1608009 (Migration)

1608009 (Migration) [2016] AATA 4407 (15 September 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bishnu Kunwar
CASE NUMBER:  1608009
DIBP REFERENCE(S):  BCC2016/815884
MEMBER:David Dobell
DATE:15 September 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa
Statement made on 15 September 2016 at 9:30am

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 Immigration on 31 May 2016 to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had given incorrect answers under s.101(b) 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 25 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CLAIMS AND EVIDENCE
The representative ultimately provided to the Tribunal the Department’s decision record.
From the Department’s movement records, the applicant’s date of birth is 19 April 1986 and he entered Australia on 20 November 2012 on a subclass 573 visa. The applicant has not disputed that he is also known as “Rajendra Karki’, date of birth 10 January 1988, who last departed Australia on 26 July 2011.
Also from the Department’s movement records, the applicant was granted his subclass 189 visa on 9 December 2014.
A notice of intention to consider cancellation of visa under s.109 was sent to the applicant on 8 April 2016. The non-compliances set out in this notice were based on the view that the applicant and ‘Rajendra Karki’ were one and the same person, based on a facial recognition comparison report.
The applicant responded on 15 April 2016 and his representative made a further submission on 3 May 2016. In his submission the applicant stated:
I confirm that I received your email on 8th of April 2016 and I am thankful to you for allowing me to explain about the content of your e-mail. Before getting into the main subject I would like to apologise for all the inconvenience that I've caused to you and the department.
My original name is Rajendra Karki (DOB: 10th of Jan 1988) and I first arrived in Australia on February 2007 on a student visa. After completing 2 years of study here, I had applied for general skilled migration visa, which was refused on 29^th of July 2010. Immediately after that, I consulted migration agent in Australia and lodged MRT, which was also declined on July 2011 and I was advised to leave Australia. After getting decision from MRT, I consulted my migration agent for the options I had available to let me stay in Australia legally on different visa, where I was told that I couldn't further apply for any other visas (with this name and passport) and also added that I won't be able to apply and re enter Australia for another 7 years, basically the Australian doors were closed for me forever. This information forced and rushed me to leave the country with defeated mentality. Since I am the only son in my family, I had the responsibilities of looking after them back in Nepal that urged me to look for suitable jobs but failed to find any because of lack of enough opportunities, political favouritism and my financial condition. That situation led me to depression and I started seeing myself as a failed person. As I was working out my best to solve the situation, I got in touch with the migration agent in Nepal who advised me that I could come back to Australia with different name. At that time, my desperation of supporting my family must have blindfolded my ethics in the name of working out my situation. I now feel the guilt and ashamed of deceiving you and the Australian Government and I am really sorry for doing that, but I also want to stress that my act was motivated by the drive to support my family.
I arrived back in Australia in November 2012 (Bishnu Kunwar, DOB: 19^th April 1986). I am sorry that I didn't do enough research and just took the advise from the agent without thinking further as I was desperate to make things work better. I agree that at the end of the day, I'm responsible for all my deeds and I'm really regretting for not taking second opinion and just blindly following one. After arriving in Australia, I felt like I had another chance to make things better for my family and myself. I got an opportunity to work and gradually things started getting better and I started supporting my family. Since then, my mother and sister feel supported back in Nepal, I've also been able to support my wife and my 3 months old son who was born here in Australia, currently residing in Australia. Altogether, I have guilt of falsifying my details on my second visit (by being influenced by someone and not doing enough research myself).
I understand that these things cannot be an excuse for my mistakes, but my intension was not to harm Australian government or its people, it was purely to have an opportunity to make life better for my family and myself. The time I've spent in Australia, I've been a law-abiding resident and have not committed any crimes or offences: I've followed all the rules and regulations and have always maintained good behaviour towards the community.
Whatever decision you will make on my situation will have massive impact on our lives. As I have mentioned earlier, I'm the only son, I've responsibility to look after my whole family. My mother she is a housewife and I also pay for my younger sister's education. In our culture, brothers pay for their sister's education and marriage. So this is also my responsibility to pay for all the expenses that will occur on her marriage. When I left Australia previously and had to stay in Nepal, things were really difficult as I couldn't find a decent job and the pay was not enough to support my family and it was almost impossible to save money for anything. This time I also have my wife and son to look after. My wife will not be able to work, as she will have to look after my child. My concern towards my child is that he will have to suffer because of my mistake. Even after being born in Australia, he will be deprived from his rights and opportunities that he deserves because he will also be forced to leave the country with us. Even the basic facilities like health and education are not readily available. He will not be able to have the quality life he deserves. I belong to a small town where schools are not of higher standards. It is almost impossible to move to bigger cities, as I cannot afford to get a place to live there and this will Increase the expenses too.
My greatest concern at the moment is the current situation of my country. There has been a continuous conflict: among different caste groups and political situation is not getting any better. My town borders India and Nepal, so we have been affected the most. Due to the conflict there is often strikes and closure of shops, schools and hospitals, which really affects the life, People from different caste groups are fighting to occupy the region and make their caste superior and due to this general people like us are really suffering. This poses serious threat to our lives and many people are killed during the riots. The other problem we currently facing in our town Is the relation between India and Nepal due to some political disagreement Nepal is heavily dependent on supply of some basic goods from India. India has stopped some supplies to Nepal due to which people like us living near border area has suffered a lot These factors have created huge concerns to me for my child. I don't want him to go through all this because of my one wrong decision.
As an adult, I am responsible for my act and I'm prepared to accept any kind of decision given by you and the department but would like to emphasis the fact that neither my son (who was born in here) nor my wife should be victimised by my wrong doings. I beg you to consider my situation that I have to support my wife who is taking care of our 3 months old son full time and my mother and sister (overseas) who are relying on me (financially, morally etc.). I'm the sole breadwinner for my family, so your decision can have huge impact on them too. I would like to express my gratitude to you, the immigration department and Australia for all the opportunities I was given, no matter what the outcome of this case is. At last, thank you once again for your precious time to go through my letter and would like to express my sincere apology.
At the hearing the Tribunal first asked the applicant what was his true name and date of birth. He said it was ‘Rajendra Karki’ and 10 January 1988 was his correct date of birth. As to whether he had legally changed his name to ‘Bishu Kunwar’ in Nepal, he said he did not actually change it and the passport he obtained in the name of ‘Bishnu Kunwar’ was not genuine and that he is still known as ‘Rajendra Karki’.
As to what happened when he went back to Nepal, he said he was suffering depression for a few months and then started doing some reception work for an uncle.
As to his wife, he met her in Nepal and they married on a love basis. She came to Australia in 2008. They decided to marry in 2011 and she came back to Nepal and they were married on 21 November 2011. Their child was born on 30 December 2015.
He confirmed that he left Australia on 26 July 2011 on his real identity and that he returned on 20 October 2012 with his new false identity.
The Tribunal asked him what he remembered of his first Tribunal matter, and specifically what the Tribunal had found in regards his truthfulness. He did not answer this directly, referring to the decision and his agent saying he could get no other visas and his decision to leave Australia.
The Tribunal went through the incorrect information identified in the Form 80, and the applicant acknowledged the information provided was incorrect.
It said that the s.107 notice appeared in order and valid, and was based on the incorrect information under s.101(b), which the applicant is not disputing, and thus there would be a breach which may lead to cancellation.
As to the mandatory waiver considerations under r.2.41, the Tribunal referred to the detailed written submission of the representative to the Department of April 2016 on this and asked whether there was anything in addition to that submission he would like to add.
The Tribunal noted that whilst he was a member of the family unit and his relationship with the primary visa holder is not in dispute, there was perhaps a question as to whether PIC 4020(2) would have been satisfied at that time. The representative acknowledged that he had read the earlier Tribunal’s decision and in the context of PIC 4020, that the current visa application was made more than 12 months after that decision. The Tribunal noted that the law states it must be more than 3 years after a decision made under this provision, but it would appear that this was the case here. This is because the Tribunal decision was made on 15 June 2011 and the visa application was made on 29 July 2014, more than 3 years later. The Tribunal concluded that PIC 4020(2) would not have prevented the grant of this visa.
The Tribunal then turned to policy-based waiver considerations, and, after referring to his letter to the Department and the noted conditions in Nepal, asked whether there was any reason why he could not return to Nepal. He said he is an only son and his father had passed away and he is the only source of income for his family. The Tribunal said it was asking about whether he faced serious harm should he return. He said that their village is only 5 kilometres from the Indian border and there was a strike there when he was there and there was unrest and people were killed. He said he would be okay but he didn’t want his wife and child there.
As to why he could not live in Kathmandu, he said it costs a lot of money to live there. As to whether he could find work there, he said he thought he might, but he would not earn very much and certainly not enough for his family to survive.
The Tribunal suggested he was saying he needed to work here in Australia to earn enough income to support his family and he agreed.
The Tribunal asked for further details about his family. He said he has a son who is 8 months old and is healthy. He later said he and his wife are also healthy.
He is now working 20 hours a week as a cleaner and his wife is about to start work in a furniture store for over 20 hours a week. Their rent is $365 a week. He used to send money to his mother and sister for support but he had to stop this in December 2015 when their child was born. He hopes to start sending his mother money again soon, as she only has her late husband’s army pension. He used to send her around $1,100 a month. His sister is studying in another town and is currently doing an internship and has an income from that.
As to how his child would be affected if he had to return to Nepal, he said that both schools and hospitals are not very good there. He doesn’t want his child to have to face the upbringing he had.
He confirmed his wife knew everything about what he had done, and she understood why he had done it and why his visa was cancelled.
He said that he knows he had made a mistake and didn’t want to cause anyone any harm, and that if he knew the consequences he wouldn’t have done it.
The Tribunal said that it faced a problem knowing whether anything the applicant had told it was truthful, given he has admitted to not being truthful to the Department, and in the Tribunal’s view was prepared to say and do whatever it took to get a visa to return to Australia.
It said it had to consider its discretion to cancel carefully. It may affirm the decision, or it may set it aside, and if thinking of following the latter, it may also ask for a DNA test to establish that the child is indeed his, given its concerns about truthfulness in this matter.
After the hearing, the applicant’s representative advised that he had been granted a subclass 155 visa as of 6 September 2016, and provided documentary evidence in support of this. No other submissions were made.
Also after the hearing, the Department provided the Tribunal with an Identity Assessment Report which concluded that the true identity of ‘Bishnu Kunwar’ was actually ‘Rajendra Karki’, as claimed by the applicant. This information was covered by a s.375A certificate relating to disclosure, but, in any event, did not add anything as it merely confirmed what the applicant had claimed in his response to the notice of intention to consider cancellation of visa- that he was really Rajendra Karki.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
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?
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.
Section 101 requires that 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.
Section 99 provides that 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.
Thus, under s.99, any information provided in a Form 80 by the applicant is taken to be an answer to a question in his visa application form.
The relevant non-compliance identified and particularised in the s.107 notice, and relied on in the Department’s decision, was non-compliance with s.101(b) in the following respects:
·Form 80- Personal Particulars for Assessment answers
oquestion 1 – name and date of birth given may be incorrect
oquestion 5 - not known by any other names may be incorrect
oquestion 6 – never had a different date of birth may be incorrect
oquestion 12 – not had any previous passports/travel documents may be incorrect
oquestion 40 – never had a visa refused may be incorrect
At Q.1 of the Form 80, the applicant is asked to give his details as they appear in official documents, eg passport. He gave his name as ‘Bishnu Kunwar’ and his date of birth as ‘19 April 1986’. The applicant has acknowledged that his legal name in Nepal is Rajendra Karki, and that he did not ever legally change it to Bishnu Kunwar. Similarly, his correct date of birth is actually that of Rajendra Karki, which is 10 January 1988. This is his true identity. However, the Tribunal finds that the applicant has not answered this question incorrectly as he has correctly provided the details in the relevant official document- his Nepalese passport. The Tribunal is therefore not satisfied there is non-compliance with s.101(b) here.
At Q.5 of the Form 80, the applicant is asked whether he has been known by any other names, to which he answered ‘no’. As the applicant has acknowledged that his true name is Rajendra Karki, then he has not answered this question correctly and the Tribunal so finds. The Tribunal is satisfied there is non-compliance with s.101(b) here.
At Q.6 of the Form 80, the applicant is asked whether he has ever had a different date of birth to the one recorded in Q1, to which he answered ‘no’. As the applicant has acknowledged that his true date of birth is 10 January 1988 and not 19 April 1986 he has not answered this question correctly and the Tribunal so finds. The Tribunal is satisfied there is non-compliance with s.101(b) here.
At Q.12 of the Form 80, the applicant is asked whether he had had any previous passports or travel documents issued, to which he answered ‘no’. This answer is incorrect as he has acknowledged that he had previously been issued with a Nepalese passport in the name of Rajendra Karki, and the Tribunal so finds. The Tribunal is satisfied there is non-compliance with s.101(b) here.

At Q.40 of the Form 80, the applicant was asked whether he had ever had a visa refused to any country, to which he answered ‘no’. This answer is also incorrect as he has acknowledged that he had an Australian visa refused earlier in his true name of Rajendra Karki and the Tribunal so finds. The Tribunal is satisfied there is non-compliance with s.101(b) here.
For these reasons, the Tribunal finds that there was non-compliance with s101(b) 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 r.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.
Whilst 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. Policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations. In detail, policy states as follows:
•whether there are persons in Australia whose visas would, or may, be cancelled under s.140
•whether there are mandatory legal consequences to a cancellation decision; for example:
·     whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistent with non-refoulement obligations;
·     whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister’s personal intervention (e.g.s.46A, s.46B, s.48, 48A etc.)
•whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation; for example:
·     if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;
·     whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment; and
•any other relevant matter.
If a delegate is considering whether to cancel a permanent visa, they are also to take into account whether the visa holder has formed strong family, business or other ties in Australia.
The Tribunal first addresses the mandatory considerations.
The correct information:
The correct information in this case is that the applicant’s true or real identity, and by which he was previously known, is Rajendra Karki, born 10 January 1988, who previously came to Australia on a Nepalese passport issued in this name and who had an Australian visa refused in this name before leaving Australia in July 2011.
The content of the genuine document (if any):
This is not relevant here as only incorrect answers are being considered.
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:
It is likely that, had the Department known the correct information at the time, the applicant would not have been granted a subclass 573 visa in the name of Bishnu Kunwar to enter Australia in 2012.
However, the Tribunal is reviewing the cancellation of the later subclass 189 visa granted onshore, and the applicant applied for this visa as a member of the family unit of his spouse.
Whilst it has been argued that the applicant did not provide incorrect information in this visa application in that, whoever he is, he is the actual husband of the spouse, the Tribunal is of the view that the Department would not have granted the applicant a visa in the name of ‘Bishnu Kunwar’ had it known that this was not his true identity.
The circumstances in which the non-compliance occurred:
The circumstances have been fully set out by the applicant in his and his representative’s submissions to the Department and to the Tribunal at hearing.
In brief, the Tribunal finds that the applicant decided to leave Australia as a result of an unsuccessful review of a decision to refuse him a visa. He received advice that with a new identity he could apply for a new visa in that identity and re-enter Australia quickly and without difficulty and he decided to follow this path. After arriving he knowingly applied for other visas with this false identity, until this was discovered by the Department.
To emphasise, he did not voluntarily disclose his false identity to the Department.
The present circumstances of the visa holder:
The applicant claims to be well settled here in Australia with his family and has made many friends. He and his wife have employment here and he gets on well with his work colleagues. They are renting. They have a young child. The family is all healthy.
The applicant claims that he has previously provided financial support to his mother and sister in Nepal, as his father is deceased. He is unable to provide that support presently, but hopes to provide it again in the future. His sister currently has some employment and his mother receives her deceased husband’s Army pension.
The applicant has recently been granted a subclass 155 resident return visa in the name of Bishnu Kunwar.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act:
Since responding to the notice of intention to consider cancellation of visa, the Tribunal finds that the applicant has been truthful and co-operative in revealing his actual identity to the Department. He has also expressed remorse for his actions.
Any other instances of non-compliance by the visa holder known to the Minister:
No other instances of non-compliance are known to the Tribunal.
The time that has elapsed since the non-compliance:
The non-compliance in question, being the incorrect answers in the Form 80, occurred in mid-2014. Approximately 2 years has passed.
Any breaches of the law since the non-compliance and the seriousness of those breaches:
No instances of breaches of the law since the non-compliance are known to the Tribunal.
Any contribution made by the holder to the community:
The applicant claims he and his family are involved with the Nepalese community here and have made many friends in Australia. He has performed well at work. He is a member of a cricket club. There is documentary evidence to support these claims.
The Tribunal now turns to the Policy considerations in relation to cancellation.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140
There are no consequential cancellations here. It appears both his son and his wife are now Australian citizens.
Whether there are mandatory legal consequences to a cancellation decision:
The Tribunal finds there are no mandatory legal consequences which would lead to detention, or indefinite detention, here. He is not likely to become an unlawful non citizen as a result of this visa cancellation.
The applicant would be s.48 barred which would prevent him from applying onshore for most visas but he was recently granted a subclass 155 visa, and even if that is subsequently cancelled, he will have review rights in relation to that decision.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation:
As the Tribunal notes, the applicant currently holds a subclass 155 visa, so it finds that any possible obligations under relevant international agreements would not be breached, as he would not be required to leave Australia as a result of the cancellation of this visa.
Even if he was required to return, the applicant has not satisfied the Tribunal that he would face harm or persecution in Nepal, or that his removal would be in breach of Australia’s non-refoulement obligations. Rather, his concerns about returning are more to do with the quality of life he and his family would have there in Nepal, they being unable to earn a reasonable income to live comfortably.
The Tribunal accepts that there is a small child whose interests could be affected by the cancellation if the applicant, or all of them, had to return to Nepal. The Tribunal accepts that under the Convention on the Rights of the Child, the best interests of the child is to be treated as a primary consideration:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
However, again the Tribunal is not satisfied that there will be any such consequences as a result of cancellation of the current visa, given that he now holds a subclass 155 visa.
In considering whether to cancel a permanent visa, whether the visa holder has formed strong family, business or other ties in Australia:
As noted earlier, the applicant claims that he has formed ties to members of the Australian community in his time here, as has his spouse, and has provided some documentary evidence to support this. The Tribunal accepts his claims.
Any other relevant matter:
The Tribunal notes that the applicant and his representative claim he had depression when he decided to obtain a false identity for himself. However, there is no documentary evidence before the Tribunal to support this claim, and given that he has acknowledged knowingly giving incorrect answers, having obtained a false identity, the Tribunal does not accept this claim without supporting documentary evidence.
Overall
This cancellation is the first time that the applicant’s actions in having a false identity created, and used to re-enter Australia in 2012, has been considered by the Department and the Tribunal.
Significantly, the applicant did not bring this to the attention of the Department. Rather, it was discovered by the Department. The Tribunal thus concludes that the applicant would not have ever voluntarily disclosed that he had used a false identity to last enter Australia. The applicant claims he is remorseful but the Tribunal concludes that this is more a matter of regret at his false identity being discovered.
The applicant has set out his reasons for doing what he has done, suggesting that they are in a sense ‘noble’, in that he did not seek to harm the Australian Government or Australia, but was doing this to support his family in Nepal, his father being deceased, and also for his spouse, who was already in Australia at that time. The representative has suggested that ‘no harm’ has really occurred here.
However, the reality is that the applicant, with the aim of getting a visa to return to Australia by whatever means possible, as quickly as possible, decided to do this by fraudulent means, by obtaining a false identity for himself in Nepal, no doubt with the help of others who trade in this profession. This was ultimately his choice, even though he has explained his motives. After embarking on this path, he has further chosen to use his false identity in later visa applications in Australia, including the visa now being cancelled, until the time his actions were discovered.
In so doing the applicant has undermined the integrity of the Australian migration system. However, rather than there being ‘no harm’ as claimed, the Tribunal considers that his actions have caused serious harm to our migration system.
The Tribunal accepts that there might be a number of consequences to visa cancellation, particularly in relation to his child, if it was likely that he may have to return to Nepal, with or without them, as a result. However, he currently holds a subclass 155 return resident visa and as such, there will not be any such consequences should this subclass 189 visa be cancelled. As the Tribunal has noted, even if his subclass 155 visa is subsequently cancelled, he will have review rights in relation to that visa cancellation.
Thus, in light of the seriousness of his actions, which demonstrate a contempt for Australian migration laws, and his failure to voluntarily disclose his false identity to the Department, and the limited consequences if this visa was cancelled, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.
David Dobell
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:
s.5     Interpretation
(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.
s.97    Interpretation
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).
s.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.
s.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.
s.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.
s.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.
…
s.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.
Section 108 Decision 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.
Section 109 Cancellation 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.
Regulations
Reg 2.41    Whether to cancel visa - incorrect information or bogus document (Act, s109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) 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;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note:    Under s109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.

[2016] AATA 4407

15 September 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice