Tuesday, 04 October 2016

Quiz time!
Guess what: the quiz ain’t easy! So you’ll be allowed to renew your registration even if you flunk!
Ready? Here it is:
Suppose you have a client who has married an Australian permanent resident, and on that basis has been granted a Partner visa (Subclass 100). Suppose further that the Department has then cancelled the visa held by your client’s husband under section 109 of the Migration Act, on the basis that the husband did not comply with section 103 of the Act, due to having given bogus documents to the Department in support of his own visa application.
In that scenario, does the Department have the power to cancel your client’s Subclass 100 Partner visa under section 140(2) of the Act?
OK, to save all of you the effort of checking Austlii or Legend to see what section 140 says, this is what it is provides (OK, I have also provided alink!!!):
“Cancellation of visa results in other cancellation
140(1) If a person’s visa is cancelled under section 109(incorrect information)….a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2) If:
(a) a person’s visa is cancelled under section 109…..; and
(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa
The Minister may, without notice to the other person, cancel the other person’s visa.
OK, time’s up! If you’re stuck, or if reading this far has given you a headache, you can guess and you have a 50% chance of getting this right!
Drum roll!!!!! The answer (at least according to the decision of Judge Driver of the Federal Circuit Court in the case of Ara v Minister for Immigration & Anor (2016) FCCA 2154 (29 September 2016) the answer to the question is:
“Yes, in these circumstances the Minister (Department) can cancel the Partner visa!”
(Those of you who got the answer right without peeking at the case are free to brag about your wisdom in the comments section, unless your name is Donald Trump in which case no further bragging or tweeting is allowed!!)
How did Judge Driver arrive at this decision?
The visa holder tried to argue that the Minister’s (and thus the Tribunal’s) discretion to cancel her visa was not “enlivened” because the fact that her husband held a permanent residence visa was not the only reason that she held a Subclass 100 partner visa – in other words, as was “observed” in a previous case, Rani v Minister for Immigration, it is never strictly speaking possible for a person to hold a visa “only because” another person holds or held a visa, because other requirements, such as public interest or health requirements, must also be satisfied.
Unfortunately for the visa holder, Judge Driver rejected this proposed interpretation of section 140(2) as “artificial” and because His Honour considered that it would have the result, which judges hate, of leaving section 104(2) “without work to do”
(in the arcane world of statutory interpretation, it is never allowed for statutory provisions to be “lazy”, they have always got to be kept busy and put to work!).
So, this is how Judge Driver worked out:
His Honour concluded (while at the same time remarking that the matter is “far from clear”) that the phrase: “holds a visa” as used in section 140(2), should be interpreted to mean “was granted a visa”.
So, on this interpretation, the power to cancel a visa under section 140(2) would be enlivened if a person was granted a visa “only because” another person whose visa was cancelled held a visa.
Accordingly, under the holding in this case, if a person holds a Partner visa, and their sponsoring spouse or de facto partner has their own visa cancelled, then under section 140(2), the person who holds the Partner visa is also liable to have their visa cancelled.
Judge Driver noted that this interpretation does produce a seemingly odd and anomalous result, namely that a person can have their own Partner visa cancelled if the sponsoring partner’s visa is cancelled, but they will not lose their entitlement to the visa in circumstances where the relationship has failed due to reasons of family violence, or where the sponsor has died.
The outcome here raises the effect of section 140(2) is fair, just or right:
From the information that is provided in the decision, the visa holder in this case did not know that her sponsoring partner had breached section 103 in the process of obtaining his own visa (which was the basis of his sponsorship). She was entirely “innocent” or so it appears, and evidently came to Australia on the good faith assumption that her sponsor held permanent residency in Australia. It seems extremely doubtful that she would have had any idea that her sponsor’s visa might be cancelled at some point.
The practical effect here is that in the future, applicants for partner visas, and the registered migration agents who are advising them, may need to make enquiries as to whether there is any basis on which the sponsor’s visa may be cancelled. Otherwise, the applicant might uproot her/himself from her/his home country, only to find that her/his Partner visa might be cancelled through no fault of her/his own! Nightmare!
Might not this also create potential conflicts of interest which might make it impossible for an agent top act both for the visa applicant and the sponsor?
What a hornet’s nest of complications!

 

Courtesy of Migration Alliance (Michael Arch)