TRINIDAD (Migration)

[2018] AATA 137

TRINIDAD (Migration) [2018] AATA 137 (15 January 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JONEIL TRINIDAD

CASE NUMBER:  1714152

DIBP REFERENCE(S):  BCC2016/1772618

MEMBER:Ann Brandon-Baker

DATE OF DECISION:  15 January 2018

DATE CORRIGENDUM

SIGNED:1 February 2018

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

The words ‘The Tribunal has decided that there was non-compliance by the applicant’ at paragraph 49 should be replaced with ‘The Tribunal has decided that there was no non-compliance by the applicant’.

Ann Brandon-Baker
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JONEIL TRINIDAD

CASE NUMBER:  1714152

DIBP REFERENCE(S):  BCC2016/1772618

MEMBER:A B Baker

DATE:15 January 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 15 January 2018 at 1:50pm

CATCHWORDS
Migration – Cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Birth of applicant’s daughter – Non-disclosure of change in circumstances – Not in a de-facto relationship at all relevant times – Non-compliance as a minor

LEGISLATION
Migration Act 1958, ss 5, 97-100, 104, 107(2), 107A, 109(1), 111
Migration Regulations 1994, r 2.41

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the applicant’s subclass 100 visa under s.109 of the Migration Act. The delegate found that the applicant failed to comply with Section 107A of the Act. Section 107A applies when possible non-compliances are in connection with a previous visa. Those non-compliances were in relation to his application for a subclass 445 visa which was granted on 19 November 2013. The Delegate found that the applicant did not comply with s.104 of the Act in his application for that subclass 445 visa which required that changes in circumstances must be notified to the department.

3. The delegate found that the applicant failed to disclose that his de facto partner had given birth to their child prior some six months prior to the finalisation of his application. The delegate found that this fact was a significant change in his circumstances which he was required to notify the department and may have led to a refusal of his subclass 445 visa.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 6 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

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

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

8. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review. He currently holds a permanent subclass 100 (BC) visa as a result of his mother’s spouse visa. It is this visa that is subject to cancellation on the basis of his non-compliance under s.107A in relation to the grant of his subclass 445 visa.

9. The following dates are relevant.

   3 September 1995 – Applicant’s DOB

   6 September 2011 – begins relationship with Brigitte Badanggo

   15 September 2011 – Applicant’s mother and his three siblings granted subclass 309 visas

   August 2012 – applicant discovers Brigitte is pregnant

   29 October 2012 – Subclass 445 visa application lodged

   16 May 2013 – Applicant’s daughter, Sabrina born to Brigitte Badanggo

   19 November 2013 – Applicant granted subclass 445 dependent child visa

   8 December 2013 – Applicant arrived in Australia

   15 December 2013 – applicant informs his mother that he and Brigitte had a daughter

   1 October 2015 – Applicant sponsored Brigitte and daughter Sabrina for a visitor visa – application refused

   6 January 2016 – Applicant and Brigitte marry in the Philippines

   18 April 2016 – visitor visa application lodged by applicant’s now wife and daughter – application refused on 5 October 2016

   18 May 2017 – Notice of Intention to Consider Cancellation Under Section 109 sent to the applicant

   1 June 2017 – Statutory declaration from applicant in response to NOICC

   30 June 2017 – Visa cancelled under S.109 and applicant notified.

10. In his statutory declaration responding to the NOICC the applicant claims that he was unaware that Brigitte was pregnant when his mother lodged his visa application and nor did they consider themselves to be in a de facto relationship. He claims that Brigitte and her mother went to Japan in February 2013 but returned to the Philippines to give birth. The applicant claims that Brigitte’s family provided her with financial and emotional support as he was too young to enter into a deep committed relationship.

11. Because of his mother’s high expectations of him, he did not have the courage to tell her about Brigitte’s pregnancy and the birth of his child, claiming he only found the courage to do so several weeks after he arrived in Australia. As it was his mother who was liaising with the department of immigration and taking care of his migration papers and she was not aware of the birth of his child, she did not mislead the department regarding his circumstances.

12. The delegate found that there had been non-compliance under s.104 in the following ways:

    a.At Question 32 of the 445 dependent visa application the applicant did not declare any dependent children and whilst correct at the time of application, the applicant intentionally withheld the fact that he had a child prior to the completion of processing and therefore failed to inform the department of a “significant change” in his circumstances.

    b.Even though it is claimed that the applicant’s mother completed the application, under s.98 of the Act, a person is taken to have completed the form even if he or she caused it to be filled in or if it is otherwise filled in on his or her behalf.

    c.It does not matter if the applicant’s mother was unaware of the birth of the applicant’s daughter as S.111 of the Act provides that it does not matter if the non-compliance, specifically a failure to notify the department of the change, was deliberate or inadvertent.

    d.The young age of the applicant at the time does not negate any responsibility for the non-compliance as it is evident that the applicant was mature enough at the time to engage in an adult sexual relationship and to hide the birth of his daughter from his mother whilst being wholly dependent upon her.

    e.At question 34, Part FG the applicant failed to provide details of other family members, including his de-facto and whilst this may have been correct at the time of application he nevertheless failed to notify the department that he had a child during the processing of his visa. The delegate found that this non-disclosure was a deliberate attempt to conceal information from the department and not unintentional as claimed.

    f.The delegate found that the multiple visa applications completed by the applicant and his mother included statements clearly informing the applicant of his obligation to keep the department notified of any change in personal circumstances. The delegate found that neither the applicant nor anyone on his behalf has ever attempted to notify the department of the birth of his child prior to the completion of processing his visa or of his relationship with Brigitte.

    g.The delegate also found that it was implausible that a minor would be able to sign a birth certificate without the presence of an adult and hence further found that it was implausible that the applicant’s mother did not know about the birth of his child.

13. The delegate in his decision noted that the applicant gave conflicting information about the nature of his relationship with Brigitte stating that he only began a committed relationship with her when they married in January 2016, however he sponsored Brigitte and his daughter for visitor’s visas in October 2015, stating in that application that he and Brigitte were in a committed, live in relationship. Brigitte also stated that they were in a de facto relationship at that time. As a result of these statements the delegate found that the applicant provided incorrect information in his response to the NOICC and that he was therefore also non-compliant with section 107(2) of the Act. This non-compliance could also lead to the delegate considering cancellation of the visa under s.109 of the Act.

14. According to the department’s movement records, the applicant has departed Australia on the following occasions since his visa was granted:

    a.13 May 2014 – 11 June 2014

    b.7 December 2014 – 5 April 2015

    c.24 December 2015 – 1 February 2016

    d.20 July 2016 - 27 April 2017

15. Prior to the scheduled hearing the parties submitted some documents relating to the criminal history of the applicant’s step-father, Mr William George and the involuntary confinement of one of the applicant’s siblings, Mr Clarence Trinidad for drug rehabilitation in the Philippines dated 28 April 2015.

16. On the day of the hearing the applicant, through his adviser, provided the Tribunal with a written submission. Where relevant, that information is included in the consideration of claims and evidence below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. 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.

19. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

20. 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 ss.104 and 107(2) as detailed above in paragraph 11-13.

21. The Tribunal found the evidence of the applicant and his mother less than compelling and is not satisfied that the witnesses were not withholding information from the Tribunal. The Tribunal is satisfied that there was non-compliance as described in the s.107 notice for the following reasons.

22. The applicant told the Tribunal that he found out about Brigitte’s pregnancy in around August 2012 when he was sixteen years old but he did not tell his mother because he knew that she would be disappointed in him. He said that his older brother had also become a father when he was a teenager and his mother had high expectations of him. He and his Brigitte had been seeing each other since around September 2011when he was fifteen years old. During this period he had been living with his mother prior to her departure to Australia in October 2011. Both the applicant and his mother denied that he was in a de-facto relationship with Brigitte at any time during this period as both lived in their respective homes with their families.

23. After his mother left the Philippines the applicant claims that he lived with his grandmother and aunt until his departure from Australia in December 2013. Asked whether either of these women knew about Brigitte’s pregnancy he claimed that they didn’t know. The Tribunal put to the applicant that it was finding it hard to believe that Brigitte’s family would not have approached his family about her pregnancy. The applicant then claimed his grandmother and Aunt did know but they didn’t tell his mother. Again, the Tribunal put to the applicant that it was finding it difficult to accept that they wouldn’t have told his mother about Brigitte’s pregnancy. The applicant told the Tribunal that they did not tell her. He claimed that his mother only knew that he and Brigitte had a child one week after he arrived in Australia in December 2013 when he finally confessed to her, some 7 months after the child’s birth.

24. The Tribunal accepts that at the time of application the applicant did not have a dependent child or a de-facto spouse. The Tribunal accepts that the applicant and Brigitte were not in a de-facto relationship, despite the birth of their child. The Tribunal is satisfied that the evidence supports the applicant’s claim that both he and Brigitte were dependent upon their respective parents at all relevant times.

25. The Tribunal, however, does not accept that the applicant’s mother was not aware of the pregnancy of her son’s girlfriend or the subsequent birth of the child in May 2013, at the time that the application was processed. It is simply implausible that the applicant’s grandmother and Aunt, the mother and sister respectively of the applicant’s mother, did not tell her of the pregnancy and birth of the applicant’s daughter, and that she only found out when he told her some seven months after the birth.

26. As such, the applicant and the applicant’s mother had an obligation to inform the department of their significantly changed circumstances, ie the birth of the applicant’s daughter, prior to the grant of the visa.  It is entirely plausible that the parties did not think that they had to inform the department of any change of circumstances after the application was lodged. It would not necessarily be obvious to the applicant, or his mother, that a change of circumstances in between lodgement and decision would have been relevant, despite the department’s entreaties on the application forms. The Tribunal has formed a view that it was only after the visa was cancelled that such a consideration may have become obvious to them and why they have now sought to misrepresent the time at which the applicant’s mother became aware of the birth of her grandchild.  The Tribunal has formed this view because the applicant’s mother had in the past declared a grandchild of a teenage dependent son to no detriment of the visa application. It would be illogical therefore, for her not to have declared the applicant’s grandchild, had she known that she was required to.

27. Be that as it may, section 111 of the Act provides that it does not matter if the non-compliance, specifically a failure to notify the department of the change was deliberate or inadvertent.

28. For these reasons, the Tribunal finds that there was non-compliance with s.104 of the Migration Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

29. 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).

30. 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 r.2.41 of the Regulations. Briefly, they are:

    The correct information

31. The correct information is that the applicant had a dependent child at the time of decision which was not declared to the department.

    The content of the genuine document (if any)

32. Not applicable.

    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

33. During the Tribunal hearing, the applicant’s mother told the tribunal that her eldest son, Franz also became a father at the age of 17. She said that Franz and his child were included in her partner visa application which was granted on 13 September 2011. She said that she had no reason to try and deceive the department about the birth of the applicant’s daughter prior to visa grant as she had no reason to believe that it would not be granted, given her experience with Franz and his child.

34. The Tribunal finds some merit in this argument. Both the delegate and the Tribunal have found that the applicant was dependent upon his mother at the time of application and time of decision and further, that he was not in a de-facto relationship at all relevant times. The only missing piece of information was the birth of the child. The delegate accepts that this in itself would not mean that the applicant’s visa would not have been granted had the applicant disclosed this information. The delegate goes on to find that the department had not been given the opportunity to assess the correct information, which may have delivered a different result, and this forms part of the reason he cancels the visa.

35. However, given the fact that the department granted a visa to the applicant’s elder brother whose circumstances were exactly the same as his own, the Tribunal finds it difficult to accept that the department would not have still granted the applicant a visa had the information been disclosed. The Tribunal gives this significant weight.

36. It would seem an improper course of action to cancel the applicant’s visa on the basis that the applicant failed to disclose a change of circumstance, which past experience had demonstrated clearly to the applicant and his mother, would not have affected the outcome of the visa application. This is not to condone the parties not providing the department with the correct information, and if the Tribunal formed a view that such information would have materially affected the outcome of the visa grant, it may then have come to the same decision as the delegate.

    The circumstances in which the non-compliance occurred

37. In this context, the delegate has considered the conflicting statements given by the applicant in his sponsorships of visitor visas for Brigitte and their daughter in 2015 and 2016. In his 2015 application the applicant stated that he was in a committed relationship with Brigitte. However in his response to the NOICC, the applicant stated that he only began a committed relationship with Brigitte in January 2016 when they were married. The delegate placed significant weight on this inconsistency, leading him to also find that the applicant provided incorrect information in response to the NOICC and thus non-compliant with section 107(2) of the Migration Act.

38. The parties submit that this is a misunderstanding of terminology and not inconsistent. The Tribunal accepts the evidence provided at the hearing and in any case, both of these statements in 2015 and 2016 respectively were well after the time the application was lodged and the decision made.

39. It seems to the Tribunal that placing significant negative weight on this matter, as the delegate has, is disproportionate given the fact that the applicant and his girlfriend were not in a de-facto relationship at any of the relevant times.

1. The Tribunal is not satisfied that the applicant was non-compliant with section 107(2).

   The present circumstances of the visa holder

2. The applicant has been resident in Australia for over four years. During that time he has developed his relationship with Brigitte and the couple were married in January 2016. He has been living with his mother since his visa was cancelled.

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

3. See paragraphs 37-40 above.

   Any other instances of non-compliance by the visa holder known to the Minister

4. There are no other instances of non-compliance by the visa holder before the Tribunal.

   The time that has elapsed since the non-compliance

5. The applicant has been resident in Australia for over four years, from the time he was 18 until now. The non-compliance occurred when he was a minor and reliant upon his mother.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

6. There is no evidence before the Tribunal that the applicant has breached any law.

   Any contribution made by the holder to the community.

7. There is no evidence before the Tribunal that the applicant has made any particular contribution to the community such that it should be a consideration.

8. The Tribunal has no evidence before it that there are any other person in Australia whose visas would be cancelled as a result of the applicant’s visa being cancelled or that to cancel the applicant’s visa would in some way breach any relevant international agreements or conventions to which Australia is a party. Whilst the applicant would be barred from re-entering Australia for three years if his visa is cancelled, this is an intentional consequence of visa cancellation.

9. There is no evidence before the Tribunal that the visa holder or any of his family members would suffer any degree of hardship should his visa be cancelled.

   CONCLUSION

10. 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. Having had regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the correct and preferable decision is that the visa should not be cancelled.

    DECISION

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

    A B Baker
    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.

    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.