Mulhare (Migration)

[2021] AATA 51

Mulhare (Migration) [2021] AATA 51 (13 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Alison Catherine Mulhare

CASE NUMBER:  2012844

HOME AFFAIRS REFERENCE(S):          BCC2019/135867

MEMBER:Kira Raif

DATE:13 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 13 January 2021 at 11:28am

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – requirement to notify department of change of circumstances as soon as practicable – contradictory information provided to department about when relationship ended – relationship difficulties, counselling and attempts to continue relationship – insufficient evidence that relationship ended before visa granted – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 109(1)

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Zhao v MIMA [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was granted the Spouse visa in Subclass 820 in September 2017. On 15 July 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, the Notice) because the delegate formed the view that the applicant did not comply with s. 104 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 13 January 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

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

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

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

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

8. 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.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that she made the application for a Partner (Temporary) Subclass 820 visa on 28 January 2016 on the basis of a de facto relationship with Mr David Ende. The applicant completed an application form in which she stated that she was in a de facto relationship with Mr Ende which commenced in July 2014. The applicant stated that she and the sponsor had a mutual commitment to a shared life as husband and wife, or as de facto partners, to the exclusion of all others and that they committed to a shared life together to the exclusion of all others on 12 July 2014. The applicant stated ‘no’ in response to a question whether she had lived separately and apart from the sponsor for any periods of time since committing to a shared life together. The applicant was granted the Temporary Partner visa on 6 September 2017.

10. In December 2018 the applicant wrote to the Department advising that her relationship with Mr Ende ended in April 2017. However, in her response to the NOICC the applicant disputes that information. The applicant explains that when writing to the Department about the breakdown of the relationship, she did not have a clear recollection of the timeline. The applicant states that she and Mr Ende attended relationship counselling in April 2017 and maintained their relationship at that time and until late September 2017. The applicant submits that she and the sponsor travelled on a holiday around September 2017 and continued to reside together and maintained a joint bank account and represented themselves to others as being in a relationship. The applicant stated that Mr Ende was abusive and violent during the relationship and she had been attending counselling. While the applicant concedes that she did not inform Immigration about the breakdown of the relationship for several months, the applicant refers to her poor mental state at the time and states that she could not remember specifics.

11. The applicant provided in response to the NOICC a number of documents evidencing her relationship with Mr Ende beyond April 2017, including evidence of travel, statements from third parties indicating the applicant and sponsor presented as a couple and a bank statement relating to a joint account for June – July 2017. The applicant also provided to the delegate a number of other materials, which include an extract from the applicant’s statement in which she refers to the first relationship breakdown in April and the couple’s attempt to reconcile. The applicant states that she and Mr Ende saw each other about twice a week.

12. The Tribunal acknowledges that there is evidence such as bank statements, correspondence to the same address and other evidence of cohabitation, however, the Tribunal finds such evidence unpersuasive because it is based on the parties self-reporting their relationship to various organisations. Thus, a bank would continue to send letters to its customers at the address provided whether or not the customers continue to maintain a relationship or reside at that address. The applicant’s evidence is that she did not inform various agencies about the change in her address because she and Mr Ende were still seeing each other, so any communication from third parties is not indicative of a joint household or of a genuine relationship. However, there is other evidence that may indicate that the relationship continued beyond April 2017. Importantly, there are statements from third parties who confirm that the applicant and the sponsor continued to attend social activities as a couple and represented themselves to others as a couple. There is also evidence of their joint travel on a brief holiday. While there appears to have been a change in the relationship around April 2017, the evidence suggests that the applicant and Mr Ende made an attempt to maintain the relationship and attended counselling in order to do so.

13. In her submission to the Tribunal of 8 December 2020 the applicant also states that she provided incorrect date when informing the Department about the breakdown of her relationship with the sponsor and she admits that she had provided contradicting information about when the relationship broke down. The applicant notes that she provided a number of documents which show that she and the sponsor resided as a couple, which had not been considered by the delegate, such as the joint bank statements dated July 2017 and which show transactions, a statement from an employee of the Australia Post and declarations from others. The applicant notes that the bank record shows the sponsor’s salary payment made in June 2017 and it is unlikely that the salary would be paid into the joint account after the relationship ended. The applicant refers to the various statements, including her own statements made to the delegate. The applicant notes that she and the sponsor had multiple ‘break-ups’ and refers to her decisions to break up which were not followed through. The applicant notes that she attended a counselling session in April 2017 to help fix the relationship and she refers to her statement when she ‘lost hope of reconciling’ which occurred on 26 August 2017. The applicant states that they continued to discuss the relationship until September 2017. They severed ties entirely in December 2017. The applicant also refers to the Eco Village booking to celebrate their third anniversary. The applicant submits that there was insufficient evidence before the delegate to find that there were grounds for cancelling the visa. The applicant also notes that the Department has delayed making the decision on the subclass 801 visa until the finalisation of the present review. (The relevance of this to the issues arising on the review is unclear to the Tribunal.)

14. In oral evidence the applicant told the Tribunal that by April 2017 she and the sponsor had not completely separated. She had sought counselling and decided not to break up the relationship, even though they were using different rooms in the house. The applicant said that they were not getting along but they wanted to be together and she relied on the advice of the counsellor. They stayed in separate rooms for about a week and after that they were ‘back together’.  Around May or June she moved to separate accommodation because she thought the only way to save the relationship was by ‘taking a step back’. They stayed in separate accommodation but kept their belongings in each other’s places. The applicant said that in that period they were spending a lot of time with each other, staying over several nights a week. The applicant states that when they travelled to EcoVillage in September 2017,  the relationship seemed to be working again and they thought they would get away for a night. The applicant said that around September or October 2017 she went to the sponsor’s house and saw another woman there. She found out about this relationship at that time, but she did not know when that relationship started. The applicant concedes that her relationship with the sponsor ended by September or October 2017. She claims she did not inform the Department about the breakup at that time because she needed time to process what had happened and she hoped they would get back together.

15. It does not appear to be in dispute that the applicant’s relationship with the sponsor ended no later than September or October 2017. The applicant did not inform the Department about the breakdown of the relationship until December 2018 which in the Tribunal’s view was not ‘as soon as practicable’ as required by s. 104 and the Tribunal is mindful that the applicant is required to comply with that  provision until she is granted the Subclass 801 visa. Should the applicant be granted the Subclass 801 visa in the future, it may be that there will be grounds for cancelling that visa for non-compliance with s. 104 but this is not a matter for the present Tribunal.

16. The Tribunal does not accept the applicant’s submission that there was insufficient evidence before the delegate to determine that a ground for cancellation existed. The applicant’s own communication to the Department indicated that the relationship ended in April 2017 and the delegate was entitled to give such evidence considerable weight. However, there is more evidence before the Tribunal. In particular, the Tribunal places weight on evidence from third parties indicating that they believed the applicant and the sponsor continued to be in a relationship until the end of 2017. There is evidence of pooling of financial resources, as the sponsor’s salary was deposited into the joint bank account beyond April 2017 and there is evidence of that account being used and in the Tribunal’s view, that offers strong evidence that some form of relationship continued to exist. The Tribunal also places significant weight on the sponsor’s statement made in July 2017 in which he refers to the existence of a genuine and committed relationship. There is evidence of joint travel and there is evidence of the couple trying to maintain the relationship by undertaking counselling.

17. In the Tribunal’s view, the evidence suggests that the relationship was not a happy one from early 2017 and there were break-ups and attempts at reconciliation. However, putting aside the applicant’s communication to the Department that the relationship ended in April 2017, the Tribunal is of the view that there is insufficient evidence to find that it did end at that time. The preferable interpretation of the evidence, in the Tribunal’s view, is that there were problems in the relationship but the couple sought reconciliation and attempted to maintain the relationship. Their relationship continued, in some form, until around September 2017 when it ended. The Tribunal is mindful of the applicant’s evidence that she was unclear about the dates when writing to the Department and while that explanation is problematic, given the importance of that communication and the fact that the applicant had ample time to determine the timeline before communicating with the Department, the Tribunal acknowledges that there is a possibility that the applicant gave the wrong dates in that communication. The Tribunal has decided to give greater weight to other evidence of the relationship continuing beyond April 2017, as outlined above. 

18. In Zhao v MIMA [2000] FCA 1235 the Court stated at [25] and [32]:

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

19. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s.109, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

20. The Tribunal has formed the view that there is insufficient evidence for a finding that the applicant’s relationship with the sponsor ended before she was granted the visa. There is no doubt there were problems in the relationship and the couple moved to different addresses while spending considerable time together. That  is not sufficient to state that they lived separately and apart on a permanent basis. There were also reconciliations, joint financial arrangements, joint social activities and representation of themselves to others as a couple beyond April 2017. The sponsor’s statement made in Jul 2017 suggests there was also mutual commitment, which is evidenced by attempts at reconciliation. In the Tribunal’s view, the matters to which the NOICC refers are not sufficient to be positively satisfied that the applicant’s relationship with the sponsor ended before September 2017 when she was granted the temporary visa. The Tribunal is not satisfied, on balance, that the ground for cancellation is made out.

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

    Conclusion

22. 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

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

    Kira Raif
    Senior Member