Nallbani (Migration)

[2019] AATA 4901

Nallbani (Migration) [2019] AATA 4901 (24 July 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Marsela Nallbani

CASE NUMBER:  1903197

DIBP REFERENCE(S):  BCC2017/1924757

MEMBER:Denis Dragovic

DATE OF DECISION:  24 July 2019

DATE CORRIGENDUM

SIGNED:24 July 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The date on the front page of decision record is DATE: ‘25 July 2019’. The date ‘25 July 2019’ is to be replaced with ‘24 July 2019.’

Denis Dragovic
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Marsela Nallbani

CASE NUMBER:  1903197

DIBP REFERENCE(S):  BCC2017/1924757

MEMBER:Denis Dragovic

DATE:25 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 24 July 2019 at 7:04am

CATCHWORDS

MIGRATION – cancellation – Partner (Resident) (Class BS) visa – Subclass 801 (Spouse) – Federal Circuit Court remittal – husband’s resident return visa cancellation set aside – applicant’s spouse visa taken never to have been cancelled – decision under review set aside 

LEGISLATION

Migration Act 1958, ss 109, 114, 116, 140

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 Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant’s husband, who had sponsored her for the partner visa, had subsequently had his resident return visa cancelled. 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 matter is before the Tribunal because of a court order. The court order pertains to the earlier Tribunal’s review in which the member concluded that there was grounds for cancellation as her sponsor’s visa had been cancelled. The case was remitted by consent for the reason,

   The MIBP concedes that the AAT's decision is affected by jurisdictional error on the basis that the Tribunal's decision to refuse to grant an ajournment (sic) of the Applicant's proceeding pending the outcome of her spouse's proceeding before the Federal Circuit Court was legally unreasonable in the manner identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437. The Tribunal identified that the loss of the Applicant's spouse's permanent residence was a consideration relevant to the exercise of its discretion at paragraph [33] of its decision record. In refusing the Applicant's adjournment request, the Tribunal failed to have regard to the Applicant's desire to produce further evidence relevant to her spouse's visa status and the impact of decisions taken with respect of the Applicant's children that could inform the exercise of the Tribunal's power under section 140(2) of Migration Act 1985 (Cth) to cancel the Applicant's visa.

4. The appeal to the Federal Circuit Court visa by the applicant’s spouse was successful. Subsequently, upon reconsideration by the Tribunal (case 1803441) the cancellation was set aside on 2 November 2018.

5. The Tribunal at that stage was comprised of Deputy President Britten-Jones and Senior Member Denis Dragovic (presiding).

   Background

6. The applicant is a 38 year old female from Albania. Her husband Artan Hasani was granted a [permanent visa] on 15 December 2000 and subsequently a resident return 155 on the 24 May 2006. The applicant applied for a partner visa and her second stage s.c.801 visa was granted on the 17 May 2012.

7. On 29 June April 2017 a delegate of the Minister made a decision to cancel the applicant’s husband’s resident return visa pursuant to s.116(1AA) of the Act on the basis that they were not satisfied of the visa holder’s identity. As the applicant was granted a visa only because her husband had been granted a resident return visa which was subsequently cancelled, it was determined that there were grounds for cancellation of the applicant’s partner visa under s.140(2) of the Act and a decision was made to cancel her partner visa on 26 June 2017.

8. For the following reasons, I consider I should decide the review in the applicant’s favour without inviting the applicant to appear before the Tribunal.

   CONSIDERATION OF EVIDENCE

9. Subsection 140(2) of the Act provides that the Minister may, without notice, cancel a visa where:

   ·another person’s visa is cancelled under ss.109 (incorrect information), 116, 128, 133A, 133C or 137J (student visas); and

   ·the visa holder, to whom s.140(1) does not apply, holds a visa only because the person whose visa is cancelled held a visa.

10. In this case I am satisfied that the applicant held a partner visa only because her husband held a [permanent] visa (and later a resident return visa). The delegate’s decision records that the applicant’s partner visa was cancelled under s.140(2) because her husband’s resident return visa was cancelled under s.116(1AA).

11. It would appear then that at the time of the decision to cancel the applicant’s visa, the ground for cancellation existed under s.140(2). However as noted earlier the cancellation of the applicant’s husband’s resident return visa was set aside by the earlier Tribunal.

12. I note that the Act does not have an equivalent of s.114(1) which deals with s.109 cancellations for s.116 cancellations. I further note that government policy states:

    It is departmental policy, however, that:

    •if a s116 cancellation decision is set aside by a court, the visa is taken to never have been cancelled. Any consequential s140 cancellation would be treated in the same manner. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled.

13. In these circumstances I consider it appropriate to set aside the decision to cancel the applicant’s visa under s.140(2) on the basis that her husband’s visa is taken never to have been cancelled.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

    Denis Dragovic
    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.