Phan (Migration) - [2023] AATA 3018

Phan (Migration) [2023] AATA 3018 (12 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Thi Hong Van Phan
REPRESENTATIVE:  Mr Linh Minh Tran (MARN: 0958538)
CASE NUMBER:  2301450
HOME AFFAIRS REFERENCE(S):          BCC2021/1963634
MEMBER:Kate Millar
DATE:12 September 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 12 September 2023 at 12:48pm
CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – change in circumstance not notified prior to visa grant – child born not of the relationship – sponsor divorced the applicant – family reputation – genuine relationship – gambling debts – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 104, 105, 107, 109, 140, 197, 198, 359AA
Migration Regulations 1994, rr 2.12, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mrs Phan is a citizen of Vietnam, who held a Partner (Permanent) (Subclass 100) visa until it was cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 31 January 2023.
Mrs Phan applied for a Subclass 309 and Subclass 100 visa on the basis of her relationship with her sponsor Mr Van Su Dang on 6 August 2014. Mrs Phan was granted a Subclass 309 visa on 1 August 2016 and arrived in Australia on 20 September 2016. Her Subclass 100 visa was granted on 5 February 2018.
In the period between the date of the visa application and being granted a Subclass 309 visa, Mrs Phan had a child that was not the child of Mr Dang. Her child was born 27 May 2016 and remained in the care of her parents when she came to Australia.
Mrs Phan did not notify the Department of the birth of her child, which is a change to her circumstances. The delegate cancelled Mrs Phan’s Subclass 100 visa on the basis that Mrs Phan did not notify of a change to her circumstances.
On 1 October 2021, Mrs Phan notified the Department that she had provided incorrect information and that she had a child born 27 May 2016. Mrs Phan and her sponsor Mr Dang obtained an order for divorce on 21 October 2021.
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).
The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.
Mrs Phan appeared before the Tribunal on 21 August 2023 to give evidence and present arguments and was represented in relation to the review. The Tribunal also received oral evidence from her ex-husband Mr Dang, her niece Ms Thi Thuy Le and her mother Ms Thi Hong Nga. The Tribunal hearing was conducted with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phan (Migration)

Details

AGLC: Phan (Migration) [2023] AATA 3018
Case: [2023] AATA 3018
Decision Date: 12 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mrs Phan, an applicant for a Subclass 100 (Spouse) visa, whose visa had been cancelled. The dispute concerned whether the cancellation decision should be affirmed. The Tribunal was required to determine if there had been non-compliance with the Act as particularised in a notice issued under section 107, and if so, whether the visa should be cancelled.

The legal issues before the Tribunal were twofold: first, whether Mrs Phan had failed to notify the Department of a change in her circumstances as required by section 104 of the Migration Act 1958, specifically the birth of her child, and whether this non-compliance was accurately described in the section 107 notice. Second, if non-compliance was established, the Tribunal had to consider whether to exercise its discretion to cancel the visa under section 109 of the Act.

The Tribunal found that Mrs Phan acknowledged her failure to notify the Department of the birth of her child, thereby conceding non-compliance with section 104 of the Act. The Tribunal was satisfied that the section 107 notice issued to Mrs Phan complied with the statutory requirements and accurately particularised the non-compliance. Having established non-compliance, the Tribunal then considered the discretionary power to cancel the visa under section 109(1). This involved considering Mrs Phan's response to the notice, any prescribed circumstances under regulation 2.41, and relevant government policy, including matters such as the consequences of cancellation and international obligations. After considering all relevant circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mrs Phan's Subclass 100 (Spouse) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 104 of the Act. Section 104 of the Act requires non-citizens to notify the Department of any relevant changes in circumstances. The exercise of the cancellation power under s 109 of the Act requires the Minister to issue 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. 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 issues before the Tribunal are 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 by Mrs Phan failing to notify of a change to her circumstances, in particular to notify of the birth of her child. Mrs Phan acknowledges that she did not notify of the birth of her child, and concedes that she did not comply with s 104 of the Act and a ground to cancel her visa exists. The Tribunal finds that there was non-compliance with s 104 of the Act by Mrs Phan 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 issued 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. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are 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 Procedures 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 Tribunal has considered each of the prescribed circumstances, factors specified in the policy and any other relevant matters. A. Prescribed circumstancesThe correct information

Decision

Reasons for decision

As there was non-compliance by Mrs Phan in the way described in the notice given under s 107 of the Act, and having had regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.Kate MillarSenior MemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.104Changes in circumstances to be notified(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.(4)Subsection (1) applies despite the grant of any visa.107Notice of incorrect applications(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non‑compliance; and(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i)if the holder disputes that there was non‑compliance:(A)shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or(ii)if the holder accepts that there was non‑compliance:(A)give reasons for the non‑compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f) requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b) otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a) visas of a stated class; or(b) visa holders in stated circumstances; or(c) visa holders in a stated class of people (who may be visa holders in a particular place); or(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.108Decision about non‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.Kate MillarSenior MemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.104Changes in circumstances to be notified(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.(4)Subsection (1) applies despite the grant of any visa.107Notice of incorrect applications(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non‑compliance; and(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i)if the holder disputes that there was non‑compliance:(A)shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or(ii)if the holder accepts that there was non‑compliance:(A)give reasons for the non‑compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f) requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b) otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a) visas of a stated class; or(b) visa holders in stated circumstances; or(c) visa holders in a stated class of people (who may be visa holders in a particular place); or(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.108Decision about non‑complianceThe 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.