Sonia (Migration) - [2019] AATA 2833

Sonia (Migration) [2019] AATA 2833 (15 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Sonia Sonia
Miss Kyna Manchanda
CASE NUMBER:  1619606
DIBP REFERENCE(S):  BCC2016/3270198
MEMBER:L. Hawas
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
The Tribunal has no jurisdiction with respect to the second applicant.
Statement made on 15 February 2019 at 3:46pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 Employer Nomination Scheme – incorrect answers in visa application – sole custody of a child – plans to sponsor husband for a spouse visa later – separated husband seeking legal access to the child – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 97-105, 107-109, 140
Migration Regulations 1994, rr 1.12, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Zhao v MIMA [2000] FCA 1235
Zhong v MIAC (2008) 171 FCR 444

STATEMENT OF DECISION AND REASONS

Application for review and summary

The first applicant Sonia Sonia (the applicant) is a 32-year-old woman from India. On 27 November 2007, she married Deepak Deepak (Deepak) in India. In April 2008 she came to Australia with Deepak on a student visa. The applicant and Deepak subsequently had a child in Australia, Kyna Manchanda (Kyna), who was born on 13 February 2011. On 19 September 2012, the department granted the applicant a 457 visa for four years to 19 September 2016. Deepak and Kyna were granted secondary 457 visas on the grounds that they were part of the applicant’s family unit. On 18 November 2014, while the applicant’s 457 visa and those of Kyna and Deepak were still current, she applied for a sub-class 186 employer nomination scheme visa, being a permanent residency visa. She included Kyna on the application as a migrating family member but she did not include Deepak on the application as migrating wither. She nominated Deepak as a dependant family member not travelling to Australia with her. She maintains that she excluded Deepak from the 186 application by agreement with him. Deepak maintains that he was always to be included on the 186 visa application, and he always thought that he was.[1] The applicant and Deepak separated on 27 August 2015 and they divorced on 20 February 2017.
[1] Delegate’s decision dated 18 November 2016 and evidence the applicant gave at the hearing. The applicant gave the Tribunal a copy of the delegate’s decision in this review.
In her 186 visa application, the applicant answered as follows in the section of the application headed ‘Child custody details’:
(a)‘Yes’ when asked: ‘Is [Kyna] in the primary applicant’s care and legal custody;
(b)‘No’ when asked: Does any other person have custodial, access, or guardianship rights to this child’; and
(c)‘No’ when asked: Are there any legal impediment to [Kyna’s] travel to Australia.
On 13 May…

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 Sonia (Migration)

Details

AGLC: Sonia (Migration) [2019] AATA 2833
Case: [2019] AATA 2833
Decision Date: 15 February 2019

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the applicant's Employer Nomination (Permanent) (Class EN) visa, specifically a Subclass 186 Employer Nomination Scheme visa. The applicant, Sonia, had provided answers in her visa application that were alleged to be incorrect.

The primary legal issue before the Federal Circuit Court was whether the Minister's decision to cancel Sonia's visa was affected by jurisdictional error. This involved determining whether the incorrect answers provided in the visa application, relating to sole custody of a child and plans to sponsor her husband for a spouse visa at a later date, were material to the visa grant and whether the applicant had a genuine intention to sponsor her husband. The court also considered the circumstances of the applicant's separated husband, who was seeking legal access to their child.

The court found that the applicant's answers regarding sole custody and future sponsorship were not demonstrably false or misleading in a way that would render the visa grant invalid. The court reasoned that the applicant's intention to sponsor her husband at a later time was a future intention, not a present fact that could be definitively stated as false. Furthermore, the court noted that the husband's current legal actions regarding child access did not negate the applicant's potential future ability or intention to sponsor him. Consequently, the court determined that the decision to cancel the visa was affected by jurisdictional error.

The court ordered that the decision under review be set aside.

Orders