Scott (Migration)

[2018] AATA 2656

Scott (Migration) [2018] AATA 2656 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ian Gill Scott

CASE NUMBER:  1805426

DIBP REFERENCE(S):  BCC2016/1646683

MEMBER:Fiona Meagher

DATE:13 June 2018

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 June 2018 at 2:24pm

CATCHWORDS
Migration – Cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Incorrect information – Dates of separation – Divorce papers contain mistakes – Reliability of applicant’s former wife – Witness oral evidence – Decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 109, 375A

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 did not comply with s.104 of the Migration Act 1958. 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 5 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Curtis Henderson.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   S.375A certificate

6. The Department had issued a s.375A certificate dated 5 June 2018 on its file. The Tribunal is of the view that the certificate did not cover all of the documents purports to cover as many of them were in relation to internal processes and therefore disclosure of them would not lead to injury or damage to a member of the community. The Tribunal did consider that the certificate applied to folios 5 – 10, 13 – 21, 29 – 38 and 40 – 42. Accordingly the Tribunal put the gist of the material contained within those folios to the applicant. The applicant’s responses are discussed in more detail below. The Tribunal also provided a copy of the certificate to the applicant’s registered migration agent and invited her to make submissions as to the certificates validity. No submissions were received in relation to the validity of the s.375A certificate, however post hearing submissions were received which responded to the matters raised by the Tribunal, as covered below.

   The s.107 Notice

7. 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.

8. 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.

9. 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?

10. 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:

    ·On 27 November 2012 the applicant submitted to the department a Form 47SP which contained the answers to a number of questions, and a declaration stating in part “I will inform the Department of Immigration and Citizenship of any changes to my personal circumstances (including change of address) while my application is being considered. I understand this also applies to my permanent migrants/residents Visa application I will inform the Department of Immigration and Citizenship if my relationship with my fiance or partner breaks down or ends in divorce, separation or death before this application is decided.”

    ·On 15 August 2017 an application for divorce was submitted to the Brisbane registry of the Federal circuit Court of Australia in which the applicant declared that he regarded his marriage with his sponsor to have ended on 30 March 2015. The divorce application states that the date of separation was 22 December 2014, that at the date of separation the applicant did not regard the marriage as over, that he regarded the marriage as over as at 30 March 2015, and that he and his spouse had not lived together as husband and wife since the date of separation.

    ·On 22 April 2015 the applicant was granted a subclass 801 Visa.

11. At the hearing the applicant acknowledged that he and his former wife had different versions as to when they had separated and divorced. The applicant said that he considered the marriage to be over in June 2015 when he left the marital home. He said that he signed the divorce papers more than two years after being granted his permanent Visa, and did not give much thought to the dates included. He said that it was an uncomfortable meeting with his former wife, and he wanted it over and done with, and therefore did not think to check the dates, and was unaware of the likely magnitude of the impact of the dates he nominated for his migration status. The applicant said that the dates he noted were simply a very rough estimate he came up with, whilst under the pressure of a difficult meeting which he was anxious to finish.

12. The applicant told the Tribunal that he has now revisited certain information, including bank statements as to the dates upon which he paid rent, and email correspondence with the real estate agent, and he considers that the date the relationship ceased, which was the date upon which he says he moved out of the house, was sometime in June. The Tribunal has had regard to the bank statements which show the applicant’s former wife transferring rent to him up until 18 June 2015, and showing the applicant paying rent on the claimed marital property as at 26 June 2018. The applicant said that he thought that the tenancy ended sometime towards the end of July and that he had moved out a few weeks before that. He said that the dates of the payment of rent substantiate that. The Tribunal has also sighted email correspondence between the applicant and his former wife and the managing agent of the property. Some of that email correspondence, dated 18 June 2015, from the applicant states that he was not living at the property any longer. The Tribunal accepts that these documents are plausible prompts to the applicant’s memory of the precise date the parties relationship ceased.

13. The applicant told the Tribunal further information about his relationship, and the circumstances of it ceasing. He said in particular he remembered that sometime in June 2015 he went out and came home at 3 AM, and his former wife was angry with him the next morning and locked him out of the house. He said he remembered the incident in particular because she threw his work shirt out the window, and he had to call a friend (Mr Henderson) to bring him shoes and socks and other clothing so that he could go to work later in the day.

14. The applicant said that the parties met in September 2010 and became a couple later in 2010. He said that he returned to the United Kingdom just in time for New Year’s Eve 2010. He said that his former wife visited him in March 2010, and he returned to Australia in September 2011. He said that he and his former wife married in August 2012, and his family have been to visit them subsequently twice. The applicant also told the Tribunal that he and his former wife returned to the United Kingdom together a further time, he thinks around August September 2013. The Tribunal had before it movement records in respect of the applicant which supported that. The Tribunal also sighted correspondence from the applicant’s parents confirming they had visited the applicant and his then wife in September 2014, and had spoken to both of them on Christmas day in 2014.

15. The applicant said that the relationship came difficult for a few months in 2015, but that he remained committed to working upon it. In respect of additional memories with respect to dates in the relationship, the applicant said that the parties spent Christmas together in 2014 fishing and having a few beers. He said that they did not come to Brisbane to spend Christmas with his wife’s family, as she was not very close to them. The applicant also said that at Easter 2015 he went to a work party, and his wife joined him afterwards. It was by reference to those dates and occasions that the applicant places the time of the parties’ separation as being June 2015.

16. In relation to the material that the Tribunal raised with the applicant, he stated that perhaps his former wife had provided it because she was bitter. He said that he had damaged the wall of one of their rental properties but was not generally a violent or aggressive person. The Tribunal has sighted a “Vacate Checklist”  for the last property the parties rented together, and notes that it does not contain any mention of property damage. The applicant said that he had had no contact with the police in Australia, including with respect to family violence. He said that he knew that his former wife had a new partner from England, and that that relationship developed not long after their separation. He postulated that perhaps she wanted to sponsor her new partner, and therefore did not want to remain as the sponsor for him.

17. There are a number of statutory declarations on the department file from friends and colleagues of the applicant, all of which confirm that the applicant and his former wife remained in a relationship until sometime in June 2015. The Tribunal has some reservations regarding the statutory declarations, as they are all worded similarly, and do not state how they recall the date of the breakdown of the relationship as being in June 2015.

18. The Tribunal also heard from Mr Curtis Henderson. He said that he remembered being contacted by the applicant in mid June 2015, to bring him shoes and socks and assist him because he had been locked out of his house by his wife . Mr Henderson said that he remembered the date by reference to his birthday. He said that this occurred just prior to his birthday which was later that week. Mr Henderson went on to say that he understood that the applicant moved out of the property just after that. He said that he knew both the applicant and his former wife quite well, had socialise with them regularly, and knew that they had been continuously trying to work their relationship out. He said that both the applicant and his former wife had told him that they still loved each other and want to stay together. He said that they knew that they owned at least one pet together.

19. The Tribunal has considered all the material before it. The Tribunal considers that it is regrettable that the applicant filled in his divorce paperwork so carelessly, given that it was a document to be filed with the court. Having said that, the Tribunal is willing to accept that the divorce paperwork contained careless mistakes made because he was in a rush to get away from the meeting with his former wife, and had not checked documentation which might have made him able to be more precise with respect to recollecting dates, and that he filled in the paperwork more than two years after the separation. The Tribunal also places some weight upon the documentary evidence which the applicant claims substantiate his version of events as they are prompts or reminders of what happened when. The Tribunal also places some weight upon the oral evidence of Mr Henderson.

20. The Tribunal also has some concerns about the material relied upon by the department. It was unable to test it in any way, and accepts the applicant’s explanation that it may have been provided due to bitterness or a desire on the part of his former wife to sponsor someone else. The Tribunal also considers that the information relied upon by the Department as specified in the delegate’s decision indicate that at least in March 2015 (when the statutory declarations with respect to the grant of the 801 Visa were lodged), the applicant’s former wife was prepared to sign documentation attesting to the ongoing and genuine nature of the relationship, inconsistent with the information she subsequently provided in relation to the divorce. Further, the Tribunal considers it curious that the applicant’s former wife did not provide any information to the Department until December 2015 more than 12 months after she claims the relationship broke down. Accordingly the Tribunal has concerns regarding the reliability of the applicant’s former wife’s information

21. On balance the Tribunal is satisfied that the information provided in the application for divorce was a careless error.

22. 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.

23. 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

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

    Fiona Meagher
    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.