Sharma Rimal (Migration) - [2023] AATA 1164

Sharma Rimal (Migration) [2023] AATA 1164 (14 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Swaeta Sharma Rimal
Mr Pramosh Rimal
Miss Pravasi Rimal
Miss Pristha Rimal
REPRESENTATIVE:  Mr Hem Raj Bhatta (MARN: 1466471)
CASE NUMBER:  2114259
HOME AFFAIRS REFERENCE(S):          BCC2018/417582
MEMBER:Kate Millar
DATE:14 April 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 887 (Skilled - Regional) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 14 April 2023 at 1:38PM
CATCHWORDS
MIGRATION – Cancellation – Subclass 887 (Skilled - Regional) visa – applicant had provided incorrect information to the Department– visa holder had been removed from the United Kingdom – mental health of child – bests interest of the children – children have spent the majority of their lives in Australia – have provided police clearances showing no other obvious character concerns –emotional impact and hardship – contributions to the community –decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 107, 109, 140, 376
Migration Regulations 1994, r 2.41, Schedule 2, cl 887.223
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicants are citizens of Nepal, who came to Australia in 2009. Ms Rimal was the primary applicant, and with her qualifications in hairdressing, the family was granted Skilled Regional (Provisional) (Subclass 489) visas on 7 July 2014 before being granted permanent Skilled Regional (Subclass 887) visas on 7 December 2016.
The Department became aware that Ms Rimal had not disclosed she had lived in the United Kingdom between 2003 and 2007, that her eldest child was born in the United Kingdom on 11 March 2006, and that Ms Rimal and her daughter Pristha had been removed from the United Kingdom in 2007.
As a result, Ms Rimal’s visa was cancelled on 11 October 2021 on the basis that she had not filled in her application form accurately, and her husband and children’s visa were cancelled as a consequence of Ms Rimal’s visa being cancelled.
The applicants have applied for a review of the decision made by a delegate of the Minister for Home Affairs to cancel Ms Rimal’s Subclass 887 (Skilled - Regional) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to Ms Rimal. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicants appeared before the Tribunal on 3 February 2023 to give evidence and…

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 Sharma Rimal (Migration)

Details

AGLC: Sharma Rimal (Migration) [2023] AATA 1164
Case: [2023] AATA 1164
Decision Date: 14 April 2023

CaseChat Overview and Summary

This matter concerned an appeal by Sharma Rimal against the cancellation of her Subclass 887 (Skilled - Regional) visa. The Department of Home Affairs had cancelled Ms Rimal's visa on the grounds that she had provided incorrect information in her visa applications and associated forms, specifically concerning her previous residence in the United Kingdom, her daughter's place of birth, and her removal from the United Kingdom. The Administrative Appeals Tribunal was tasked with determining whether Ms Rimal had indeed failed to comply with the relevant provisions of the Migration Act 1958 (Cth) and, if so, whether her visa should be cancelled.

The primary legal issue before the Tribunal was whether Ms Rimal had contravened section 101 of the Migration Act 1958 (Cth) by providing incorrect information in her visa applications and on her Form 80. This included allegations that she had falsely stated she had never been removed from any country, failed to disclose her residence in the United Kingdom between 2003 and 2007, omitted her daughter's birth in the United Kingdom, and incorrectly answered questions about her travel history. The Tribunal also had to consider whether the notice issued under section 107 of the Act, which detailed the alleged non-compliance, was valid and whether the cancellation power under section 109 of the Act had been properly engaged.

The Tribunal found that the delegate had properly engaged section 107 of the Act and that the notice issued complied with statutory requirements. However, upon considering the evidence, the Tribunal determined that while Ms Rimal had provided incorrect information, the circumstances warranted setting aside the cancellation decision. The Tribunal took into account the best interests of her children, who had spent the majority of their lives in Australia, their provision of police clearances indicating no other character concerns, and the emotional impact and hardship that cancellation would cause. The Tribunal also considered Ms Rimal's contributions to the community. Consequently, the decision under review was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As such, the information the subject of the certificate has been disclosed to the applicants and they have acknowledged the truth of the allegation.CONSIDERATION OF CLAIMS AND EVIDENCE 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 requires the Minister to first issue 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. 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? 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 by Ms Rimal with s.101 of the Act in the following respects (in summary): · Answering “no” to questions about whether she had ever been removed, deported or excluded from any country.· Not providing details of her time in the United Kingdom in answer to questions about the countries in which she had lived in the past 10 years.· Not providing her address in the United Kingdom in response to questions about her address, instead providing an address in Nepal. · Answering “no” to the question “Have you travelled to any country other than Australia in the last 10 years”· Providing the place of birth of her daughter Pristha Rimal as Jhapa in Nepal when Pristha was born in the United Kingdom.· In her previous applications for a:o Student (subclass 572) visa granted 18 March 2009, o Further 572 visa granted 13 May 2011, o Skilled Graduate (Subclass 485) visa granted 4 July 2012, o Skilled-Regional (Provisional) visa granted 7 July 2014 and o Australian citizenship by conferral dated 11 November 2019, and the documents submitted for this application.Ms Rimal provided the same answers to questions about the birthplace of her daughter, the countries in which she resided and the addresses where she had lived. This information was provided on Ms Rimal’s vias applications and the Form 80 “Personal particulars for assessment including character assessment.” The delegate found this information was incorrect as the Department received information that she lived in the United Kingdom between 2003 and 2007, her daughter Pristha was born in the United Kingdom, and that UK authorities confirmed that Ms Rimal and her daughter were removed from the United Kingdom in March 2007.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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