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

1. 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.

2. 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.

3. On 13 May 2015, the department granted the applicant a 186 visa and Kyna 186 visa on the grounds that she was in the applicant’s family unit.

4. By a written decision dated 18 November 2016, the delegate cancelled the applicant’s visa under ss.  101(1)(b) and 109 of the Migration Act 1958 (Act). The delegate found the applicant’s answers as set out in the preceding paragraph were incorrect and that the cancellation powers under ss. 101(1)(b) and 109 had been enlivened. The delegate then concluded that the proper exercise of her discretion favoured cancelling the visa.

5. On 21 November 2016, the applicant applied to this Tribunal for a review of that decision.

6. The applicant appeared before the Tribunal on 26 June 2018 to give evidence and present arguments. The hearing proceeded with the assistance of a Punjabi and English interpreter. The applicant’s migration agent represented her throughout this review including at the hearing. After the hearing, the applicant sent the Tribunal further documents for it to consider.

7. In this review, the Tribunal must decide whether the grounds for cancellation under ss. 109(1)(b) have been made out, and if so, whether the proper exercise of its discretion requires the visa to be cancelled. 

8. For the reasons below, the Tribunal:

   (a)Finds the grounds for cancelling the applicant’s 186 visa under ss. 101(1)(b) have been made out; and

   (b)But considers the proper exercise of its discretion favours setting aside the decision under review and it substitutes a decision not to cancel the applicant’s visa.

9. For the purposes of the Tribunal’s jurisdiction, the only decision that is before it is that of the applicant. Kyna's visa was automatically cancelled as a consequence of that cancellation. Kyna's visa was cancelled 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 does not have jurisdiction with respect to Kyna's visa cancellation. But in considering how to exercise its discretion, the Tribunal has taken into account the consequences of Kyna’s visa being cancelled automatically.

Legislative framework

1. 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, those 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.

2. More specifically, s. 101 of the Act provides that a non-citizen must fill in or complete his or her application form in such a way that all questions on it are answered, and no incorrect answers are given or provided.

3. Section 109 of the Act gives the Minister (and the Tribunal) the power to cancel a non-citizen’s visa for breach of s. 101 but the power is qualified. The exercise of the cancellation power under s.109 is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, which provides particulars of the alleged non-compliance. Where such a notice does not comply with the requirements in s.107, the power to cancel the visa under s. 109 is not enlivened. Extracts of the Act relevant to this case are attached to this decision.

4. Sections 109(1)(b) and (c) provide that if the Minister decides there has been non-compliance with a relevant section of the Act, including s. 101, the visa holder’s visa may be cancelled after considering any response provided by the visa holder to the s. 107 notice. In deciding whether to cancel, the Minister must have regard to ‘any prescribed circumstances’.

5. The prescribed circumstances are set out in reg. 2.41 of the Migration Regulations 1994 (Regulations) are as follows:

   (a) the correct information; 

   (b)the content of the genuine document (if any); 

   (c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document; 

   (d) the circumstances in which the non-compliance occurred; 

   (e) the present circumstances of the visa holder; 

   (f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; 

   (g) any other instances of non-compliance by the visa holder known to the Minister; 

   (h) the time that has elapsed since the non-compliance; 

   (j) any breaches of the law since the non-compliance and the seriousness of those breaches; and

   (k) any contribution made by the holder to the community.

6. While the factors specified in reg.2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case.[2]

   [2] MIAC v Khadgi (2010) 190 FCR 248.

7. The Minister may also have regard to lawful government policy. The relevant policy is set out in the department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

Was the s. 107 notice valid?

1. Section 107 of the Act is only engaged if the Minister or the delegate consider the visa holder has not complied with one of the provisions of s. 107(1), which includes s. 101. To engage s. 107, the Minister or the delegate must have reached a state of mind such that they consider the visa holder to have failed to comply with one of the relevant provisions. That state of mind is a precondition to the issue of a s. 107 notice.[3] 

   [3] Zhong v MIAC (2008) 171 FCR 444 at 75.

2. A section 107 notice that follows the Minister or the delegate reaching the necessary state of mind must be sufficient to fairly inform the visa holder of the grounds upon which cancellation is being considered so that the visa holder can provide any relevant information available to him.[4]

   [4] See Zhao v MIMA [2000] FCA 1235 at [25] (French, Hill, and Carr JJ). There the court considered the requirements of a s. 119 notice but the same principles apply under s. 107.

3. Here the delegate sent the applicant a s. 107 notice dated 3 October 2016. In the notice, the delegate alleged that the applicant did not comply with s. 101(b) when she lodged her application for a 186 visa on 18 November 2014. The delegate noted that the applicant had stated on her application form that she nominated Kyna as a migrating family member and Deepak as a dependant non-migrating family member. The delegate stated that Sonia’s 186 visa application was granted on 13 May 2015 on the grounds that she was the primary applicant and Kyna was a dependant. The delegate stated she did not consider Kyna to be in the applicant’s sole custody, and that was contrary to what the applicant had stated or represented on her application form when she gave the answers set out in paragraph 2 above.

4. The delegate appeared to base her finding on two matters. First, the definition of ‘Member of the family unit’ in r. 1.12 of the Regulations as including a spouse and a dependent child of the marriage or one of the partners in the marriage. Second, under Australian family law, a married couple have joint custody of a child of the marriage unless a court of competent jurisdiction has ordered otherwise. Collectively, those matters determined that Kyna was in the joint custody of Deepak and the applicant. The delegate found that in her 186 application form, the applicant had stated effectively that Kyna was in her sole custody.  

5. On those grounds, the delegate stated in her s. 107 notice that she considered the applicant to have failed to comply with s. 101(1)(b).

6. The Tribunal considers the s. 107 to be valid. It is satisfied that the delegate had reached the necessary state of mind to engage s. 107. The Tribunal also considers the notice to have contained sufficient particulars to inform the applicant of the grounds of cancellation the delegate was considering. The Tribunal agrees with the delegate’s finding as set out in the notice. By reason of the applicant’s answers to the questions in her 186 visa application form as set out in paragraph 2 above, the applicant represented that Kyna was in her sole custody.

Was there non-compliance as described in the s.107 notice?

1. As stated in paragraph 11 above, section 101 of the Act requires a non-citizen to answer all questions on the application form correctly. The answers the applicant gave on her 186 application form the subject of the 107 notice are set out in paragraph 2 above.

2. During the hearing the applicant originally said that she did not answer the questions incorrectly. She maintained steadfastly that she answered the questions correctly, and the delegate was wrong to conclude she gave incorrect answers. The grounds upon which she maintained that position were as follows:

   (a)At the time she filled out the 186 application form and signed it on 18 November 2014, she was living in Australia on a 457 visa with Deepak and Kyna as a family[5]. At the time, her relationship with Deepak was ongoing;

   (b)At the time she applied for a 186 visa, she was working full time and earning about $52,000 a year. Deepak was working casually as a security guard and averaged about $200 per week. Although they were earning reasonable money and should have been able to afford the $4,500 or so for Deepak’s visa, Deepak was sending most of their money to his family in India, including for his sister’s wedding. For that reason, she was short of money at the time;

   (c)With Deepak’s agreement, she applied for a 186 visa with Kyna only. If the 186 visas were granted and she obtained permanent residency with Kyna, Deepak would remain in Australia on his 457 visa until it was due to expire on 19 September 2016. Sonia would then sponsor Deepak for a spouse visa so he could remain living with her and Kyna permanently in Australia;

   (d)She chose, with Deepak’s agreement, to structure her visa arrangements that way because at the time she applied for her 186 visa, she was advised that it would cost an additional $4,500 to obtain a 186 visa for Deepak. She could not afford that amount, partly because of Deepak sending their money to India. Sponsoring Deepak for a spouse visa later would effectively defer the fees to obtain a visa for him. She hoped she could afford to obtain a visa for Deepak when the time came to apply for a spouse visa; and

   (e)Given those circumstances, she understood the second question that she is alleged to have answered incorrectly – whether any other person has custody rights to Kyna –  to refer to a party outside her family unit with Deepak. She understood the question to assume that she had custody of Kyna with Deepak and to be directed to some third party having custody or access rights to their daughter.  

   [5] The applicant was the primary 457 visa holder and Deepak and Kyna held secondary 457 visas by reason of being part of the applicant’s family unit.

3. Later in the hearing, upon being pressed by the Tribunal, the applicant said she understood now the answers to the relevant questions in the application to be incorrect. But she maintained that at the time she gave the answers she understood them to be correct. In other words, she did not intentionally answer the questions on the application form incorrectly.

4. On the evidence, and taking a strict construction of the questions in issue, the Tribunal is satisfied that the applicant gave incorrect information on her application form for a 186 visa.

5. Taken alone, the applicant’s answer to the first question in issue was correct. Kyna was in the applicant’s care and legal custody. On the applicant’s evidence given to the Tribunal, Kyna was also in Deepak’s care and legal custody at the time. The question does not descend to asking about sole or joint custody.

6. The same can be said of the third question. At the time the applicant completed the application form, there was no legal impediment to Kyna’s travel to Australia. The applicant and Deepak were still together and Deepak would be remaining in Australia with his family on his 457 visa. Again, the question did not descend into eliciting information about what might happen in the future.

7. But the applicant’s answer to the second question in issue, considered alone, was incorrect and it rendered incorrect the information conveyed by all three questions when they are considered together.

8. Looking at the second question in isolation, it asked whether any other person had custodial, access, or guardianship rights to Kyna. The applicant answered no. The question appeared in section of the application form headed ‘child custody details’. Earlier in the application form, the applicant stated the Kyna was her child. Later in the form, the applicant identified Deepak as her husband and that he was a non-migrating dependant family member.

9. The applicant’s answer to the second question was incorrect. It asked the applicant (as the sole applicant and only migrating parent) whether any other person had custody rights to Kyna as the migrating child. Plainly, the correct answer was yes. Any other person would include Deepak as a non-migrating father. By answering no to the question, the applicant gave an incorrect answer.

10. The Tribunal notes that on this point, the delegate’s decision misses the point slightly. The delegate relied on a presumption that ‘under family law, unless a court of competent jurisdiction has ordered otherwise, both parents have joint legal custody of their children. Although that is no doubt correct, the reasoning seems to assume that Sonia and Deepak had separated at the time the applicant applied for the 186 visa on 18 November 2014. On the evidence before the Tribunal, and as noted in the delegate’s decision, the marriage did not fail until 27 August 2015. The applicant and Deepak were still together when the applicant applied. So as a matter of fact rather than legal presumption, the applicant and Deepak had joint custody of Kyna at the time of application.

11. Returning to the applicant’s answer to the second question, when the three questions and the applicant’s answers to them are considered together, they convey that the applicant and Kyna were migrating to Australia permanently while Deepak would not be migrating. Kyna’s father (Deepak) consented to Kyna migrating permanently without him because, as the applicant stated in her application, there was no legal impediment to Kyna migrating. The applicant’s answers conveyed an incorrect and incomplete picture to the department. On the applicant’s answers to the questions in issue, the department would not have had a reason to seek further information from the applicant about precise circumstances of Kyna’s migration to Australia, and the department did not seek such information.

12. On the evidence before the Tribunal, it is satisfied the applicant gave incorrect information on her 186 application form. Accordingly, the Tribunal finds the applicant did not comply with s. 101 of the Act in the way described in the s. 107 notice.

Should the visa be cancelled?

1. As the Tribunal has decided there was non-compliance in the way described in the s. 107 notice, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

2. As stated above, in exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to the prescribed circumstances under s.109(1)(b) and (c) and r.2.41 of the Regulations. The applicant responded to the s. 107 notice by letter dated 14 October 2016. A summary of the substance of that response and evidence before the Tribunal relevant to the prescribed circumstances to which the Tribunal must have regard is set out under the relevant headings below. The Tribunal must also have regard to any other relevant matters, including the relevant matters set out in PAM3. Those matters are addressed below.

Correct information

1. As stated above, the correct answer to the second question in issue was yes.

2. At the hearing, the applicant stated that at the time she applied for her 186 visa on 18 November 2014, she was in an ongoing realtionship with Deepak. At the time, there was no prospect of seperation. That did not occur until 27 August 2015 after the applicant had been granted the 186 visa on 13 May 2015. The applicant submitted written evidence to the Tribunal in support of her argument about her relationship with Deepak. The applicant also made these points in her response to the s. 107 notice and she gave the department supporting documents. She also stated in her response that she proposed to sponsor Deepak for a spouse visa after her 186 visa was granted.

1. The Tribunal accepts that at the time the applicant applied for her 186 visa, she was still with Deepak as his wife. There is no dispute about that from Deepak's side. The Tribunal has documents before it to the effect that Deepak also accepts that he was still living with the applicant as his wife as of 18 November 2014.[6] The dispute between the applicant and Deepak centres on whether the applicant was to include Deepak on her 186 application as a migrating family member (as Deepak maintains) or whether she agreed with Deepak that he would be left off for the time being, remain in Australia on his 457 visa, and migrate permamently later under a spouse visa (as the applicant maintains). 

   [6] Letter from Deepak to the department dated  21 April 2016 on the department’s file.

2. Had the applicant given the correct answer to the second relevant question on her 186 application form, the department would likely have asked the applicant for more information about the circumstances in which Kyna was migrating to Australia while another person had custody rights to her. That would have prompted the applicant to explain and expose to the department the true or complete context in which Kyna was migrating. The department would then  likely have made further enquiries about Deepak’s position on Kyna migrating. It is difficult for the Tribunal to tell for certain what would have occurred from there. It appears likely that one of two things would have occurred. First, if the explanation the applicant gave in her response to the s. 107 notice (and to the Tribunal) about her agreement with Deepak was correct, Deepak would have had little reason to withhold consent to Kyna migrating with the applicant. All other things remaining equal (and assuming Deepak consented) the department would likely have granted the applicant and Kyna the 186 visa, as it did ultimately. But if the applicant had misled Deepak and left him off the application as a migrating family member (as Deepak claims), the issue would have been exposed to Deepak before the issue of the applicant’s 186 visa. At that point, the applicant might have amended the application (or lodged a new one) naming Deepak as a migrating family member (and he visa would likely have been granted), Deepak might have refused to consent to Kyna migrating without him (in which case the department would likely have refused the186 visa to Kyna and probably to the applicant), or the department might have refused the application by reason of the applicant giving incorrect information on her application form. In that circumstance the fate of the applicant's 186 visa would have become less certain.

3. The Tribunal has weighed all of those matters. In the end they are neutral in this analysis. It is not clear to the Tribunal what have occurred had the applicant given the correct information on her 186 application form.

The content of the genuine document (if any)

1. This consideration is not relevant. The applicant is not alleged to have given the department a bogus document.

Whether the decision to grant the visa was based, wholly or partly, on the incorrect information 

1. The Tribunal considers it to be plain that the decision to grant the applicant and Kyna the secondary 186 visa was based, at least partly, on the incorrect information. The applicant applied to migrate to Australia with her daughter on a 186 visa. The applicant's declaration that nobody else had custody or access rights to Kyna would have been relevant to the delegate deciding the fate of the applicant's application to migrate permanently to Australia with Kyna. That weighs against the applicant.

The circumstances in which the non-compliance occurred

1. As stated above, the applicant said in her response to the s. 107 notice and in evidence to the Tribunal that at the time she applied for her 186 visa she was living with Deepak as his wife. They cared for Kyna jointly. In evidence, she said she thought the second relevant question referred to people outside her marriage to Deepak, and on those grounds she thought she answered the question correctly.

2. The applicant did not fill out the 186 visa application form. Her migration agent filled out the form on her behalf. But by reason of s. 98 of the Act, that does not absolve the applicant from the responsibility under s. 101 from ensuring that all information on her application form was correct. Further, s. 100 of the Act provides that an answer to a question is incorrect even though the person giving the answer did not know it was incorrect.

3. As stated above, the Tribunal accepts that at the time the applicant applied for her 186 visa she was living with Deepak as his wife. On those grounds, they had joint custody of, and access to, Kyna both legally and practically.

4. But it is difficult to follow the applicant's argument on how that assists her position in this review. Her ongoing relationship with Deepak at the time she applied for her 186 visa does not explain away the incorrect information about the context of Kyna's migration to Australia. The applicant nominated Deepak on the 186 application form as a non-migrating dependant family member. In the same form, she stated that Kyna was migrating to Australia with her and that nobody had custody or access rights to Kyna. That the applicant was in an ongoing relationship with Deepak at the time does not render the information about Kyna correct or somehow explain it away.

5. If anything, the applicant’s argument runs against her interests in this review. If the applicant nominated Deepak on the 186 application form as a migrating family member, then her explanation might make more sense. Also, there would not be any real mischief caused by the incorrect information. In that event, Kyna would have been migrating to Australia with both her parents and nobody else had a custodial interest in Kyna. But in the circumstances the 186 application, the applicant's answer to the second question in issue yielded an obvious mischief. The applicant told the department that Kyna was migrating with her alone and that no other person had a custody interest in Kyna. That was plainly incorrect.

6. The Tribunal considers the circumstances of the non-compliance to weigh against the applicant.

The present circumstances of the applicant

1. The applicant has been in Australia since April 2008. She has been here on a 457 visa since September 2012, and on a 186 visa since May 2015. She had a child, Kyna, in Australia in February 2011, who is now eight years old. Kyna started year three at school at the beginning of this year. Kyna has only ever known life in Australia. The applicant has been working in Australia since at least September 2012 and contributed through the payment of taxation since that time. The applicant said during the hearing that she ceased work recently but proposes to return to work shortly. The Tribunal weighs those matters in the applicant's favour. The Tribunal considers them to carry substantial weight.

The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

1. There is no evidence before the Tribunal that the applicant has committed further breaches of Sub-Division C of Part 2 of the Act. On the evidence, the applicant has generally been cooperative. The Tribunal weighs that in the applicant's favour.

Other instances of non-compliance

1. There is no evidence before the Tribunal that the applicant had failed to comply with the Act or the Regulations. The Tribunal weighs that in the applicant's favour.

Time that has elapsed since non-compliance

1. The applicant applied for her 186 visa on 18 November 2014. She failed to comply with s. 101 of the Act at that time. Two years elapsed before the applicant's visa was cancelled, and about two further years have elapsed since then. The Tribunal weighs that slightly in the applicant’s favour.

Any breaches of the law since non-compliance

1. There is no evidence before the Tribunal that the applicant has breached the law after 18 November 2014 when she applied for her 186 visa. The Tribunal weighs that in the applicant's favour.

Any contribution by the visa holder to the community

1. As stated above, the applicant has been working in Australia since September 2012, paid taxation, and contributed to Australia. On the evidence before the Tribunal, the applicant has not engaged in behaviour while in Australia that would detract from that contribution. The Tribunal weighs that in the applicant's favour.

Whether there are others whose visas would or may be cancelled under s. 140

1. Kyna's visa was cancelled consequentially because of the cancellation of the applicant’s visa. However, there is no evidence that the cancellation of the applicant’s visa would result in her being separated from her daughter.

2. As stated above, Kyna was born in Australia in February 2011 and has lived in Australia ever since. She has never lived in India. If the applicant's visa was to remain cancelled, Kyna's visa would remain cancelled as well with the consequence that she would return to India with her mother. Plainly, Kyna would be better off remaining in Australia. It will take her some time to adjust to life in India, although given her young age she would be able to adjust. Ultimately, Kyna would be better off in Australia. The Tribunal places substantial weight on Kyna's interests being better served in Australia than in India.

Other matters

1. At the time the applicant applied for her 186 visa, she was in Australia on a 457 visa. That visa was to expire on 19 September 2016. Deepak and Kyna were on 457 visas as well. Those visas were granted to them on the grounds that they were part of the applicant’s family unit. The department would have known of that circumstance at the time it granted the applicant and Kyna their 186 visas on 13 May 2015. The department would have been alive to the possibility that Deepak would be remaining in Australia with the applicant and Kyna until at least 19 September 2016 when his 457 visa expired. So at the time of the 186 visa grant, Kyna migrating without her father (or his consent) was not in sharp focus because the family was still together, and Deepak would remain with them in Australia for the immediate future. On the applicant's version of events, she was going to apply to sponsor Deepak later for a spouse visa so that he could remain in Australia permanently.

2. Accordingly, the real vice in this matter - Kyna's migration without her father - did not arise directly at the time of the 186 visa grant. The vice arose directly when the marriage between the applicant and Deepak failed on 27 August 2015. Deepak's 457 visa was cancelled on 18 September 2015 by reason of the failure of his marriage to the applicant. It was at that point that the question of Deepak's consent to Kyna's migration to Australia fell into sharp focus.

3. On 23 September 2015, Deepak applied to this Tribunal for a review of the decision to cancel his 457 visa. On 29 March 2016, the Tribunal affirmed the decision to cancel. In its decision, the Tribunal noted that the cancellation of Deepak's visa need not result in his return to India permanently. He could explore remaining in Australia on the parent visa program. If he returned to India he could still visit Australia to see Kyna.[7]

   [7] Decision in Tribunal case No. 1513068 dated 29 March 2016. Deepak appealed that decision to the Federal Circuit Court. The court dismissed the application on 4 September 2017.

4. During the hearing in this review, the applicant told the Tribunal that Deepak was still in Australia. He has commenced  proceedings in the Family Court seeking access to Kyna. The court has made interim orders under which Deepak has three unsupervised visits with Kyna per week. Each visit is for three hours. The applicant said that if Deepak ultimately returns to India, she would take Kyna to visit him regularly. Further, if Deepak were to visit Australia she would not prevent him seeing Kyna.

5. In the circumstances, any separation of Kyna from Deepak has come about because of the failure of the marriage between Kyna's mother and father rather than their visa status. The Tribunal is satisfied that Kyna will not be deprived of a relationship with Deepak (and Deepak will not be deprived of a relationship with his daughter) if the applicant’s 186 visa subsists. At the time of the hearing, (on the applicant’s evidence) Deepak was still in Australia seeking formal orders for access to Kyna. If he returns to India, the applicant can always return voluntarily with Kyna to visit or stay. Deepak could also visit Kyna in Australia.

6. In all the circumstances, Kyna interests are best served by her remaining in Australia.

7. During the hearing, the applicant said that she would encounter substantial difficulty if her visa remained cancelled and she returned to India. She said that it was not safe for her in India. Her relationship with Deepak's family has broken down entirely. They have threatened to kill her and Kyna. She has nobody to look after her in India. She cannot look too much to her own family due to cultural reasons. The Tribunal has taken those matters into account.

Conclusion 

1. The Tribunal finds that there was non-compliance by the applicant in the way desrcibed in the s. 107 notice. The power to cancel the applicant's visa under s.109 has been enlivened.

2. The applicant has considered the discretionary matters carefully and weighed the matters for and against maintaining the cancellation of the applicant's visa. The Tribunal has wieghed against the applicant the incorrect information she gave and the consequences of the incorrect information. It either contibuted to the 186 visa being granted or at least resulted in the department not seeking further clarificaiton from the applicant on the cirumstances of Kyna's migration to discover the true state of affairs. 

3. But the Tribunal considers the matters favouring the applicant's 186 visa not being cancelled outwiegh those favouring cancellation. The applicant has been in Australia now for over a decade during which time she has worked and contributed to the country. But for the incorrect information she gave in her 186 visa application form she has been well behaved. Kyna has been in Australia all her life. Plainly, she will be better off in Australia than she would in India. Kyna will not nececcarilly be seperated from her father if she remains in Australia. The Tribunal considers the consequences of the incorrect information not to outwiegh those matters The incorrect information is not the direct cause of the real mischief here - Kyna migrating to Australia without her father. The more direct cause of that mischief was the failure of the marriage between the applicant and Deepak. Deepak might yet remain in Australia or he might visit regularly. The consequences of the failure of the marriage between the applicant and Deepak will regrettably be visited on Kyna whether her parents are in Australia or India.

4. In the circumstances, the Tribunal considers the preferable exercise of its discretion to be to set aside the cancellation decision.

DECISION

1. 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.

2. The Tribunal has no jurisdiction with respect to the second applicant (Kyna).

L. Hawas
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.

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.

* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).