Macinnes (Migration) - [2023] AATA 4596

Macinnes (Migration) [2023] AATA 4596 (10 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr David Ian Macinnes
REPRESENTATIVE:  Ms Sophie Manera
CASE NUMBER:  2303004
HOME AFFAIRS REFERENCE(S):          BCC2021/1991613
MEMBER:Maxina Martellotta
DATE:10 November 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 835 (Remaining Relative) visa.

Statement made on 10 November 2023 at 2:18pm
CATCHWORDS
MIGRATION – cancellation – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – applicant had failed to notify of a change in his relationship status – remained in a boyfriend-girlfriend relationship until the grant of permanent visa – whether a person meets the de facto definition – there was non-compliance with s 104 – applicant plays a significant role with his employer – the weight of factors in favour of not cancelling the visa far outweigh the factors in favour of cancellation decision under review set aside
LEGISLATION
Migration Act 1958, ss 104, 109
Migration Regulations 1994, Schedule 2, r 1.09, 1.03
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 835 (Remaining Relative) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that there had been non-compliance with s 104 of the Act in failing to correctly notify of a change in circumstances, specifically that the applicant had failed to notify of a change in his relationship status. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 5 September and at the resumed adjourned hearing held on 15 September 2023. The applicant presented oral evidence and submissions. The Tribunal also received oral evidence from the applicant’s spouse (Supa Nganprakon), his sister (Ms Alldred) and a friend (Mr O’Toole).
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Background
The applicant is a citizen of the United Kingdom. According to evidence before the Tribunal he has resided in Australia since 2009. He was granted a Remaining Relative (Subclass 835) visa on 14 June 2021. He married a Thai citizen on 23 July 2021. On 27 February 2023 the Department decided to cancel his visa under s 109 of the Act.
Cancellation of the visa
On 18 November 2022 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Remaining Relative visa because of his non-compliance with s 104 of the Act.
The NOICC specified that the applicant had failed to provide notification of a change in circumstances in failing to notify of a relevant change in circumstances, namely that he was in a partnered (defacto) relationship and as result the delegate was prevented from assessing the correct circumstances of his visa application.
In a response dated 1 December 2022 the applicant stated he believed he had complied with s 104 as he did not believe he was in a de facto relationship with Ms Nganprakon on 10 March 2021 when he completed the information requested by the Department. He stated that:
·He was fully aware he could not enter into a relationship whilst awaiting consideration of his visa.
·He researched the definition of de facto and concluded he did not come within the definition.
·He had made no plans for the future with Ms Nganprakon.
·Ms Nganprakon was financially independent.
·She only remained in Australia because of the COVID-19 pandemic.
·They never discussed being in a committed relationship.
·Ms Nganprakon was given incorrect advice by a visa agent when completing her application for extension of her tourist visa.
·Cancellation of his visa would have a devastating impact on his family.
·He has been in Australia for 12 years and has established significant employment and family relationships.
On 27 February 2023 the delegate decided that the applicant did not comply with s 104 of the Act and concluded that the grounds for cancelling his visa outweighed the reasons for non-cancellation.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the applicant 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 applicant 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 of the Act which requires a visa applicant to notify of changes in circumstances.
The claims of non-compliance identified in the notice was that the applicant has not complied with s 104 of the Act because prior to the grant of his Remaining Relative visa on 14 June 2021 he failed to notify the Department in writing that his relationship status had changed, he had entered into a defacto relationship with Ms Nganprakon, he had been residing with her since 6 March 2020 and she had seven living members residing in Thailand. The relationship constituted a change in circumstances which ought to have been notified.
Evidence contained in the Department file and evidence presented to the Tribunal as part of the review (including the oral testimony of the applicant and his sister/sponsor) confirms the following:
a)On 29 November 2011 the applicant lodged an application for a Remaining Relative visa.
b)One of the primary criteria relevant to that visa was that the applicant met the definition of a ‘remaining relative’ of an Australian relative both on the date of application and date of decision.
c)Regulation 1.03 provides a definition of a ‘remaining relative.’ This includes (amongst other things) the requirement that the applicant and the applicant’s spouse or de facto partner (if any) have no near relatives other than those who are usually resident in Australia and are Australian citizens, Australian permanent residents, or eligible New Zealand citizens.
d)The applicant in a Form 47PF, submitted in support of his visa application, answered in response to question 21 (Relationship Status) that he had never been married or been in a de facto relationship.
e)The applicant’s sister who was his sponsor in the application also made the same declaration in her Form 40OF.
f)On 12 February 2021 as part of the assessment process, a delegate of the Department requested the applicant provide an update of his circumstances. In response the applicant provided the following:
·A document headed Statutory Declaration - Relationship Status signed and dated 10 March 2021; the applicant declared his current relationship status as single.
·Form 54 (Family Composition). Signed and dated 10 March 2021. The applicant declared that he did not have a spouse or de facto partner.
·Form 1022 (Notification of Change in Circumstances). That form is signed and dated 12 March 2021. In response to question 4 the applicant declared that he was ‘never married or been in a defacto relationship’. In response to question 13 he declared that he did not have a partner (spouse or de facto) and in response to question 14 (which required him to list details of information provided in his application which is no longer current and provide any new correct information) – the applicant did not provide a response.
·Form 80 (Personal Particulars including character assessment). That form is signed and dated 12 March 2021. In response to question 42 which asked: Do you have a partner? Partner includes wife, husband, fiancé, boyfriend, girlfriend, significant other and defacto. If widowed you must give details of your deceased partner. The applicant responded No.
g)The applicant also provided a Form 40 completed by his sponsor which is signed and dated 10 March 2021. In that form his sister (sponsor) stated in response to question 8 that her brother’s status as ‘never married or been in defacto relationship’.
h)The applicant was granted a remaining relative visa on 14 June 2021. On 23 July 2021 he married Ms Nganprakon. On 21 August 2021 the applicant’s spouse Ms Nganprakon lodged an application for a Combined Partner (Subclass 820/Subclass 801) visa. Her application listed the applicant as her spouse and sponsor.
At hearing the applicant confirmed in evidence that he had provided the above information in response to the Department’s request for updated information and confirmed that after being granted the visa his now spouse Ms Nganprakon lodged her application for a partner visa which he sponsored, in support of which he made statements about his relationship with Ms Nganprakon. Extracts of statements made by the applicant and Ms Nganprakon in support of the partner visa were included in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant.
Prior to the lodgement of the partner visa application, Department records identified that Ms Nganprakon had made online visitor visa applications on 20 May 2020 and 24 November 2020 in which she declared to be the applicant’s spouse/de facto partner and his fiancé. Details of this were included in the delegate’s decision. At hearing Ms Nganprakon gave evidence that her visa agent had prepared those applications and had incorrectly described the applicant as her spouse/de facto partner and fiancé.
As noted, the Department having received the partner visa application and materials in support of that application initiated the s 107 process which culminated in their decision to cancel the applicant’s visa.
The applicant’s primary submission was that there had not been non-compliance on his part because he did not consider himself to be in a de facto relationship with Ms Nganprakon.
At hearing the applicant provided evidence describing the circumstances in which he and Ms Nganprakon met and commenced living together:
a)He and Ms Nganprakon met in December 2019. Ms Nganprakon returned to Thailand, and they kept in touch before she returned to Australia in March 2020.
b)Her original intention was to remain for a few weeks but was prevented from leaving due to the pandemic travel restrictions. As a result, she has remained in Australia since 6 March 2020. Ms Nganprakon has returned to Thailand a couple of times since their marriage.
c)Whilst there were opportunities for Ms Nganprakon to return to Thailand and despite being close to her family, she did not want to return to her home country because she felt safer in Australia due to the COVID-19 situation. He does not think her decision to not return home was because of their relationship.
d)Since March 2020, they have lived together. They initially lived together in a two-bedroom rental unit. They shared a bedroom and otherwise shared the amenities of the unit. They did not share the unit with anyone else.
e)In August 2020 they received a refund for Ms Nganprakon’s return ticket to Thailand. Ms Nganprakon was successful in applications for successive extensions on her tourist visa. This allowed her to remain in Australia until such time she applied for her partner visa.
f)He was working full time. Ms Nganprakon initially still had a construction business in Thailand and would engage with her business remotely. She continued to receive an income from her business.
g)When Ms Nganprakon moved in, he did not ask her to contribute to rent or bills. Initially her Thai income would go into his bank account, and he would draw out the cash and give it to her as requested. She had access to his account on that basis. They did not really pool their financial resources.
h)They generally paid for their own groceries as they had different food tastes but sometimes shared household costs and this was generally the arrangement until they married.
i)They maintained separate bank accounts but did open a joint bank account before June 2021. The joint account was opened the same time Ms Nganprakon opened a personal bank account at the ANZ which was where he held his account.
j)The purpose of the joint account was to save a deposit for a house, but they have not really made any joint savings. The applicant later stated in evidence that at the time of opening the joint account the purpose of the account was not to save for a home, it only became the purpose at a later date. They possibly jointly used the account to save for things but have not really used it.
k)They generally operated from their separate accounts and occasionally they would put money into the joint account as a means of paying each other back money as and when needed.
l)They have not jointly purchased any significant assets.
m)A typical non workday would be that they would get up, have breakfast, go shopping together and then do various activities together. They shared household and domestic tasks as required. Since their marriage his wife probably does more of the meal preparation as he has become accustomed to her food tastes.
n)Their lease expired in about November 2022. They had to move from their rental and were living with his mother and a friend for a period of time. In March 2023 they moved into a new home.
o)They jointly socialised to the extent that various COVID restrictions permitted. The main activities they engaged in would be going out for meals, and spending time with his family.
p)He introduced Ms Nganprakon to his family in about March/ April 2020. He can’t recall how she was introduced, possibly as his girlfriend or a friend. Generally, from March 2020 she would come along with him to family visits but not always. She was otherwise welcomed by his family and attended events and meals. She was probably invited by family because she was recognised as someone who was significant to him and because she was living with him and was ‘stuck’ in the country.
q)He was introduced to her family members including her parents when she was on a video call but nothing formal. He believes that they were aware they were living together.
r)He introduced Ms Nganprakon to his friends in late 2020 (it was not earlier due to COVID restrictions) but he had told his friends about her. This included his best friend, Mr O’Toole whom he told that he had met a girl who was living with him. He probably introduced her to friends as his girlfriend. They perhaps socialised with friends a ‘handful’ of times.
s)He proposed marriage shortly after he got his permanent residency at the end of June 2021. They had not discussed marriage prior to his proposal. They had not really discussed their future because he knew he could not commit to a relationship before getting his permanent residency.
t)He did not consider himself to be in a committed relationship because they never discussed their future together. The permanent residency meant that he could commit to marriage and that is what changed the relationship. Once he was able to achieve his long-held dream of residency that is when the focus changed to Ms Nganprakon’s visa status. They decided having lived together for over a year they felt that they could take the next step.
u)Their relationship developed over the year into a boyfriend/girlfriend who lived together. He does not think that this was a de facto relationship because they had not discussed their commitment to a future together.
v)In March 2021 he decided to look up the definition of de facto. He did this despite believing he was not in a de facto relationship. He decided to research this because of the information the Department had requested he provide and because he did not know what it meant. He is not sure if he looked at the Department’s website to ascertain what it meant for the purposes of his application. He found a definition which stated that you had to be living with someone for two years.
w)He agrees that he provided an incorrect response in the Form 80 because he did not declare that he had a girlfriend and that was a mistake.
x)Whilst he assisted Ms Nganprakon in her visa application to extend her visitor visa, he was surprised to learn that she had described him as her de facto and as her fiancé in those applications.
Ms Nganprakon’s evidence was overall consistent in her description of the relationship development, circumstances and living arrangement with the applicant. She also stated in her evidence that despite those circumstances she did not consider to be in a defacto relationship because the element of mutual commitment was not present until after the applicant was granted his visa and they decided to marry.
Evidence provided by his witnesses, in effect stated that they did not believe the applicant and Ms Nganprakon to be in a serious and committed relationship until such time they announced their intention to marry. That marriage took place within six weeks of the applicant being granted his remaining relative visa.
Materials put to the applicant pursuant to s 359AA of the Act.
The Tribunal also put to the applicant materials he had not directly provided to the Tribunal. This was done pursuant to provisions in s 359AA of the Act.
These materials included the application for the partner visa lodged by Ms Nganprakon, the sponsorship form and two statements provided by himself and the applicant. Specifically, these materials included additional information that was not contained in the delegate’s decision. The Tribunal invited the applicant to comment on these materials.
In support of the partner visa application, the applicant in his capacity as sponsor submitted a Form 47SP in which (amongst other statements) provided the following relationship details:
a)He and Ms Nganprakon first met in December 2019 when she was holidaying in Australia. They married on 23 July 2021 and committed to a shared life as a married couple to the exclusion of all others from the date of marriage.
b)Our relationship began on 25 December 2019 when Supa travelled to Australia…we met through a mutual friend. ..She returned to Australia on 6 March 2020 on a tourist visa to visit me. As a result of Covid she was then unable to return to Thailand.
c)He and Ms Nganprakon ‘have been living in a loving and stable relationship since we (sic) living together since March 2020’. He described their relationship as very stable and ‘we have not lived apart the entire time’.
d)He has been responsible for all financial aspects of the relationship since March 2020.
e)He and Ms Nganprakon engaged in joint social activities; she was introduced to his family and friends and became very close to his mother, sister and sister’s family. ‘She has lived with me the whole time she has been in Australia and it was during this period that we decided we wanted to spend the rest of our lives together’.
f)We have both given 100 percent commitment of our lives together…Supa… is the love of my life.

The applicant also provided a written statement stating that he and Ms Nganprakon commenced dating after meeting in December 2019. Since returning to visit him in March 2020 and prevented from returning to Thailand (due to COVID) they have lived together the whole time and it was during this period we decided we wanted to spend the rest of our lives together.
Ms Nganprakon in her visa application disclosed the names of parents, siblings and two daughters who were non-migration members of her family unit. She declared that she is financially supported by the applicant and that she and the applicant were in a relationship for more than one year and eight months which commenced in December 2019.
Ms Nganprakon also provided a statement in support of her partner visa application in similar terms to that provided by the applicant. She also states that she had lived with the applicant the whole time she was in Australia and was during this period that they decided to spend the rest of their lives together.
In response to these materials the applicant initially stated that he did not believe the statements made in support of the partner visa application were inconsistent with his position that he did not consider himself in a committed relationship with Ms Nganprakon until after he was granted his permanent residency. With respect to the statement made that ...we have lived together the whole time (since March 2020) and it was during this period we decided we wanted to spend the rest of our lives together he stated that this was probably made more in the context of after they were married but that the wording has been made … for the partner visa to make it sound better. He said that in retrospect he would not have described the relationship as being loving and stable until such time after they were married.
Assessment of the evidence
As noted, in this matter the central submission made by the applicant is that there was no non-compliance on his part. This submission took two aspects.
Firstly, the applicant submits that whilst elements of a relationship were present, he and Ms Nganprakon’s relationship was that of boyfriend/girlfriend. It did not meet the definition of de facto as defined by the Act, because they did not form a mutual commitment to a shared life until such time, he was granted his remaining relative visa and became a permanent resident. It is submitted in the absence of that element the relationship was not a de facto relationship and therefore he correctly described his circumstances.
The other aspect to this submission was that when completing his responses to the Department in March 2021, he researched the definition of de facto on a website and understood from the definition that he needed to be in a relationship for two years in order to be considered de facto. As noted at hearing, that is a definition relevant to determining standing to commence Family Court proceedings in certain jurisdictions. The applicant agreed that he did not seek specific advice regarding the relevant definition for the purposes of his visa application but asserts that he provided what he believed to be correct information based on his researched definition.
At hearing the applicant stated that he knew that his relationship status was relevant to his visa application because if he became partnered, he may not satisfy the remaining relative requirement for his visa and for this reason he was ‘mindful’ his relationship with Ms Nganprakon could not develop ‘to the next stage’.
The applicant asserts that as his relationship was that of girlfriend/boyfriend he was not required to notify this as a relevant change in circumstance as it did not meet the threshold of being de facto. In taking that position he agrees that he failed to correctly answer the question in the Form 80. As noted, he answered no in response to question 42: Do you have a partner? Partner includes wife, husband, fiancé, boyfriend, girlfriend, significant other and defacto. His evidence was that this was an oversight on his part and that the correct answer to that question was yes, because he considered Ms Nganprakon at the point in time to be his girlfriend. The Tribunal notes that the Remaining Relative visa application form asks the question whether the applicant is married, engaged, defacto, separated, divorced or widowed or never married or been in a de facto relationship and does not reference ‘girlfriend’. As such whilst the applicant concedes the answer, he provided in the Form 80 was incorrect, his failure to correctly answer the question did not of itself form a basis for cancellation, the basis for cancellation was on the ground that the applicant breached s104 of the Act by not notifying the Department he was in a spousal or defacto relationship.[1]
[1] The applicant was required to notify the Department if and when he entered a defacto relationship, if he did so before the grant of visa given s104(2) provides the applicant must correct an answer if the change of circumstances occur before the grant of visa.
In written submissions provided to the Tribunal, the applicant’s representative submits that there was no non-compliance by their client on the basis that the applicant and Ms Nganprakon remained in a boyfriend-girlfriend relationship until the grant of his permanent visa. They committed to a future together after the grant of his permanent visa. The representative referred the Tribunal to the definition of de facto in s 5CB of the Act. This includes the requirement of a mutual commitment to a shared life. The Tribunal notes that when forming an opinion about whether a person is in a de facto or spousal relationship for the purposes of consideration of a partner visa, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3). In the context of the class of visa relevant in this matter, the Tribunal may have consideration to such factors in considering whether the applicant was in a defacto relationship.[2]
[2] Reg.1.09(4)
The representative also referred the Tribunal to the matter of 1609228 (Migration) [2016] AATA 4645. According to the representative’s submission that was a case in which the Administrative Appeals Tribunal (the AAT), concluded that a couple who were socially recognised as boyfriend and girlfriend did not meet the definition of a de facto couple. In the Tribunal’s assessment however, the factual circumstances of that matter appear quite different from the evidence as presented at hearing in this matter. In that case the AAT concluded that the living arrangements did not include any shared household duties, there was no pooling of financial resources or sharing of expenditure and the couple lived in a shared household wherein one of the persons lived in a separate unit. The Tribunal concluded that the evidence presented at hearing in this matter differs in significant aspects and is distinguishable on the facts.
On balance having considered the evidence and submissions and considering all the circumstances, the Tribunal was not persuaded by the position put forward by the applicant. The Tribunal also does not accept his assertion that his description of his relationship with Ms Nganprakon in the context of these proceedings are consistent with the statements and claims made in support of the partner visa application.
As noted, a key aspect of the applicant’s position was that he did not meet the definition of being in a de facto relationship because the element of a mutual commitment to a shared life was not present until after he was granted his permanent residency. That element of commitment (in the Tribunal’s assessment) is described differently in the claims made in the partner visa which is described as developing from their first meeting in December 2019 and further progressing from the time they commenced living together in March 2020.
The statements and evidence provided by the applicant and his spouse in support of the partner visa describe their relationship as stable, close and loving. It describes how they commenced living together and asserts that they formed a commitment to a shared life together during this period. Their description is provided in the context of having lived together since March 2020: having had lived together the whole time and it was during this period we decided we wanted to spend the rest of our lives together. In the Tribunal’s assessment, this is a different claim to that made in the context of these proceedings that there was never any discussion of future plans and that the commitment to a shared life only arose after the applicant was granted his visa and he acquired permanent residency.
Other claims made in support of the partner visa emphasised the financial dependence of Ms Nganprakon, the close family ties that had been developed with the applicant’s family, the length, significance and stability of their relationship. Again this, was at odds with the evidence presented at hearing which in the Tribunal’s assessment, sought to minimise those aspects.
Findings of fact and conclusions
As noted, in forming a view of whether a person meets the de facto definition for the purposes of this matter, the Tribunal may consider the factors specified in reg 1.09A(3). Having considered all of the circumstances of the relationship as presented in evidence the Tribunal concludes that in addressing the question of whether the applicant was in a defacto relationship, the description of the relationship and the nature of the commitment as set out in the claims made in support of the partner visa application are to be preferred.
The claims made in the partner visa application are also more consistent with other evidentiary aspects which also support a conclusion that the applicant and Ms Nganprakon were in a defacto relationship. This includes evidence that the applicant was described as Ms Nganprakon’s de facto and fiancé in her visitor visa extension applications lodged in 2020, the overall description of the living arrangements and the nature of the relationship as presented at hearing and also given that within six weeks of having been granted his permanent residency the applicant and Ms Nganprakon were married. These are all aspects which in the Tribunal’s view leads to a conclusion that the applicant and Ms Nganprakon relationship was that of a defacto couple.
The Tribunal makes the following findings of fact:
a)    The applicant and Ms Nganprakon met in December 2019 and commenced dating.
b)    Ms Nganprakon returned to Australia in March 2020 for the purpose of visiting the applicant. Ms Nganprakon remained in Australia and commenced cohabiting with the applicant from 6 March 2020.
c)    The applicant and Ms Nganprakon have lived together on a continuous basis since March 2020. During this period, they decided to commit to a shared future life together.
d)    Since March 2020 they share domestic and household tasks. They shared a bedroom and otherwise shared the amenity of their home.
e)    They opened a joint bank account prior to July 2021. The purpose of that account was to facilitate household and joint expenditure and to also save a deposit for a home.
f)     They have shared some joint household expenses but the applicant has been mainly responsible for meeting rental and household bills.
g)    Since March 2020 they have engaged in joint social activities with family and friends.
h)    The applicant introduced Ms Nganprakon to his family in early 2020 and he has been introduced to Ms Nganprakon’s family.
i)   Once granted his permanent visa on 14 June 2021 the applicant and Ms Nganprakon were married on 23 July 2021.
On balance having considered the evidence as a whole and given its findings of fact, the Tribunal concludes that since 6 March 2020 the applicant and Ms Nganprakon were in a de facto relationship. The Tribunal is satisfied that the applicant failed to update the Department about a relevant change in his circumstances in accordance with his obligation under s 104 of the Act.
In reaching that conclusion the Tribunal notes the following relevant provisions of the Act: s 99 (any information provided is taken to be an answer for the purposes of s 104 of the Act; s 100 (provides that an answer to a question is incorrect even though the person giving the answer did not know it was incorrect); and s 111 of the Act (specifies that s 107 has application whether non-compliance was deliberate or inadvertent).
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?
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).
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 reg 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 applicant 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 applicant
·     the subsequent behaviour of the applicant 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 applicant 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.
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.
The correct information
The Tribunal has concluded that the applicant was in a de facto relationship and that this was the correct information which should have been disclosed. The applicant failed to notify the Department of a relevant change in his circumstances. He failed to disclose that he was in a de facto relationship
The significance of the failure to disclose this information goes directly to the assessment of whether the applicant satisfied the remaining relative requirement, namely that the applicant and the applicant’s spouse or de facto partner (if any) have no near relatives other than those who are usually resident in Australia and are Australian citizens, Australian permanent residents, or eligible New Zealand citizens.
The applicant’s spouse has disclosed in her partner visa application the existence of near relatives resident in Thailand.
The applicant confirmed he was aware of the significance of being in a relationship and its relevance to the assessment of his visa.
The Tribunal gives this factor significant weight in favour of the visa being cancelled.
The content of the genuine document (if any)
This is not a relevant consideration in this matter.
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
This factor requires consideration of the actual decision made to grant the visa and not engage in speculation of what might have happened if that information had been provided.[3]
[3] Guo v Minister for Immigration [2018] FCCA 1173 at [35]
The delegate concludes that the decision to grant the applicant the Remaining Relative visa was predominantly based on his failure to notify the Department of a change in circumstances. Specifically, this was because the failure to disclose his relationship with Ms Nganprakon prevented assessment of the applicant’s ability to satisfy cl 835.221 at the time of decision. Ms Nganprakon’s partner visa application discloses close relatives resident in Thailand.
In written submissions, the applicant’s representative states that her client acknowledges that should the Tribunal conclude that the applicant was in a de facto relationship then he would not satisfy cl 835.221 at the time of decision.
The Tribunal gives this factor significant weight in favour of the visa being cancelled.
The circumstances in which the non-compliance occurred
The obligation under s 104 of the Act to notify of a change in circumstances arises where if circumstances change so that an answer to a question is incorrect in the new circumstances. Those new circumstances are to be notified in writing as soon as practicable. As such the obligation does not arise only as a result of a Department request for further information, it is an obligation that exists at any time prior to the grant of the visa.
The applicant in his evidence stated that he considered that he was compliant because he did not consider himself to be in a de facto relationship. He says that in providing responses to the Department in 2021 he decided to check the definition of de facto and on that basis felt he had correctly answered the question. He otherwise states he made an innocent mistake in failing to disclose that he considered Ms Nganprakon to be his girlfriend.
The applicant in his response to the NOICC stated ‘I was fully aware that I would not be able to enter into a relationship while waiting for my last remaining relative visa to be granted and as such did not progress my relationship with Supa Nganprakon further during this time’.
Whilst the applicant asserts, he did not consider his relationship a committed de facto relationship and thereby a notifiable change in circumstances, in the Tribunal’s view, the fact that the applicant started cohabiting with another person from March 2020 and given the circumstances of that relationship, this was a relevant change which ought reasonably to have prompted the applicant to action, given his awareness of the significance of commencing a relationship.
The Tribunal was not persuaded by aspects of the applicant’s evidence. Whilst the Tribunal does not reach the conclusion that the applicant’s non-compliance was an intentional or deliberate decision made to avoid scrutiny and potential refusal of his visa application, there was in the Tribunal’s view an element of the applicant turning a ‘blind eye’ to the reality of his circumstances and to some extent he has presented a position in response to the NOICC which reduces the significance of the relationship and which is at odds with the claims made in support of his spouse’s partner visa.
The Tribunal concludes that it gives this consideration moderate weight in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant and witnesses provided evidence concerning his present circumstances and the impact the cancellation of the visa would have on himself, his spouse and family. The applicant presented the following evidence:
a)He has lived in Australia for over 13 years in which time he has built a life.
b)It has been a long-held dream to live in Australia and he has worked hard to establish himself in this country.
c)He is extremely close to his family which includes his mother, sister and his sister’s family. He has no near relatives in the United Kingdom.
d)If he were required to leave Australia it would be devastating not only for himself personally but in particular for his mother. His mother had breast cancer and whilst she was able to beat the disease, she is subject to regular check-ups. He lives near his mother and provides her with support and assistance particularly after her treatment. He wants to be present and help provide support as his mother ages and her care needs increase.
e)He also has a very close relationship with his sister and his nieces who are aged 11 and 14 years of age. He spends regular time with them and has formed close ties and bonds.
f)He has a strong work ethic. Since completing studies in Surveying, he is currently employed on a full-time basis as a Technical Support Manager with a national company. He has been with this employer for over five years and with a previous employer for five years. He believes that if he left, the company would find it difficult to fill his position given that they have difficulty in filling other roles.
g)His company have invested in his professional development. He has specific skills and expertise in training and assisting clients with a particular product that the company sells. This is a product specific to the mining industry. It would take time for the company to recruit someone with his experience and skills should he be required to leave.
h)He is now over 45 years of age and would not easily be able to re-establish his career if required to leave. He would not be able to access equivalent job opportunities in the United Kingdom and would likely have to start again particularly given that his developed expertise relates to products utilised in the mining industry which is not a significant sector in the United Kingdom.
i)He and his spouse continue to rent their home. They have not acquired any significant assets in Australia but were trying to save a deposit for a home. His spouse works as a cleaner in her own business. She no longer has her business in Thailand.
j)If the visa was cancelled, he and his partner would face an uncertain future. If they went to Thailand, he would need to apply for a partner visa which would require payment of a $10,000 or $20,000 bond. He does not think he would have any viable work opportunities in that country. The other option would be to return to the United Kingdom where he has nothing. His family are all in Australia.
k)He does not have any dependants. His spouse has two children who reside in Thailand with family. He has no role in their upbringing.

A letter provided by the General Manager - Regions of Position Partners, confirmed the applicant’s employment history with the company. It states that the applicant’s knowledge on Topcon Surveying and Machine Control equipment is pivotal to the company’s success and is extremely hard to replace. The company has made significant financial investment in his professional development. For this reason, the company would be at risk of losing customers given the applicant’s specialist knowledge.
The applicant’s sister gave oral evidence. This was consistent with a written statement provided to the Tribunal which states that the applicant is her younger sibling and they have a close family relationship. He has been a significant part of her family. Her children have a close relationship as they have known him all their lives. He has no significant ties to the United Kingdom and is an integral part of her family. His departure would be devastating on her children’s emotional and psychological wellbeing due to their close relationship.
The applicant’s friend Mr O’Toole also provided oral evidence. This was consistent with a written statement provided by the Tribunal, which states he first met the applicant through studies and they are now work colleagues. The applicant has a significant role at the company where they both work and would be difficult to replace. The applicant has significant ties to Australia and has no family back in the United Kingdom.
The Tribunal accepts the evidence describing the applicant’s present circumstances and the impact that cancellation of the visa would have. The Tribunal in particular accepts that the applicant plays a significant role with his employer and that the company has financially invested in his training and professional development and that losing that expertise and experience would cause detriment. The Tribunal also accepts that the applicant has very close family relationships in Australia and is a significant member of the family unit in particular with his mother and two young nieces.
The Tribunal attaches significant weight to this factor as a reason against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Subdivision C of Division 3 of Part 2 of the Act contains obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
The delegate notes that the applicant has acted promptly and been cooperative in his NOICC dealings with the Department.
The Tribunal attaches moderate weight to this as a factor against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate notes that there is no evidence of other instances of non-compliance.
The Tribunal attaches moderate weight to this as a factor against cancelling the visa.
The time that has elapsed since the non-compliance
The non-compliance in this matter initially arose from March 2020 when he failed to notify the Department of a relevant change in circumstances. Subsequently in March 2021 the applicant further failed to notify of a change in circumstances when completing information requested by the Department.
The applicant submits that whilst the delegate concluded that a short period of time had elapsed since the non-compliance, he has been in Australia for 13 years. The Tribunal gives the factor little weight against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence of any breaches since the non-compliance.
The Tribunal attaches moderate weight to this as a factor against cancelling the visa.
Any contribution made by the visa holder to the community
The applicant stated that he has no involvement with broader community organisations and as such has not made any contribution in that regard. However, it is submitted that he is a valued employee and makes a significant contribution to the Australian economy in that context. He is also a valued family member who takes an active role with the care and support of his mother and also his young nieces.
The Tribunal accepts these submissions and attaches moderate weight to this as a factor against cancelling the visa.
Other considerations
In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[4] set out a number of matters that, under policy, should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109, as follows.
Whether there are persons in Australia whose visas would, or may, be cancelled under s 140
[4] PAM3 – Migration Act 1958 (Cth) - Visa cancellation instructions – General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140) – s 109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16)
Under s 140 of the Act, if a person’s visa is cancelled under s 109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.
There are no consequential cancellations that would occur if the applicant’s visa is cancelled.
International obligations
It is government policy that when considering whether to cancel a visa any relevant obligations arising under international treaties must be taken into account. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[5] Other than the UN Convention on the Rights of the Child, non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.[6]
[5] PAM3 Visa cancellation instructions - General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)
[6] See PAM3 - Migration Act 1958 (Cth) - Visa cancellation instructions - General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140) - Australia’s international obligations (re-issue date 21/8/16)
The applicant has no dependants. He stated that he has no parenting role with respect to his spouse’s two children who reside in Thailand.
There are no children whose interests would be affected by the cancellation.
Australia’s non-refoulement obligations
The applicant is a UK citizen. There is nothing before the Tribunal that demonstrates that cancellation of the visa would be in breach of these obligations.
Mandatory legal consequences
The policy provides that the Tribunal should have regard to whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.
In this case if the visa is cancelled and the applicant exhausts his appeal rights, he may be detained under s 189 of the Act and removed under s 198 of the Act if he does not voluntarily depart Australia. Under s 48 of the Act he would be prevented from applying for certain visas and he may also be subject to the public interest criterion 4013 which prevents him from working or studying in Australia.
The Tribunal considers that there are significant consequences of cancellation that would impact the applicant, his spouse and his employer. If cancelled, the applicant would not be able to remain in Australia, he and his wife would have to leave the country, abandon their work, their home and family.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
The applicant submits also that his spouse’s partner visa would be refused if the applicant’s visa remains cancelled and there appears to be some uncertainty of the potential for the applicant and his spouse to relocate to a country where they would both have residential rights raising the possibility of separation. The Tribunal gives this factor some weight against cancelling the visa.
Conclusions
The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant failed in his obligation to notify of a relevant change in circumstances and is satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act.
However the Tribunal concludes that overall the weight of factors in favour of not cancelling the visa far outweigh the factors in favour of cancellation. This is particularly the case when considering the applicant’s present circumstances, the investment that has been made by his employer in the development of specific skills and the economic contribution of those skills and experience, as well as the significant impact that mandatory legal consequence of cancellation has. The Tribunal also notes that the applicant has fully cooperated with the Department.
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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 835 (Remaining Relative) visa.
Maxina Martellotta
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 applicant 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 applicant 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.