Statham (Migration)
[2024] AATA 40
•8 January 2024
Statham (Migration) [2024] AATA 40 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Thomas Kenneth Statham
REPRESENTATIVE: Mr Glenn Wellburn (MARN: 0850908)
CASE NUMBER: 2115591
HOME AFFAIRS REFERENCE(S): BCC2020/2490833
MEMBER:James Lambie
DATE:8 January 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Statement made on 08 January 2024 at 2:59pm
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect information in the visa application – de facto relationship with a further person – travel exemption request indicating another partner – incomplete particulars in cancellation notice – claim of fabricated second relationship history – mental health issues – power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 111, 112,
Migration Regulations 1994CASES
Bui v MIBP [2019] FCCA 3363
SZTYV v MIBP [2018] FCCA 64STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that, prior to the grant of the applicant’s subclass 801 visa on the basis of a continuing de facto relationship with Ms Rachael Flitcroft on 4 March 2020, the applicant was in a de facto relationship with a Ms Smith from about October 2019 and that he had failed to notify the Department of those relevant changes in his circumstances, and therefore had not complied with section 104 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 8 August 2023, 20 October 2023 and 24 November 2023 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Background
The applicant, Mr Statham is a British national. He first entered Australia on 16 June 2015 as the holder of a working holiday visa. He lodged a combined partner (subclass 820/801) visa application on 10 July 2017 on the basis of his relationship with Ms Rachael Flitcroft. The provisional subclass 820 visa was granted on 12 July 2018. He applied for a permanent partner (subclass 801) visa on 22 September 2019, which was granted on 4 March 2020.
On 15 October 2020, a Ms Charlotte Smith submitted an inbound travel exemption request, claiming to have been in a de facto relationship with Mr Statham since October 2019. The travel exemption request included statutory declarations from herself and Mr Statham, Ms Karen Biasetti-Cooke (Mr Statham’s mother) and Ms Ellie Mae Wallace (Ms Smith’s sister), in support of this claim, in addition to photographs and other documents.
On 16 September 2021, the delegate issued a notice under s 107 of the Act of its intention to consider cancellation (the s 107 notice) of Mr Statham’s subclass 801 visa under s 109 of the Act on the basis described in paragraph 2 above. Mr Statham made a detailed response on 30 September 2021, elements of which are described further below. On 26 October 2021, Mr Statham was notified of the delegate’s decision. Mr Statham applied to the Tribunal for review of the decision on 2 November 2021.
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 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.
Did the notice comply with the requirements in s 107?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s 107. In written submissions dated 29 September 2023, it was argued on behalf of the applicant that relevant material held by the Department was excluded from the particulars of the possible non-compliance with section 104 of the Act.
The submission was framed as follows:
Included in the cancellation file held by the Department and released to the AAT for this matter is folio page number 223 titled ‘Checklist Disclosure Decision’. We… draw attention to the following:
Questions stated
·“Are there any document(s) on file NOT relevant to the decision?” associated section box “yes or no” with “no” being indicated.
·“Have any folios been redacted?” associated section box “yes or no” with “no” being indicated.
The above confirms that all documents held on the file were available and considered by the delegate in the process of cancelling the applicant visa under section 109. Subsequently, a complete copy of these documents, without any redaction has been supplied to the Tribunal with directive that all documents contained on the file are relevant to the consideration and cancellation process under section 109.
The section 107 and NOICC provided by the Department outlined the delegate’s consideration of “particulars of the possible non-compliance” as required under section 107(1)(a). The information cited as particulars relate to the travel exemption request and the documents pertained within this request. It was on the basis of this information that the delegate concluded the existence of a relationship between the applicant and Ms Charlotte Smith since October 2019.
None of the information or details contained within the pages/folio 123 through to 140 were contained in the NOICC s107 notice to the applicant. Accordingly, this information is not within that the “particulars” to be considered under section 108 in reaching a determination of non-compliance. To avoid doubt, only the information prescribed in the NOICC s107, was put to the applicant for comment, and yet according to the Department, no documents held on the file FA23/08/00491 were NOT relevant to the decision. The above findings resulted in the decision being affected by error, as documents and the information contained within, relevant to the cancellation decision, were not put to the applicant for consideration and comment under the statutory requirements of s107(1)(a).
There were additional submissions made to the effect that the existence of this material in the file produced to the Tribunal would affect the Tribunal’s ability to determine the application free of the prejudicial effect of the material or with procedural fairness to the applicant given the existence of material to which he had not been given access.
The Tribunal perused the Department’s file and made enquiries of the Department as to whether the checklist to which the representative referred was correct. The Department issued a purported certificate under section 376 of the Act on 27 October 2023, which was subsequently withdrawn and replaced with a further certificate dated 10 November 2023, together with an amended disclosure decision checklist dated same day which indicated that there were documents on the file not relevant to the decision and that a nondisclosure certificate had been issued.
The Tribunal has considered the certificate and the documents identified in it. The certificate notifies the Tribunal that the documents it identifies were allegations received in confidence and certifies that disclosure would be contrary to the public interest because they:
·disclose, or enable a person to ascertain the existence or identity of, a confidential source of information; and
·the information was provided in confidence and the provider of information had not consented to the disclosure of the information to the review applicant.
The certificate was provided to Mr Statham’s representative for comment. At the hearing on 24 November 2023, the representative urged the Tribunal to exercise its discretion to disclose the documents. The Tribunal decided that the certificate was valid and that, for the reasons given in the certificate, it would be contrary to the public interest for those documents to be disclosed to the review applicant.[1] Instead, it provided Mr Statham and his representative with a summary of the documents, which consist of allegations by two individuals who wished to remain anonymous. The first set of allegations included a claim that Mr Statham had been in a relationship with Ms Smith since April 2019; the second set consisted of some reflections on Mr Statham’s character and some allegations not material to this application. The Tribunal informed Mr Statham and his representative that it did not consider either set of allegations to be reliable: the first claimed that there was social media evidence in support of the allegations which was not subsequently produced, while the second did not contain any testable claims. In these circumstances, the Tribunal did not consider the documents covered by the certificate to be sufficiently relevant to the application to be given any weight.
[1] Relying on SZTYV v MIBP [2018] FCCA 64 at [58]–[59]; Bui v MIBP [2019] FCCA 3363 at [33]–[39].
The Tribunal cannot agree that the existence and nondisclosure of the documents covered by the certificate have any bearing on the validity of the s 107 notice. The documents, if not relied upon, cannot constitute ‘particulars of the possible non-compliance’ required to be notified to the recipient under s 107(1)(a). There is no indication in the cancellation decision that the documents covered by the certificate had any bearing on the delegate’s finding and it would be very surprising, given the quality of the information in them, if it were otherwise. Similarly, the Tribunal cannot agree that for a s 107 notice to be valid that every fact and matter contained in a departmental file should be particularised and put to the recipient for a response, given the very specific requirements of that provision.
Turning to the s 107 notice itself, the Tribunal has noted the following:
(a)the notice identified Mr Statham’s failure to notify the Department of relevant changes in his circumstances contrary to his obligation in s 104 of the Act as the relevant instance of non-compliance
(b)the notice provided particulars in the form of a list of the representations made in support of Ms Smith’s travel exemption request, including the commencement of a relationship between Ms Smith and Mr Statham from about April 2019, the commencement of a de facto relationship between them from October 2019, and Mr Statham having spent 10 months in the UK since 2019 because of his ‘love and commitment to Ms Smith’, all of which claimed events predated the grant of his subclass 801 visa, notes that Mr Statham had failed to notify the Department in writing of the relevant changes in his circumstances, and that he had provided incorrect information in his subclass 820 visa application in advising the Department that he remained in a genuine and continuing relationship with his sponsor, Ms Flitcroft;
(c)the notice stated that any written response was to given within 14 days and provides details as to how to make that response;
(d)the notice stated the times at which that the Minister will consider cancelling the visa;
(e)the notice set out the effect of ss 108, 109, 111 and 112 of the Act;
(f)the notice informed Mr Statham that his obligations under ss 104 or 105 of the Act were not affected by the notice; and
(g)the notice required Mr Statham to tell the Minister the address at which he was living and to notify the Minister of any change of address before the notification of the decision on non-compliance.
The Tribunal considers that, in respect of the s 107 notice:
(a)The facts and matters set out in subparagraphs 17(a) and (b) above show that the Minister reached the relevant state of mind that Mr Statham had not complied with s 104 of the Act and provided particulars of the possible non-compliance, and that the notice therefore met the requirements of s 107(1)(a);
(b)The matters set out in subparagraph 17(c) above met the requirements of ss 107(1)(b) and 107(1A);
(c)The matters set out in subparagraph 17(d) above met the requirements of s 107(1)(c);
(d)The matters set out in subparagraph 17(e) above met the requirements of s 107(1)(d);
(e)The matters set out in subparagraph 17(f) above met the requirements of s 107(1)(e); and
(f)The matters set out in subparagraph 17(g) above met the requirement of s 107(1)(f).
The Tribunal is therefore 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 with s 104 in the respects summarised in subparagraph 17(b) above.
The applicant’s principal contention is that the delegate’s finding that there was non-compliance was in error, because he and Ms Smith had fabricated their relationship history in order for Ms Smith to be granted a travel exemption to permit her to travel to Australia during the Covid-19 restrictions in place from during 2020 and 2021. He claimed that, in reality, up to and after the grant of his subclass 801 visa, he remained in an exclusive de facto relationship with his sponsor, Ms Flitcroft.
Hearing
The matter was first heard on 8 August 2023. In addition to the material on the Department’s file, the following material was before the Tribunal:
·The representative’s submissions;
·Statutory declaration of Karen Biasetti-Cooke;
·Statutory declaration of Jai Dion Reynolds;
·Letter from Dr Ali Day, Redcliffe Beach Clinic;
·Letter from Adrian Bosch, clinical psychologist, dated 23 September 2020;
·Statutory declaration of Stuart Craig Cooper, dated 31 July 2023;
·Letter of employment from Rocktown, dated 1 August 2023;
·Certificate of completion of construction mental health induction, dated 5 August 2021;
·Statutory declaration of Madison Taylor Haskins, dated 31 July 2023;
·Extracts of bank statements of joint account 2 September 2022 to 1 March 2023;
·Copy of Mr Statham’s passport.
The Tribunal invited Mr Statham’s representative to make opening remarks. The representative, Mr Wellburn, took the Tribunal to his written submissions and drew its attention to the submissions that there were no grounds for cancellation. He said that Mr Statham had been granted his subclass 801 visa in March 2020. In October 2020 he had submitted a travel exemption request for Charlotte Sophie Smith, who was not the sponsor of his subclass 801 visa, for her travel to Australia due to the Covid-19 travel restrictions. He said that Mr Statham and Ms Smith had lodged several exemption requests before this, with no success. After doing online research as to the requirements for recognition of a de facto relationship, in their desperation to be granted the exemption and with substantial misjudgement, claimed to have been in a de facto relationship for 12 months. The provision of false and misleading information in this respect was admitted, but this meant that there had been no non-compliance with s 104 because the relationship founding the subclass 801 visa had been genuine and continuing at the time the visa was granted. The Tribunal asked if it was Mr Statham’s case that the travel exemption contained false and misleading information about the history of the relationship with Ms Smith and therefore did not bear on his obligations in respect of his partner visa. He that this was his case, and the absence of non-compliance with s 104 meant that there no grounds for cancellation. He added that the new statutory declaration from Ms Biasetti-Cooke negated the one she had given in support of the travel exemption request. He said the core of his submission was that the delegate took the view that the travel exemption request contained the correct information and also that the applicant had been calculating in his approach in not informing the Department of the cessation of the relationship underlying the subclass 801 visa. However, the delegate would have had to have taken the view that the applicant’s calculation and deceit had been completely undone by the unintended consequences of lodging the travel exemption application and the false declarations therein. Therefore the question is one of whether it is plausible that incorrect information was provided at a time when Mr Statham and Ms Smith were desperate to for her to travel to Australia. It was, in his submission, more plausible that the incorrect information was provided in desperation than that Mr Statham had behaved in a calculating and deceitful manner to obtain the subclass 801 visa.
The Tribunal heard from Mr Statham. He told the Tribunal he came to Australia in 2015 on a working holiday visa, which were renewed twice. In 2017, he lodged a partner visa application sponsored by Ms Flitcroft. He remained in that relationship until April 2020. Later, he made a false travel exemption application to have Ms Smith travel to Australia, which he understood was a serious matter and possibly also a criminal offence.
He told the Tribunal that he and Ms Flitcroft had been friends at high school back in Manchester. She had come to Australia some years before him. He said that, after he moved to Sydney, Ms Flitcroft, who was living in Redcliffe, made contact with him to ask whether he had ever been to the Gold Coast. He went to the Gold Coast to see her in about March or April 2016 and their friendship developed into a relationship. They lodged the partner visa application in 2017. He said he was not thinking of the migration outcome because he had a steady job in Sydney and had been offered sponsorship by his employer. Also, all of her family were in Redcliffe and he could not ask her to move to Sydney. He said that, as part of the partner visa application, a great deal of evidence was provided to the Department. He said he moved to Redcliffe in 2017 and was able to maintain his job on a fly-in fly-out basis.
The Tribunal asked when Ms Smith entered the scene. He said Ms Smith did not enter the scene until late April or early May 2020. He said that, up to this point, he had been in an ongoing relationship with Ms Flitcroft. However, on returning to Australia on 4 March 2020, the commencement of the Covid restrictions put a strain on their relationship. He said that he told Ms Flitcroft he was concerned about being separated from his family for an extended period. After about 6 weeks, he and Ms Flitcroft decided that he needed to do what was best for his relationship with his family and his mental health.
The Tribunal took Mr Statham to his statutory declaration of 29 September 2021. He confirmed that he and Ms Flitcroft returned to the United Kingdom in April 2019 for three weeks to meet Ms Flitcroft’s relatives and to see his family. He said he did not encounter Ms Smith, who is a friend of his stepsister’s on this trip. He said he had met her only once or twice previously. He said that he returned to the UK alone in December 2019 to spend time with his family but had gone to Thailand with Mr Jai Reynolds for ten days before arriving in the UK. He told the Tribunal that he had not been in touch with Ms Smith in the meantime and had not really spoken to her prior to April 2020. He had been scheduled to return around 3 January 2020 but deferred this for a week when he learned that his grandmother had died and returned on 10 January 2020.
Later in January 2020, he told the Tribunal, he decided to return to the UK to support his father and uncle following the death of his grandmother. He left Australia on 23 January 2020 and returned on 4 March 2020 (the same day as the grant of his permanent visa). The Tribunal asked if, during this visit, he spent any time with Ms Smith. He said he did not and that, at that time, he was still in a committed relationship with Ms Flitcroft. When he returned things were normal with Ms Flitcroft for about the first three or four weeks but, as the Covid restrictions came into effect, he started to become anxious about being separated from his family for an extended period of time with no way to get to them should there have been an emergency. He therefore decided to return to the UK to be with his family to wait out the pandemic and left Australia on 28 April 2020. He told the Tribunal that, by this time, he had broken up with Ms Flitcroft. He said that, in the days before he left, he and Ms Flitcroft discussed his plans and they agreed that, because he planned to return to the UK more or less indefinitely, it would be fairest to them both if the relationship ended. The Tribunal asked if the grant of his permanent visa only a matter of weeks before this might not have been a factor in the breakup. He said he could see how that conclusion might be drawn but that relationships broke down all the time for all sorts of reasons. The Tribunal indicated that the coincidence might cause it to consider the timeline very carefully.
The Tribunal took Mr Statham to paragraph 4(b) of his statutory declaration of 29 September 2021, in which he described meeting Ms Smith again in about late April or early May 2020. He said that, when he arrived in the UK, he had to isolate for a prescribed period and that Ms Smith had contacted him, saying she had heard he was back in the country. Their communications developed from this point and their relationship became romantic. He returned to Australia on 15 August 2020, having exhausted his savings. The Tribunal asked how the relationship developed. He said she sent him a message while he was in isolation, asking if he was enjoying quarantine and they started chatting. He said that it was while they were discussing all the restrictions in place at the time that she invited him to move in with her and her sister. He said this was a convenient arrangement because there was very limited space for him in his family home and his sister lived next door. He and Ms Smith started cohabiting almost straight away. The Tribunal asked if he considered this a de facto relationship. He said that he did and that it continued by long distance when he returned to Australia.
The Tribunal took Mr Statham to the printout of text messages between himself and Ms Smith that he had produced to the Department in support of the travel exemption request. It noted that the printout commences on 11 September 2020 and asked if there were any earlier messages available that could confirm the timeline he had been describing, particularly those showing the commencement of the relationship. He said that, after the relationship with Ms Smith broke down, he had deleted his communications with her. The Tribunal suggested that this was inconvenient for his application. He said that, in circumstances where they living together and their movements were restricted, they did not need to text each other. The Tribunal suggested that, even in these circumstances, devices would be used to, for example, share contacts, links, photographs and the like. He said he accepted this but that he had deleted all this content when he and Ms Smith broke up. He said this was necessary for his own mental health. He drew the Tribunal’s attention to the fact that photographs and screenshots had also been submitted to the Department in support of the travel exemption request. The Tribunal asked if there was any way to date them. It noted that some social media posts that could be dated to June and August 2020.
The Tribunal asked about his return to Australia in August 2020. He said he moved in with his friend Brett Bree on the Gold Coast and was looking for a place to live for himself and Ms Smith. The Tribunal asked when Ms Smith first sought to come to Australia. He said that they lodged numerous travel exemption requests from about October 2020. The Tribunal noted that the request upon which the Department based its decision was dated 15 October 2020 and asked if there were earlier ones. He said he could not recall when the first one was lodged. He said that he and Ms Smith had been talking about her moving to Australia from about July 2020, and that they had been looking into exemptions from about that time. The Tribunal asked if he had copies of the previous requests, which could be useful to his application. He said he did not. The Tribunal suggested that the plan to make the claims the subject of the cancellation decision had obviously been in place since September 2020 because that is when the relevant statutory declarations had been made and the civil partnership application had been lodged. He agreed. The Tribunal asked how many travel exemptions had been made. He said it was in the range of 20 to 25. He said that, in expectation of being granted the exemption, Ms Smith had terminated her lease and moved home with her parents. He said it was very crowded there, Ms Smith was sleeping on a sofa, and she and her family put him under intense pressure to secure the travel exemption. He accepted this was not in his statutory declaration.
The Tribunal suggested that the social media posts indicated that Ms Smith believed she would be allowed to travel to Australia by early September 2020. He said that was correct but that he and Ms Smith had underestimated the complexity of having a travel exemption approved.
The Tribunal asked Mr Statham about his claims that he and Ms Smith decided to falsify the history of their relationship. He said that he and Ms Smith had using a lot of online forums about what was needed for a travel exemption. He said they had not used a migration agent because they had not realised how complex the process would be. In the online forums, there were multiple people giving advice about what had worked for them. Ms Smith had told him that the consensus was that she and Mr Statham would need to convince the Department they were in a de facto relationship and, because they had not been together long enough to meet the definition, they would need to take steps to make their relationship appear longer than it was. He said that he made the stupid and irrational decision to go along with this plan. He said he had been struggling with his mental health at the time and referred to the reports he had submitted. He said Dr Day had referred him to a mental health service, and he had also consulted Mr Adrian Bosch. The Tribunal suggested that the reports had both been prepared for submission to the Department in support of the travel exemption request and asked if there were any reports less directed to an immigration outcome. He said he could obtain those. The Tribunal suggested that he would have a medical history with Dr Day because Dr Day had reported that he had a chronic condition. He said he had only seen Dr Day once. He told the Tribunal that his separation from Ms Smith had affected his mental health at the time. The Tribunal said that he had claimed, for the purposes of this application, that his judgment was affected by his condition and that it would expect such a claim to be supported by a medical or psychological report.
The Tribunal asked if the consensus from the online forums was that it was a good idea to make false statutory declarations. He said that Ms Smith had told him that the problem was that their relationship had not been long enough to qualify as a de facto relationship and that this had led them to make some rash decisions, exacerbated by the state of his mental health. The Tribunal suggested that this decision included having others make false statutory declarations on his behalf. He accepted that this was the case and that they were motivated by helping him and Ms Smith. The Tribunal suggested these people included Ms Smith’s sister (Ms Walsh) and his mother. He said that was right. The Tribunal asked who had prepared those statutory declarations. He said that Ms Smith would have obtained them. The Tribunal suggested that they were typed by the same person. She said Ms Smith would have spoken to her sister and his mother and then typed them up.
The Tribunal suggested that the Department had taken the view that the relationship history he had provided for the travel exemption was more likely to be the truth. It took him to his mother’s second statutory declaration, dated 31 July 2023. It put it to him that this statutory declaration was inconsistent in some respects with his statutory declaration of 29 September 2021 and his evidence to the Tribunal. His mother had said that, in April 2020, he was suffering terribly with his mental health as a result of the breakdown of the relationship with Mr Flitcroft and the prospect of not seeing his family for an extended relationship. It put it to him that his evidence had been that, in March 2020, he had already made arrangements to return to the United Kingdom and that the relationship with Ms Flitcroft ended mutually and amicably. He said it was not inconsistent because he had not claimed that he had no difficulty processing the end of the relationship. He said that the decision was very emotional and that he had strong feelings for her. He said he was deeply conflicted in the decision.
The Tribunal asked how the relationship with Ms Smith had broken down. He said that she had a change of heart when it became clear how difficult it would be to be allowed to travel to Australia. When the UK opened back up sooner than Australia, he believed that her improved social life made the prospect of going to Australia less desirable.
The Tribunal took Mr Statham to his claims of having changed the dates on some photographs submitted to the Department. He agreed that he and Ms Smith had done this to lengthen the relationship timeline. The Tribunal asked if he had any photographs of his trips to the UK in 2019 and early 2020 that would indicate that it was most unlikely that he had any relationship with Ms Smith at the time. He said he would try to find something. The Tribunal suggested it was unfortunate that he had deleted his text messages, photographs and Facebook account. He said he had done this for his mental health and he had also changed his phone a couple of times. The Tribunal asked if there was no cloud storage of any of his photographs. He said he would look into that. The Tribunal suggested that, even if he had lost all of this material, there were likely other people who had received images and messages from him. He said that Ms Flitcroft had also closed her Facebook account.
The Tribunal indicated that its task would be to determine which set of competing statutory declarations represented the truth. Both sets have been made for the purposes of securing a migration outcome. It indicated that, in these circumstances, some objective evidence that supported his current claims would be extremely helpful to his application.
Mr Statham told the Tribunal he would appreciate the opportunity to gather such evidence. The Tribunal told him that it would permit this and, if necessary, resume the hearing of this matter.
Mr Statham’ representative made further submissions to the Tribunal on 29 August 2023. They include some detailed remarks as to the absence of the relevant relationship with Ms Smith, by reference to the “four pillars” in r 109A(3) and the material submitted in support of the travel exemption request. In particular:
(a)In relation to the financial aspects of the relationship, they note that the lease agreement included Ms Smith as an agreed occupant rather than a tenant and was dated September 2020; that the joint account was operated by Mr Statham only; and that there were no documents evidencing any legal obligations inter se or the sharing of day-to-day household expenses;
(b)There were no documents to support any of the factors to indicate the nature of the household;
(c)The documents used as evidence of the social aspects of the relationship were technically defective, viz., that the Queensland Civil Partnership certificate for Ms Smith was lodged on 18 September 2020, prior to the termination of the registered relationship between Mr Statham and Ms Flitcroft on 20 December 2020, and was therefore invalid; and that the statutory declarations of Ms Biasetti-Cooke and Ms Wallace may have been irregularly prepared and witnessed; and
(d)The evidence submitted to support the nature of the commitment contains no documentation created prior to September 2020 and the chat log (described as being included with the travel exemption request but not referred to in the s 107 notice), indicates that a falsified relationship history was provided or to be provided with the travel exemption request.
It was submitted that:
The conclusion of the delegate was that the applicant ‘had been in a de facto relationship with Ms Charlotte Smith since October 2019’and was based on the documents presented in the travel exemption. The contrast identified in the NOICC is that the applicant had subclass 801 permanent partner visa approved on 4 March 2020 ‘on the basis of the information provided in support’ of that application. While there was information in the NOICC regarding the information and documents relied upon to establish the de facto relationship between the applicant and Ms Charlotte Smith from October 2019, there was no information, within the NOICC regarding the documents supplied for the established relationship between the applicant and his partner visa sponsor for the approval of subclass 801 on 4 March 2020. Accordingly, contrast in the extent of documentation to support each claimed relationship and chronological discrepancies between each was not a consideration of the delegate, in reaching conclusion to cancel the applicant’s visa. This was the basis of a detailed response and yet it was not duly considered. Accordingly, we request the Tribunal consider undertaking this consideration …
Analysis of the legislative considerations to establish de facto relationship conclude that the documents supplied by the applicant and Charlotte Smith failed to address any of the multiple circumstances that are generally considered when establishing the existence of a de facto relationship. To take a fair and reasonable approach and acknowledge the Tribunal and delegate’s consideration of the matter, there are some documents that may support the existence of a relationship between Ms Charlotte Smith and the applicant, however such documents are isolated to September 2020, being many months after the approval of subclass 801 and subsequent cessation of the relationship between the applicant and the subclass 801 sponsor.
Additional material was sent to the Tribunal on 29 September 2023.
The hearing resumed on 20 October 2023. Mr Statham’s representative took the Tribunal to the matters the subject of paragraph 11 and following above. The hearing was adjourned to allow the Tribunal to ascertain which documents the Department had disclosed to Mr Statham (the material provided to the Tribunal having been unpaginated) and the reason or reasons for any non-disclosure. Those matters are discussed above.
The hearing resumed on 24 November 2023. The Tribunal took Mr Statham to the material submitted since the initial hearing of this matter. This material included:
·a selective excerpt from his mother’s social media accounts from 2016 to 2019 which, in relation to the period 6 April to 20 April 2019, includes two photographs of Mr Statham and Ms Flitcroft together in the grounds of Chatsworth House;
·copies of Queensland civil partnership certificates for Mr Statham’s relationships with Ms Flitcroft and Ms Smith, endorsed with the dates of their termination; and
·Mr Statham’s Medicare claims history for the period 27 August 2020 to 27 August 2023.
Mr Statham said that he no longer has any social media accounts. The Tribunal indicated that it was aware that this was his position but that he had produced to the Department chat logs and other material. This material covered a period commencing on 11 September 2020. However, leaving aside the statutory declarations, the only documentation for his current claim that his relationship with Ms Flitcroft was ongoing and exclusive up until the grant of the visa comprised two Facebook posts from his mother. Mr Statham said that there was no relationship with Ms Smith prior to April 2020 and that, despite what had been said in support of the travel exemption request, there was simply no material in existence to the contrary. He said that he had admitted that he had contrived the history of his relationship with Ms Smith but that he had explained the circumstances in which that occurred. He said that there was no objective material to indicate that the relationship commenced any earlier than April 2020. His representative submitted that the Tribunal should have regard to the fact that previous travel exemption requests had been unsuccessful, at least in part, because Mr Statham and Ms Smith had been unable to substantiate that their relationship was of a duration longer than a year. The Tribunal asked Mr Statham if there was any material in existence that might support his claim that the relationship with Ms Smith only commenced in or after April 2020, such as text messages. He said that he had produced all of the material he had been able to locate.
Consideration of claims and evidence
In determining this application, the Tribunal faces the task of deciding which, if either, of two sets of statutory declarations it can accept. Both sets were prepared for the purposes of achieving an immigration outcome: in the case of the first, to secure an inbound travel exemption for Ms Smith; in the case of the second, to disclaim the contents of the first in order to avoid cancellation of Mr Statham’s subclass 801 visa.
The delegate, on the basis of the information then available to her, decided that the material provided with the travel exemption request was more reliable because the statutory declarations provided by Ms Biasetti-Cooke and Ms Wallace would not have been lightly falsified and neither witness was vested in the outcome of the request. Further, Mr Statham had not provided any further information to confirm that he was in a de facto relationship solely with Ms Flitcroft until March 2020. However, for this application, Ms Biasetti-Cooke has sought to disclaim her original statutory declaration and the Tribunal has questioned Mr Statham closely on the various timelines proposed in each set of statutory declarations.
Mr Statham’s statutory declaration of 14 September 2020 (‘the first statutory declaration’) provides the timeline of the relationship with Ms Smith for the purposes of the travel exemption request. He claimed that they had first met in July 2010 and had been dating since April 2019, having resumed contact at an Easter celebration at his father’s house. He claimed that, after he returned to Australia in April 2019, they maintained daily contact and entered a committed relationship in October 2019. He returned to the United Kingdom in November 2019 and cohabited with Ms Smith. They formed the intention that he and Ms Smith would return to Australia together in March 2020. However, he claimed, he and Ms Smith subsequently agreed that he should return to Australia in January 2020 in order to establish a residence for them while Ms Smith finalised her employment obligations. Shortly after returning to Australia, however, Mr Statham decided to return to the United Kingdom on hearing of his grandmother’s death. He returned to the United Kingdom in late January 2020 and remained until 4 March 2020, during which time, he claimed, they resumed their cohabitation. Following Mr Statham’s return to Australia, the Covid-19 restrictions came into effect and he decided to return to the United Kingdom where he stayed with Ms Smith until his return to Australia on 15 August 2020. It was from this time, that he and Ms Smith sought to make the travel exemption request.
The first statutory declaration was supported in all material respects by Ms Smith’s statutory declaration of 18 September 2020. Ms Biasetti-Cooke’s statutory declaration of 18 September 2020 and Ms Wallace’s statutory declaration of 14 September 2020 also provide a similar timeline.
The material provided with the travel exemption request included, relevantly to this application:
·copies of Mr Statham’s and Ms Smith’s Facebook profiles (undated);
·text message exchanges between Mr Statham and Ms Smith commencing 10 September 2020;
·screenshots from Ms Smith’s social media account(s) , apparently dated June and August 2020;
·a selection of photographs;
·a screenshot of Ms Smith’s account information with the Department of Home Affairs, showing one transaction dated 12 September 2020;
·an application to register a civil partnership, declared 18 September 2020;
·a tenancy agreement, naming Mr Statham as the tenant and Ms Smith as an approved occupier, dated 17 September 2020;
·a catalogue between Mr Statham and Ms Smith, commencing 11 September 2020 and ending 16 September 2020;
·a letter from Dr Ali Day, dated 21 September 2020.
The evidence for this application includes the material listed at paragraph 22 above and Mr Statham’s statutory declaration of 29 September 2021 (‘the second statutory declaration’).
The timeline provided by the first statutory declaration is that provided in the summary of Mr Statham’s evidence to the Tribunal at paragraphs 26 to 28 above. In essence, he now claims that he was in a romantic relationship with Ms Smith only from April 2020 until about April 2021.
Ms Biasetti-Cooke’s statutory declaration of 31 July 2023 states:
I am making this statement today to support my son Thomas Statham wholeheartedly, in his appeal to the AAT. I will also address the matter of myself proving a false statement previously in support of a travel request for Miss Charlotte Sophia Smith, due to my concerns for my son’s state of mind, if he was to have to endure more time isolated away from his loved ones.
In April 2020 when the Covid 19 pandemic was raging, my son Thomas was suffering terribly with his mental health due to the breakdown of his relationship in early April 2020 with de facto Partner Ms Flitcroft and the possibility of not seeing family and friends for years, due to border restrictions imposed by the Australian government.
Upon returning to the UK to be with his family, Thomas moved in with my mother, and in the months following met and developed a relationship with miss Charlotte Sophia Smith. Thomas then moved in with Ms Smith and Ellie Mae Wallace where he shared a resident in the UK for a short time (three months)…
In October my son and Ms Smith decided to apply for a travel exemption for Ms Smith to join Thomas in Australia. I myself made a statement supporting the application stating they had been in a relationship since November 2019 because I was so worried about my son’s mental well-being however the truth is he was in a committed and ongoing relationship with Ms Flitcroft until early April 2020. I know this was wrong thing to do as Thomas and Ms Smith did not form a relationship until May 2020. As a parent I would do anything to protect and help my children’s welfare and to see Thomas crying on FaceTime was heartbreaking, and I couldn’t let him suffer any more.
I completely understand that a false declaration should not have been made and I do not make any excuses for it and I am deeply sorry. I can only say I acted out of love and compassion for my son and I know Thomas also echoes this statement in regards to any information he provided…
The Tribunal makes no observation on the conduct of Ms Biasetti-Cooke, other than to note that it intends to rely upon her evidence only to the extent that she now purports to disclaim her earlier evidence.
The Tribunal has carefully considered the material provided to it and Mr Statham’s oral evidence in support of his application. Even in circumstances where Mr Statham had admitted previously making of false statutory declarations and of providing incorrect information, and evinced an intention to be completely honest, the Tribunal did not consider that the evidence he provided to it was entirely reliable. For example, he claims that he and Ms Smith made multiple unsuccessful travel exemption requests before, in desperation, deciding that they would need to falsify their relationship history in order to obtain an exemption. However, despite numerous requests, no details of these multiple requests were ever provided, and the screenshot of Ms Smith’s account page with the Department of Home affairs shows that it contained only one entry, dated 12 September 2020. Further, Mr Statham’s evidence that his judgement was significantly impaired by his mental health condition relied upon the letters from Dr Day, dated 21 September 2020, and Mr Adrian Bosch, dated 23 September. Both are expressed to be provided in support of the travel exemption request. There is no reference to his judgement being impaired and, despite the Tribunal’s invitation, no additional medical or psychological reports were submitted. Mr Statham’s Medicare claims history shows only two medical consultations, on 21 and 22 September 2020, and one psychological assessment, on 23 September 2020, for mental health treatment.
Further, the Tribunal has reservations about accepting Mr Statham’s claims that the relationship with Ms Flitcroft ended so soon after the grant of the subclass 801 visa for reasons unrelated to that event, and his evidence that all social media, text message and photographic material that might support the claims made in support of this application have been irretrievably lost.
It is not without serious misgiving, therefore, that the Tribunal considers it more likely than not that the relevant misrepresentations concerned the history of the relationship with Ms Smith and that there is insufficient evidence to sustain a finding that the relationship with Ms Flitcroft had ceased to be exclusive by the date upon which the subclass 801 visa was granted. The evidence that the Tribunal finds most persuasive is that, in respect of the travel exemption application, there was no material submitted that dated from earlier than June 2020, despite it being in the clear interests of the exemption application to include some material to support Mr Statham’s and Ms Smith’s claims of their relationship’s provenance.
Accordingly, the Tribunal accepts that the relationship with Ms Smith commenced no earlier than April 2020 and that, therefore, it cannot be satisfied that there was non-compliance with s 104 in the way described in the s 107 notice.
: As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
James Lambie
Senior MemberATTACHMENT – 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.
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.
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.
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