) has effect subject to the later subregulations. This is a key consideration as it provides the direction to require a decision maker to consider the later subregulations to regulation 1.12. As stated, the delegate that issued the NOICC, the applicants’ previous representative and the delegate who issued cancellation failed to consider this legislative requirement. Had they done so the assertion that the MOFU status had changed from time of application to time of decision on the subclass 187, and that this meant the visa was granted when it otherwise would have been refused, would have been identified as being entirely incorrect.

   Again, we provided detail in our submission 5 November 2021 (sic) however it is clear in this case that the applicant was a secondary applicant for the subclass 187 visa and was a MOFU at time of application and decision. This is clear as sub-regulation 1.12(5) applies to the circumstances of the applicant in that they were a MOFU for the preceding subclass 457 visa of the same person as the primary applicant for subclass 187 visa. The effect of the above is that the particulars of the possible non-compliance stated in the NOICC that the applicant was not a MOFU of the primary applicant at time of decision is clearly disputed. Whether through 1.12(2) or (5) the applicant remained the secondary applicant MOFU for the subclass 187 visa process.”

10. The Tribunal notes that that the ground for cancellation listed in the Notice of Intention to Consider Cancellation was in relation to the applicant not notifying the Department of the change of circumstances leading to an answer being incorrect - not whether the applicant would have met the visa criterion in any case. The Tribunal considers that the representative has conflated these two separate issues into one, in arguing that the NOICC was not valid.

11. This is because section 104 has broad application. It is not confined to changes in circumstances which are material to the eligibility of the relevant person for the grant of the visa of which he or she is a holder, as espoused in Dou v MIBP [2016] FCCA 682, [18].

12. Therefore, the Tribunal considers that the NOICC was validly issued, and 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?

13. 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, which is attached to this decision. The non-compliance is described as follows, extracted from the Delegate’s Decision Record:

    “On 15 June 2017, the visa holder’s former spouse Bernie Caraig LADIGNON (07 February 1979) lodged an application for a Regional Skilled Migration Scheme (RSMS) (subclass 187) visa using the Department’s online lodgement facility, included the visa holder as his migrating family member. Under the effect of section 98 of the Migration Act, in a combined application, even if the visa holder’s former spouse filled in the application form on behalf of family member applicants, any information on the form is taken to have been given by each applicant in respect of their own visa application. As such, the visa holder provided the following answers on the application form titled ‘Application for Permanent Employer Sponsored or Nominated Visa’ (in bold):

    On pages three of the application form, under the heading ‘Migrating family members’:

    Are there any migrating family members included in this application?

    Yes

    On page three of the application form, under the subheading ‘Relationship to primary applicant’:

    Relationship to the primary applicant: Spouse/De Facto Partner

    On page four of the application form, under the subheading ‘Passport details’:

    Enter the following details as they appear in the family member's personal passport.

    Family name: LADIGNON

    Given names: GIRLIE MANACOP

    Sex: Female
    Date of birth: [deleted]
    Passport number: [deleted]
    Country of passport: PHILIPPINES - PHL
    Nationality of passport holder: PHILIPPINES - PHL
    Date of issue: [deleted]
    Date of expiry: [deleted]
    Place of issue / issuing authority: DFA PAMPANGA
    
    On page four of the application form, under the subheading ‘Relationship status’:

    Relationship status: Married

    Date of marriage: 10 Mar 2005

    
    On page 21 of the application form, under the heading ‘Declarations’:

    Will inform the Department of Immigration and Border Protection in writing immediately as they become aware of a change in circumstances (including change of address) or if there is any change relating to information they have provided in or with this application, while it is being considered.

    Yes

    
    On 16 June 2017, the visa holder provided a Marriage Certificate issued by the Office of the Civil Registrar General in the Philippines on 10 March 2005 as evidence of her marital relationship.
    
    Based on the above information, as well as meeting other relevant criteria, including satisfying the delegate the visa holder was a member of the family unit of her former spouse Bernie Caraig LADIGNON, the visa holder was granted the RSMS (subclass 187) visa on 23 April 2018.
    
    
    Subsequent to the grant of her visa, information available to the Department indicates that the visa holder has been separated from Bernie Caraig LADIGNON since 01 December 2017. In particular, on 18 March 2020, the visa holder’s current spouse Alvin VISPO (31 March 1983) submitted a document named ‘Application for Divorce’ filed on 05 December 2019 to the Commonwealth Law Courts in a Combined Partner (subclass 820/801) visa application with the visa holder as his sponsor. This document indicates that the visa holder and Bernie Caraig LADIGNON have been separated since 01 December 2017; that the visa holder regarded the marriage as over at the date of separation, and that since the date of separation, the visa holder and Bernie Caraig LADIGNON have not lived together in the same home, nor lived together as husband and wife. Departmental records appear to indicate that the visa holder has been living in Queensland while Bernie Caraig LADIGNON has been residing in the Northern Territory.

    I further note in the statements from Alvin VISPO’s mother dated 06 December 2019 and from the visa holder’s and Alvin VISPO’s mutual friend Melody Serrano PENUS dated 18 March 2020, it appears the visa holder has been in a relationship with Alvin VISPO since March 2018, before the grant of the RSMS (subclass 187) visa.
    
    Upon arrival in Australia on 29 May 2019, when questioned by an Australian Border Force (ABF) officer, Alvin VISPO stated that he had been in a relationship with the visa holder for more than two years. In response to questions by the ABF officer via phone on the same date, the visa holder stated that she had been separated or divorced from her former spouse Bernie Caraig LADIGNON for more than two years or since 2017 and that she has not advised the Department of this change in the marital status.”

14. The Tribunal made the applicant and her representative aware that there was material before it that was subject to a s.376 Non-Disclosure Certificate. The Tribunal particularised the information, advising that the information suggested that it was possible that the applicant and Mr Ladignon had ceased their relationship possibly before travelling to Australia, and prior to the grant of permanent residency.

15. The applicant explained that she and the children initially lived with her sister, while Mr Ladignon lived in the Northern Territory. This was so that the children could more readily obtain schooling, and were close to her family. The last time she saw Mr Ladignon in person was on 1 December 2017. She knew the relationship was over because they had “a bit of an argument” and had “been apart for a long time”.

16. Mr Ladignon had re-partnered, and his new partner gave birth to a child in May of 2019. This suggests that the child was conceived sometime shortly after the grant of permanent residency on 23 April 2018.

17. On the basis that the applicant conceded that the spousal relationship was over as at 1 December 2017, and the permanent residency visa was not granted until some months later, the Tribunal finds that the applicant’s answer to what her relationship was with the primary applicant was no longer correct. The reason the answer was no longer correct is that they were no longer in a “spouse/de facto” partner relationship.

18. For these reasons, the Tribunal finds that there was non-compliance with s.104 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

19. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

20. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     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 circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

21. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

22. The Tribunal acknowledges the submissions of the applicant’s representative, which make the point that, had she told the Department she was no longer in a “spouse/de facto” relationship, she still remained eligible for the visa. This is because the applicant’s subclass 187 visa was granted on the basis of her satisfying the secondary criteria.

23. The note for Division 187.3 - Secondary criteria provides that all criteria must be satisfied at the time a decision is made on the application. Accordingly, the criteria the applicant met (for the grant of the visa) in cl.187.311 was assessed at the time of decision; that the applicant was ‘a member of the family unit’ of the holder of a subclass 187 visa and made a combined application with them. In turn, the applicant was found to have met the ‘member of the family unit’ definition in reg 1.12.

24. Given the applicant previously held a Subclass 457 granted on the basis of being a member of the family unit, even if the applicant was no longer the spouse of Mr Ladignon (the primary applicant) at the time of decision of the Subclass 187 visa to meet reg 1.12(2), the applicant could still have met the member of the family unit requirements as reg 1.12(5) was applicable to the applicant’s circumstances.

25. That the applicant could have met the criteria had she provided the Department with the correct information about the ending of her “spouse/de facto” relationship with Mr Ladignon is a factor that weighs strongly in favour of not cancelling the visa. This is because the applicant has not received any benefit on the basis of not advising the Department of the correct answer – she would have been eligible in any event.

26. The Tribunal has also considered the applicant’s current circumstances and the impact that cancellation would have on the two children she shares with Mr Ladignon. Both children are permanent residents and live with the applicant 100 percent of the time. They have limited contact with Mr Ladignon via Facebook Messenger. The applicant has not had any contact with Mr Ladignon, who now lives in New South Wales, since 2019. The applicant supports her children by working as a personal carer – Mr Ladignon does not pay child support and there are no formal child support orders in place.

27. The applicant’s children are currently in Year 6 and Year 10, where they are happy and settled. Her Year 10 child is planning to attend University. They live near the applicant’s sister (their aunt) as well as their grandmother (the applicant’s mother). Although the older child speaks some Tagalog, the youngest child was 5 at the time he moved to Australia and speaks limited Tagalog. This would create schooling difficulties.

28. The Tribunal considers that the applicant’s children, who are Australian permanent residents, would suffer if the applicant’s visa was cancelled. They would be forced to choose to either live with a parent that they have not lived with in many years, and with whom they have limited contact (and there is no evidence before the Tribunal suggesting that Mr Ladignon would, in fact, care for his children), or relocating with their mother back to the Philippines, disrupting their schooling. This, too, weights strongly in favour of not cancelling the applicant’s visa.

29. The Tribunal concludes that, although it is vital that applicants are careful to be fastidious in ensuring that information given to the Department is correct, that in the cumulative circumstances before it, there are strong factors weighing in favour of not cancelling the applicant’s visa. These are (1) the applicant was entitled to the visa in any event; and (2) she is the sole carer of her two children, both of whom are Australian permanent residents.

30. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

    Bridget Cullen
    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.