Yesmin (Migration)

[2023] AATA 315

Yesmin (Migration) [2023] AATA 315 (14 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mst Saleha Yesmin

REPRESENTATIVE:  Mr Michael Terence Jones

CASE NUMBER:  2210570

HOME AFFAIRS REFERENCE(S):          BCC2015/1640611

MEMBER:Kira Raif

DATE:14 February 2023

PLACE OF DECISION:  Sydney

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 14 February 2023 at 16:15pm

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Federal Circuit and Family Court remittal – genuine and exclusive spousal relationship before visa grant – relationship appeared to start before visa grant with previous sponsor – sudden Islamic unilateral declaration of divorce – cohabitation commenced later with second sponsor – notifiable change in circumstances – power to cancel the applicant’s visa does not arise – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 101-105, 107, 109, 359
Migration Regulations 1994

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 and Border Protection to cancel the applicant’s Subclass 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Bangladesh, born in January 1990. She was granted the Partner visa in September 2014. In December 2015 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she did not comply with s. 104 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.

3. On two previous occasions the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and on both occasions the matters were remitted back to the Tribunal for reconsideration.

4. The applicant appeared before the present Tribunal on 14 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from her husband Mr Jumon Ahmed, his sister Farhana Gannat and her husband Anam Ahmed. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. 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.

   Relevant law

5. 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.

6. 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.

7. 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?

8. 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 of the Act.

   Primary decision

9. The primary decision record contains the following information. The applicant made the application for the Partner visa in June 2012 on the basis of her relationship with Ms Uddin. When making the application, the applicant answered several questions on the application  form by stating she and Mr Uddin first met in May 2012 and began a marital / de facto relationship at the same time. Mr Uddin in the sponsorship form gave his address at Garrong Road, Lakemba. The applicant presented with her Partner application a Nikah Nama showing that she and Mr Uddin married in Bangladesh in May 2012.

10. The applicant was granted the Provisional Partner visa on 17 December 2012 and entered Australia on 31 December 2012. In April 2014 the applicant provided additional documents in support of her permanent Partner visa application. Included with the documents were two statutory declarations made by the applicant and Mr Uddin. In these they refer to the existence of a genuine relationship. The applicant was granted the permanent visa on 1 September 2014.

11. Mr Jumon Ahmed was subsequently interviewed by the Department on 19 September 2014 and during that interview he is recorded to have told the immigration officer that he had been in a relationship with the applicant since February – March 2014 and they had been friends for one year prior to that period as they come from the same village in Bangladesh. In November 2014 Mr Ahmed informed the Department that he and the applicant were not married but their families were in the process of discussing marriage and that the applicant and Mr Uddin had recently divorced and that Mr Uddin had returned to Bangladesh to remarry. In March 2014 Mr Ahmed informed the Department that he had married the applicant on 5 February 2015. In November 2015 Mr Ahmad submitted to the Department a copy of the applicant’s divorce document issued by the authorities in Bangladesh in September 2014. The document was issued nine days after the applicant was granted her visa, on 10 September 2014.

12. The Departmental records show that Mr Uddin left Australia in May 2014 and has not returned to Australia until November 2014. It is also noted that Jumon Ahmed listed his residential address at Garrong Road Lakemba from February 2012 until March 2015 and that was the same address provided by the applicant as her home address since her arrival in Australia before they leased another unit in December 2013. The delegate noted that this would indicate Farid Uddin and Jumon Ahmad were known to each other at the time Mr Uddin married the applicant and that they lived in the same flat.

13. The delegate concluded that the applicant’s relationship with Mr Uddin ended before she was granted the permanent Partner visa or, at least, that that relationship was not to the exclusion of all others. The delegate concluded that the applicant did not comply with s. 104 of the Act.

14. In her response to the NOICC the applicant stated that her relationship with Mr Uddin was genuine and continuing until he divorced her in Bangladesh on 10 September 2014. The applicant stated that the divorce came as a sudden shock to her and she did not know it was coming, nor the real reason for it and she was upset at the time. The applicant states that she first met Jumon Ahmed in February / March 2014 and they started going out from November 2014, fell in love and developed a relationship. They married in February 2015 and she gave birth to their child in December 2015. The child is an Australian citizen. The applicant suggested in her response to the NOICC that the delegate relied on the unsworn statement [made by Mr Ahmad], made in English and which was not corroborated by any other independent information.

15. The applicant provided a number of documents in support of her claim. These included a declaration from Mr Ahmed who states that he was not provided with an interpreter during his interviews, that the interviews occurred after he worked night shifts and he was tired and stressed and he did not fully understand the questions, thus providing wrong answers. Mr Ahmed stated that he first met the applicant in February / March 2014. There were a number of other statements indicating that the applicant’s relationship with Mr Uddin was genuine and continuing until the divorce.

    First Tribunal decision

16. The first Tribunal wrote to the applicant pursuant to s. 359A of the Act. In particular, the Tribunal noted the following information

    -In his September 2014 interview Mr Ahmed told the Immigration officer that he had been in a relationship with the applicant since February – March 2014 and they were friends for a year before that,

    -Contrary to Mr Ahmed’s explanation, he was offered an interpreter during the Departmental interview in September 2014 but declined, stating that he would communicate in English. He also preferred to communicate in English in subsequent interviews, declining offers of interpreters and stating that he understood the matters discussed. 

17. The first Tribunal did not accept the parties’ explanation and formed the view that the applicant’s relationship with Mr Uddin ended before she was granted the Partner visa and that signified changes in her circumstances.

18. In June 2017 the Court remitted the matter to the Tribunal for reconsideration. 

    Second Tribunal decision

19. The second Tribunal also wrote to the applicant pursuant to s. 359 of the Act, providing her with details of Mr Ahmed’s interviews with Department officers (at each of the interviews he claimed he understood what was being said. It was also recorded that in the interview in September 2014, in relation to Mr Ahmed’s Ministerial intervention request, he did state that he was in a relationship with the applicant, which had developed in the past 3-4 months.

20. The second Tribunal also found that the applicant’s relationship with Mr Ahmed commenced before she was granted the permanent visa, signifying a change in her circumstances. The Tribunal affirmed the decision under review. The applicant sought judicial review of the Tribunal’s decision and that matter was also remitted to the Tribunal for reconsideration.

    Evidence to the present Tribunal

21. In her submission to the Tribunal of 25 January 2023 the applicant refers to the decisions of the delegate and the previous Tribunal and outlines the reasons for the judgment of Humphreys J remitting the matter to the Tribunal for reconsideration.

22. With respect to the findings previously made, the applicant denies that she lived with Jumon Ahmed and Mr Uddin at the Garrong Road address. The applicant denies that she commenced a relationship with Jumon Ahmed before her Subclass 100 visa was granted and she also denies that her marital relationship with Mr Uddin ceased or was not a genuine and exclusive spousal relationship before her permanent visa was granted.

23. The applicant refers to the evidence of Jumon Ahmad that he did not live at the Garrong road address and that it was the address of his sister which he used as a mailing address. The applicant notes that this has been confirmed by two witnesses.

24. The applicant notes that the key question to be decided is when her spousal relationship with Mr Uddin ended. She states that the extent and depth of a person’s commitment to a marital relationship can change over time. She states that the only evidence of Mr Uddin’s view of the state of the marriage is the notice under s 7 of the Muslim Family Law Ordinance of Bangladesh dated 10 September 2013 which deals with the religious practices of talaq (unilateral declaration of divorce under Sharia law) which provides that talaq does not become effective until 90 days after notice is given to the relevant authority, recognising that  the talaq declaration can be made rashly and time should be allowed for a change of mind.

25. The Tribunal accepts that this is so. That is, the Tribunal accepts that, having declared the intention to end the marriage (talaq), it was possible for the couple to reconcile and the declaration itself is not final and does not equate to a divorce. The Tribunal acknowledges that the Bangladeshi law appears to provide a three months period when the parties could change their mind. However, in the Tribunal’s view, the talaq should be viewed not as evidence of a formal divorce or of irretrievable break-up of the marriage but as evidence of the sponsor’s intention to end the marriage and the sponsor’s lack of commitment to the marriage. It is significant that in his case, the sponsor did not change his mind about the divorce and did not seek reconciliation. The talaq declaration was made because he intended to end the marriage with the applicant. If the law permitted the talaq to have an immediate effect, that  would have evidenced the end of the marriage. The fact that the law provided for a period of three months before the declaration took effect does not change the fact that the sponsor intended to end the marriage, took all steps required by the law of Bangladesh to do so and that he had no intention to reconcile and resume his relationship with the applicant. The Tribunal accepts that talaq cannot be used as evidence of divorce but it is probative and persuasive evidence, in the Tribunal’s view, of the sponsor’s absence of commitment to the marriage with the applicant.

26. The applicant notes that the talaq declaration (which she cites) does not have the option for the husband to indicate that it was entirely his decision to end the relationship. The applicant submits that this document is not sufficient in itself to enable the Tribunal to reach the state of satisfaction that Mr Uddin ceased to have any commitment to the marriage before 1 September 2014. The Tribunal does not accept that argument. In the Tribunal’s view, the filling of a divorce document constitutes strong evidence that at the time that action takes place, the person seeking the divorce no longer intends to maintain the relationship with his partner. However, the Tribunal does agree that the timing of that  intention cannot be ascertained without doubt.

27. The applicant states that it is unlikely that the talaq itself would be recognised under the Australian law as a valid dissolution of marriage. The Tribunal accepts that this may be so but, as noted above, the issue here is not whether the marriage was validly dissolved through talaq but rather, whether the talaq (which was prepared to comply with the requirements of the Bangladeshi law) can be taken as evidence of Mr Uddin’s state of mind and evidence of his commitment (or lack of it) to the shared life as husband and wife with the applicant.

28. With respect to her own relationship, the applicant states that married people do have other relationships which do not undermine married relationships unless they conflict with the essential features of a shared life as a married couple. The applicant notes that even an extra-marital sexual relationship would not necessarily render the marital relationship non-exclusive. The Tribunal accepts that submission and acknowledges that it is necessary to have regard to the nature of the applicant’s relationship outside of marriage and that the mere existence of such relationship is not, in itself, necessarily inconsistent with a finding that her spousal relationship with the sponsor continued to exist.

29. The applicant submits that the ‘crucial issue’ is whether her relationship with Jumon Ahmed prior to 1 September 2014 was a marriage-like relationship that was incompatible with her still being in a marital relationship with her husband. The Tribunal does not accept that this is the issue. The issue is whether due to her relationship with Jumon Ahmed, or for any other reasons that may be entirely unrelated to having another relationship, the applicant’s mutually committed spousal relationship  with the sponsor ended. That is, it is possible that the applicant’s relationship with Mr Jumon Ahmed was not such that would have met the definition of spouse or de facto under the migration legislation. It is possible that by 1 September 2014 the applicant and Mr Ahmed did not have a mutual commitment to a relationship. However, if the applicant or the sponsor felt that they were no longer in a committed relationship with each other, that is relevant to determining whether the applicant continued to be the spouse of the sponsor at the time her visa was granted.

30. The applicant submits that there is no evidence that there was any sexual relationship between her and Jumon Ahmed before 1 September and it is not contested that they did not begin to live together until after they were married. As noted above, that may be so but that does not, in the Tribunal’s view, define the nature of her relationship with Mr Uddin.

31. With respect to Jumon Ahmed’s resolution of status documents, the applicant submits that in his September 2014 interview, Mr Ahmed referred to the applicant as his ‘girlfriend’ with the relationship developing in the past few months but there was no assessment of their relationship. It is noted that in his November 2014 interview Mr Ahmed stated that the relationship progressed to the point where their parents planned to meet to discuss marriage and it was also made clear that they were not living together at the time. The same was recorded in the January 2015 interview. Mr Jumon himself explains that by referring to the applicant as his ‘girlfriend’ he meant a female friend and not to having a relationship (and he submits he was not offered an interpreter). The applicant refers to the witness statements which confirm there was no relationship between her and Mr Ahmed before she was granted the permanent visa.

32. In her own declaration the applicant described her relationship with the sponsor and her relationship with Mr Ahmed. The applicant also provided to the Tribunal a number of witness statements from third parties which reiterate her evidence concerning her relationships. The Tribunal acknowledges that evidence. However, as noted above, the Tribunal believes it more appropriate to consider the nature of the applicant’s relationship with the sponsor, rather than her relationship with Mr Ahmed, particularly because, as noted above,  the Tribunal is of the view that the applicant’s relationship with the sponsor could have ended for any number of reasons that did not involve Mr Ahmed. While the applicant’s relationship with Mr Ahmed is relevant in assessing the nature of her relationship with Mr Uddin (and formed the basis of the earlier decisions), any evidence that  the applicant was not in a relationship with Mr Ahmed prior to 1 September 2014 does not establish that she continued to be in a spousal relationship with Mr Uddin.

33. The applicant submits that there is insufficient evidence that her marital relationship with Mr Uddin ended before 1 September 2014. There is no evidence about Mr Uddin’s state of mind concerning the relationship before he made talaq and that document cannot be taken as definitive proof that there was no future to the relationship or when he formed that view. As noted above, the Tribunal is of the view that signing the talaq can be taken as strong evidence of Mr Uddin’s state of mind about his ongoing relationship with the applicant, or, more accurately, of his decision to end that relationship.

34. In oral evidence to the Tribunal the applicant stated that after coming to Australia, she and Mr Uddin’s had a good relationship and at the time they applied for permanent residence, their relationship was good. He then told her that he had to return to Bangladesh because there was a family problem with the property and they maintained contact while he was overseas. (Evidence of contact could not be provided.) The applicant states that her husband kept telling her that he was trying to solve the problem before coming back and they did not make specific plans about him returning to Australia. The applicant states that Mr Uddin kept in touch with her and when she was granted permanent residence, she called him and let him know and he seemed happy. The applicant states that after that time they continued talking until she received the divorce letter. After that time he no longer responded to her calls. The applicant told the Tribunal that she did not know why he divorced her and did not know what was in his mind. She did not have a chance to discuss it with him.

1. The applicant states that she met Mr Jumon in late 2014. They discussed the situation with their families in December or January and then registered marriage. The Tribunal is mindful that their marriage was registered in early February 2015 and given the requirement to give at least a month’s notice, the decision to marry must have been made no later than early January.

2. Mr Jumon told the Tribunal that he had not met Mr Uddin and they never had contact. He states that when he was interviewed by Immigration, there was no interpreter and there may have been misunderstandings. When he referred to the relationship, he meant friendship, not a boyfriend / girlfriend relationship. Mr Uddin states that he met the applicant after November and it was in late December or January that they were discussing marriage. This is also the evidence of the applicant who told the Tribunal that they met in late November and did not discuss relationship until December or January. However, when Mr Ahmed was interviewed by Immigration in September 2014, he already mentioned the applicant and the primary decision record indicates that when he was interviewed in November 2014, he stated that their families were discussing marriage. Thus, the Tribunal does not accept that they talked for the first time in November 2014 and did not discuss marriage until December 2014 or January 2015.

3. The applicant told the Tribunal that she met Mr Ahmed in November 2014 and that is when the started talking. She claims that prior to that she has not seen him. However, in her response to the NOICC the applicant stated in the declaration sworn on 4 May 2014 that she met Mr Ahmed in February / March 2014 and saw him a few times but they did not talk until November 2014. In his own statement that the applicant submitted with the NOICC Mr Ahmed also indicated that they met around February / March 2014. The applicant then suggested that they may have seen each other previously but did not talk. The applicant sought to make a distinction between ‘meeting’ and ‘talking’ but in the Tribunal’s view, the evidence of the applicant and Mr Ahmed in their declarations that were submitted in response to the NOICC should be given their ordinary meaning. That is, meeting someone else implies some form of contact, rather than merely observing someone from a distance. That seems to be the evidence in response to the NOICC and it is consistent with the fact that Mr Ahmed referred to the applicant as his friend in his September 2014 interview and spoke about marriage in November 2014.

4. The Tribunal has formed the view that the both the applicant and Mr Ahmed had been deliberately untruthful by trying to timeline relating to their meeting and the formation of the relationship and they sought to create the impression that they met and commenced their relationship after the applicant was granted the permanent visa. Mr Ahmad’s evidence in his interview in September 2014 is that here was a relationship between him and the applicant and even if he did not understand the meaning of the term relationship and believed the applicant to be only a friend (which is what he now appears to suggest), the fact that he referred to the applicant in September 2014 and to the family’s discussions about marriage in his November 2014 interview contradicts the parties’ present evidence that they did not talk until November 2014. The Tribunal has formed the view that both the applicant and her husband have been untruthful in their evidence concerning the timing of their meeting and of the relationship. The Tribunal is concerned that their willingness to fabricate evidence about the timing of their relationship indicates their lack of candour and suggests their evidence may be unreliable.

   The applicant’s relationship with Mr Ahmad

5. The delegate found that the applicant’s relationship with Mr Ahmad started before she was granted the permanent visa and this seems to be the conclusion reached by the previous Tribunals. This is based, to a significant extent, on the fact that Mr Ahmad seemed to refer to his relationship with the applicant in his interviews with the Department in September and November 2014. As noted above, Mr Ahmad is recorded to have stated in these interviews that his relationship with the applicant started in early 2014 and that by November 2014 their families were discussing marriage.

6. Mr Ahmad denies the information in these records and has provided various explanations, such as his lack of understanding, insufficient English, being interviewed after working a night shift and being tired. The Tribunal finds these explanations unpersuasive. As noted by the previous Tribunal, it appears that Mr Ahmad was offered an interpreter but declined the offer, stating that he understood what was asked of him. The Tribunal is of the view that Mr Ahmad would have recognised the significance of the interview and would have made it known to the Immigration officer if he had any difficulties understanding the questions posed to him. Thus, the Tribunal does not consider that the information in his 2014 Departmental interviews was unreliable because of Mr Ahmed’s claimed lack of English.

7. Also as noted above, the Tribunal has formed the view that the applicant and Mr Ahmed had sought to deliberately mislead to the Tribunal by claiming there was no communication between them before November 2014. That is inconsistent with the applicant’s response to the NOICC when she claims to have met Mr Ahmed around February / March 2014 and the fact that in his September 2014 interview Mr Ahmed mentioned having a partner and in November 2014 interview he referred to intended marriage. The fact that the couple sought to mislead the Tribunal about the timing of their meeting suggests that they may have also been untruthful about the nature of their relationship at the time.

8. However, their evidence has been consistent that they did not have a spousal relationship until at least late 2014. There is no suggestion that they were living together, that they had established a joined household or that they shared finances. Mr Ahmed’s evidence to the Department in his November 2014 interview is that their families were discussing marriage. The only evidence of the applicant’s relationship with Mr Ahmed prior to her visa being granted appears to be Mr Ahmed’s statement in the September 2014 interview and that statement may or may not have been truthful or accurate or reliable. This is not the case where both the applicant and Mr Ahmed referring to having a relationship prior to September 2014. The evidence that formed the basis of the decision to cancel the applicant’s visa is the statement of Mr Ahmed at the interview. That statement is in itself not sufficient to indicate that the applicant’s spousal relationship with Mr Uddin had ended.

9. The other evidence to which the NOICC relies on is the fact that the applicant, Mr Uddin and Mr Ahmed appear to have resided at the same address. Mr Ahmed claims that he used that address for mail because he could not use the address where he lived and he provided several statements from third parties to indicate that he did not live at that address and did not live with the applicant prior to their marriage. Again, the Tribunal does not consider that the nomination of the same address indicates that Mr Ahmed and the applicant were living together or that the applicant’s relationship with Mr Uddin ended.

10. There is insufficient evidence, in the Tribunal’s view, to indicate that by the time the applicant was granted the permanent visa, she and Mr Ahmed formed a commitment to a relationship so that the applicant’s relationship with Mr Uddin was no longer to the exclusion of all others. Even if Mr Ahmad’s evidence in the 2014 interviews is taken as truthful and correct, his reference to being in a relationship with the applicant since early 2014 does not necessarily exclude the possibility of the applicant maintaining a spousal relationship with the sponsor at the same time. As the evidence indicates that the applicant and Mr Uddin were not living together and were not displaying the indicia of a spousal relationship until at least November 2014 (when Mr Ahmed claimed their families were discussing marriage) or February  2015 (when they registered marriage), the existence of such a relationship, given its nature, is not inconsistent with the applicant maintaining a spousal relationship with Mr Uddin.

11. The Tribunal has formed the view that there is insufficient evidence to make a positive finding that prior to 1 September 2014 the applicant’s relationship with Mr Ahmed was such that she was no longer in a spousal relationship with Mr Uddin or that  her relationship with Mr Uddin was no longer to the exclusion of all others.

    Applicant’s relationship with Mr Uddin

12. The other significant factor that is relevant to determining whether the applicant’s circumstances had changed is the fact that Mr Uddin left Australia in May 2014 and filed a divorce application shortly after the applicant was granted the permanent visa.

13. The Tribunal has formed the view that  the sponsor’s talaq declaration evidences Mr Uddin’s decision to end his relationship with the applicant. As noted above, the fact that the divorce did not become final for 90 days and there was a possibility for Mr Uddin to change his mind, the fact that it did not occur indicates that he did have the intention to end his relationship with the applicant.

14. The applicant told the Tribunal that Mr Uddin told her he needed to return to Bangladesh to resolve a family issue relating to land. She told the Tribunal that she did not know what the dispute was and that she and Mr Uddin did not discuss his return to Australia. The fact that the applicant and Mr Uddin had no discussion about his return to Australia and the applicant was unaware of his plan to do so suggests that Mr Uddin may have had no intention to returning to live with the applicant. The Tribunal has formed the view that at some point Mr Uddin ceased to have a commitment to his relationship with the applicant, which led to him filing for divorce.

15. The Tribunal acknowledges the applicant’s evidence that she did not know what was in his mind and that she intended to have a conjugal life with him. However, a spousal relationship requires a mutual commitment of the parties and even if the applicant did maintain her commitment to the relationship to her first husband at the time he filed the talaq, the Tribunal has formed the view that Mr Uddin did not. That is, the applicant was no longer the spouse of the sponsor at that time.

16. A significant issue is when the applicant’s mutually committed relationship with Mr Uddin ended. In the Tribunal’s view, it ended no later than 10 September 2014 when the talaq was lodged. It probably ended earlier, because it is unlikely that Mr Uddin made the decision to end his relationship and filed the divorce application on the same day. However, this is nothing more than speculation that is not sufficient to form a probative basis for a positive finding that the applicant was no longer the spouse of Mr Uddin when she was granted the visa. In the absence of any evidence from Mr Uddin or others who are familiar with his circumstances, it is impossible to determine when Mr Uddin ceased to have commitment to his relationship with the applicant.

17. The Tribunal also notes that the issue here is not whether the applicant gave incorrect answers on the application form when providing the paperwork for the permanent visa when she claimed to be the spouse of Mr Uddin. The NOICC does not refer to a breach of s. 101. The Notice refers to a  breach of s. 104. The Tribunal has formed the view that the applicant’s relationship with Mr Ahmed prior to November 2014 was not such it could be said that the applicant was no longer the spouse or Mr Uddin. That is, by 1 September 2014 her relationship with Mr Ahmed did not constitute a notifiable change in circumstances. The Tribunal is of the view that the circumstances did change when Mr Uddin decided he no longer had commitment to the relationship but the Tribunal cannot positively determine whether this occurred prior to, on or after 1 September 2014 when the visa was granted. That is, the Tribunal cannot be positively satisfied that the applicant’s circumstances had changed prior to the time she was granted the permanent visa.

18. Further, the applicant’s evidence is that she was not aware of Mr Uddin’s intention to divorce her until at least 10 September 2014. This was after her visa was granted and she was no longer under the obligation to inform the officer of the changes in her circumstances. There is little to contradict the applicant’s evidence on that point and the Tribunal considers it plausible that Mr Uddin made a unilateral decision to end the marriage without informing the applicant of his intention to do so. If that is the case, the applicant could not have informed the Department about the new circumstances that she was not aware of. It was not practicable for her to do so before the applicant became aware of the new circumstance.

19. Notably, the obligation to inform does not arise immediately when the circumstances change. The obligation to inform is ‘as soon as practicable’. There is no judicial consideration of that  phrase but it must reasonably be interpreted to mean that some time – even if a short period – may pass between the change in the circumstances occurring and the fact of informing taking place. Given the uncertainty as to when the change in the circumstances occurred (when Mr Uddin ceased to have the commitment to the relationship), the Tribunal cannot be positively satisfied that this period had passed by the time the applicant was granted her visa (even if she did know about Mr Uddin’s intention to divorce prior to 10 September 2014).

20. A finding that the applicant had not complied with s. 104 of the Act requires a positive satisfaction that the applicant’s circumstances had changed, that she was aware of the changed circumstances and that she failed to inform an officer of the changed circumstances as soon as practicable. For all the reasons set out above, the Tribunal has formed the view that there is insufficient evidence to form a positive satisfaction that the applicant’s circumstances did change before 1 September 2014.

21. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Conclusion

22. 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

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

    Kira Raif
    Senior Member