Promsopa (Migration)

[2019] AATA 1184

Promsopa (Migration) [2019] AATA 1184 (7 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nongyao Promsopa

CASE NUMBER:  1822491

DIBP REFERENCE(S):  BCC2017/445586

MEMBER:Kira Raif

DATE:7 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 07 January 2019 at 10:54am

CATCHWORDS
MIGRATION – cancellation – Subclass 100 (Spouse) visa  – relationship with sponsor was not to the exclusion of all others – failed to inform the Department about the relationship breakdown – failed to inform Centrelink about the changes in her visa status –  cancellation would not adversely affect the child’s best interests – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 102, 103, 104, 105, 107, 109, 140
Migration Regulations 1994 (Cth), rr 2.41, 2.55

CASES
MIAC v Khadgi (2010) 190 FCR 248

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

2. The applicant is a national of Thailand, born in February 1985. She was granted the Class BC Partner visa on 10 March 2015. On 28 June 2018 the applicant was issued with a notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.104 of the Act. The applicant did not provide a response and the NOICC was subsequently returned to sender unclaimed. The applicant’s visa was cancelled on 30 July 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 2 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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.

8. The Tribunal is also satisfied that the notice was sent by prepaid post to the applicant’s last residential address known to the Minister, as advised by the applicant in her conversation with the delegate. The Tribunal is satisfied the notice was sent in accordance with the requirements of r.2.55.

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

9. 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.

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

    a.The applicant made the application for the Class BC Partner visa on 4 December 2012. She was sponsored in that application by Mr Mark Stephen Potter. The applicant was granted the Provisional Partner visa on 22 April 2013 and entered Australia on 7 May 2013.

    b.In support of her Partner application the applicant submitted on 9 December 2014 a form in which she provided the following information.

    i.Sponsor’s personal details – Mark Potter

    ii.Is the applicant in a genuine and continuing relationship with the sponsor – yes

    iii.Do the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others – yes

    iv.The applicant signed a declaration that she would inform the Department in writing if she became aware of any changes in circumstances or any change relating to information she provided in or with the application, while being considered.

    c.The applicant was granted the Class BC visa on 10 March 2015.

    d.On 15 February 2016 the Department received evidence relating to [Child 1], born [in] 2015, including the child’s birth certificate. The birth certificate identifies the applicant as the child’s mother and Mr Kris Douglas Walker as the child’s father. The Department received the applicant’s Thai passport and Mr Walker’s UK passport.

11. As the child was born in [2015], and there is no evidence to suggest the child was born prematurely, it appears that the child was conceived around January-February 2015. The fact that the applicant decided to have a child with a person other than her sponsor offers strong evidence, in the Tribunal’s view, that the applicant’s relationship with Mr Potter was not to the exclusion of all others by the time her visa was granted in March 2015.

12. In her written submission to the Tribunal of 30 October 2018 the applicant explained why she had not replied to the NOICC, stating that she did not receive any notices from Australia Post. With respect to the grounds for cancellation, the applicant states that her relationship with Mr Potter started to have problems at the end of 2014 but they were not formally separated. She travelled to Thailand and after returning to Australia, stayed with her relative but visited Mr Potter. They were still trying to work on their relationship and deciding the future and they had not yet decided that the relationship was over. The applicant states that she met Kris Walker at the end of January 2015 and in February she found out she was pregnant. She was surprised but happy but she was also upset that her relationship with Mr Potter was over. She told Mr Potter in March 2015 and they talked about the relationship being over. They remained friends and maintained contact.

13. The applicant states that her relationship with Mr Walker continued and her daughter was born in [2015]. That relationship was not going well. They travelled to Thailand and made the decision together to leave the baby in Thailand. The applicant states her relationship with Mr Walker ended in October 2016 when the police were called. A few days later she travelled to Thailand to get her child. She wanted to travel to Thailand with the child but Mr Walker started legal proceedings to prevent her from doing that. They agreed to the Final Parenting Orders for the child in August 2018. The orders state that the child is to live with the applicant and with Mr Walker on his days off work and he has since been working in Perth permanently.

14. The applicant states that Mr Walker offered to care for the child on a full-time basis and suggested to her that she should return to Thailand. The applicant states that she is afraid that if her visa is cancelled, Mr Walker could take the child to Scotland and she would be unable to have the child returned to her.

15. In oral evidence to the Tribunal the applicant states that she wanted to have a child with her ex-husband, Mr Potter but he did not want to have children. She was upset about it and decided to travel to Thailand. In January 2015 she met Kris Walker and they became friends. In February 2015 she realised she was pregnant and she believes her relationship with Mr Walker started from that time. The applicant said that she continued to talk to Mr Potter and visited him from time to time but in the Tribunal’s view, these acts are insufficient to establish an ongoing committed spousal relationship. Having telephone conversations and visits from time to time does not satisfy the Tribunal that the applicant’s spousal relationship with Mr Potter continued. The applicant’s evidence to the Tribunal is that when she returned from Thailand in early 2015, she was staying with a friend and not with Mr Potter. She said that by February 2015 her relationship with Mr Potter had ended.

16. The applicant’s evidence to the Tribunal is that her relationship with the sponsoring spouse ended by February 2015 when she found out about her pregnancy to Mr Walker. The applicant admits that she did not inform the Immigration Department about the breakdown of her relationship because she was ‘confused’. The applicant states that it was her husband who filled in the paperwork and she did not know what to do. However, as noted above, the applicant had signed a declaration undertaking to inform the Department about any changes in her circumstances. The Tribunal is also of the view that it was the applicant’s responsibility to acquaint herself with immigration requirements.

17. The Tribunal finds that before the applicant was granted the Class BC visa in March 2015, her relationship with the sponsoring spouse had ended. The Tribunal finds that the applicant’s circumstances had changed so that an answer she gave on the application form was no longer correct. There is no evidence that the applicant had informed the Department in writing of the change and the applicant confirms that she had not done so. The Tribunal finds that the applicant did not comply with s.104 of the Act. The Tribunal finds that there was non-compliance in the way described in the s.107 notice.

    Should the visa be cancelled?

18. 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).

19. 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 r.2.41 of the Migration Regulations 1994. Briefly, they are:

    The correct information

20. The applicant admits that her relationship with the sponsor ended by February 2015 when she realised she was pregnant with another person. The correct information is that the applicant was no longer in a spousal relationship with the sponsor and that relationship broke down before she was granted the permanent visa. The relationship was no longer to the exclusion of all others.

    The content of the genuine document (if any)

21. This is not relevant in the present case.

    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

22. The applicant was granted the Partner visa on the basis of being in a spousal relationship with the sponsor. That relationship ended by March 2015. There is no evidence that the applicant relied on any of the exceptions such as the birth of the child, family violence or the death of the sponsor. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information.

    The circumstances in which the non-compliance occurred

23. The applicant explained the circumstances in which the non-compliance occurred in her written submission to the Tribunal and her oral evidence. The applicant explains that her relationship with the sponsor deteriorated over some months and once she realised she was pregnant to another person, both she and the sponsor decided to end their relationship.

24. In oral evidence to the Tribunal the applicant also states that when the relationship ended, she was confused and did not know what to do. She still loved her husband and had contact with him but fell pregnant with another person and did not know what to do. As noted above, the Tribunal does not consider that limited contact between the applicant and the sponsor would have been sufficient to establish the existence of an ongoing and mutually committed relationship between them. The Tribunal does not accept that the applicant genuinely believed she was in a spousal relationship with the sponsor by the time she started the relationship with Mr Walker.

25. Neither does the Tribunal accept that the applicant was confused and did not know what to do. The applicant would have been aware that the application for the Partner visa was based on her relationship with the sponsor. The existence of a genuine and an exclusive relationship was central to the applicant’s eligibility for the visa. The Tribunal does not accept that the applicant would not have appreciated the significance of the relationship breakdown to her visa eligibility. The Tribunal does not accept the applicant was confused about her obligations to inform the Department. Rather, the Tribunal is of the view that the applicant had deliberately withheld that information in order to obtain the visa.

    The present circumstances of the visa holder

26. The applicant states in her written submission that she has been a permanent resident of Australia for over three and a half years before her visa was cancelled and she wants to stay in Australia for her daughter to grow up and be educated in Australia. Her daughter attends childcare and has friends. She also wants her daughter to have a good relationship with her father.

27. The applicant stated in oral evidence that prior to her visa being cancelled, she was working but she has not been allowed to work since the visa cancellation, so she relies on Centrelink payments. The applicant told the Tribunal that she has not informed Centrelink about the cancellation of her permanent visa.

28. The applicant states that she lives with her daughter. The child’s father calls her daily and takes the child for a few days a week when he is not working. The applicant said that Mr Walker holds a temporary work visa. She said she does not know what would happen in the future but she believes he intends to apply for a permanent visa. The applicant said that if the visa is cancelled, she would return to Thailand with the chid but her former partner does not want that to happen.

29. The applicant states that the child’s father was violent towards her and used to drink a lot before the child was born. He had never been violent towards the child.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

30. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations under the above provisions.

    Any other instances of non-compliance by the visa holder known to the Minister

31. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

32. The applicant was granted the permanent visa in March 2015 and was required to inform as soon as practicable, any changes in her circumstances that occurred until the visa grant. Close to four years passed since the non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

33. The applicant told the Tribunal that she has not informed Centrelink about the changes in her visa status and the cancellation of her permanent visa, so she continues to receive Centrelink benefits as a permanent resident. The applicant’s failure to inform Centrelink about her visa status, which may affect her eligibility for the Centrelink benefits, appears to be in breach of the law. In the Tribunal’s view , it is a serious breach because it represents the applicant’s lack of candour when dealing with a government agency. 

    Any contribution made by the holder to the community.

34. The applicant does not claim to have made any contribution to the community. She states that she has not breached any laws and is generally a good person. The Tribunal acknowledges that evidence and also accepts that the applicant was previously employed and paid taxes.

35. 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.

    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

36. If the applicant’s visa is cancelled, unless she is granted another visa, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may also lose certain entitlements that she may have acquired as a permanent resident of Australia. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention for certain, albeit limited, visa categories.

    Whether there would be consequential cancellations under s.140

37. There are no persons whose visas would be subject to cancellation under s.140. The applicant’s daughter is an Australian citizen as she was born at the time when the applican held a permanent visa.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

38. There is no evidence, and the applicant does not claim that Australia has protection obligations towards her. The Tribunal does not consider that the cancellation would be in breach of Australia’s non-refoulement obligations.

39. The applicant outlines in her submission to the Tribunal the relationship between her, the child and the child’s father. She provided to the Tribunal evidence of the Family Court proceedings and the Parenting Orders. The applicant states that it is in the best interest of her child to have both parents living in the same country. The applicant provided to the Tribunal a copy of the Parenting Orders issued in January 2018 and other materials.

1. The applicant told the Tribunal that the child’s father is not a permanent resident but plans to seek a permanent visa and may include the child in that application. The applicant states that the child’s passport is with the Family Court and she is not able to remove the child from Australia. The Tribunal is mindful that the Family Court papers presented by the applicant show that the applicant travelled to Thailand in February 2017 and the child’s passport was released for that travel but was to be returned to the Registry of the Family Court upon their return to Australia. That would indicate that the child did leave the country and was able to do that in the past. The applicant told the Tribunal that she needed the father’s permission to leave the country with the child and that the child’s father would not allow them to leave the country permanently.

2. The applicant states that she hopes the child will grow up in Australia and will receive an Australian education which is better. The applicant states that Australia has better systems, her daughter speaks English and gets along well with other children. The child will also have access to the Australian health system.

3. The Tribunal has considered the best interests of the child and acknowledges it is a primary consideration. The Tribunal accepts that the best interests of the child may be to have the presence of both parents and the Tribunal acknowledges that the order of the Family Court allows for both parents to have access to the child and to have certain parental responsibilities towards the child. The Tribunal also acknowledges the applicant’s evidence that there may be travel limitations in relation to the child. The child’s father has written to the Tribunal expressing his desire to be with the child and the Tribunal accepts that evidence, which is consistent with the applicant’s own evidence that there is reasonable contact between the child and her father.

4. However, the Tribunal places weight on the fact that the child’s father is not a permanent resident of Australia. While the applicant claims that Mr Walker intends to apply for a permanent visa, the Tribunal finds the applicant’s evidence to be speculative and there is no evidence before the Tribunal to indicate that the application for permanent residence has been made, or that Mr Walker has been granted a permanent visa. It cannot be assumed that he will be granted such a visa in the future. That is, even if the cancellation is set aside, there is no guarantee that the child will be able to stay in Australia in the presence of both parents. If the cancellation is set aside and the applicant can remain in Australia, there is no guarantee that the child’s father will remain in Australia. If the visa is cancelled, the applicant’s daughter can remain in Australia as an Australian citizen, or she may travel to Thailand with the applicant or to the UK with her father. The applicant has not satisfied the Tribunal that the reinstatement of her visa would offer the only opportunity for the child to have the benefit of both parents in the same country. While the Tribunal acknowledges that there are Family Court orders in relation to the child, the Tribunal is mindful that such orders will only apply while the child’s parents reside in Australia. Should Mr Walker not obtain – or choose not to pursue – an Australian permanent visa, the family would need to make other arrangements to enable the child to spend time with both parents.

5. As for the child having a better environment, education, healthcare and other benefits in Australia, the Tribunal is not satisfied that same benefits would not be available to her in Thailand. The applicant’s claims that Australia has better systems are generalised and the applicant has not satisfied the Tribunal that her daughter would be denied access to adequate services in Thailand.

6. The Tribunal has formed the view that the cancellation of the visa would not adversely affect the child’s best interests because the child’s father does not have a right to reside in Australia permanently and the family would need to make arrangements to enable both parents to have access to the child.

7. The applicant has not raised any other matters for consideration.

8. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s.104 of the Act because she failed to inform the Department about the changes in her circumstances. The correct information is that the applicant’s relationship with the sponsoring spouse had ended before the applicant was granted the Partner visa and the decision to grant the visa was based on a circumstance which was no longer in existence.

9. There are no other known instances of non-compliance and considerable time has passed since the non-compliance. The Tribunal has formed the view that the applicant had deliberately withheld information from the Department about her relationship with the sponsor because the Tribunal does not accept the applicant’s evidence that she was confused or was unaware of her obligation to inform about the breakdown of her relationship. The Tribunal also notes that there are other breaches of the law as the applicant’s evidence is that she has not informed Centrelink about her visa status. The Tribunal finds that the applicant has not been truthful in her dealings with these government agencies.

10. The Tribunal acknowledges that certain hardship would be caused by the cancelation of the visa and if the applicant were required to leave the country because arrangements may need to be made in relation to the child and access to the child by both parents. As noted above, the Tribunal places weight on the applicant’s evidence that the child’s father is not a permanent resident of Australia and whatever arrangements are presently in place in relation to the child may need to be reconsidered unless he is granted a permanent visa. The Tribunal has formed the view that the best interests of the child would not be adversely affected by the cancellation. However, if the Tribunal were wrong in this assessment, and if it is determined that the best interests of the child do require that the visa not be cancelled, the Tribunal places greater weight on the fact that the information that was the subject of the s.104 obligation was central to the applicant’s eligibility for the visa. That is, if the applicant informed the Department that her relationship with the sponsoring spouse ended in February 2015, before she was granted the permanent visa, the applicant would not have been entitled to the grant of the visa. The Tribunal is also mindful that the child is an Australian citizen only because the applicant was a permanent resident at the time of the child’s birth and she was not entitled to be a permanent resident. The applicant’s failure to inform the Department about changes in her circumstances affected not only the applicant’s visa eligibility but also her daughter’s eligibility for the Australian citizenship. The Tribunal finds that the breach was significant.

11. In the Tribunal’s view, the nature of the breach and the circumstances in which the non-compliance occurred, outweigh other considerations.

12. 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 be cancelled.

    DECISION

13. The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

    Kira Raif
    Senior Member