Ramos De Freitas (Migration)

[2019] AATA 5979

Ramos De Freitas (Migration) [2019] AATA 5979 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fabiola Ramos De Freitas

CASE NUMBER:  1834183

DIBP REFERENCE(S):  BCC2017/952759 PT1

BCC2017/952759 PT2

MEMBER:Ann Duffield

DATE:13 September 2019

PLACE OF DECISION:  Brisbane

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 13 September 2019 at 10:15am

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – 801 (Spouse) –
failed to inform Department of relationship breakdown – sponsor having affair with another woman – sponsor married other woman – applicant believed parties remained in genuine de-facto relationship – no non-compliance – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 109
Migration Regulations 1994 (Cth)

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 failed to inform the Department that her relationship with the sponsor had broken down prior to the grant of the visa in February 2017. The delegate found that the parties had been living separately and apart since August 2016.  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 applicant appeared before the Tribunal on 21 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister.

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.  

   BACKGROUND

6. The applicant provided the Tribunal with a copy of the delegate’s decision along with her application for review.

7. The applicant is a citizen of Brazil born on 11 April 1979. She first arrived in Australia as a student in 2008 and, apart from one overseas visit in that time, she has remained in Australia since.

8. She began a de-facto relationship with her sponsor on 9 February 2013 and lodged an application for the visa subject to this cancellation on 14 February 2014. She was granted a subclass UK 820 visa on 3 December 2014 and a permanent visa subclass 801 was granted on 10 February 2017 on the basis of information provided to the Department in February 2016.

9. In March 2017 the sponsor was interviewed at the airport and allegedly admitted that his relationship with the applicant ended in 2016 and he provided a false statement claiming that he was still in a relationship with the applicant. He has since denied this.

10. Both the applicant and the sponsor maintain that at the time of the grant of the applicant’s permanent visa they were still in a genuine de-facto relationship. Both parties have stated that whilst the applicant moved out of their home in August 2016 so that the applicant could look after her sister who was unwell, the applicant still spent three or four times a week overnight at the sponsor’s place. The applicant only took her personal possessions and maintained all her other property at her joint home with the sponsor. Thus the sponsor’s home was still her primary residence.

11. Witness evidence along with statements by the parties’ claim that the arrangement of the applicant staying with her sister was only intended to be temporary.

12. It appears from information in the Department’s file that the sponsor was having an affair with another woman from around October 2016. When this was put to the applicant by the Tribunal she expressed her shock when she had become aware of the relationship between the sponsor and the third party, saying that at all times she felt that she and the sponsor were in a genuine relationship.

13. The sponsor proceeded to marry the woman with whom he was having an affair in October 2018, at which time, the applicant claims that she had believed that she was still in a genuine de-facto relationship. She subsequently became aware of the marriage between the sponsor and his (now) wife in November 2018.

14. The applicant’s visa was cancelled in November 2018 on the basis that the applicant did not advise the Department that her relationship with the sponsor had broken down prior to the grant of her permanent visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. 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. Extracts of the Act relevant to this case are attached to this decision.

17. 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?

18. 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.

19. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104 of the Migration Act as she failed to notify the Department of a relevant change in her circumstances in relation to the breakdown of her relationship with the sponsor in August 2016.

20. The crucial fact in this matter is whether or not the applicant failed to advise the Department of her change of circumstances;  that she was no longer in a de-facto relationship with the sponsor.

21. Relevantly, in the Tribunal’s mind, it seems that the applicant held a genuine and deep seated belief that her and the sponsor were in an ongoing de-facto relationship, at the exclusion of all others. The applicant claims to have only questioned this in February 2018 when the Department informed her of the affair between the sponsor and another woman, following the interview undertaken by the sponsor at the airport, with Officers of Australian Border Force. Following this, the applicant to have forgiven the sponsor, and they continued to remain in a relationship. The applicant claims to have spent weekends away, travelling  with the sponsor as a couple, until as late as June 2018.

22. The evidence provided to the Tribunal supports that finding. There are written statements from the applicant and sponsor, records and message transcripts showing communication between the two, which talked about plans for the future and their continued love for each other. Additional evidence provided to the Tribunal includes bank statements showing the continuation of a joint bank account, travel itineraries and photographs of the parties together. Oral evidence was also provided, along with emails, showing that the applicant was looking for a suitable home in which she and the sponsor could move into at around that time.

23. Having heard the evidence of the applicant and her sister it is easy to understand why the applicant felt compelled to move in with her sister. Her sister’s relationship had broken down and she was, and clearly still is, in a fragile mental and physical state. The Tribunal also accepts that a de-facto relationship can exist even if the parties are not living together temporarily. The Tribunal accepts that the arrangement between the parties that the applicant live with her sister was intended to be a short term arrangement. This is evidenced by the fact that the applicant kept the majority of her possessions at the sponsor’s house.

24. In that respect, there is departmental as well as judicial consideration which provides that a period of non-cohabitation does not mean that a de-facto relationship does not exist.

25. The applicant claims that it was not until she found out in November 2018 that the sponsor had married the woman with whom he had an affair that the relationship with the sponsor and herself ended.

26. The Tribunal finds this a little difficult to accept.   However, the evidence of the applicant and her witnesses to the contrary was consistent and compelling and the Tribunal has formed a view that the applicant could have been so deceived by her sponsor that she failed to realise the extent to which their relationship had deteriorated.

27. The Tribunal is satisfied that the applicant did not fail to advise the Department of a change in her circumstances since it was her deeply held belief that her circumstances had not changed and did not change until somewhere between June and November 2018, well after the permanent visa had been granted. There is both oral and written evidence to support this finding.

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

    DECISION

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

    Ann Duffield
    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.

    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‑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.