Shao (Migration)

[2019] AATA 6703

Shao (Migration) [2019] AATA 6703 (13 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Han Shao

CASE NUMBER:  1710950

DIBP REFERENCE(S):  BCC2017/1787848

MEMBER:Christine Kannis

DATE:13 December 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 13 December 2019 at 3:01pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – consequential cancellation – primary visa cancellation set aside – Tribunal’s jurisdiction – Departmental officer’s delegation – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 114, 140, 360

CASES
CSH18 v MHA [2018] FCCA 3226
MHA v CSH18 [2019] FCAFC 80

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 on 19 May 2017 to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on the basis of his relationship with his sponsor, Ms Silvia Ridhany. The delegate cancelled the visa on the basis that Ms Ridhany’s Subclass 801 visa had been cancelled. 

3. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

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

5. On the basis of this information the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it pursuant to s.360(2)(a) of the Act.

6. 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

   Background

7. The applicant was granted a Subclass 309 Partner visa on 11 December 2015.  He was sponsored in that application by his former partner, Ms Ridhany. The applicant and Ms Ridhany separated in April 2016.

8. On 19 May 2017 a delegate of the Minister made a decision to cancel Ms Ridhany’s Subclass 801 visa pursuant to s.109 of the Act on the basis that she did not inform the Department of a change in her circumstances prior to the grant of her permanent visa.

9. On 19 May 2017 the delegate made the decision to cancel the Subclass 309 visa held by the applicant under s.140(2) of the Act.

10. On ? December 2019, the Tribunal considered and set aside the decision to cancel Ms Ridhany’s visa in a separate decision (case number 1710996).

    Is there ground for cancellation?

11. Subsection 140(2) of the Act provides that the Minister may, without notice, cancel a visa where:

    ·another person’s visa is cancelled under ss.109 (incorrect information), 116, 128, 133A, 133C or 137J (student visas); and

    ·the visa holder, to whom s.140(1) does not apply, holds a visa only because the person whose visa is cancelled held a visa.

12. In this case the Tribunal is satisfied that the applicant held a Subclass 309 partner visa only because Ms Ridhany held a Subclass 801 visa and was an Australian permanent resident. The delegate’s decision records that the applicant’s visa was cancelled under s.140(2) because Ms Ridhany’s visa was cancelled under s.109.

13. It would appear then that at the time of the decision to cancel the applicant’s visa, the ground for cancellation existed under s.140(2). However the Tribunal set aside the cancellation of Ms Ridhany’s Subclass 801 visa on ? December 2019.

14. Pursuant to s.114, if a decision made under s.109 to cancel a person’s visa is set aside by the Tribunal, then the visa is taken never to have been cancelled. Further, the Department’s Policy Guidelines relevantly state:

    Set aside of s109 cancellation decisions

    Section 114(1) of the Act states that if a s109 cancellation is set aside by the Federal Court, Federal Circuit Court, the AAT, the visa is taken never to have been cancelled.

    The Act does not expressly set out how this affects any consequential s140 cancellation. It is policy, however, that a consequential s140 cancellation would also be set aside in the same manner as the s109 cancellation. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled.

15. In these circumstances it is appropriate to set aside the decision to cancel the applicant’s visa under s.140(2) on the basis that Ms Ridhany’s visa is taken never to have been cancelled.

    Delegation

16. The Tribunal was notified by the Department that the officer who made the decision to cancel the applicant’s visa did not have the delegated power to cancel visas under s.109 at the time the decision was made. 

17. In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court considered an appeal from CSH18 v MHA [2018] FCCA 3226, which considered the Tribunal’s powers on review of a purported cancellation made without the necessary delegation. The Full Court confirmed at [57] that the Tribunal had jurisdiction to review the decision. At [88], it held that the Federal Circuit Court erred in finding that the only power of the Tribunal was to set aside the decision. Following the Full Court judgment, there is no question that the Tribunal has power to set aside one of these purported s.109 cancellations, where the ground of cancellation is not made out.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Christine Kannis
    Member

    
    

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.

    101Visa 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.

    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.