Redak (Migration)

[2019] AATA 1786

Redak (Migration) [2019] AATA 1786 (15 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ildi Sanda Redak

CASE NUMBER:  1831446

DIBP REFERENCE(S):  BCC2016/2667652

MEMBER:Ann Duffield

DATE:15 March 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 (155) (Five Year Resident Return) visa.

Statement made on 15 March 2019 at 12:41pm

CATCHWORDS
MIGRATION – cancellation – subclass 155 (Five Year Resident Return) visa – applicant provided incorrect information on visa application– domestic violence victim – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109

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 Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2.    The delegate cancelled the visa on the basis that the applicant provided incorrect information on her visa application; specifically that she was already married at the time of application to another man. 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 14 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her present husband.

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 parties provided the Tribunal with a copy of the delegate’s decision along with the application for review.

7.    The applicant is a citizen of the Netherlands born on 9 January 1977 (42 years old). She was first married in February 1997 in the Netherlands but they separated in 2001. The applicant then travelled to Australia in December 2005 and met her second husband. At this point she was still married to her first husband. She lodged an application in relation to her Australian husband on 10 March 2009 declaring that she was not married and obtained a permanent visa on 28 July 2011.

8.    The applicant married her second husband on 1 February 2012. It was not until 14 February 2013 that she obtained a divorce from her first husband.

9.    The applicant was granted her subclass 155 return residence visa on 11 August 2016. It is this visa that was cancelled and the subject of this review.

1. The applicant divorced her second husband on 24 May 2016 and entered into a third relationship with an Australian citizen in April 2016. She lodged an application for Australian citizenship on 28 September 2016.

2. On 14 September 2018 the applicant married her current husband. The applicant’s husband has two sons whom the applicant considers as her own.

3. The Tribunal has been provided with copies of all of the applicant’s marriage and divorce papers.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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.

3. 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?

1. 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.101(b) of the Migration Act.

2. The non-compliance is in relation to the application for a partner visa. On the Form 47SP she answered “NO” to Question 23: Have you been married before?

3. The applicant also did not disclose her marriage in her answer to Question 73 which asked if either she or her current partner were still legally married. The applicant did however disclose that her partner Marcel (the nickname of the applicant’s then partner) at the time was awaiting a divorce.

4. The applicant also signed the declaration at Question 97 stated that she provided the correct information and that she understood providing false or misleading information may lead in the refusal of her visa.

5. At the hearing the applicant told the Tribunal that her then partner had been very controlling and dictated to her everything that she did. She claims that she told him at the time that he was completing those answers incorrectly that it was not the right thing to do. She said that he told her that they had to deny that she was married.

6. The Tribunal put to the applicant that given they were not married and were assessed as a de-facto couple, and that her partner was also still married to someone else, it would have seemed unlikely to both of them that their application would have been refused on that basis alone. The applicant agreed that she should not have allowed her partner to complete the form in a way that was incorrect or that she should have signed it knowing it was incorrect. The applicant told the Tribunal that her relationship with her partner ended on 14 October 2015 because that was the night she was rescued from their home by the police because of the domestic violence she had suffered. She said the controlling behaviour became very abusive over time to the extent that the police had to save her.  The applicant was already a permanent resident at this time and had been for several years.

7. The Tribunal accepts that the applicant was in an abusive relationship and had little control over the conduct of her life and affairs. The Tribunal also accepts that the marriage was annulled by her former partner as further demonstration of his controlling behaviour. The fact that the applicant’s former partner was the source of the information that lead to the cancellation of her visa is further evidence, should it be needed, of his controlling and abusive nature. She is nevertheless responsible for the documents provided to the department and the misinformation therein.

Conclusion on non-compliance

1. For these reasons, the Tribunal finds that there was non-compliance with 101(b) by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

1. 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).

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 r.2.41 of the Regulations. Briefly, they are:

3. the correct information - The correct information is that at the time of the application, the applicant was still married to her first husband and remained so until 2013.

4. whether the decision to grant a visa or immigration clear to the visa holder was based, wholly or partly, on incorrect information or a bogus document – This is not relevant to the present case

5. the circumstances in which the non-compliance occurred – the applicant was in the thrall of a controlling and abusive husband and also in fear of what he would do if she did not do as he wished. The applicant claims, and the Tribunal has no reason to doubt, that her partner completed the forms even though he knew that that the applicant was still married to her first husband. She was not able to explain why he would do this and the applicant herself did not believe that lying about her first marriage to the department would assist her application. In other words, she had no motivation to lie particularly in the circumstances where her partner at the time was also still married to someone else.

6. the present circumstances of the visa holder – the applicant is currently remarried in a stable and loving relationship. Until her visa was cancelled she ran her own business and she and her present husband are financially secure and share the care of his two teenage sons with their mother.

7. any other instances of non-compliance by the visa holder known to the Minister – there is no evidence before the Tribunal that there are other instances of non-compliance.

8. the time that has elapsed since the non-compliance – the non-compliance occurred in 2009, some ten years ago. The applicant is a permanent resident, married with a family and a career and no other instances of non-compliance or breaches of Australian law.

9. 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.

10. The Tribunal does not consider that any other considerations are relevant to the finalisation of this matter.

CONCLUSION

1. 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

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Ann Duffield
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

7. Notice 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.

8. Decision 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.

9. Cancellation 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.