Raj (Migration)

[2022] AATA 587

Raj  (Migration) [2022] AATA 587 (28 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Priya Raj

REPRESENTATIVE:  Mr Bimal Bhattarai (MARN: 9685736)

CASE NUMBER:  2017952

HOME AFFAIRS REFERENCE(S):       BCC2019/417303

MEMBER:Kira Raif

DATE:28 February 2022

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 28 February 2022 at 12:15pm

CATCHWORDS

MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – incorrect information on visa application and Incoming Passenger Cards – applicant convicted of offences – applicant deported from New Zealand – Australian partner and child – lengthy residence in Australia – family commitments in Australia – best interests of the child – decision under review set aside   

LEGISLATION

Migration Act 1958, ss 101-105, 107-109, 140, 166, 501; 4 4001
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4001; rr 2.41, 3.02

CASES

MIAC v Khadgi (2010) 190 FCR 248

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 (Cth) (the Act).

2. The applicant is a national of Fiji, born in May 1985. She was granted the temporary Partner visa in July 2018. In June 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with ss. 101 and 102 of the Act. The applicant provided her response and her visa was cancelled on 22 July 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The applicant was represented in relation to the review, although the representative did not attend the hearing. 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 notes that the NOICC refers to a number of convictions that occurred after 2004 when the applicant completed the Incoming Passenger Card. The applicant could not have referred to such convictions when completing the IPC and the Tribunal is not satisfied that such convictions could form the basis for the cancellation. However, the NOICC also refers to the convictions that occurred prior to the time when the applicant completed the NOICC. In the Tribunal’s view, the NOICC contains sufficient particulars to enable the applicant to identify and address the issues and the applicant’s response to the NOICC indicates that she understood the issues that arose. The Tribunal is also satisfied that the delegate had reached the necessary state of mind to engage s.107. The Tribunal finds 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 ss. 101 and 102 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 the Partner visa in November 2017 and completed an application form. On page 24 the applicant completed a character declaration and gave the following answers:

   a.    in response to a question whether she had ever been convicted of an offence in any country, the applicant stated ‘no’,

   b.    in response to a question whether the applicant had been removed, deported or excluded from any country, including Australia, the applicant stated ‘no’,

   c.     the applicant completed a declaration on the form that she had provided complete and correct information in every detail.

10. On 9 July 2018 the applicant was granted the temporary visa. On 19 May 2020 the applicant provided an application form for the permanent Partner visa in which she gave the following answers in the character declaration:

    a.    the applicant was asked if she had ever been convicted of an offence in any country. The applicant stated ‘no’,

    b.    the applicant was asked if she had ever been removed, deported or excluded from any country. The applicant stated ‘no’.

    c.     the applicant completed a declaration that she had provided complete and correct information in every detail.

11. The primary decision record indicates that following the grant of the temporary visa, in June 2020 the Department received information from the New Zealand authorities that the applicant had entered New Zealand in 2007 using a photo substituted passport, pleaded guilty and in December 2007 was sentenced to 12 months imprisonment on false passport charges. In May 2008 the applicant was issued with a removal order and she departed New Zealand on 14 June 2008. The applicant was subject to a ten year exclusion period to re-enter New Zealand.

12. The primary decision record indicates that when the applicant first entered Australia holding a Tourist visa, she completed an Incoming Passenger Card (IPC). In that document she stated ‘no’ in response to a question whether she had any criminal convictions. It is noted that the applicant departed and re-entered Australia on 12 occasions since that time. Most recently, in May 2019 she entered Australia holding the subclass 820 visa and completed an IPC in which she also answered ‘no’ in response to a question about her criminal convictions.

13. In her response to the NOICC the applicant confirms that she entered New Zealand using a false passport and was convicted of an offence and was imprisoned. In her oral evidence to the Tribunal the applicant also concedes that she failed to answer the questions truthfully, stating it was out of fear that she would be refused the visa and returned to Fiji.

14. Having regard to the applicant’s evidence, as well as the information received by the Department as set out in the primary decision record, the Tribunal finds that the applicant had been previously convicted of an offence and had been asked to leave New Zealand. The Tribunal finds that the applicant gave an incorrect answer when she stated on her Partner application forms that she had not been previously convicted of offences in any country and that she had never been asked to leave the country. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that there was non-compliance with s. 101(b) of the Act.

15. The Tribunal further finds that the applicant completed the multiple IPCs in a way that incorrect answers were given or provided when claiming that she has not been previously convicted of any offences. The Tribunal finds there was non-compliance with s.102(b) of the Act.

    Should the visa be cancelled?

16. 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).

17. 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. They are:

    The correct information

18. The correct information is that the applicant had been convicted of an offence in New Zealand and had been asked to leave that country. The applicant concedes that was the case.

    The content of the genuine document (if any)

19. 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

20. An application for a Partner visa includes an assessment of an applicant’s character, necessitated by s. 501 and PIC 4001. The Tribunal finds that the applicant’s past conviction was relevant to the assessment of her character. Information about the conviction was not before the delegate when the decision was made. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

21. Further, s 166(1)(b) of the Act requires a non-citizen to provide information required by the Act or the Regulations and r. 3.02(1)(b) provides that a passenger card for a person entering Australia must include a question about criminal convictions. The Tribunal finds that the decisions to immigration clear the applicant was based, wholly or partly, on information about the applicant’s convictions. 

22. It is not necessary for the Tribunal to decide whether the applicant would have been granted the visa, or immigration cleared, had the correct information been disclosed. It is sufficient that the decisions to grant the visa, and to immigration clear the applicant, were based on incorrect information.

    The circumstances in which the non-compliance occurred

23. The applicant provided a detailed statement about the reasons that she had to escape Fiji, referring to ongoing abuse and fear. The applicant referred to various incidents and lack of support from her family and the community. The applicant states that she could not live in Fiji due to the abuse she had suffered and lack of protection. Shortly before the commencement of the hearing, the applicant provided a further submission to the Tribunal, offering her description of conduct of another person towards her, stating that it represents the views of Fijian men. The Tribunal does not consider that  the conduct of an individual person in Australia can be said to represent the views and conduct and mentality of all Fijian men, if that is what the applicant suggests. In any case, the Tribunal does not consider that  the applicant’s views about the situation in Fiji justify the deliberate provision of incorrect answers in an Australian visa application and IPCs.

24. The applicant states that she was fearful of being removed from Australia and returned to Fiji and for that reason did not disclose the information about her conviction. In oral evidence the applicant also stated that she was subjected to sexual and physical abuse in Fiji. After she came to Australia, she was scared she would not be allowed entry to Australia and because she was too fearful to return to Fiji, she decided to provide incorrect information, even though she knew it was incorrect.

25. The Tribunal acknowledges that evidence but finds it unpersuasive. The Tribunal is mindful that the issue here is not the reason for the applicant’s use of a false passport  or departure from Fiji. The issue is the information the applicant gave in her Partner application and various IPCs. By the time the applicant was applying for the Partner visa, she was already residing in Australia and in a relationship with an Australian citizen. She was not living in Fiji and being subjected to abuse (as she claims) in Fiji. Therefore the Tribunal does not accept that the applicant was incapable of providing truthful information in her Partner visa application and the IPCs. The Tribunal is also mindful that the more recent IPCs and the application for the permanent visa were completed after the applicant was already granted the temporary Australian visa and thus, was permitted to remain in Australia and there was little likelihood of her being returned to Fiji. Again, the Tribunal does not accept that the claimed circumstances in Fiji prevented the applicant from providing correct answers on the form and in the IPCs.

26. The applicant states that she did not know she could provide correct information but she knew it would one day ‘catch up’ with her. She states that after receiving the letter from Immigration, she sought professional advice and in November 2020 she completed Form 1023 (Notification of incorrect answers) with the correct information. The Tribunal does not accept that the applicant providing truthful information to the Department in response to NOICC evidences her intention to tell the truth as she had only done so after receiving the NOICC, when the information was already before the Department and after the applicant was required to comment on that information. As to the applicant’s evidence that she did not know how to approach the Department or that she could do that, the Tribunal is of the view that the applicant could have easily sought advice from a migration agent or from Immigration itself about her options, if she had any interest in doing so.

27. The applicant states that she was vulnerable after her previous relationship and it took her some years to ‘find herself’ before she was able to deal with the matter. However, in the Tribunal‘s view, an obligation to be truthful in dealing with Immigration exists irrespective of the applicant’s personal circumstances or how she felt about her circumstances. It was not for the applicant to decide what information to disclose and what information to withhold, irrespective of what she believed the consequences might be.

28. The applicant states that she has had enough of lying and so she had changed her name to her original name and provided truthful information. The Tribunal is mindful, however, that even when applying for the permanent visa in 2020, the applicant continued to provide untruthful information about her past conviction. It appears that  the only time the applicant did provide the truthful information was in response to the NOICC.

29. The applicant also told the Tribunal that she was not aware that she could live safely in Australia and that Immigration could allow her to stay despite the conviction and she was fearful. She states that she did not know that Immigration could be lenient because of her experience in New Zealand. However, the applicant also told the Tribunal that she made no effort to seek professional advice and made no contact with Immigration to find out. In the Tribunal’s view, if the applicant had any interest in being truthful with Immigration or any concerns about meeting her obligations, the applicant could have easily made enquiries. She chose not to, stating that she was waiting for Immigration to take the first step. The applicant states that she was too scared of being deported if she approached Immigration, as she was deported from New Zealand but the Tribunal does not accept that the applicant genuinely believed that would be the outcome of approaching a migration lawyer (even if not Immigration). In the Tribunal’s view, the applicant’s inaction, coupled with the provision of incorrect information, indicates her indifference about her obligations under the Migration Act.

30. The applicant described in her written and oral evidence her circumstances in Fiji and the abuse she claims to have suffered. She states that she could not remain in Fiji and would do anything to get out of the country. Effectively, the applicant submits that because of her circumstances, the provision of incorrect answers was justifiable in her case. As noted elsewhere, no matter what the applicant’s circumstances were, the Tribunal does not consider that these justify the provision of incorrect answers and this is particularly so as the applicant did so on multiple occasions and even when she was already living in Australia, and holding a temporary Australian visa. Of concern to the Tribunal is not only the applicant’s decision to withhold information about her conviction but also her lack of any action to rectify the situation until receiving the NOICC.

31. The Tribunal finds that the applicant was well aware of her past conviction, having served a custodial sentence. The Tribunal finds that the applicant had deliberately provided incorrect answers in her application form and multiple IPCs when withholding the information about the conviction because she believed doing so would improve her chances of obtaining and retaining the visa and remaining in Australia. The Tribunal finds that the applicant put her personal preferences above her obligations under the Act. The Tribunal finds that the applicant failed to comply with the Act knowingly and deliberately.

    The present circumstances of the visa holder

32. The applicant provided with her response to the NOICC her various taxation record and evidence of her business operation and activities. The applicant states that once she obtained the Australian visa, she studied to be a fitness instructor and a yoga / Zumba instructor. She conducted special needs classes and operated a dance school. The Tribunal accepts that the applicant was operating a business and paying taxes. The applicant told the Tribunal that due to recently giving birth, she does not work at present.

33. The applicant refers to her long-term relationship with an Australian partner, stating that it has been in existence for about 5 years. The applicant refers to having a 8 month old child who is an Australian citizen.

34. The applicant states that they bought an acreage in Queensland where she plans to do farming and maybe open a yoga retreat. The applicant states that she is now in a better state and enjoys a healthy lifestyle with her partner.

35. The applicant refers to her partner’s commitments in Australia, stating that he cannot relocate to, and live in, Fiji. The applicant refers to her husband’s financial commitments with respect to other family members and the support he provides to his daughter.

36. The applicant refers to the length of her residence in Australia, stating that she has formed social and professional relationships and considers Australia her home. The Tribunal accepts that evidence. the applicant states that she cannot live safely in Fiji. The Tribunal accepts the applicant’s evidence.

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

37. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

1. The application for the Partner visa was made in November 2017 and a little under four and a half years passed since that non-compliance. The primary decision record indicates the applicant made multiple trips in and out of Australia and completed IPCs on these occasions. Various periods passed since the non-compliance with s. 102.

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

2. There are no known breaches of the law.

   Any contribution made by the holder to the community.

3. The applicant refers to teaching yoga and Zumba and fitness classes, including to people with special needs. She refers to distributing food and helping women in different circumstances. The Tribunal accepts that the applicant has made a contribution to the community.

4. 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 would be consequential cancellations under s 140.

5. There are no persons whose visas would be subject to consequential cancellation.

   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

6. The applicant states that she has nowhere to live in Fiji and she could not live there on her own and with a child. The applicant submits that as a woman without male protection, she would be subjected to physical and sexual violence. The applicant states that her husband has commitments in Australia, including for his daughter, and he could not relocate with her in Fiji. The applicant states that they do not want to separate but her husband cannot live in Fiji as he would not be able to support his family in Australia.

7. The Tribunal is prepared to accept that if the applicant is required to leave Australia as a result of her visa being cancelled, this may lead to the separation of the applicant and her partner, at least on a temporary basis (as the applicant may be eligible to seek another Australian visa in the future) and that is likely to lead to the child not being cared for by both parents. The applicant’s evidence is that the child would travel to Fiji with her but will have nowhere to live.

8. The Tribunal accepts that the child may experience hardship if the applicant was to relocate to Fiji and, importantly, that it may result in the child being separated from one of the parents. The Tribunal is of the view that, given his young age, it is in the best interests of the child to be cared for by both parents. The Tribunal finds that it is the best interests of the child that the applicant’s visa is not cancelled.

   Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

9. The applicant provided to the Tribunal evidence concerning the birth of her child who is an Australian citizen. The applicant states that she has no home in Fiji, she has nowhere to live in Fiji. She would have to hide from the society and from her brothers. The applicant claims that as woman, she is at risk of physical and sexual abuse and would not be given state protection. The Tribunal is mindful that  the applicant is eligible to seek a protection visa where such claims would be assessed. In light of that  fact, and the Tribunal’s decision to exercise discretion in the applicant’s favour on the basis of other consideration, the Tribunal does not need to make further findings in relation to Australia’s non-refoulement obligations.

10. The applicant’s partner and child are Australian citizens. If the applicant is required to leave Australia as a result of her visa being cancelled, it may lead to the applicant’s separation from her partner and the child’s separation from his father. This may be contrary to the family unity obligations.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

11. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention but there are limited types of visas she may apply for onshore. The applicant may be subject to an exclusion period if she is to make an application for certain visas offshore. The cancellation of the temporary visa is likely to result in the applicant being unable to be granted the permanent Partner visa. The Tribunal acknowledges that these are serious consequences that may cause some hardship to the applicant.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

12. The applicant refers to hardship that she and her partner  would experience if her visa is cancelled. The applicant states that her partner could not live in Fiji and she would have to return to Fiji on her own with a child. She would be subjected to physical and sexual violence which she claims are prevalent in Fiji. Even if the applicant’s claims are exaggerated, the Tribunal accepts that the applicant has nowhere to live and would have limited job opportunities, at best, in Fiji given her care responsibilities for the young child. The Tribunal accepts that the applicant may experience physical violence or threat of violence, and also financial and emotional hardship if she was to live in Fiji, without male protection, and with a child. The Tribunal also acknowledges that if the applicant is to return to Fiji as a result of her visa being cancelled, it would lead to her separation from her Australian partner and the child’s separation from his father. Generally, the Tribunal accepts that the cancellation of the visa may cause significant hardship to the applicant and her partner and child.

13. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant completed the application form in a way that incorrect answers were given or provided by failing to disclose her previous conviction and removal from another country and she did not comply with s. 101. As the applicant also failed to disclose that information in her IPCs, she failed to comply with s. 102 of the Act. The Tribunal has found that there are grounds for cancelling her visa.

14. The Tribunal has formed the view that the breach was deliberate. Whatever the applicant’s circumstances in Fiji, or the reasons for her desire to relocate to Australia, the Tribunal does not consider these justify the provision of incorrect information in a visa application or the IPCs. This is particularly so in the circumstances of this case where the applicant was already in Australia and not at immediate risk of any harm. The Tribunal finds that the circumstances in which the non-compliance occurred offer a strong reason why the visa should be cancelled.

15. The Tribunal also places significant weight on the fact that the decisions to grant the visa, and immigration-clear the applicant, were based on incorrect information. The applicant’s past conviction was relevant to the assessment of her character and was a relevant consideration when deciding whether to immigration clear the applicant upon each entry to Australia.

16. The Tribunal does not accept the applicant’s explanations that she felt fearful of having to return to Fiji and of being deported from Australia because the applicant continued to provide incorrect answers even after she was safely in Australia and holding an Australian visa. Importantly, even if the applicant genuinely did not understand the Australian immigration system, she took no steps to acquire that knowledge. The applicant had not approached any migration agent or agency or Immigration Department to find out about her position and how she could provide truthful information to the Department. It appears that the applicant was content to rely on the incorrect information in order to retain her right to stay in Australia and content to wait for Immigration to take the steps to rectify the situation. These all circumstances weigh heavily in favour of the cancellation.

17. However, the Tribunal gives weight to other considerations. Most significantly, the Tribunal has formed the view that it is in the best interests of an Australian citizen child that the applicant retains her visa so that the child is able to be cared for by both parents. The Tribunal has formed the view that the child could experience significant hardship if he was taken to Fiji due to the applicant’s lack of accommodation, employment and other connections and support in Fiji. The Tribunal has also formed the view that significant hardship would be caused to the applicant and her partner if the visa is cancelled because of the applicant’s particular circumstances and situation in Fiji and the effect that her residence there (without male protection) may have on the applicant’s own health and well-being and that of her partner and child.

18. In the circumstances of this case, the Tribunal has decided that the degree of hardship that would be caused to the family and the best interests of the child outweigh other considerations.

19. 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 not be cancelled.

    DECISION

20. 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