Saeed (Migration) - [2023] AATA 1166

Saeed (Migration) [2023] AATA 1166 (10 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Waqas Saeed
REPRESENTATIVE:  Dr Nazir Daawar
CASE NUMBER:  2207098
HOME AFFAIRS REFERENCE(S):          BCC2020/2328633
MEMBER:Kira Raif
DATE:10 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 10 April 2023 at 8:47am
CATCHWORDS
MIGRATION – Cancellation – Subclass 100 (Spouse) visa –applicant provided incorrect information – applicant’s failure to mention his marriage to Neelam Shahzadi in the application form – insufficient evidence to make a positive finding that the applicant and Ms Shahzadi had a relationship of a nature that was required to be declared on the application form – there was no non-compliance by the applicant in the way described in the s.107 notice ––decision under review set aside
LEGISLATION
Marriage Act 1961, s 88D
Migration Act 1958, ss 101, 107, 109
CASES
Zhao v MIMA [2000] FCA 1235
STATEMENT OF DECISION AND REASONS
Application for review

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 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Pakistan, born in December 1992. He was granted the Spouse (Migrant) visa in June 2019. In February 2022 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 s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 13 May 2022. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 28 September 2022 and 28 February 2023 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saeed (Migration)

Details

AGLC: Saeed (Migration) [2023] AATA 1166
Case: [2023] AATA 1166
Decision Date: 10 April 2023

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Saeed, against the cancellation of his Subclass 100 (Spouse) visa. The dispute arose from the applicant's failure to disclose a previous marriage to Neelam Shahzadi in his visa application. The delegate had formed the view that this omission constituted a failure to provide correct information, leading to the cancellation of the visa. The Administrative Appeals Tribunal was required to determine whether the applicant had indeed failed to provide correct information as alleged, and consequently, whether the delegate had a lawful basis to cancel the visa.

The Tribunal's reasoning focused on the evidentiary threshold required to establish non-compliance. It found that there was insufficient evidence to make a positive finding that the applicant and Ms Shahzadi had a relationship of a nature that was required to be declared on the application form. Crucially, the Tribunal concluded that there was no non-compliance by the applicant in the manner described in the notice given under section 107 of the Migration Act 1958 (Cth). As a result, the discretionary power to cancel the applicant's visa did not arise.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's Subclass 100 (Spouse) visa and substituted a decision not to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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