SACKO (Migration)

[2020] AATA 5598

SACKO (Migration) [2020] AATA 5598 (2 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amara SACKO

CASE NUMBER:  1934392

DIBP REFERENCE(S):  BCC2019/2748074

MEMBER:Justin Owen

DATE:2 September 2020

PLACE OF DECISION:  Sydney

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 02 September 2020 at 3:43pm

CATCHWORDS

MIGRATION – cancellation – Partner (Resident) (Class BS) visa – Subclass 801 (Spouse) – notifying the Department of change in circumstances – applicant ceased living together with his sponsor before visa grant  – continuing relationship to the exclusion of others – genuine spousal relationship – temporary departure of the sponsor for family reasons – children from a new relationship – visa cancelled on incorrect grounds – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5(1), 5F, 97-105, 107-109
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.41

CASES

White v MIBP [2014] FCCA 2486      

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 had not complied with s.104 of Subdivision C of the Act.  The delegate found that the applicant did not comply with s.104 of the Act in relation to notifying the Department of his change in circumstances after the lodgement of his Partner visa application on 2 September 2015 and prior to the grant of his 801 Partner visa on 22 December 2017.  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 6 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Hannah Saffa, Ms Josephine Koroma and Mr Mohamed Bah. 

4. The applicant was represented in relation to the review by his 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. 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?

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 in the following respects: the applicant’s response to Question 59 of Part G – Relationship details of Form 47SP – Application for migration to Australia by a partner where it asked “Since you and your fiancé or partner committed to a shared life together to the exclusion of all others, have you lived separately and apart for any periods of time?” and the applicant ticked the box denoting “Yes” and stated “29/11/2014 to 08/03/2015 for Professional and 29/03/2015 to 13/07/2015 for professional”. The delegate considered the non-compliance arose from the applicant not advising that as of 28 September 2017, he was no longer living together with his sponsor which was prior to the grant of his visa on 22 December 2017 and the need to be residing with his sponsor was a criteria for the grant of the visa.

10. The delegate also noted in relation to the applicant’s response to Question 59 that it considered the applicant’s relationship with his sponsor was not genuine and continuing to the exclusion of all others as it appeared the applicant was in a relationship with another individual, Miss Maulene Recule prior to the grant of his Partner 801 visa and the requirement to be in a genuine and continuing relationship to the exclusion of others was a criteria for the grant of the visa.  

11. Furthermore, the delegate considered there was non-compliance in the applicant’s declaration signed at Question 89 of Part N – Signatures of Form 47SP; “Declaration” where the applicant declared that he would notify the Department of any changes to his personal circumstances (including change of address) while his application was being considered.

12. Section 104 of the Act – Changes in circumstances to be notified – states:

    (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.

13. The delegate considered that it appeared the applicant and the sponsor started living separately on a permanent basis at least on or before 28 September 2017 when the sponsor departed Australia which was prior to the grant of the applicant’s 801 visa on 22 December 2017.

14. The delegate considered the applicant had not complied with section 104 of the Act as his circumstances changed, so that an answer to a question on his application form was incorrect in the new circumstances and of the correct answer in them before the visa was granted.  The delegate considered that the applicant had failed to notify the Department of significant changes in his circumstances since the date of his visa application lodgement but prior to the grant of his Partner (subclass 801) visa on 22 December 2017. 

15. The delegate noted the criteria that the applicant and sponsor were required to be living together to the exclusion of all others and noted this was a ‘key criteria’ for the grant of the visa.  The delegate furthermore found that the applicant had not provided any reasons as to why he had failed to notify the Department regarding the change in his circumstances prior to the grant of his Partner (subclass 801) visa.

16. The delegate found that the applicant did not comply with s.104 of the Act as he did not notify the Department that he had been residing separately from his sponsor during the periods of time she was outside Australia since submitting his Partner visa application on 2 September 2015 but prior to the grant of his Partner (subclass 801) visa on 22 December 2017. The delegate considered the applicant’s response to his notice about the non-compliance and, having had regard to all the prescribed circumstances set out in Regulation 2.41, was satisfied that the grounds for cancelling the visa outweighed the reasons for not cancelling the visa.

17. At the hearing on 6 August 2020 the applicant disputed that there had been non-compliance as described in the s.107 notice. 

18. The applicant made extensive submissions to the Tribunal including, importantly, a copy of correspondence between himself and the Department from October 2017.  The applicant spoke in detail in relation to his alleged non-compliance at the Tribunal’s hearing.

19. The Tribunal notes that based upon the evidence before it, it entertains very serious doubts as to the veracity of the applicant’s claimed previous spousal relationship with the sponsor on a general level.  The Tribunal is not satisfied on the evidence before it that the applicant was in a genuine spousal relationship with his former sponsor as claimed.  The Tribunal however has a very clear and specific task in relation to this particular review.  The issue is whether there was non-compliance by the applicant in the way identified and particularised in the s.107 notice and specifically was there non-compliance with s.104 of the Act in the way described in the NOICC.   

20. At the hearing the applicant asserted that the delegate had incorrectly applied s.104(1) in relation to his visa.  The applicant stated that he had fully complied with s.104(1) and had kept the Department informed as to the sponsor’s movements and his circumstances. 

21. The applicant at the hearing claimed he was not living separately on a permanent basis to the sponsor at anytime prior to the grant of his 801 visa on 22 December 2017.  He asserts he remained in a relationship with the sponsor until 31 October 2018 and her departure from Australia at the end of September 2017 was temporary, with the sponsor returning offshore for family reasons after the death of her father and the need, as the eldest child, to manage a range of financial and probate affairs. 

22. The applicant stated that, contrary to the delegate’s claims, that he did in fact inform the Department of the sponsor’s trip to Sierra Leone in October 2017 – well prior to the grant of his 801 visa on 22 December 2017.    

23. In support of his assertion the applicant has provided the Tribunal with a range of correspondence between himself and the Department in October 2017.  On 19 October 2017 the applicant had provided the Department with the sponsor’s telephone number in Sierra Leone and recommended times when it might be best for the Department to contact her whilst offshore. 

24. The Tribunal notes that in deciding the applicant did not comply with s.104 of the Act, the delegate found it ‘significant’ that the applicant allegedly did not disclose the sponsor’s ‘extended’ absence from Australia and noted ‘it was still the visa holder’s (applicant’s) responsibility to inform the Department’ of changes in circumstances that included the sponsor’s absences from Australia when temporary. On the evidence before the Tribunal it would appear the applicant in fact did just that in October 2017 when informing the Department that the sponsor was offshore in Sierra Leone and providing the officer with the sponsor’s telephone number and best hours of contact.  The Tribunal notes the applicant’s multiple emails to the Department to this effect and the Department’s responses. 

25. The Tribunal is surprised that this information received from the applicant in October 2017 has not been referenced anywhere in the delegate’s decision.  The Tribunal considers the information is particularly critical as it provides evidence that the applicant did in fact inform the Department of the sponsor’s departure and absence from Australia in late 2017 – prior to the grant of the 801 visa in December -  whilst providing the Department with both the sponsor’s current phone number and best times to contact her whilst she was offshore. 

26. The Tribunal has considered 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 in relation to s.104 of the Act. 

27. In relation to the delegate’s finding that there was non-compliance in the applicant’s declaration signed at Question 89 of Part N – Signatures of Form 47SP; “Declaration” where the applicant declared that he would notify the Department of any changes to his personal circumstances (including change of address), the Tribunal must respectfully disagree with the delegate’s finding.  The Tribunal considers the correspondence submitted between the applicant and Department in October 2017 – prior to the grant of the 801 visa – clearly illustrates that the applicant informed the Department of changes to his personal circumstances whilst his application was being considered: the applicant provided the Department with the whereabouts of the sponsor, her telephone number and the best hours to contact her in October 2017.  The Tribunal notes that the applicant continued to provide documentation to the Department through October 2017 in relation to his personal circumstances as requested including information relating to his address.  The Tribunal firmly considers that the ground of cancellation in regard to the applicant’s declaration at Question 89 of Part N – Signatures of Form 47SP is flawed.  The Tribunal does not consider the applicant has not complied with s.104 based upon his declaration signed at Question 89. 

28. The Tribunal has also considered the delegate’s finding that the applicant did not comply with s.104 of the Act in regard to his response to Question 59 of Part G – Relationship details of Form 47SP – Application for migration to Australia by a partner where it asked “Since you and your fiancé or partner committed to a shared life together to the exclusion of all others, have you lived separately and apart for any periods of time?”  In his response the applicant ticked the box denoting “Yes” and stated “29/11/2014 to 08/03/2015 for Professional and 29/03/2015 to 13/07/2015 for professional”  The delegate found that the applicant did not advise that as of 28 September 2017, he was no longer living together with his sponsor which was prior to the grant of his Partner 801 visa on 22 December 2017 and pointed out the need to be residing with his sponsor was a criteria to the grant of the Partner 801 visa.

29. The Tribunal has considered the applicant’s testimony, his submissions and the broader evidence before it.  Whilst, as discussed elsewhere in this decision, the Tribunal has grave concerns as to the veracity of the applicant’s claimed former relationship with his sponsor (he claims the relationship concluded on 31 October 2018), the Tribunal does not consider the applicant’s response to Question 59 constitutes a non-compliance with s.104 of the Act and provide the grounds to cancel the applicant’s Partner 801 visa under s.109 of the Act. 

30. The delegate appears to have found non-compliance in relation to Q59 on the basis that the applicant, aside from periods in 2014-15, stated that he and the sponsor had never lived separately and apart on a temporary basis. When the sponsor left Australia in 2017, that answer, the delegate considers became incorrect as there was a further period of living separately and apart, whether temporary (as claimed by the applicant) or permanent.  In the Notice of Intention to Cancel (NOICC) the applicant’s visa, the delegate in providing the particulars of the possible non-compliance with s.104 of the Act, writes ‘You did not advise that as of 28 September 2017 you were no longer living together with your sponsor which was prior to the grant of your visa on 22 December 2017’ (D1, Folio. 10). 

31. On the facts the Tribunal considers this ground cannot be made out.  The applicant did in fact inform the Department prior to the grant of the visa that the sponsor was living overseas on 19 October 2017.  He provided her telephone and contact details as well as the most appropriate times she could be contacted. He claimed the separation was temporary – whilst she attended to family financial matters – but the spousal relationship between the parties continued until 31 October 2018.

32. To fall within the definition of spouse in s.5F a couple must live together, or not live separately and apart on a permanent basis. A couple who lived separately and apart on a temporary basis would still fall within the definition. While cohabitation may satisfy the requirement that the parties live together, the fact the parties are not currently living together is not fatal because the alternative requirement is satisfied where the parties do not live separately and apart on a permanent basis. This is commonly the situation for offshore cases where an applicant is living overseas whilst the sponsor is living in Australia and the separation is seen as temporary.

33. The words ‘separately’ and ‘apart’ are distinct terms, with ‘separately’ being a term referring to the breakdown of the relationship and ‘apart’ referring to residing at different places; though there may be a degree of overlap between them, e.g. physical separation (living apart) is a constituent characteristic of living ‘separately’, but is not necessarily evidence of it in all instances: White v MIBP [2014] FCCA 2486 at [22]

34. Given the applicant advised the Department in October 2017 that the sponsor was overseas in 2017, then the Tribunal considers the ground on which the delegate has considered non-compliance under s.104 is not made out.  The Tribunal notes furthermore that the ground furthermore cannot not be made out in relation to the sponsor’s 31 October 2018 departure from Australia and the claimed end of the spousal relationship a day earlier, because the effect of s.104(2) is that a visa cannot be cancelled under s.104(1) for changes in circumstances after the visa was granted, where a person was in Australia when the visa was granted.

35. The Tribunal notes from the decision record the delegate’s considerable concerns that the applicant’s relationship with the sponsor was a contrived relationship.  The applicant’s relationship with Miss Maulene Recule, mother of his daughter in 2014 and mother of his son born 29 January 2019 was held by the delegate as evidence that the applicant’s claimed relationship with the sponsor was not to the exclusion of all others during the processing of the applicant’s Partner 801 visa application. 

36. The applicant claims that the conception of his son to Miss Recule occurred in 2018 due to a one-off casual sexual encounter whilst he was still in a relationship with the sponsor. He claims he only entered a relationship with Miss Recule after the birth of their son in January 2019. The Tribunal notes from the delegate’s decision record the applicant provided that Ms Recule arrived in Australia with the applicant’s daughter (who was born on 4 September 2014) on 8 March 2018.  The applicant claims he happened to meet Miss Recule by chance, had a one-off sexual relationship with her, and she gave birth to their child in January 2019.  He stated that the sponsor ended their relationship on 30 October 2018 and intimated that she had understandably not been pleased when informed another woman was pregnant with his child, departing Australia on 31 October 2018. 

37. The delegate spent a considerable amount of time exploring the applicant’s relationship with Miss Recule after her arrival in Australia, the pregnancy to the applicant and the commencement of a relationship between the parties.  The Tribunal appreciates the delegate’s concerns and considers the applicant’s claims concerning his relationship with Miss Recule fanciful.  The Tribunal considers that the relationship on the evidence speaks to the genuineness of the claimed spousal relationship between the applicant and the sponsor.  The Tribunal however notes that only the circumstances before the grant of the visa can be taken into account in a s.104 cancellation: s.104(2).  Miss Recule arrived in Australia some three months after the grant of the 801 visa.  The sexual encounter, the pregnancy, child and relationship all occurred after the grant of the applicant’s 801 Partner visa.  The applicant’s relationship with Miss Recule and the events that occurred after the grant of the visa in December 2017 are not circumstances for which the applicant’s visa can be cancelled under s.104.  As the applicant was in Australia when granted his Partner 801 visa, s.104(1) only applies to changes in his circumstances prior to the visa being granted.

1. The information concerning the applicant and Miss Recule however can be taken into account by the Tribunal in determining whether the relationship between the applicant and sponsor existed or broke down.  Having reviewed the information on the file, the Tribunal has significant doubts as to whether the relationship between the applicant and sponsor was ever genuine.  The Tribunal considers the more likely scenario is that the applicant has been in a relationship with Miss Recule for some years, including the period in which he claims he was in a genuine spousal relationship with the sponsor.               

2. The Tribunal is of the view based upon the evidence before it – including the applicant’s and his witnesses oral testimony at the hearing that the relationship between the applicant and sponsor was in all likelihood never genuine and the information the applicant supplied about the relationship to the Department was never actually correct.  On this basis, the Tribunal is of the view that the most appropriate ground to cancel the applicant’s visa was instead under s.101 of the Act: visa applications to be correct.  s.101 provides that a non-citizen must fill out his application in such a way that all questions on it are answered and no incorrect answers are given or provided.  The delegate however instead cancelled the applicant’s visa on the ground of non-compliance with s.104 for failing to notify the Department of a change in his circumstances being changes about the relationship and his living arrangements with sponsor.  The Tribunal cannot deduce how this ground can be made out.  If the relationship was contrived and the applicant provided false information, then the information provided by the applicant in Questions 59 and 89 was always incorrect.  There was no ‘change in circumstances’ by the applicant: the information didn’t become incorrect later.  The declaration did not suddenly become incorrect when the sponsor departed Australia in September 2017 and held as a ground to cancel the applicant’s visa under s.104(1) because he did not inform the Department of his ‘new circumstances’.  In the Tribunal’s view, the information was incorrect at the time of application so there was no ‘change in circumstances to be notified’.  In the Tribunal’s opinion, the delegate has erred and cancelled the applicant’s visa on incorrect grounds.

3. 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. 

4. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

   DECISION

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

   Justin Owen
   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.