1725670 (Migration)

[2019] AATA 2350

1725670 (Migration) [2019] AATA 2350 (20 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725670

MEMBER:Catherine Carney-Orsborn

DATE:20 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 186 -  Employer Nomination Scheme visa.

Statement made on 20 March 2019 at 11:35am

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – incorrect information in visa application – bogus documents – false birth certificate and passport – exclusion period not disclosed – effect on dependent's visas – Australian children with special needs – availability of appropriate health services in Nepal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 dependent Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with section 101(b) and therefore cancelled his visa pursuant to s.109. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 6 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, the applicant’s wife’s brother, sister-in-law, the wife’s parents and a family relative. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

5. The applicant’s wife’s visa was cancelled for the same reasons as the applicants shortly after his was cancelled. As the same issues and evidence are relevant to both the applicant and his wife the Tribunal held a combined hearing for both the applicant and his spouse.   

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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?

10. 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.101 in the following respects:

11. On 19 May 2015 the applicant lodged an application through the Department’s online lodgement facility for a dependent ENS Temporary Residence Transition subclass EN 186. 

12. On the completed form under the heading Migrating Family members the applicant listed relationship as Spouse/De facto Partner.

13. He gave his [name as Name 1], Date of birth [Date 1], Passport [number], Country of passport Nepal – NPL, Date of Issue [2009], date of expiry [2019] and Place of issue/issuing authority D.A.O. MYAGDI.

14. In response to the following questions the applicant responded as set out below;

15. “Is this family member currently, or have they ever been known by any other names.”   The answer was “no”.

16. “Is the above information correct”  “yes”

17. Previous countries of residence.  “Have any of the applicant lived in a country other than the primary applicant’s usual country of residence?”  “No”

18. Character declarations, “Has any applicant ever overstayed a visa in any country (including Australia)?”  “No”

19. Declarations:  “have provided complete and correct information in every detail on this form, and on any attachments to it.”

20. On the basis of that information the applicant was granted a ENS Temporary Residence Transition (Web)(EN 186) visa as a dependent visa holder on 11 November 2015.

21. Information on the Department file which was put to the applicant on 1 September 2017 in a “Notice of Intention to Consider Cancellation Under Section 109 of the Migration Act 1958” indicates that there is evidence by way of facial comparison that the applicant and [Name 2] d.o.b. [Date 2] are the same person.

22. Information on the Department file indicates that [Name 2] d.o.b. [Date 2] entered Australia [in] November 1998 on a TE 421 visa.  On 11 January 1999 [Name 2] dob [Date 2] applied for a protection visa which was refused, he applied for a review of that decision and was unsuccessful.  He departed Australia [in] February 2009.

23. During [Name 2] d.o.b. [Date 2] stay in Australia he was unlawful for significant periods of time.  As a result he incurred a three year exclusion period to apply for a visa to Australia from the date he department Australia, being [February] 2009.

24. The notice stated that the delegate considered the applicant has provided incorrect information in the application form lodged with the Department and had failed to comply with section 101(b) of the Act.

25. The notice went into detail in relation to how the applicant could respond to the process and consequences of a visa cancellation.

26. At the hearing and in submissions provided to the Department the applicant agreed that he had provided incorrect information on the application lodgement form.

27. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

28. 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).

29. 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.

30. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

31. The Tribunal took oral evidence and submissions from the applicant.  A summary of the evidence is as follows. 

32. The Tribunal explained the process and that it had the Department file, access to databases and the Tribunal file.

33. The Tribunal detailed that the hearing was the applicant’s opportunity to discuss issues that are relevant to the cancellation.

34. The Tribunal has before it the earlier written submissions provided by the applicant in response to the s.107 notice of intention to cancel. 

35. It also has the reports provided from the applicant in relation to his two children, written statements from the applicant and his spouse, submissions and relevant independent country information on Autism in Nepal.

36. The applicant’s evidence is that he was sorry for the breach however he did it for his family and their future.

37. He outlined his immigration history.  He came to Australia on a tourist visa in 1999.  He applied for protection and was not successful.  He sought a review which was also unsuccessful.  He overstayed his visa.  He was subject to an exclusion period as set out in the Department’s decision.

38. He said he has family in Nepal.  That family is his parents.  He has three brothers in [another country].  His parents reside in Kathmandu.  He states that his father was in the Indian army however he now has an Indian Army pension.  His mother has a farm in the western part of Nepal.  He said they lease out the farm.   His sister-in-law currently looks after his parents. He said that currently they do not need any home help.  His wife’s parents are currently in Australia on a visitor visa.  He said that they live in an area in Nepal which is close to the Indian border.  He claimed that they can move in and out of India.  His wife’s father is also a retired Indian army soldier.  His mother-in-law is a housewife. 

39. The Tribunal asked who funded his wife’s student visa.  He said that her parents did before they were married and then he did after they were married.

40. He claims that he made a mistake when he presented incorrect information.  He said that he has suffered the stress from his mistake.  His eldest child has Autism and the younger child also suffers from a disability.

41. He claims that he cannot return to Nepal as his children will not get the benefit and education that is available in Australia.  He claims he did it for his children’s future and he feels sick and stressed.   

42. In relation to his contribution to the community he said he has a viber group for donations for people in need in Nepal.

43. He said his parents-in-law are in Australia and they help with the children.  He said his eldest child has fortnightly speech therapy for one hour.  He claims that his eldest son also had a special teacher for one hour per week.

44. They have recently moved to another suburb and his eldest child is enrolled in the local public school.  They are trying to arrange services above at the new school.

45. He said they get teacher assistance for one hour a week at school.

46. His wife has one year of [studying Field 1].  She has studied many different subjects and her application was for [Field 2] however she is studying [Field 1] now.

47. The applicant’s wife gave evidence.  She said she was born in Nepal.  She has a brother, older sister and Mother and Father who live in Nepal.  Her parents are currently in Australia on a visitor visa.  Her parents are living with the applicant at the moment and helping out with the children.  She gave evidence that her eldest son has spent time in Nepal when he was two years of age.  She claims he did not like it there.  She claims he did not like the food.  She claims they had to bring bread from the nearest city for him to eat.  She claims he became sick and her parents told her to come and get him from Nepal.

48. She said her parents are on an Indian army pension.  They funded her first student visa for Australia in 2007. 

49. She claims that she did not know that her husband had changed his name and his date of birth on his identity documents.  She claims she did not know his date of birth.

50. She claims that her eldest son has been diagnosed with Autism.  She claims that there are no facilities in Nepal to assist him.  She claimed that he needs to be in a routine and receive support. 

51. She claimed that if she returns to Nepal she cannot be supported and she is studying.

52. Her youngest child has suffered from [a specified condition] and in the past has been hospitalised.  She claims that he is currently being assessed and she will provide a report on his condition after the hearing.

53. She said her eldest son is receiving a fortnightly session.  She said she would like this to be weekly but there is a long wait for services.  She said the sessions go for one hour.

54. The Tribunal pointed out that there was services in Nepal available.  She responded there were no services available.  She said the school system was punishing and he would be seen as lazy. 

55. The Tribunal took evidence from the applicant’s parents-in-law.  They confirmed that they are in Australia on a visitor visa.  They have spent long periods of time in Australia to assist their daughter and her children.  They said it will be difficult when they return to Nepal as the applicant and their daughter are busy with their lives and they help the children.  The mother-in-law said that when they are with the children they are speaking better.  She said that they help with their lessons.

56. They confirmed that they financed their daughter’s student visa to Australia.  They took a loan on their property and the loan has been repaid.  The father indicated that he had been in the army and now received a pension.  He had also spent time in [another country] as a [occupation].

57. The Tribunal spoke to the applicant’s sister-in-law and another relative they both gave evidence that supported the applicant.  They claimed that the children need extra help.  They claim that the applicant and his wife are responsible people who do all the right things.

58. The relative claimed that the applicant’s wife helped her with therapy for her special needs child.

59. The representative asked that the applicant’s parents again give evidence in relation to the applicant’s wife’s knowledge of the incorrect information contained in the application.  The applicant in his statement has claimed that his spouse was not aware that he provided incorrect information as his spouse wanted to return to Australia and he was scared she would not marry him if she knew the truth.  He claims that he did this so he could proceed with the marriage.

60. The wife’s parents said they arranged the marriage between the applicant and his wife.  They claim that they knew the families and they got together to arrange the marriage.

61. They claim that the applicant’s family told them his name and date of birth was the same as what their daughter put in her visa application.  When the Tribunal asked why the groom’s family would give a different name and date of birth from his birth certificate and identity documents when making arrangements for the marriage they replied they did not know why.

62. After the hearing the representative made submissions that the wife did not knowingly provide incorrect and false evidence as she thought the information was correct. She claims that this was the information given to her when she married him.

63. S.100 makes it clear that for the purposes of Subdivision C, an answer to a question is incorrect even if the person who gave it or caused it to be given did not know that it was incorrect.

64. A submission was made that the Tribunal could consider when exercising its discretion whether to cancel the wife’s visa the legal concept of “clean hands”.  The Tribunal has considered the submission and evidence that the wife did not know and was misled by the applicant/her husband as to his date of birth and correct name.

65. The Tribunal does not accept that when arranging a marriage the groom’s family would give incorrect names and date of birth to the Bride’s family.  When asked why they would do this the response was “not sure why” no adequate or convincing reason was given. 

66. The Tribunal finds that the wife’s parents want to assist their daughter to stay in Australia however finds they have not been honest in their evidence in relation to the applicant’s family providing them with a false name and date of birth when they arranged the marriage.  The marriage was an arranged marriage and the families knew each other.  The information provided by the applicants is that the families are related. It would be expected that they would have some knowledge of his birth date given the rituals that are performed in relation to a marriage and the official registration required.

    Nepal’s Marriage Registration Act, 2028 (1971), sets out the steps to be taken by a couple prior to a Marriage Registration Officer issuing a marriage certificate to the parties to the marriage.[1] The Marriage Registration Rules, 2028 (1971) also sets out the registration procedure prior to the issuing of a marriage certificate.[2]

    [1] Marriage Registration Act, 2028 (1971), (Nepal), Nepal Law Commission < Accessed 11 May 2012 <Attachment>

    [2] Marriage Registration Rules, 2028 (1971), (Nepal), Nepal Law Commission < Accessed 11 May 2012 <Attachment>

67. The Tribunal does not accept that applicant’s assertion that his wife did not knowingly provide a false birth certificate and passport for the applicant in her application for a visa.

68. After the hearing further information and documents were provided.

69. These include reports from medical practitioners including speech pathologists and occupational therapists.

70. Information was also forwarded which indicates that the funding has been approved for the eldest son for one year until May 2019.  The amount is $12,886.56.

71. The reports from the health practitioners indicate that the eldest child dob [date] has been diagnosed with Autism Spectrum Disorder.

72. The reports indicate he suffers from impaired language skills.  It is recommended he have weekly speech pathology sessions, the occupational therapist recommends fortnightly sessions.  A physiotherapist recommends fortnightly sessions build on his gross motor skills.

73. The younger child dob [date] has been diagnosed as also being on the spectrum.  The medical service providers have recommended early intervention services.

74. The Tribunal has also received and considered statements of support from the applicants’ relatives and friends.

    Independent Information 

    Special School for Disabled and Rehabilitation Center (SSDRC)
    a non-governmental and non-profit making, registered center for Children with Autism Spectrum Disorder (ASD) that was established in 2010-October by Ms Sabita Upreti to provide special education, Therapeutic and related services from deprived family of Nepal.

    Autism Care Nepal Society
    Nepal Society (ACNS) was founded on 2nd April 2008 on the occasion of the World Autism Awareness Day. It is the only active autism organization in Nepal that is run by passionate parents that care for persons with autism. It is a non-governmental, nonprofit making, non-political NGO registered in District Administration Office (Regd. No. 1067/2065) and affiliated to Social Welfare Council (SWC No: 25314). Has a list of research projects here plus the attached Ryan article.

    JNHRC Vol. 16 No. 2 Issue 39 Apr - Jun 2018
    Perceived Burden in Caregivers of Children with
    Autism Spectrum Disorder
    Shrijana Pandey,1 Chandrakala Sharma21Department of B.Sc. Nursing, Kathmandu Medical College, Kathmandu University, Kathmandu, Nepal,

1. The Tribunal has considered all the evidence.

   The correct information

2. The correct information is that the applicant [Name 2] dob [Date 2] had previously been in Australia from 1998 till 2009, he had previously applied for a protection visa and review and was unsuccessful, he was unlawful for over seven years, a significant amount of time and was the subject of a three year exclusion period from the date he departed Australia being [in] February 2009.

3. As set out in the Department’s decision record the applicant and his spouse left Australia [in] February 2009 on the same flight.  They married in Nepal on 26 February 2009.  The applicant was granted a subclass TU 572 student visa on 25 May 2009 as a dependent of his spouse using the same false identity documents he used in all the visa applications since his exclusion period stated being [in] February 2009.  He re-entered Australia [in] December 2009.  

4. He provided a false identity to enable him to re-enter Australia as dependent on his spouse’s visa.   

   The content of the genuine document (if any)

5. His genuine passport and identity documents would have indicated that he was not the person listed in the application.

   The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document

6. The delegate would have considered the applicant’s immigration history, exclusion period and previous breaches and may not have granted the visa. 

   The circumstances in which the non-compliance occurred

7. The non-compliance occurred when the applicant was providing information and documents in the application for the grant of visas to re-enter Australia.

8. As outlined and considered above the applicant provided evidence that his spouse wanted to live in Australia.  He was under pressure as he was scared that his marriage would end if he told her he could not go to Australia.  He claimed that his wife did not know he was not using his real identity. 

9. He claims that his wife did not know his true identity or his immigration history.  The Tribunal finds this claim disingenuous as it was an arranged marriage and the families knew each other.  They are related and went through the involved customs which involve two families joining together.  They also registered their marriage in Nepal and would have had to provide details.

10. The Tribunal has also considered information on the Department file and set out in the decision record that that the applicant and his now spouse both left Australia together soon after the applicant incurred a three year exclusion period.  Information on the Department file and set out in the department’s decision states that they left Australia together on the same flight.

11. The applicant was made the subject of an exclusion period when he departed [in] February 2009.  He departed on the same flight as his now spouse [in] February 2009.  They married in Nepal on 26 February 2009.   The applicant’s now spouse was granted a further student visa on 25 May 2009.  All subsequent visa applications contained the incorrect information in relation to the applicant and he re-entered Australia [in] December 2009 as a dependent on his now spouse’s visa. 

12. The applicant at hearing stated that he provided false identity documents as he just wanted to help his family.  He first provided false information in relation to his identity, previous stays in Australia and his immigration history soon after his exclusion period in 2009.  At that time he did not have any children.

13. He claimed that he did this as his son would have no support in Nepal.  The applicant applied for the visa in May 2015.  He provided the false identity information on the application for a visa at that time.  On the medical reports provided the applicant’s son was not diagnosed with Autism until after the information was provided in 2016.

14. The Tribunal accepts that the applicant wants to have a better future for himself and his family but does not accept that he did it to access services for his children as the eldest one was not yet diagnosed and the younger one was not born.

    The present circumstances of the visa holder 

15. The applicant’s present circumstances are that he has a wife and two children in Australia.  One of the children was born during the period that the applicant held a permanent residency, before it was cancelled, and has been registered as an Australian citizen.

16. The children eldest child has been diagnosed with Autism Spectrum Disorder and global Developmental Delay – estimated in the Mild range.  The doctor’s report goes on to say that early intervention and therapy will improve his developmental outcomes.  The report prepared for and addressed to the Department of Immigration states that if the family return to Nepal he will not be able to access a program of therapy as Nepal does not have Speech Pathologist, Occupational Therapists or support workers in school who are able to implement therapy strategies.  The doctor does not say on what evidence they formed the conclusion that there are none of the above services or professionals in Nepal.

17. A simple google search indicates there are speech pathologists, occupational therapists and support services in Nepal.

18. Further updated medical reports were provided to the Tribunal after the hearing.  Reports were provided in relation to the youngest child born in [year].  The report states that he has been assessed as having Autism Spectrum Disorder and Global Developmental Delay.  It states he will require a significant amount of therapy and support.  The Tribunal has considered those reports.  They are not specific as to what level of support is required.  The Tribunal accepts that the health practitioners want to assist the applicant to stay in Australia as the letters are addressed to the Tribunal and Department of Immigration. 

19. The Tribunal has before it independent country information which indicates that there are services in Nepal available to Autistic children.

20. The evidence from the occupation therapist in Australia states that the eldest child attends a mainstream public school.  The report refers to a moderate-severe developmental language disorder.  The report states that he would benefit from speech therapy and assistance in the classroom. 

21. The applicants’ evidence is that the child receives an hour of occupational therapy a fortnight.  He receives help from a teacher’s aid for one hour a week.  He attends a mainstream state school.

22. The Tribunal is not satisfied that this is an intensive amount of support that cannot be given in Nepal. 

23. The applicant’s parents in law have been providing assistance; they are on visitor visas when they return to Nepal the family will lose that support if they remain in Australia.   They will receive that support if they return to Nepal with the grandparents.  Country Information indicates there are services that can be accessed this is especially so if the family have financial resources to pay for those services.

24. The mother is educated and well aware of the children’s needs; she will be able to provide the necessary care and attention.  Evidence was provided from a family friend who states that the mother provides advice to other mothers of children with needs such as hers have.  The family of the mother of the children have financed their daughter’s education in Australia which is a substantial financial cost.  They have travelled regularly to Australia.  The applicant’s parents own land in Nepal which they lease out.  The Tribunal is satisfied the applicant has access to financial resources and will be able to source assistance at the level provided in Australia. 

25. They have purchased a house in Australia.  On the evidence before the Tribunal including bank statements it appears that the applicant has paid down a substantial amount of the mortgage.  The house could provide an income in Australian dollars in the way of rent or equity which could be used to assist them to re-establish themselves in Nepal and provide services to their children.

100.   The applicant’s spouse has been able to maintain continuous funding for studies in Australia since 2007 and is currently studying [Field 1].  This requires substantial financial resources. 

101.    The Tribunal accepts the applicant has a successful [business] and pays tax. 

102.   The applicant and his spouse are relatively young and the children are still at an age when they will be able, with the support of their parents, re-integrate into their home country.  They mix with the Nepalese community in Australia and still have very strong bonds with Nepal.

103.   The applicant, his spouse and her parents gave an example of the eldest child not being happy in Nepal once before.  The child was two years of age and the examples given were that he did not like the food.

104.   This is not strong evidence that Nepal is not safe for him.  The child has been raised in a Nepalese family with his grandparents.  It is not unusual for children to be fussy eaters.

105.   No independent evidence was given in relation to the eldest child’s experience in Nepal.  The Tribunal accepts he may have been unhappy as a two year old left without his main carer (his mother) but does not accept that this is a strong indication of any danger to him. 

106.   The grandparents have shown they were willing to assist the applicant stay in Australia when they gave evidence, which the Tribunal does not accept as credible, about not knowing the true name and date of birth of the son-in-law.  The Tribunal finds that they have exaggerated the experience of the eldest son when he was first left with his grandparents in Nepal. 

107.   The evidence is that he is currently living with them in Australia and they are providing support and care.

108.   The Tribunal accepts that it is important for a child on the spectrum to have a routine. The Tribunal is satisfied that the grandparents with the parents could continue to provide that support, routine and care in Nepal.

109.   On the evidence before it the Tribunal is satisfied that the applicant has support in Nepal from family and would have financial resources available to him and his family.  The Tribunal is further satisfied that he would be able to find employment in Nepal.

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

110.   His subsequent behaviour is that he has admitted his non-compliance and in response to the Department’s s.107 letter states he regrets his behaviour.

111.   He claims he only did it to help his family.  At the time of the present non-compliance his children were not diagnosed as having special needs. 

112.   The Tribunal accepts he wanted a better life for his children

113.   However the Tribunal is satisfied that the applicant provided incorrect information and did not make efforts to give the correct information or correct the bogus document prior to being contacted by the Department and receiving the s.107 letter.  

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

114.   The applicant was previously in Australia unlawfully for over seven years between 2002 to 2009.  He was the subject of an exclusion period in 2009.   He has shown a strong and calculated disregard for Australia’s law and regulations.

The time that has elapsed since the non-compliance

115.   It has been just over three years since the non-compliance.  The applicant has continued to work.  He has enrolled his children in state school and purchased a property.  These are actions that he undertook voluntarily.  In a global economy many families relocate for periods of time for the purpose of work.

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

116.   There have been continuing breaches of immigration law.  The Tribunal is not aware of any other breaches of the law.

Any contribution made by the holder to the community

117.   The applicant states he has been in Australia since 2009.  He has a successful [business] and claims he pays tax.

118.   In submissions it is claimed he is involved in community activities.  Those activities appear to be in connection with the Nepalese community. 

119.   The Tribunal accepts all the above however has weighed it against the gravity of a person in undermining in a calculated and sustained way the integrity of the immigration system.

120.    The Tribunal does not consider his working, receiving remuneration for his work and establishing a family in Australia to be a significant contribution and gives it little weight.

121.   The Tribunal has considered whether there are persons in Australia whose visas would, or may, be cancelled under s.140.  There are no other persons in Australia whose visas would or may, be cancelled as a result to the cancellation of the applicant’s visa.

122.   There are mandatory legal consequences to a cancellation decision.  A decision to cancel would have consequences on the applicant’s future visas that he may apply for.  It could also result in him having to return to Nepal.  The Tribunal has considered the consequences for the applicant and weighed it up against the evidence as outlined above. 

123.   The Tribunal has found that the applicant misled the Department by providing incorrect information and false documents. 

124.   The Tribunal has carefully considered all the evidence he has provided above.   In particular the Tribunal has considered the effect on the applicant’s dependent children.  The children’s visas are not dependent on their father’s visa however the applicant’s spouse has indicated that they would return to Nepal together.  The Tribunal has considered the special needs of the two children including the NDIS package of over $12,000 which was given to the eldest boy for one year ending May 2019.  This package was to assist with his therapy from May 2018.  His therapy as outlined by both his parents is one session for an hour a fortnight and one hour with assisted reading in his mainstream school.

125.   The medical reports have voiced an opinion that there are no or insufficient services in Nepal.  The Tribunal does not have any information on what that opinion is based.  The Tribunal does not accept this.  Independent Country Information indicates there is an awareness of Autism in Nepal and services are available.  The Tribunal accepts that disadvantaged persons may not be able to access these services however finds that the applicant and his family are not in that category.    

126.   The Tribunal has considered evidence of the families substantial financial resources and finds that first world medical services are available in Nepal as in many other countries for families that have the financial resources and education to source and pay for the services.

127.   The applicant and his family remain connected with the Nepalese community in Australia and the wife’s parents are frequent visitors to Australia and gave evidence of the therapy and assistance they provide to the children.  The Tribunal is satisfied that the family is committed to the children and if they choose to return to Nepal as a family unit they will provide appropriate care and therapy.

128.   The Tribunal has carefully considered that the younger child who is over two years of age was born in the short period when the parents had a permanent visa.  They registered the child as an Australian citizen.  They have since provided evidence that he needs special therapy and assistance.  The Tribunal has found that therapies can be provided in Nepal.

129.   The Tribunal considers the age of the child and that his parents have indicated that he would return to Nepal with him.  They claim that as an Australian citizen he needs the services in Australia.  At his age the Tribunal is satisfied he can access appropriate services in Nepal and it is in his interests to be with his parents.  Many individuals carry dual citizenship and this can be of a benefit to the child when he is older and may want to study or return to Australia in the future.

130.   The Tribunal gives the behaviour and misleading conduct outlined above indulged in by the applicant significant weight as it indicates an intentional willingness to circumvent the requirements of the Australian Migration Act and Regulations.  The behaviour shows a planning and execution that took some time and effort to mislead the authorities in Australia.  He procured false identity documents and provided incorrect information on the visa applications.  This started in 2009 when he re-entered Australia months after being the subject of an exclusion order which was imposed due to his being here illegally and his disregard of the migration law and regulations. 

131.   The Tribunal has considered the needs of the young children however after carefully weighing up all the circumstances is not satisfied that these factors alone ameliorate the serious and sustained breach and non-compliance by the applicant.

132.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

133.   The Tribunal affirms the decision to cancel the applicant’s Subclass 186 -  Employer Nomination Scheme visa.

Catherine Carney-Orsborn
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)      purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)      giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)      visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.