Suporn (Migration)

Suporn (Migration) [2023] AATA 2716 (11 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Peeravit Suporn
REPRESENTATIVE:  Mr Christopher Levingston
CASE NUMBER:  2209351
HOME AFFAIRS REFERENCE(S):          BCC2020/2685166
MEMBER:P. Maishman
DATE:11 August 2023
PLACE OF DECISION:  Perth
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 11 August 2023 at 1:03pm

CATCHWORDS

MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – change to circumstances not notified – young adult dependent child secondary applicant to mother’s visa – de facto relationship declared in own partner’s visa application – date relationship started – progression from work friend needing accommodation living with applicant and parents to steady relationship to moving into own accommodation – documentary evidence – bank accounts, international travel and statutory declarations and photos – discretion to cancel visa – continuing relationship and young Australian citizen child – partner’s visa refused as consequence – mandatory legal consequences – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 104, 107(1), 109(1)
Migration Regulations 1994 (Cth), r 1.03
CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT 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 the applicant failed to notify of changes to his circumstances as declared on his visa application form as required by s 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 12 June 2023 to give evidence and present arguments. The hearing was held jointly with Warisara Saetkhunthod, the applicant’s de facto partner who applied for a review of the Departments consequential decision to refuse her Partner visa application.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence
The Tribunal had before a copy of the Departments file.
The applicant gave the Tribunal a copy of the delegate’s decision record. In summary the delegate records the Department issued a Notice of Intention to Consider Cancellation (NOICC) on 7 January 2022 and, having noticed an error, reissued a corrected NOICC on 7 February 2022.
Legislation
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.
Hearing
The parties gave evidence separately at the hearing. The Tribunal questioned them about their relationship history, development of their current relationship, knowledge of each other’s backgrounds and family relationships, the financial, social and household aspects of their relationship and the nature of their commitment to each other. Their responses were generally consistent, differing enough to indicate they were providing authentic responses from their own perspectives and knowledge. The Tribunal found the applicant and sponsor to be credible and honest witnesses and accepts their oral evidence on that basis.
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.
The NOICC issued 7 February 2022 identifies the applicant was included on his mother’s Partner (Subclass 820/801) visa application on 17 July 2017 on the basis he was a dependent child. The applicant continued to be identified as a dependent child of his mother on the permanent stage processing questionnaire dated 26 June 2019. On 29 April 2020 the applicant was granted a permanent Partner (Subclass 801) visa based on him continuing to be the dependent child of his mother. On 25 April 2021 the applicant submitted a sponsorship form in support of Ms Saetkhunthood’s Partner visa application declaring he was her de facto partner from 9 May 2017 and they committed to a shared life together from 1 September 2017.
The applicant’s representative submits that notwithstanding the applicant’s belief and declaration he was in a de facto relationship from September 2017, the applicant’s claims alone are insufficient evidence upon which the NOICC can be issued.
The Tribunal is satisfied that based on the evidence the delegate reasonably formed the opinion the applicant may not have advised of changes to his circumstances as required by s 104 of the Act.
The Tribunal is satisfied the NOICC particularised the cancellation grounds to be the applicant’s failure to advise of his change of circumstances from being a dependent child of his mother.
The Tribunal is satisfied the delegate had regard to the information provided in respect of the application and the contradictory information the applicant provided in support of Ms Saetkhunthood’s Partner visa application. The NOICC complies with the requirement to give particulars of the possible non-compliance of s 107(1)(a).
The NOICC provided the applicant the opportunity to comment on the possible non-compliance and required a written response within the period of 14 days: s 107(1A). The NOICC complies with the requirement of s.107(1)(b).
The NOICC told the applicant if he did not respond to the notice within the time frame a decision to cancel his visa would be made using the information held by the Department; if he wrote to the Department declining to respond the issue of cancellation would be considered and that if it was decided there was non-compliance a decision about whether to cancel the visa would take into account any written response received. The NOICC complies with the requirements in s 107(1)(c).
The NOICC set out the effect of sections 108, 109, 111, and 112 of Act; informed the applicant is obligations under section 104 or 105 of the Act continue; and required him to keep the delegate informed of his residential address. The NOICC complies with the requirements in ss 107(d), (e), and (f).
The Tribunal is satisfied that the delegate 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 following respects:
·Prior to the grant of the applicant’s Partner (Temporary) (subclass 820) visa on 04 September 2018, and his Partner (Residence) (subclass 801) visa on 29 April 2020, he failed to notify the Department that he was in a ‘de facto relationship’ with Ms Saetkhunthod.
The applicant was 19 years old and included on his mother’s visa application on 17 July 2017 as her ‘dependent child’. The applicant continued to be claimed as the dependent child of his mother on 26 June 2019 when the Department received information for permanent stage processing of the application. On the basis that he was, and continued to be, the ‘dependent child’ of his mother the applicant was granted a
On 5 May 2020 Ms Saetkhunthood submitted a Partner visa application declaring the applicant was her de facto partner and they committed to a shared life together from 1 September 2017.
On 25 April 2021 the applicant submitted a sponsorship form in support of Ms Saetkhunthood’s Partner visa application. The applicant declared he was her de facto partner from 9 May 2017 and they committed to a shared life together from 1 September 2017.
At hearing the parties told the Tribunal there was some uncertainty when it came to completing Ms Saetkhunthood’s visa application. Their relationship started as a work friendship in around March 2017. Ms Saetkhunthood needed accommodation moved into the house the applicant shared with his parents in around May 2017. They became a steady boyfriend/girlfriend couple from September 2017 rather than a de facto couple. The parties submit they moved into their own accommodation in March 2020 which is a more realistic date their relationship became genuinely committed has a de facto couple.
The Tribunal acknowledges there may be a degree of uncertainty establishing a precise date a relationship between two people transitions from a friendship to a de facto partner relationship. The Tribunal however prefers the contemporaneous evidence provided by the applicant and Ms Saetkhunthood in the form of the declarations they individually prepared on 5 May 2020 and 25 April 2021 in order that Ms Saetkhunthood would obtain a Partner visa. Those declarations were supported by a number of documents including evidence of joint bank accounts from October 2017; documents showing their travel together internationally in April 2018, statutory declarations from the applicant’s parents and photographs showing the parties together at social events and with friends and family between December 2018 and December 2019.
The Tribunal finds, based on the evidence, the applicant and Ms Saetkhunthood became a de facto couple on, or around, 1 September 2017 when they committed to a shared life together to the exclusion of all others.
The definition of ‘dependent child’ precludes the child of a person from being their ‘dependent child’ if the child is engaged to be married or has a spouse or de facto partner: reg 1.03.
On 1 September 2017 the applicant’s dependency status changed from that declared on his mother’s Partner (Subclass 820/801) visa application on 17 July 2017 because he entered into a de facto partner relationship. The applicant failed to inform the Department in writing of his new circumstances prior to the grant of that visa on 29 April 2020.
For these reasons, the Tribunal finds that there was non-compliance with s 104 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, 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).
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 any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     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
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors 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: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal 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’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Prescribed Circumstances
The correct information
The correct information is that the applicant was in a de facto relationship and so was not the ‘dependent child’ of his mother, the primary visa applicant when the visa was granted.
The Tribunal gives the correct information some weight in favour of exercising the discretion to cancel the visa.
The content of the genuine document (if any)
This consideration does not apply in this case.
Whether the decision to grant a visa was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted the visa on the basis of the incorrect information that he continued to be the dependent child of his mother. The applicant ceased to be his mother’s dependent child when he entered into a de facto relationship in September 2017.
This factor weighs in favour of exercising the discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant was included on his mother’s visa application his/her dependent child. The Tribunal accepts the parties’ submission they had some uncertainty how to define their relationship and from when their relationship became serious to be considered a de facto relationship.
The circumstances in which the non-compliance occurred is neutral relative to exercising the discretion to cancel the visa holder’s visa.
The present circumstances of the visa holder
The applicant continues to be in a relationship with Ms Saetkhunthood and the couple have a two and half year old Australian citizen daughter. The applicant works and provides financially for his wife and child.
Having considered the above evidence relating to the present circumstances of the applicant, the Tribunal gives substantial weight against cancelling the visa owing to the presence in Australia of the applicant’s de facto partner and their Australian citizen child.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence before the Tribunal that the applicant’s subsequent behaviour would raise concerns of his obligations Subdivision C of Division 3 of Part 2 of the Act.
Any other instances known to the delegate of non-compliance by the visa holder
There is no information before the Tribunal of other instances of non-compliance.
The time that has elapsed since the non-compliance
The non-compliance occurred on 1 September 2017 when the applicant did not notify the Department of the change to his dependency status. The applicant has been resident in Australia since April 2016. The applicant told the Tribunal he is employed in supporting his wife and child who are established in Australia.
The Tribunal gives the time that has elapsed since the non-compliance some weight against exercising the discretion to cancel the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is unaware of any breaches of the law since the non-compliance and gives neutral weight to this factor.
Any contribution made by the visa-holder to the community
The applicant made no submissions of contributions made by him to the community.
Other Circumstances
While the factors (above) 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: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal 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', which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.
The cancellation of the applicant’s visa would result in the applicant being unlawful and subject to detention only in circumstances where the applicant does not apply for another visa to remain lawfully in Australia or does not depart Australia before any visa held by him ceases.
The Tribunal also notes that if the applicant’s visa is cancelled, he would be affected by s 48 of the Act and would not be able to make a valid application for a substantive visa in Australia, other than the limited types prescribed in reg 2.12, such as protection and partner visas.
The applicant submits the interests of his two year old daughter is best served if his visa is not cancelled. If the applicant had to depart Australia he would struggle to find employment that allowed him to support himself and support is Australian citizen daughter. His partner would be unable to provide care for their daughter in Australia because she does not hold a valid visa.
On balance the Tribunal finds that the consequences of that these are being cancel way against the cancellation of the applicant’s Subclass 801 visa.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
P. Maishman
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)           no incorrect answers are given or provided.
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.

[2023] AATA 2716

11 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction