Singh (Migration)

[2018] AATA 5411

Singh (Migration) [2018] AATA 5411 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Gurinder Singh

CASE NUMBER:  1812213

DIBP REFERENCE(S):  BCC2016/2662000

MEMBER:Justin Owen

DATE:15 November 2018

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 15 November 2018 at 4:02pm

CATCHWORDS
MIGRATION – cancellation – Partner (Combined) visa – Subclass 309/100 – cancelled on basis of incorrect answers in application – applicant not legally married – previous marriage invalid as a prohibited relationship – correct answers provided – ground for cancellation not made out – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 107, 108, 109, 375

Migration Regulations 1994, Schedule 2

Marriage Act 1961, ss 12, 23, 88

Marriage Amendment Act 1985, s 13

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 100 (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.101 of the Act.  The delegate found that the applicant failed to comply with s.101(b) of the Act by providing incorrect answers in his Partner visa application for the purposes of concealing from the Department that he was still legally married to another person making his marriage to the sponsor invalid.  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 14 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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.101(b) of the Act by providing incorrect answers in his Partner (Combined) (subclass 309/100) visa application on 24 April 2012.

10. In the decision record the applicant provided the Tribunal, the delegate stated on 10 August 2016 information was received by the Department in regards to the applicant’s marital status and previous marriages.  The information stated that on 2 August 2009 the applicant married a Balvinder Singh under the Hindu Marriage Act 1955. The applicant acknowledged to the Department that he had signed marriage documents in order to enter into a married relationship with his cousin Ms Sativinder Grewel in 2009.  The delegate stated that the applicant ‘willingly entered into a marriage with Satvinder Grewal’ and has a genuine marriage certificate.

11. The delegate noted that in the prescribed application form – 47SP Application for migration to Australia by a partner – the applicant had responded ‘No’ to Q23 ‘Have you ever been married before?’ and Q72 ‘Are you still legally married?’ The delegate furthermore noted the signed declaration under Q97 where the applicant acknowledged that the information he provided was complete, correct and up to date as well as his understanding that if he gave false or misleading information, any visa granted may be cancelled. 

12. The delegate subsequently found that the applicant had failed to comply with s.101(b) of the Act by providing incorrect answers in his Partner visa application for the purposes of concealing from the Department that he was still legally married to another person.  The delegate found that this made his marriage to the sponsor of his Partner visa application invalid.   The delegate furthermore noted that the applicant ‘has not made any attempts to have the marriage ended, whether it be by divorce, annulment, advising the marriage office of his family tie to Sativinder Grewal or any other channel available to him.  By all records the marriage to Satvinder Grewal is still lawful and in place.’  The delegate conceded that the marriage to Satvinder Grewal was not valid under the Hindu Marriage Act 1955 but asserted that the marriage still occurred and the applicant remained in breach of s101(b) for providing an incorrect answer to the Department pertaining to his previous marital status. 

13. The applicant made extensive submissions to the Tribunal which included a submission from his representative Mr Dobie; a statutory declaration from the applicant; letters of support from a wide range of community and workplace colleagues and acquaintances and, importantly, recent Orders made by the Family Court of Australia pertaining to the applicant’s marriage to the sponsor.   The Tribunal found Mr Dobie’s submissions on behalf of the applicant Dr Singh to be of significant value to the Tribunal in its deliberations. 

14. At the hearing on 14 November 2018 the applicant Dr Singh disputed that there had been non-compliance.  He provided the Tribunal with a background as to his relationship with his cousin.  He conceded that he had signed forms with the marriage agent but had been informed subsequently that the marriage would be invalid due to the relationship being regarded as a prohibited relationship.  He said that that was the end of the situation and he and the cousin Ms Grewal did not pursue this any further.  He stated that he had received no further correspondence concerning the marriage.  The applicant stated in response to the Tribunal’s questioning that the sponsor had been well aware of his previous attempted marriage and he had shared the incident with the sponsor early in their relationship.      

15. Section 12 of the Act refers to Part VA of the Marriage Act 1961 for the purposes of deciding whether a foreign marriage is valid for the purposes of the Act.

16. Section 88C(1)(a) of the Marriage Act 1961 states that Part VA applies to marriages solemnised in a foreign country where under the local law the marriage was at the time when it was solemnised recognised as valid. The Tribunal has therefore considered the Hindu Marriage Act 1955 to determine if the marriage in question to the applicant’s cousin was solemnised and recognised as valid.

17. The Hindu Marriage Act 1955 in section 3(g)(iv) defines two people as being within the ‘degrees of prohibited relationship’ if the two people are ‘children of brother and sister or of two brothers or of two sisters’. The evidence before the Tribunal includes a statement from the applicant’s mother that the cousin the applicant is said to have married is her sister’s daughter. Consequently the applicant and the cousin are children of two sisters and meet the definition of within the degrees of prohibited relationship.

18. Section 5(iv) of the Hindu Marriage Act 1955 furthermore states a marriage may be solemnised if the parties are not within the degrees of prohibited relationship. Given the applicant and the cousin he was alleged to have married are within the degrees of prohibited relationship it appears obvious to the Tribunal that the alleged marriage does not meet the criteria for a Hindu marriage under s 5 and was not solemnised for the purposes of the Hindu Marriage Act 1955.  Section 11 of the Hindu Marriage Act 1955 also states any marriage solemnised will be null and void if it contravenes s 5(iv).

19. Accordingly the applicant’s marriage to the cousin appears to not have been solemnised or a valid marriage for the purposes of the Marriage Act 1961 and in turn the Act. As such it would appear the applicant was not legally married at the time of his visa application and the applicant’s response of ‘No’ to Q72 ‘Are you still legally married’? was indeed the correct one.

20. The Tribunal notes the delegate’s finding that the applicant provided the Department an incorrect answer as he was previously married in 2009 and had not had the marriage legally dissolved through divorce.  The sponsor has made similar unsuccessful arguments as the basis for her marriage to be annulled by the Family Court of Australia (see paras 23 & 24).  Given the Tribunal, on the facts before it, is of the view that the marriage between the applicant and his cousin was void ipso jure, the Tribunal considers the applicant’s response to Q72 to be correct.  There was no need for a formal divorce given the marriage under the Hindu Marriage Act 1955 was null and void.     

21. In relation to Q23 ‘Have you ever been married before?’, the Tribunal construes this question, in light of Q72 asking whether the applicant is still ‘legally married’; to be asking the applicant whether they have ever been ‘legally married’ or to paraphrase ‘Have you ever been legally married before?’ (Tribunal’s emphasis added). On the facts before the Tribunal the applicant has never been legally married prior to the lodgement of his Partner visa application on 24 April 2012.  The Tribunal accepts that he may have in 2009 intended to marry Ms Grewal and have signed the relevant paperwork to do so.  The marriage may have been registered.  The fact remains such a married relationship was null and void. The Tribunal again notes s11 of the Hindu Marriage Act 1955 states that any marriage solemnised after the commencement of this Act shall be null and void.  The Tribunal notes the voluminous evidence that has been provided to this effect by the applicant.  The applicant provided the Supreme Court of India decision SMT.YAMBUNABAI ANANTRA ADHAV V. RANANTRA SHIVRAM ADHAV & ANR  [1988] INSC 24 where it was found: ‘The marriages covered by s.11 are void-ipso-jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises.  Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose.’ (T1, Folio.47-49) The Tribunal agrees with the applicant’s submission that a marriage covered by s.11 is void ipso jure – void by operation of law.  The marriage never existed in law.  The applicant’s response to Q23 of ’no’ to the question as to whether he had ever been married before was, in the Tribunal’s consideration, a correct one. 

22. The Tribunal considers the submissions the applicant provided in relation to two recent Family Court of Australia decisions in relation to his marriage further confirm the validity of such a finding.

23. The Tribunal notes that on 26 July 2017 the sponsor filed an application for an annulment of her marriage to the applicant on the basis that the applicant was legally married to another woman pursuant to s23 1(a) of the Marriage Act 1961 and Section 13 of the Marriage Amendment Act 1985 No 7. (T1, Folio 26; 34-35). The sponsor in her affidavit to the Family Court stated that the applicant had not divorced from this marriage and no application had been received by any Indian Court for divorce from the parties involved in the marriage.

24. On 26 June 2018 however the Family Court of Australia dismissed the sponsor’s application for nullity (T1, Folio.28-29) and on 11 July 2018 His Honour in making a Divorce Order found that the marriage between the applicant and sponsor was proved (T1, Folio.27-28).  The Tribunal has placed some weight on the Court’s decision to reject the argument that the marriage should have been annulled on the basis the applicant was already married and the subsequent finding by the Court that the marriage was proved. 

25. The applicant in oral evidence said that he had no knowledge, until the first correspondence was received from the Department in relation to the cancellation, that the marriage had been registered.  The Tribunal notes the applicant’s young age at the time and the fact he almost immediately returned to China to continue his medicine studies after the registration date of the marriage.  The Tribunal makes no comment as to this claim.  The Tribunal nevertheless notes that a marriage covered by s.11 of the Hindu Marriage Act 1955 is void by operation of law.  The Tribunal considers that the marriage between the applicant and his cousin in 2009 had no legal effect and in fact never existed in law. 

26. Given this the Tribunal is of the opinion the applicant’s answer of ‘no’ to the questions on the  prescribed application form – 47SP Application for migration to Australia by a partner ‘have you ever been married before?’ and ‘are you still legally married?’ were correct and his signed declaration.  The Tribunal is of the opinion the applicant did not give false or misleading information in his responses to Q23 and Q72.      

27. The Tribunal’s conclusion on this basis is the applicant is not in breach of s 101(b) of the Act.

28. 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. 

29. Whilst there subsequently is no need for the Tribunal to have regard to the relevant considerations as set out in Regulation 2.41, the Tribunal does for the record note the voluminous evidence provided by the applicant and his representative Mr Dobbie in regard to the considerations and the significant contribution the applicant Dr Singh appears to be providing to the community. 

30. The Tribunal noted at the conclusion of the hearing that an s375A certificate had been placed on the Department’s file.  The Tribunal considered the certificate to be valid.  The Tribunal invited the applicant to make submissions as to the validity of the certificate and why the material should be released.  The applicant through his representative declined to make submissions.  

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (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.

    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.

    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.