Mucta (Migration)

[2023] AATA 1169

Mucta (Migration) [2023] AATA 1169 (5 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Moonmoon MUCTA

REPRESENTATIVE:  Mr Phillip Silver

CASE NUMBER:  2212061

HOME AFFAIRS REFERENCE(S):          BCC2021/629440

MEMBER:Michael Cooke

DATE:5 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 05 April 2023 at 3:14pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 100 (Spouse) visa –applicant provided incorrect information – applicant appeared to have made an application for a visa under a different identity – applicant is the inadvertent victim of a shyster – denies any attempt to bamboozle the Department with false or incorrect information – has not breached the criterion PIC 4020(1) – there was no non-compliance by the applicant in the way described in the s.107 notice –decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, cl 100.222

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 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that she appeared to have made an application for a visa under a different identity and also appeared to have been previously married to another person under that identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review.

4. The Tribunal held a hearing with the applicant on 5 April 2023. She was assisted by her representative Mr Philip Silver who attended the hearing.

5. A Bengali language interpreter also assisted the Tribunal.

6. 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

7. 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.

8. 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.

9. 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?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the Notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 Notice was non-compliance with s.101(b) in the following respects: she tendered incorrect information (particularised in the s.107 notice) when making application for a previous visa.

    Consideration and findings as to whether there was the relevant non-compliance.

11. The Tribunal has had the benefit (since the delegate’s decision) of a plethora of information regarding the applicant’s true identity. This information has been further explored in oral evidence. The Tribunal has evaluated this information and finds that it is sourced from a variety of people who have known the applicant closely or reliable official sources. Furthermore, the Tribunal finds that the official government sourced information provided together with the personal has abundantly satisfied the Tribunal that the applicant is who she claims to be - Moonmoon MUCTA. She is a Bangladeshi citizen and the mother of two Australian children.

12. Rather than someone who has ‘gamed’ the Australian visa system, the Tribunal is satisfied that the applicant is, in fact, the inadvertent victim of a shyster from whom she sought assistance when making preparations to seek a new passport. The shyster used her photograph and an application for a new Bangladeshi passport to defraud her of 2 lakh Bangladeshi taka. When she asked him whether her new passport had been issued, he demanded more money. When she refused, he absconded with the legitimate information she gave him. He then unlawfully used her passport information to invent the persona of Munny AKTER. This persona then became a purported secondary Bangladeshi applicant on another Bangladeshi person’s Australian Subclass 457 visa application. The applicant’s representative indicated (in the hearing) that he believes this application may have been withdrawn before any actual visa grant by the Department.

13. In the meantime, she then applied for a new Bangladeshi passport and an Australian Partner visa which was duly granted to her on 13 October 2017. She has been (it appears) a ‘model immigrant’ since then and has not been the subject of any adverse information. She has given birth to two Australian citizen children. Years after the successful grant of her Partner visa and in the middle of making her new life, she was abruptly faced with by a visa cancellation (the subject of this review) on 17 August 2022. The applicant denies ever making any Subclass 457 application under the name and identity of Munny AKTER. She denies any attempt to bamboozle the Department with false or incorrect information. The Tribunal (after significant consideration) is prepared to believe, on balance, her explanation.

14. The Tribunal is satisfied from the subsequent information that she has not breached the criterion PIC 4020(1) and subsequently reg.100.222 (a) all of which led to the inevitable decision by the delegate to cancel her Partner visa.

    Conclusion on non-compliance

15. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

    CONCLUDING PARAGRAPHS

16. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

    Michael Cooke
    Senior 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.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    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.