1732393 (Migration)

1732393 (Migration) [2018] AATA 5364 (26 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1732393
MEMBER:K. Chapman
DATE:26 November 2018
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 26 November 2018 at 9:45am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in visa application – consideration of discretion – credibility issues – expansive and repeated dishonest conduct – marital status – parentage of children – residential history in Africa – grant of visa and immigration clearance based on false information – integrity of visa program – best interests of children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 104, 107, 109
CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
BCR 16 v Minister for Immigration and Border Protection [2017] FCAFC 96
COT15 v MIBP (No.1) [2015] FCAFC 190
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Le [2016] FCAFC 120
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

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (‘the Act’).
The [applicant] is a [age] year old national of Somalia. According to the delegate’s decision, the applicant was residing in [Country 1] when he was sponsored by his brother for an offshore Subclass 202 Global Special Humanitarian visa on 29 July 2008. Two previous visa applications by him for a Subclass 202 visa were refused in 2006 and 2007 respectively. The third application for the Subclass 202 visa was successful and the visa was granted on 15 March 2011. The applicant arrived in Australia [in] May 2011 as the holder of a Subclass 202 visa. The grant of a Subclass 202 visa includes an assessment of, inter alia, whether a visa applicant is subject to substantial discrimination amounting to a gross violation of human rights, the degree of such discrimination and the extent of their connections with Australia.
The delegate determined that the applicant applied for the Subclass 202 visa on the basis of being a single man with no children, whose only known living relative was his brother, [Mr A], who resides in Australia. The delegate recorded that on 25 February 2013, the applicant then attempted to sponsor his wife, [Ms B], for a Subclass 309 Partner visa, along with nine of his biological children. According to the delegate, the applicant was married to in [Country 1 in] May 2007 and his children were born to four different mothers between [year] and [year]. The delegate also found that the applicant had two other wives, [Ms C] and [Ms D], whom he claimed he was separated from at the time of his visa sponsorship for his wife [Ms B].
The delegate noted that the Partner visa application for [Ms B] was refused on 2 November 2013 on the basis that she provided false or misleading information by fabricating that the applicant had separated from [Ms C] and [Ms D] in order to suggest she had an exclusive relationship with him. Further, it was noted that [Ms B]’s Partner visa was also refused on the basis that her claim of having care of [all] of the applicant’s children was not credible. The delegate also recorded that the applicant sought review of the Partner visa refusal in the Tribunal (differently constituted) however that decision was affirmed in 2015. On 21 April 2017, the applicant was granted a Subclass 155 Resident Return visa.
The delegate determined that the applicant provided inconsistent information in his Subclass 202 visa application of 29 July 2008 and in his sponsorship of [Ms B]’s Partner visa in 2013 with respect to his marital status, family composition, residential history in Africa (particularly regarding the year he departed Somalia) and his claims of fearing harm in Somalia. On 9 October 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 155 visa on the basis that he failed to comply with section 101(b) of the Act, in that he provided incorrect answers with respect to the aforementioned matters in his successful Subclass 202 visa application. The applicant responded to the NOICC on 23 October 2017. He was represented in relation to that response. On 18 December 2017, the delegate cancelled the applicant’s Subclass 155 visa. On 20 December 2017, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with his application.
The applicant appeared before the Tribunal on 18 October 2018 and 24 October 2018 to give evidence and present arguments. He initially wished to call his brother to provide oral evidence, then subsequently indicated he did not wish to call him. Ultimately two additional witnesses gave oral evidence to the Tribunal, [Ms E] and [Mr F]. The Tribunal hearings were conducted with the assistance of an interpreter in the Somali and English languages. The applicant confirmed he understood the interpreters and that he was well enough to give his evidence. The applicant was represented in relation to the review by his registered migration agent. Written submissions and evidence were submitted to the Tribunal prior to both hearings and have been duly considered.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
ISSUES AND LAW
The issues in the present case are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.
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 entry 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 and 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.
By virtue of s.107A of the Act, the possible non-compliances that may be specified pursuant to s.107 include non-compliances in respect of any previous visa held by a person.
CONSIDERATION OF CLAIMS AND EVIDENCE
Pre-hearing submissions
On 16 October 2018 at 10:58pm submissions and evidence were received for the scheduled hearing on 18 October 2018. These included the written submission of the registered migration agent, statement of the applicant and a letter dated 5 October 2018 from [Mr G] of [a named association]. In summary, this material contends that although there was “partial non-compliance” by the applicant with s.101(b) of the Act, his Subclass 155 visa should not be cancelled because a portion of the alleged non-compliance (pertaining to the applicant’s claimed fears of returning to Somalia) did not occur and discretionary factors, such as his contribution to the Somali community in Australia and his family circumstances, weigh against cancellation. For completeness, the Tribunal also notes that on 17 October 2018 at 3:22pm it received an email from the representative clarifying that the applicant and his purported current partner are in a de facto relationship rather than being legally married. The Tribunal accepts that the applicant is not currently legally married, although he believes that culturally he is in fact in a marriage like relationship. The Tribunal has carefully considered all material submitted in the pre-hearing submissions.
Evidence at the first review hearing – 18 October 2018
The applicant’s oral evidence to the Tribunal may be summarised as follows. He confirmed his statement of 16 October 2018 submitted to the Tribunal is true and correct. The applicant was invited to comment upon the NOICC sent to him by the Department and his response to it. He informed the Tribunal that his then lawyer missed out some information in the response. That information concerned the applicant’s purported partner in Australia and their child together. The applicant also claimed that this lawyer misunderstood the chronology provided by him regarding his circumstances in Africa. The applicant advised that he did not return to Somalia after 1991 (which is germane to his claims for protection). He maintained that the mother of one of his children ([Ms H]) was forced to return to Somalia to give birth in 2002, as her family were upset with their union, following which she returned to the applicant in [Country 1] and gave the child back to him ([Master I]). The applicant confirmed that he read the delegate’s decision to cancel his visa. He contended that the cancellation arose from inconsistent information provided to the Department and that they failed to understand why such information was provided.
The Tribunal drew to the applicant’s attention that the delegate’s decision, at pages nine to eleven, contains fifteen dot points noting his possible non-compliance with s.101(b) of the Act. The applicant conceded that he provided incorrect information with respect to his marital status (by lying about having never having been married or in a de facto relationship) and his parentage of children (by lying that he never had any children). He confirmed that the delegate was correct in concluding that at the time of his Subclass 202 visa application he had three wives and five children to four mothers, and in addition he fathered four more children prior to the grant of this visa, therefore providing incorrect answers to questions in that visa application, associated documents and during a Departmental interview. For the sake of completeness, the applicant’s admissions relate to the delegate’s determinations at dot points one to four, ten to twelve, and fourteen in the visa cancellation decision record.
The applicant denied that he provided incorrect answers in relation to his claims for protection, including his residence history in Africa. The Tribunal drew to his attention the conclusions of the delegate regarding these matters at dot points five, six, seven, eight, nine, thirteen and fifteen of the visa cancellation decision record. The delegate determined that in the Subclass 202 visa application (including the associated documentation and at Departmental interview) the applicant claimed he fled Somalia in 1991 during the civil war due to fearing for his life as a member of the Madhiban clan and due to the risk of revenge attack from people his brother reported to the police for fraud, then he moved to [Country 2] where he remained until around 2004 or 2005, following which time he moved to [Country 1]. Further, the delegate determined that in his sponsorship of [Ms B] for a Partner visa in 2013, the applicant indicated he lived in Somalia from birth until 2005 at which time he moved to [Country 1]. The delegate noted that the applicant’s first child was born in [date] in Somalia and concluded this called into question his earlier claim of fleeing Somalia in 1991. Additionally, the delegate noted that in the Partner visa sponsorship, the applicant did not declare any period of residence in [Country 2].
The applicant denied that his 2008 claims for protection, including his residence history in Africa, were false. He attributed the inconsistency in the information he later provided in 2013 for the Partner visa sponsorship to errors on the part of his then lawyer. The applicant contended that the birth of his first child in Somalia was due to the mother being forced to return there from [Country 1] and he indicated he did not return to Somalia with her. He also contended that her family beat him up at that time.
The Tribunal raised with the applicant that the delegate’s visa cancellation decision indicates in his Form 40SP, used to sponsor [Ms B] for the Partner visa, that he indicated he lived in Somalia from birth until 2005, which tends to suggest that he did not depart Somalia in 1991 and it casts doubt about his claims to fear harm in Somalia. The applicant was invited to comment and replied that he didn’t say he lived in Somalia until 2005. He contended that he departed Somalia in 1991 and that if he had waited until 2005 he would have had no reason to flee that country.
The Tribunal raised with the applicant that the delegate’s visa cancellation decision indicates his first child, [Master I], was born in Somalia on [date] which tends to suggest that he did not depart Somalia in 1991 and it casts doubt about his claims to fear harm in Somalia. The applicant was invited to comment and replied that he has sworn to tell the truth so he confirms the child was born in Somalia. However, he denied being present and indicated the mother was taken there by force. When asked by the Tribunal when he next saw the mother and the child, the applicant responded that “her family told her to give the child back so she brought it back and left.”
The Tribunal raised with the applicant that given his oral evidence that he failed to declare his three wives and multiple children in his Subclass 202 visa application, it might have difficulty accepting that he was truthful in relation to the other aspects of that application where he denies being dishonest. The applicant was invited to comment and replied that he agreed it would be difficult to accept him as truthful, however he indicated that he talked about the difficulties and problems which are the reasons for his prior dishonesty.
The Tribunal raised with the applicant that the evidence before it tends to suggest the ground for visa cancellation exists in that incorrect answers have been given or provided in the manner outlined by the delegate, inviting his comment. The applicant indicated that he understood, however he maintained that he faced discrimination and risk on account of his tribe and as an individual which made it dangerous for him to return to Somalia. He advised that he couldn’t be forthcoming about his relationships when he was in [Country 1] because in doing so it could cost him his life. Therefore, he waited to get to a place where he could tell the truth according to him.
When asked by the Tribunal why he provided incorrect information to the Department in relation to his Subclass 202 visa application, the applicant indicated that it was very dangerous to be truthful even to the person helping to fill out the form. He did not want to put himself at risk or be questioned as his wives were not under his care at the time and he didn’t reside with them. He reiterated that he didn’t trust the person filling out the visa application and he wanted to be safe about this.
The Tribunal raised with the applicant that his failure to provide truthful information in relation to his Subclass 202 visa application might tend to weigh in favour of cancelling his visa, inviting his comment. He agreed that he had lied about some things and gave the reasons for this. The applicant indicated that when he came to Australia he started mentioning the truth. He didn’t agree that he provided incorrect information in relation to the other matters concerning his claims for protection and residence history. He added that only when in Australia did he feel safe enough to tell the truth.
The Tribunal raised with the applicant that his failure to provide truthful information in relation to his Subclass 202 visa application might tend to suggest that the decisions to grant him Australian visas and immigration clear him were based wholly or partly on incorrect information and this might tend to weigh in favour of cancelling his visa. The applicant was invited to comment and responded that at the time he was choosing between lying and death. He chose to lie so he could live and now in Australia he has no problems.
When asked by the Tribunal, the applicant confirmed that he had fathered children after he applied for the Subclass 202 visa in July 2008 and before he came to Australia in May 2011. He also confirmed he had not declared these children to the Department as soon as practicable after their births. The Tribunal raised with the applicant that the evidence tends to suggest that his failure to declare his change in circumstances regarding these children as soon as practicable demonstrates a breach of his obligations under s.104 of the Act, inviting his comment. He replied that he didn’t know of these requirements at the time. The applicant added that there were other incidents he didn’t notify to the Department such as when he was assaulted and his mobile phone was taken from him. The Tribunal raised with the applicant that the evidence regarding his failure to notify his change in circumstances might tend to weigh in favour of cancelling his visa, inviting his comment. The applicant replied, “that is possible.”
When asked by the Tribunal if he held a visa currently, the applicant advised that he held the visa he travelled to Australia on and confirmed that he had not approached the Department to obtain another type of visa following the cancellation of his Subclass 155 visa. The representative was invited to make submissions but was unsure what visa the applicant might hold. She undertook to provide further information about this matter (which was done in a post hearing submission). The Tribunal raised with the applicant that it appeared he hasn’t held a visa since his Subclass 155 visa was cancelled on 18 December 2017 and if this is the case it tends to demonstrate other instances of non-compliance by him. The applicant was invited to comment and advised that following receipt of the visa cancellation letter his lawyer organised his appeal but he was never told to apply for another visa. He indicated he thought he held a visa but confirmed he never received a letter saying he had another visa.
The Department of Immigration and Border Protection [file], in relation to the applicant’s Subclass 202 visa application, contains a certificate pursuant to s.376 of the Act dated 5 September 2018. It is signed by a delegate of the Minister and the Secretary. The certificate indicates that material in the file at folios 78, 80, 91, 92 and 93 should not be released as it is information provided to the Department in confidence and also as it would be contrary to the public interest because ‘it may divulge Departmental investigative methods.’ At the review hearing the Tribunal provided a copy of the certificate to the applicant. The Tribunal invited submissions on the validity of the certificate, with the representative indicating that it appeared to be valid.
After consideration of the aforementioned submissions, the Tribunal advised that it had formed the preliminary view that the material concerns a security assessment of the applicant which is not relevant to the review and accordingly it proposed to place no weight upon the material. The Tribunal invited submissions on this matter and none were made. Accordingly, the Tribunal has placed no weight upon the material covered by the s.376 certificate dated 5 September 2018 as it is not relevant to the review.
The Tribunal notes that a Certificate pursuant to s.375A of the Act dated 16 September 2014 is contained in Departmental [file], in relation to [Ms B]’s Partner visa application. It is signed by a delegate of the Minister and the Secretary. The Certificate indicates disclosure of certain material would be contrary to the public interest because of the following reasons:
·‘Folios 263-265 and folios 301-308 contain a copy of an integrity report issued by the [City 1] Verification and Integrity Unit (VIU) which outline the type of fraud patterns identified in applications lodged by Somali nationals at the [City 1] visa office. The folios also refer to types of integrity checks and if this information were to become known it could jeopardise ongoing Departmental investigations.’

During the review hearing, the Tribunal provided a copy of the s.375A Certificate to the applicant and invited submissions upon its validity. The representative indicated that it appeared to be valid. After consideration of the aforementioned submissions, the Tribunal advised it held the preliminary view that the Certificate is valid given public interest grounds are specifically stated. However, the Tribunal also advised that the material concerns integrity checks of the Somalia caseload and of the applicant which are not relevant to the review and accordingly it proposed to place no weight upon the material. The Tribunal invited submissions on this matter and the representative indicated they had none and were happy if the material is not relevant. Accordingly, the Tribunal has placed no weight upon the material covered by the s.375A certificate dated 16 September 2014 as it is not relevant to the review.
For completeness, the Tribunal also notes that Departmental [file] contains a certificate dated 16 September 2014 revoking an earlier s.375A certificate dated 3 November 2013. The Tribunal provided a copy of the revocation and original certificates to the applicant during the hearing. The Tribunal also noted that it proposed to place no weight upon any of the material said to be covered by the revoked Certificate as it is not relevant to the present review. Further, the Tribunal advised the applicant that it obtained his Subclass 202 visa application file and the Partner visa application file for [Ms B] by issuing Summons for them. The Tribunal provided a copy of these Summons to the applicant and invited submissions on the material related to the revocation and the Summons. The representative indicated they had no submissions to make. Accordingly, the Tribunal has placed no weight upon the material covered by the revoked Certificate as it is not relevant to the present review.
Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:
·the Departmental [file], in relation to the applicant’s sponsorship of [Ms B] for a Partner visa, contains a Statutory Declaration from him dated 13 February 2013 in which he claims to have been married to her, [Ms C] and [Ms D]. He also claimed that an earlier girlfriend [Ms H] is deceased. The applicant had children to all of these women. He also claimed in around May 2010 that [Ms C] and [Ms D] separated from him and left their children in the care of [Ms B] and from that time he was in an exclusive relationship with her. The Departmental file also contains a copy of the delegate’s decision dated 2 November 2013 to refuse to grant that Partner visa on the basis that false and misleading information had been provided regarding the separation of [Ms C] and [Ms D] from the applicant. The delegate found this claimed separation from the applicant and these two women was fabricated; and
·on 21 May 2015 the applicant appeared before the Tribunal (differently constituted in matter 1400097). He told the Tribunal then that he was separated from [Ms C] and [Ms D], he was in an exclusive relationship with [Ms B] and that she had care of all of his [children]. The Tribunal did not accept the applicant’s evidence on these matters and found that false information had been provided in relation to them. The Partner visa refusal decision was affirmed by the Tribunal on 1 September 2015.
The Tribunal indicated the above information is relevant to the review as it tends to suggest that the applicant has been involved in dishonest behaviour in relation to his attempt to sponsor [Ms B] for a Partner visa, he has been involved in repeated dishonest behaviour in interactions with the Department and the Tribunal, and it casts doubt upon his credibility. The Tribunal indicated that if it were to rely upon the s.359AA information it would be the reason or part of the reason to affirm the decision under review. The applicant confirmed that he understood why the information is relevant to the review. The applicant was offered an adjournment before commenting on or responding to this information, however he chose to respond immediately. The applicant indicated that the other two women ([Ms C] and [Ms D]) were under pressure from their relatives and tribes so they decided to give up their children and walk away, with the children ending up with [Ms B]. The applicant advised that he did not lie about this and the children were presented to the Australian High Commission in [City 1] for medical assessment. He claimed that they saw [Ms B] caring for all of the children. The applicant added that whilst he accepted his past lies, he would not lie from now on and would tell everything as it is. The Tribunal has very carefully considered the applicant’s response to the s.359AA information.
Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:
·the Departmental [file], in relation to the applicant’s sponsorship of [Ms B] for a Partner visa, contains a Statutory Declaration from him dated 13 February 2013 in which he claims to have had a girlfriend and boyfriend relationship with [Ms H], that she is the mother of his son [Master I], that she died in 2003 due to malaria and that his son has been with him since she died when he was around [age]. In relation to the applicant’s sponsorship of that Partner visa application he also indicated that he lived in Somalia from his birth in [year] until 2005 and then he lived in [Country 1] from 2005 until 2011;
·the applicant submitted with his response to the NOICC a Statutory Declaration dated 23 October 2017. In that Declaration he indicated he lived in [Country 2] from 1991 to 2004, and “I went to [Country 2] with my wife and when she was pregnant, she moved back to Somalia to give birth and then returned to [Country 2] and stayed with me”;
·the applicant submitted a statement to the Tribunal on 16 October 2018 (which he advised in oral evidence is true and correct) in which he indicates he fled Somalia in 1991, lived in [Country 2] between 1991 and 2000 and moved to [Country 1] in 2000. He indicates he was married to [Ms H] in [Country 1] in 2002. He also indicates he was beaten by [Ms H]’s family because they were unhappy with their relationship, and they also beat her and forced her to return to Somalia to give birth to their son [Master I]. The applicant also indicates that when [Ms H] returned from Somalia she returned his son to his care because it was the only way she could gain acceptance from her family; and
·the applicant advised in oral evidence that [Ms H] was forced by her family to give birth in Somalia and she brought the child back and the left.
The Tribunal indicated the above information contains significant inconsistencies. For example, in the applicant’s earlier information he made no reference to his claim of harm at the hands of [Ms H]’s family and gave different reasons as to how their son [Master I] came to be in his care. He also gave inconsistent dates and places of residence. The Tribunal indicated the information is relevant to the review as it tends to suggest that the applicant has been involved in repeated dishonest behaviour in relation to his interactions with the Department and the Tribunal, it tends to undermine the strength of his claims of facing harm if he returns to Somalia or [Country 1] and it casts doubt upon his credibility. The Tribunal indicated that if it were to rely upon the s.359AA information it would be the reason or part of the reason to affirm the decision under review. The applicant confirmed that he understood why the information is relevant to the review. The applicant was offered an adjournment before commenting on or responding to this information, however he chose to respond immediately.
The applicant indicated that he came to [Country 1] in 2000 then departed in 2003, attributing discrepancies with the dates to limited English language ability and misinterpretation. He advised that [Ms H] was under pressure from her family to go back to Somalia to give birth there. Following this the child was given back to him and he thought she had died. The applicant indicated that her death was reported to him, he was not there when she died, he had to accept what he was told about the cause of death and he can’t confirm the exact reasons for her death. The applicant maintained that he never said he was married to [Ms H], their relationship started in [Country 1] and perhaps it was mixed up regarding whether the relationship took place in [Country 1] or [Country 2]. The Tribunal has very carefully considered the applicant’s response to the s.359AA information.
The Tribunal asked the applicant to outline his present circumstances. He advised that since his Partner visa sponsorship of [Ms B] was refused their relationship started getting worse. Apparently [Ms B] was angry. She threatened to give his children back to their mothers in the refugee camps and indicated it would be up to him to help them. Apparently [Ms B] told the applicant she would send him a divorce letter, which made him feel stressed. The applicant told the Tribunal that he “then became friends with [Ms E”]. He stated that they now live together, have a child and he has no more partners overseas. The applicant added that he helps his children with what he has when he can.
When asked by the Tribunal if he had returned to [Country 1] since his arrival in Australia, the applicant indicated that he did so after “relationship turbulence started” and following receipt of a divorce letter from [Ms B]. He told the Tribunal that he “went to [Country 1] to try and save the relationship.” Apparently [Ms B] was not interested in that and wished him good luck. The applicant remained in [Country 1] trying to persuade her for around two weeks but their relationship could not be saved. The applicant visited his children in [Country 1] and their mothers asked for his help. The applicant advised that if he helps the mothers then they have no problem with him. The applicant confirmed that his trip to [Country 1] took place [in] October 2017. The applicant confirmed to the Tribunal that during this visit he tried to save his relationship with [Ms B]. The applicant departed [Country 1] after ten days because he received an email from the Department indicating that his visa (Subclass 155) was to be cancelled and he required help to respond.
The applicant outlined that currently he works as [Occupation 1] seven days per week during the evening. His shifts are approximately eight hours in duration from commencement between 5pm and 7pm. When asked by the Tribunal to outline his daily routine, the applicant advised that upon finishing work in the morning he returns home to sleep. When he wakes up he helps his current partner, [Ms E], with her other children from different fathers. She takes the children to school and he conducts cleaning and washing. The applicant indicated [Ms E] has ten biological children, including a [age] year old son being their child together. That child and [other] of [Ms E]’s children reside with the applicant and her. The other two of [Ms E]’s children are adults with their own families. One child, who is [age] years old, still lives with the applicant and [Ms E] as he has an illness arising from [a virus]. The applicant described the illness as [Medical Condition 1]. The applicant confirmed there are ten persons presently residing in their current residence. He confirmed he was prepared to undergo DNA testing with respect to his paternity of the [age] year old child, [Master J].
When asked by the Tribunal to outline his relationship with [Ms E], the applicant explained that they met in 2015 whilst he worked as [Occupation 2] in the Somali community in [Australian State 1]. They apparently commenced their relationship in early 2016. The applicant told the Tribunal that he and [Ms E] commenced cohabitation in her residence on 19 September 2018. When asked why he moved in with her approximately one month prior to the first review hearing, the applicant replied that it was because “we had some disagreements.” When asked by the Tribunal of [Ms E]’s immigration status, the applicant indicated he does not know, although he ‘thinks she came to Australia as a refugee.’ He confirmed to the Tribunal that 19 September 2018 is the date he commenced cohabitation with [Ms E].
When asked by the Tribunal if he and [Ms E] combine finances together, the applicant replied that they had “no financial kind of relationship prior to moving in.” He added that now they help each other. They have no joint bank account and the applicant just gives [Ms E] some money when she needs it. [Ms E] receives child support payments for one of her children and she also receives Centrelink payments, although the applicant is not sure what these might be. The applicant confirmed that he commenced his relationship with [Ms E] in early 2016 and that they commenced cohabitation on 19 September 2018. The Tribunal raised with the applicant that in earlier oral evidence he advised he went to [Country 1] in October 2017 in order to try and save his relationship with [Ms B] and that this appeared inconsistent with him being in a committed exclusive relationship with [Ms E], inviting his comment. The applicant responded that when he started his relationship with [Ms E] (who was in Australia), the other relationship with [Ms B] (who was in [Country 1]) was “not really saveable.”
The Tribunal raised with the applicant that it had some concerns with his credibility as previously canvassed with him. Further, the Tribunal indicated that in light of these concerns and the nature of his oral evidence, it might have difficulty accepting the genuineness of his claimed cohabitating relationship with [Ms E], inviting his comment. The applicant replied that he has mentioned many false things but now he is telling the truth. He indicated that he understood the Tribunal might have difficulty believing him but he advised he was telling the truth. The Tribunal raised with the applicant that given he has children it is considering very carefully Australia’s international obligations concerning them and invited him to provide more information on the children. The applicant indicated that he is the biological father of ten children, including [Master J]. He has had DNA testing confirming his paternity of the other nine children and he is happy to have one for [Master J]. The applicant confirmed that he commenced cohabitation with his son [Master J] on 19 September 2018, adding that he used to help him prior to that time. He stated he had a very good relationship with [Master J], with his mother feeding him and the applicant being present when [Master J] had a hospital procedure. When asked if [Master J] had health concerns, the applicant advised he has ‘a dot on his lung’ which was removed during the hospital procedure. The applicant indicated that [Master J] is much better now, although he is prone to bleeding and breathing problems.
During the first review hearing the applicant submitted a [Birth Certificate] in respect of his child [Master J] and purported ‘Certificates of Divorce’ in respect of [Ms D] (date of divorce [in] May 2010), [Ms C] (date of divorce [in] May 2010) and [Ms B] (date of divorce [in] May 2016). The Tribunal engaged with the applicant’s representative and invited her to provide further submissions concerning the applicant’s child, partner and general circumstances. She indicated she had further material to submit. At this point the first review hearing was adjourned to enable such submissions to be prepared and delivered.
Post-hearing submissions
On 23 October 2018 at 3:15pm, submissions and evidence were received from the representative with respect to the scheduled resumption of the review hearing on 24 October 2018. These submissions and evidence included, an email of 23 October 2018 from the representative by way of written submission, medical reports and information regarding [Mr K] (the adult son of [Ms E] who is suffering mental health issues), a Health Care Card in relation to [Ms E], Documents for Travel to Australia in respect of [Ms E] and her adult son [Mr K], and a [Birth Certificate] in relation to [Ms L] (a minor child of [Ms E]). The aforementioned material has been duly considered by the Tribunal.
Evidence at the second review hearing – 24 October 2018
The applicant’s oral evidence to the Tribunal at the second review hearing may be summarised as follows. He requested not to have his brother provide oral evidence and wished to instead call [Mr F]. The applicant and his representative contended that the applicant’s brother had assisted with prior immigration matters and had essentially caused confusion and error in doing so. The Tribunal raised with the applicant that given the credibility issues already canvassed with him, it might have difficulty accepting his explanation as to why he did not now wish for his brother to provide oral evidence, inviting his comment. The applicant indicated that he understood. In accordance with the wishes of the applicant his brother, [Mr A], did not provide oral evidence and instead [Mr F] representing the Somali community did so.
When asked by the Tribunal to outline his family composition and circumstances in Australia and overseas, the applicant advised his brother, his brother’s wife and their seven children reside in Australia. One of those children is married and also has children. The applicant also has his own partner, [Ms E], and her ten children living in Australia. Some of the children are married and have their own children. The applicant has nine children overseas who live with their mothers’, one of those children lives with another mother given their own biological mother is deceased.
The Tribunal raised with the applicant the contents of submissions received on 23 October 2018. Paragraphs 1(a), (b) and (c) of those submissions contend that the applicant met [Ms E] whilst accompanying her children to school, their relationship was opposed by [Ms E]’s eldest son who witnessed family violence from the father of another of [Ms E’s children] and did not wish for his mother to enter another relationship, and that following the birth of [Master J] (the son of the applicant and [Ms E]) the applicant had a close relationship with [Ms E] and their son but they lived separately because [Ms E] didn’t wish to disappoint her son or the community elders. Paragraphs 1(d), (e) and (f) outline that in September 2018 [Ms E]’s son, [Mr K], suffered a mental health episode, was deemed a danger to his family, attended the Mental Health Review Tribunal, [Ms E] sought assistance from community elders with [Mr K] (who is now medicated and lives with the family) and also to endorse her relationship with the applicant. Paragraph 2 of the submissions outline that the applicant currently resides with [Ms E] and eight children (including [Master J]), the only father present in Australia is the applicant (there being no contact with the other fathers who are either deceased, or live in Africa or [Country 3]) and he provides shared care for the children and for the running of the household.
The applicant was invited to comment upon the above submissions. He indicated that he wanted to legalise his marriage to [Ms E] but her son [Mr N] opposed this. The applicant explained that he met [Ms E] through his employment as [Occupation 2]. He developed a good relationship with the children and also with [Ms E]. Around 2015 [Ms E] declared her love for the applicant and he had to think about accepting it as he was a single parent himself. He indicated their relationship commenced in early 2016. The applicant outlined how [Ms E]’s eldest child opposed their union because he experienced family violence from a previous step-father. Further, another child of [Ms E] aged [age] ([Mr K]) developed a [health condition] (he was referred to as having an [Medical Condition 1] during the first review hearing) and was hospitalised. The applicant’s own biological son went to hospital around this time and a daughter of [Ms E] had treatment for [Medical Condition 2] in hospital. In due course, [Ms E] sought assistance from the community elders who mediated the dispute with [Ms E]’s eldest son on 15 September 2018. [Ms E] also wanted the applicant to live with her due to fears over the [age] year old son with mental health issues. That child is still receiving [treatment] according to the applicant and supporting medical evidence submitted to the Tribunal. His situation has stabilised and he now lives in the family home. The applicant’s son and [Ms E]’s daughter with [Medical Condition 2] have recovered well (although the latter is still apparently taking medication).

For completeness, the Tribunal notes that following an adjournment, the representative raised an issue with the interpreting. According to the applicant, the interpreter had not properly conveyed that the family violence had not been perpetrated by him and also that the reasons for his brother not giving evidence are because his brother had made inconsistent claims previously. Following clarification, the Tribunal and the applicant agreed that there had not been a misunderstanding. Further, as the hearing progressed, the applicant spoke positively of the interpreting service. Accordingly, the Tribunal is satisfied that the interpreting service performed appropriately during the review hearing.
When invited by the Tribunal to provide further evidence regarding the children, the applicant indicated he resides with eight children. One is his biological son, [Master J], and the other seven are his step children. The applicant advised that he takes responsibility for them, cares for them and that they are happy with him. The Tribunal raised with the applicant the submissions at paragraph 3 pertaining to his trip to [Country 1] in 2017. There it is contended that with regard to the applicant’s oral evidence in the first review hearing concerning him travelling to [Country 1] in order to save his relationship with [Ms B], the applicant was not referring to a romantic relationship but rather a relationship regarding her caring for his children. The applicant was invited to comment upon this contention. He advised that he travelled to [Country 1] because he had children with [Ms B] and wanted a good relationship to ensure appropriate care for them. The applicant indicated that he didn’t attempt to ‘regain’ [Ms B] because he already had a partner in Australia ([Ms E]) and had received a divorce letter from [Ms B].
The Tribunal drew to the applicant’s attention his oral evidence in the first review hearing being suggestive of him travelling to [Country 1] to save a romantic relationship with [Ms B] and that this appeared inconsistent with his later claims not to have been in a romantic relationship with her at that time. The applicant was invited to comment and he attributed the apparent inconsistency to a misunderstanding as he was apparently previously using the term relationship to describe good interaction only with [Ms B] for the benefit of his children as he wanted to avoid a bad ending following their divorce. The Tribunal raised with the applicant that his oral evidence at the first review hearing tended to suggest he was in a relationship with [Ms B] of more than friendship for the good of the children and that this in turn tended to suggest he was not in an exclusive relationship with [Ms E] at that time. The applicant was invited to comment and replied that he wanted all of his children to live with [Ms B] under her guardianship.
The Tribunal raised with the applicant that his initial oral evidence regarding the reasons for his visit to [Country 1] in 2017 might tend to suggest that he has not been in such a strong relationship with [Ms E] over an extended period as he is contending. The applicant was invited to comment and replied that his commitment to [Ms E] is very strong and the reason for his trip to [Country 1] was to sort out his children being under [Ms B]’s guardianship. The Tribunal raised with the applicant that his evidence regarding his trip to [Country 1] might also tend to suggest that he has not been in such a committed relationship with all of the children in Australia as he is contending. The applicant was invited to comment and responded that he is in love and is taking care of his family in Australia. He contributes earnings towards the family in addition to [Ms E]’s Centrelink payments (which he confirmed she received in relation to her children). The applicant indicated he also assists the children with matters such as picking them up and he takes care of his children overseas by sending them funds.
The Tribunal raised with the applicant the submissions at paragraph 4 pertaining to his current visa status where it is contended that he has now lodged an application for a Bridging Visa E and that the prior representative (from the same firm) advised the applicant on 22 December 2017 to attend the Department to obtain a Bridging Visa but he did not do so due to a misunderstanding. The applicant was invited to comment upon the aforementioned and advised that a Bridging Visa E application was submitted after the first review hearing and he has an impending interview with the Department in relation to that application. The Tribunal raised with the applicant that this evidence tends to suggest he has not held a visa since the cancellation of his Subclass 155 visa (on 18 December 2017), inviting his comment. He replied that he was not told he could apply for another visa. The Tribunal raised with the applicant that given the contents of paragraph 4 of the written submission of 23 October 2018 it might have difficulty accepting that he didn’t know he could apply for another visa, inviting his comment. He replied that he did not know about this earlier.
The Tribunal drew to the applicant’s attention that he had raised various misunderstandings with multiple representatives in oral evidence and that it might have difficulty accepting this accounts for his apparent inability to comply with his responsibilities under the migration law, inviting his comment. The applicant replied that previously his brother attended with him at meetings with representatives and since he took a community representative with him to the current lawyer this has made matters better. He thanked the Tribunal for providing a good interpreter at the review hearing. The Tribunal drew to the applicant’s attention that during the first review hearing it raised with him that if he hasn’t held a visa since his Subclass 155 visa was cancelled on 18 December 2017 it might tend to suggest other instances of non-compliance by him which might tend to weigh in favour of cancelling his visa. In light of the recent evidence concerning his present visa status, the Tribunal invited the applicant to comment upon the aforementioned. The applicant replied that he has now come to realise the rules and regulations and will now never transgress.
The Tribunal invited the applicant to make comment about any other matter arising from the submissions of 23 October 2018. He indicated all information is in the submissions and he is not adding anything. He attributed his problems to difficulties with the English language. When asked by the Tribunal how he converses [in] his role as [Occupation 1], the applicant indicated he needs only limited English language ability in that role and he is picking up the language whilst working. For completeness, the Tribunal notes that the submissions of 23 October 2018 also make reference to another witness, but that person was unavailable to attend the second review hearing and [Mr F] gave oral evidence instead at the request of the applicant.
When asked by the Tribunal if he had any other family members who do not live with him, the applicant advised that he used to live with his brother ([Mr A]) because he had a problem with his own family. The applicant added that his brother suffers from hypertension and sometimes he assists him and picks him up. The applicant then changed tack with his evidence advising that he lives with his brother and this has been the case for around two and one half years. When asked by the Tribunal why he did not earlier mention that his brother lived with him, the applicant then advised that they do not live together as he now lives in [Ms E]’s residence at [Suburb 1]. Upon questioning by the Tribunal, the applicant confirmed that he no longer resides at [Suburb 2]. Rather, his brother remains living at [Suburb 2] with two other adult men from the Somali community. The applicant added that his brother’s son, a university student, also lives in the [Suburb 2] residence. The Tribunal raised with the applicant that the inconsistencies in his oral evidence regarding the aforementioned residential address history in Australia might cause it to have difficulty with his credibility, inviting his comment. The applicant replied that there have been others living at the [Suburb 2] residence periodically, including a man who had issues with his wife and others (male and female) from the Somali community who were in need of accommodation. The applicant confirmed to the Tribunal that he lived with his brother [Mr A] for around two and one half years at the [Suburb 2] residence, prior to the applicant residing with [Ms E] in September 2018. The applicant confirmed that his brother’s son, who studies and works part time, provides assistance to his father. However, the applicant maintained that his brother is still reliant upon him. When asked by the Tribunal if he is the main carer for his brother, partner and eight children in the [Suburb 1] residence, the applicant replied that he is.
The Tribunal raised with the applicant that it had some concerns with his credibility and asked why it should accept he plays such a central role in the lives of his brother, [Ms E] and the eight children residing with him, inviting his comment. The applicant replied that his brother is his biological brother and he helps him with his problems because of brotherhood. The applicant also advised that [Ms E] is his wife, they have a child together, and he is also responsible for her children. He indicated that [Ms E] has had a difficult time and she had no previous support. The applicant also advised that when he was single he has provided other Somali men with accommodation when asked by the community to do so. He indicated that he is no longer single because he has committed to [Ms E] and her family. The applicant confirmed he committed to [Ms E] and her family on 19 September 2018. When asked if there was any further evidence he wished to provide regarding members of his family, the applicant responded that he is related to his brother and his brother’s children.
When asked by the Tribunal if he ever failed to comply with visa requirements whilst he has been in Australia, the applicant replied that he had not. When asked by the Tribunal if he ever failed to comply with any other Australian immigration related matter not already canvassed, the applicant replied that he had not. The applicant confirmed he had never breached any laws in Australia.
When asked by the Tribunal if he had made any contribution to the Australian community, the applicant replied that he actively participated in supporting members of his community, particularly when they were homeless. He advised that when he lived at the [Suburb 2] residence he assisted an elderly Somali lady by providing accommodation for her with him and allowing a case worker to visit her. When asked by the Tribunal if he had any further evidence on this topic, the applicant indicated he did not other than to advise that he assisted members of his community when they asked him for help.
The Tribunal raised with the applicant that if his visa is cancelled and he does not hold a valid visa he would be an unlawful non-citizen subject to detention, it would be difficult for him to make visa applications in Australia other than a protection visa application, he might be liable for removal from Australia and he might face difficulties obtaining another Australian visa in the future, inviting his comment. The applicant replied that if his visa is cancelled he doesn’t have anywhere to go because his country is unsafe and turbulent. The applicant stated that he wants protection from the Australian Government. He indicated that he is not a threat to the Australian community, he contributes to the community and he wants Australia to assist him.
When asked if there were any international obligations concerning his case, noting that he had raised written claims to fear returning to Somalia and [Country 1], the applicant replied that as he is not a [Country 1]n citizen he would be sent back to the refugee camp in [Country 1] when he left it to travel to the city there. The applicant advised that he cannot return to Somalia because he is married to three wives and he might be killed as others have been for doing so. He indicated his childhood residence was now occupied by armed militia groups so he cannot return there. He advised that as a part of a Somali ethnic minority he will be killed if he returns. The applicant stated that he appreciates the help he has been given by the Australian Government.
The Tribunal raised with the applicant that the various dates he provided regarding his residence in Africa, as outlined in the delegate’s decision, might cause it to doubt to genuineness of his claims for protection, inviting his comment. The applicant replied that the inconsistency arises from him being misunderstood due to English language difficulties. The Tribunal raised with the applicant that he is ultimately responsible for the material submitted on his behalf, inviting his comment. The applicant accepted this, however he noted that the very good interpreter at the review hearing has helped him to understand everything whereas before he did not.
The Tribunal raised with the applicant that in written claims he had raised being at risk due to his Sufi Muslim religion and asked why he had not raised such claims in oral evidence. The applicant replied that this is part of his claims and he was coming to that topic. He advised that Sufi Muslims in Somalia are accused by extremists of being Christians because they tolerate Christians and that he is at risk accordingly. When asked by the Tribunal if he had any other claims for protection, the applicant indicated he had been living in Australia for some time now so if he returned to Somalia he would be considered to be a spy and he will be killed. The Tribunal raised with the applicant that during the previous review hearing he contended he had been assaulted and had his mobile phone taken in [Country 1], inviting his comment. The applicant indicated this was true and he was quite lucky that he was not harmed. He added that this incident arose from “just thieves in [Country 1].” The Tribunal raised with the applicant that these particular claims had not been raised prior to the Tribunal hearings and such delay might cause difficulty in accepting them. The applicant was invited to comment and replied that he had said a lot of things but doesn’t remember at the moment. The Tribunal raised with the applicant that the inconsistencies in the dates of his purported residence in Africa and the credibility concerns raised with him might cause it difficulty in accepting his claims for protection, inviting his comment. The applicant maintained his claims were genuine.
During the review hearing, the Tribunal raised that the applicant’s representative had submitted in writing that the Tribunal must assess Australia’s obligations under certain international conventions or treaties including the obligations around non-refoulement. In doing so, the representative raised the matter of BCR 16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (13 June 2017). The Tribunal outlined to the applicant that this matter concerned a visa cancellation based upon character grounds and that his visa had not been cancelled on such grounds, nor did he hold a protection visa that was cancelled. The Tribunal noted that the applicant is not prevented from making an application for a Protection Visa and further that Ministerial Direction Number 75 (commencing on 6 September 2017) directs Departmental decision makers to assess refugee and complementary protection claims before considering any character or security concerns. A copy of that Direction was provided to the representative. The Tribunal raised that the matters of COT15 v MIBP (No.1) [2015] FCAFC 190 and MIBP v Le [2016] FCAFC 120 tend to suggest that non-refoulement claims raised in visa cancellations not based upon character grounds might be the subject of fulsome consideration in a protection visa application if such an application can be made.
The Tribunal invited submissions on why it would need to assess the applicant’s non-refoulement claims given it is reviewing the cancellation of his Subclass 155 visa according to s.109 of the Migration Act? Submissions were made contending that the Tribunal should consider all claims made, including those arising from international conventions pertinent to the situation in Somalia. The Tribunal engaged in further discussion on these matters and provided adjournments so that the applicant would be best placed to provide any further evidence if he wished. Ultimately, the representative submitted on behalf of the applicant (on his instructions according to her) that no claims were being made by the applicant other than relating to the refugee and complementary protection criteria. When asked by the Tribunal if there are any other relevant matters, including issues of hardship, that he wished to raise, the applicant indicated that there were not. He also confirmed he had no further evidence to provide prior to his witnesses giving their evidence.
The Tribunal took oral evidence from [Ms E] in person. It may be summarised as follows. She advised that the applicant is divorced from his previous wives. She contends she is the partner of the applicant. They met in 2014 when the applicant was working in a [specified] role and was caring for seven of her children who were eligible for the childcare benefit. At the beginning of 2015 [Ms E] asked the applicant to marry her. In 2016 he accepted her love and they became engaged then subsequently married in around February or March of that year. [Ms E] outlined that one of her children did not accept the relationship because she had a previous turbulent marriage. [Ms E] deferred to her son’s wishes and in addition some of her children had medical issues, including her son to the applicant. One of her sons became ‘mentally sick’ and the situation was problematic. Ultimately, [Ms E] sought the assistance of community leaders who successfully mediated with her son who had opposed the relationship. [Ms E] and the applicant then moved in together in September 2018.
[Ms E] is upset and worried about the immigration status of the applicant. She is very satisfied in the relationship with him. She is a mother with a hectic life and needs the applicant’s assistance. [Ms E] told the Tribunal that she is a permanent resident of Australia. She has attempted to acquire Australian citizenship but has not been able to do so because she has failed the English language test on six occasions. [Ms E] ‘does not have accurate information’ concerning the reason for the applicant’s visa being cancelled, however she attributes this to him being married to different wives and giving inconsistent information in relation to them. The applicant did not wish to provide comment following the evidence of [Ms E].
The Tribunal took oral evidence in person from [Mr F] of the Somali community in [State 1]. It may be summarised as follows. He advised that the martial relationship of the applicant and [Ms E] means it is important for the former to remain in Australia. [Mr F] knows that the applicant’s visa was cancelled but he does not know why. He knows the applicant is an ordinary man who came to Australia as a refugee. [Mr F] helped to mediate the dispute regarding the son of [Ms E] who objected to her relationship with the applicant. [Mr F] indicated that the applicant and [Ms E] now live together after having married about two years prior. When asked by the Tribunal if the applicant has one or more wives, [Mr F] indicated he did not know. He was also unsure whether the applicant had returned to Africa since his arrival in Australia. [Mr F] concluded his oral evidence by advising that there is no problem in the relationship of the applicant and [Ms E]. The Tribunal raised with the applicant that it might place lower weight upon the evidence of [Mr F] given his limited display of knowledge concerning the applicant’s circumstances such as the reason for his visa cancellation, whether he had other wives or whether he had returned to Africa. The applicant was invited to comment and submitted this was a matter for the Tribunal, adding that he had not shielded his return trip to Africa and that [Mr F] knew of his family in Australia. The applicant confirmed to the Tribunal that there were no other witnesses he wished to call. He and his representative also confirmed to the Tribunal that there were no further submissions or evidence to be submitted, following which the hearing concluded.

For completeness, the Tribunal notes that it had the benefit of taking the applicant’s oral evidence in person at two review hearings. The Tribunal observed the applicant to, on several occasions, provide his oral evidence in an inconsistent fashion as has previously been outlined. Having assessed the applicant’s demeanour and manner in which he provided his oral evidence during the review hearings, the Tribunal developed serious concerns with his credibility. Following careful consideration, the Tribunal assesses the applicant to have provided self-serving oral evidence in a dishonest fashion where he felt it was necessary to do so to advance his contentions. On balance, the Tribunal finds that the applicant lacks credibility and has provided untruthful evidence concerning significant portions of his application for review. These are matters to which the Tribunal shall return.
Did the notice comply with the requirements in s.107 of the Act?
Section 107 of the Act is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal notes that the NOICC dated 9 October 2017 was sent to the applicant by registered post. He responded to the NOICC on 23 October 2017 through a previously appointed registered migration agent. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage the provisions of s.107 of the Act. Therefore, in the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The Tribunal must consider 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 section 101(b) of the Act.
The s.107 notice particularises possible non-compliance with s.101(b) of the Act by the applicant in relation to his Subclass 202 Global Special Humanitarian visa application of 29 July 2008. It is convenient to distil the alleged non-compliance, through the provision of incorrect answers, into two broad categories. That with respect to the applicant’s family composition (including his relationship status and paternity of children) and that regarding his claimed fears of returning to Somalia (including his residential history in Africa).
The Tribunal notes the applicant admitted in oral evidence that he provided incorrect information in his offshore Subclass 202 Global Special Humanitarian visa of 29 July 2008 in relation to his family composition (including his relationship status and paternity of children). Having regard to both the documentary and oral evidence, the Tribunal finds that the applicant provided incorrect answers in relation to the aforementioned matters in the manner particularised in the s.107 notice. The Tribunal notes that, at times, the applicant sought to diminish his culpability in relation to the provision of such incorrect information. However, given the inconsistencies previously expressed in the applicant’s oral and documentary evidence (including the s.359AA information), the Tribunal finds that he is a most unreliable witness who engaged in a calculated course of action to achieve a migration outcome for himself by knowingly providing incorrect information in the manner outlined.
With respect to the alleged non-compliance identified by the delegate regarding the applicant’s claimed fears of returning to Somalia (including his residential history in Africa), the myriad of inconsistencies in his oral evidence and in the documentary evidence on his behalf point to him fabricating the aforementioned claims in order to achieve a migration outcome for himself. Having regard to the general lack of credibility of the applicant, the Tribunal does not accept his contention that misunderstanding accounts for the divergent residential histories he has provided in various interactions with the Department in relation to his Subclass 202 visa and his sponsorship of [Ms B] for an offshore Partner visa.
The Tribunal notes that the applicant provided inconsistent information to both it and the Department in various interactions regarding the circumstances of the birth of his son [Master I] in Somali on 31 December 2002. The Tribunal further notes the applicant indicated in his oral evidence that the mother of this child was forced by her family to return to Somalia to give birth whilst he remained in [Country 1], following which she returned the child to him and departed the relationship. This account is inconsistent with much of the evidence submitted in relation to the sponsorship of [Ms B] which suggests the applicant and the mother of [Master I] remained in their relationship until she passed away from illness. Having careful regard to the evidence, the Tribunal finds that the applicant resided in Somalia until 2005. The Tribunal makes this finding as it prefers the evidence in relation to his address history contained in his sponsorship of [Ms B] for the offshore Partner visa to his ex-post facto attempt to assert he departed Somalia for [Country 2] in 1991 and then went to [Country 1] around 2005. Accordingly, the Tribunal does not accept the veracity of the applicant’s claims to fear harm in Somalia (and Africa generally, including [Country 1]) which he made in his Subclass 202 visa application. Therefore, the Tribunal finds that the applicant provided incorrect answers in relation to his claimed fears of returning to Somalia (including his residential history in Africa) in the manner particularised in the s.107 notice.
On balance, the Tribunal is satisfied that the answers provided by the applicant as particularised in the s.107 notice are incorrect. Therefore, the Tribunal finds that there was non-compliance with s.101(b) of the Act 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; and
·     any contribution made by the holder to the community.
The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:
There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].
The Tribunal has duly considered the applicant’s response to the NOICC of 23 October 2017 and notes that it seeks to diminish his culpability in relation to his provision of incorrect answers regarding his family composition (including his relationship status and paternity of children) and that he denies the provision of incorrect answers in relation to his claimed fears of returning to Somalia (including his residential history in Africa). Given the serious credibility issues identified and that much other evidence has been advanced as to why the applicant’s visa should not be cancelled, on balance, the Tribunal finds that the response of the applicant to the NOICC dated 9 October 2017 weighs neither in favour of, nor against, cancellation of his visa. Of note, more contemporary evidence and submissions are before the Tribunal and these are referred to in greater detail in this decision record.
The correct information in relation to the questions in the Subclass 202 visa application of 29 July 2008 regarding the applicant’s family composition (including his relationship status and paternity of children) as identified in the s.107 notice, is that he was married to three women and had multiple children at the time of that visa application as outlined in the delegate’s visa cancellation decision. With respect to the questions in that visa application concerning the applicant’s claimed fears of returning to Somalia (including his residential history in Africa), the correct information is that he departed Somalia for [Country 1] in 2005 and did not have the claimed fears that he submitted as outlined in the delegate’s visa cancellation decision. The expansive and repeated dishonest conduct of the applicant, by providing incorrect information during various interactions with the Department and the Tribunal, are very serious matters. The Tribunal finds that the applicant engaged in his dishonest course of conduct knowingly in order to achieve a migration outcome for himself. He did not admit to any dishonesty until he was exposed in relation to inconsistent information he provided in relation to his sponsorship of [Ms B] for an offshore Partner visa, following which he still provided dishonest evidence in many respects in order to challenge the cancellation of his Subclass 155 visa. Such circumstances weigh very strongly in favour of cancelling the applicant’s Subclass 155 visa given the magnitude and sustained nature of the provision of incorrect information. There is no evidence before the Tribunal regarding the content of a genuine document and therefore no weight is given to that prescribed circumstance.
The Tribunal forms the view that the decision regarding the applicant being granted the Subclass 202 visa was based wholly or partly on incorrect information. That is, the applicant provided incorrect information regarding his family composition (including his relationship status and paternity of children) and in relation to his claimed fears of returning to Somalia (including his residential history in Africa). Given that an assessment of the applicant’s family composition and claimed fears of returning to Somalia were central to the grant of the Subclass 202 visa, had the incorrect information been known to the Department the applicant would not likely have been granted this visa and permitted entry into Australia (it is worth pausing to reflect that he had been refused the grant of a Subclass 202 visa on two prior occasions). It follows that the decision to grant him the Subclass 155 visa in Australia would have been unlikely had the correct information been known to the Department. The Tribunal does not accept contentions advanced on behalf of the applicant that he would have been granted the Subclass 202 visa based upon his claimed fears of returning to Somalia given the credibility concerns previously outlined. Following careful consideration, the Tribunal finds that the circumstances in relation to the grant of visas and immigration clearance to the applicant weigh very strongly in favour of cancelling his Subclass 155 visa.
The Tribunal finds that the applicant engaged in a deliberate course of conduct to conceal from the Department his true family composition and his reasons for departing Somalia in the Subclass 202 visa application of 29 July 2008. It is worth pausing to reflect that such matters only came to the knowledge of the Department when the applicant provided inconsistent information whilst attempting to sponsor one of his three wives, [Ms B], for an offshore Partner visa in 2013. That the applicant deliberately chose not to declare his true particulars to the Department during various interactions with them demonstrates repeated dishonest behaviour on his part. The Tribunal has taken into account that the applicant described his living conditions in [Country 1] as undesirable and prompted him to provide (some on his account) incorrect information to the Department. This matter mitigates somewhat the weight of the circumstances in which the non-compliance occurred being in favour of cancelling his Subclass 155 visa. However, the degree of mitigation is limited given that he deceitfully and knowingly sought to undermine the integrity of the Subclass 202 visa program by his actions. After careful consideration, the Tribunal finds that the circumstances in which the non-compliance occurred weigh moderately in favour of cancelling the applicant’s Subclass 155 visa.
The Tribunal has carefully considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act. As outlined above, the applicant admitted that he failed to declare the birth of multiple children following lodgement of the successful Subclass 202 visa application and before his arrival in Australia. Given the sustained nature of this non-compliance with s.104 of the Act, the Tribunal finds that this matter weighs strongly in favour of cancelling his Subclass 155 visa.
The Tribunal has carefully considered whether there are any other instances of non-compliance by the visa holder. The evidence before the Tribunal indicates that the applicant has been an unlawful non-citizen in Australia from the time his Subclass 155 visa was cancelled on 18 December 2017 until at least the time of the second review hearing held on 24 October 2018. The evidence further suggests, as previously outlined, that the applicant received advice to report to the Department to regularise his status but did not take any such steps until after the first review hearing. Following careful consideration, the Tribunal finds that the presence of the applicant in Australia without a valid visa during the aforementioned period is another instance of non-compliance. Given the sustained period of the non-compliance, the Tribunal finds this prescribed circumstance weighs strongly in favour of cancelling the applicant’s Subclass 155 visa.
The time that has elapsed since the non-compliance with s.101(b) has been carefully considered by the Tribunal. As previously outlined, the applicant’s non-compliance identified in the s.107 notice pertains to his application for the Subclass 202 visa made on 29 July 2008. Given the effluxion of time, the Tribunal finds that this prescribed circumstance weighs against cancellation of his Subclass 155 visa. However, it weighs only slightly against such cancellation given the applicant’s repeated non-compliance in relation to that visa application, in combination with the non-compliance only being discovered by the Department when the applicant provided inconsistent information whilst attempting to sponsor one of his three wives, [Ms B], for an offshore Partner visa in 2013. That the applicant deliberately chose not to declare his true particulars to the Department during various interactions with them reflects poorly upon him.
There is no evidence of any breaches of the law since the applicant’s non-compliance and the Tribunal affords this prescribed circumstance moderate weight against cancellation of his Subclass 155 visa. It is contended on behalf of the applicant that he has made a contribution to the community by way of assisting members of the Somali community resident within [State 1] as previously outlined. Further, the applicant submits that he has been gainfully employed for some time. The Tribunal accepts the aforementioned evidence and affords this prescribed circumstance moderate weight against cancellation of his Subclass 155 visa.
The applicant submits that his present circumstances weigh against the cancellation of his visa. It is contended that he has been in Australia since 2011 and established himself in the community and the workforce. He is said to be divorced from his previous wives and now in a committed de facto relationship with [Ms E]. The Tribunal notes the ‘Certificates of Divorce’ submitted by the applicant indicating he divorced [Ms D] and [Ms C in] May 2010, and that he divorced [Ms B in] May 2016. Having considered the inconsistent evidence submitted by the applicant in relation to his relationship history, which has been previously outlined, the Tribunal does not accept he divorced these three women on the aforementioned dates. The Tribunal notes the s.359AA information raised with him in relation to the fabrication of his purported separation from [Ms D] and [Ms C] in order to contrive a Partner visa outcome for [Ms B] and prefers that evidence to the applicant’s denials given his lack of credibility as a witness. Further, given the initial spontaneous oral evidence provided at the first review hearing by the applicant, the Tribunal does not accept that he travelled to [Country 1] in October 2017 without a romantic interest in [Ms B] as was later contended. However, on balance, the Tribunal is prepared to accept that following the applicant’s return to Australia from [Country 1] in October 2017 he was no longer in a marriage like relationship with any of these women in light of the inability to acquire a visa outcome for [Ms B], his preference of her over his other two wives for the visa sponsorship and his desire to reside in Australia rather than with these women and his nine biological children in [Country 1].
Whilst the Tribunal accepts the applicant has only one female partner currently, [Ms E], it does not accept that relationship contains the depth and strength which have been contended on his behalf. This is because the applicant has shown himself to provide self-serving evidence when he believes it will support his own interests and much of his evidence concerning the chronology of this relationship conflicts with that concerning his relationship with [Ms B]. The limited display of knowledge of each other’s circumstances, including their respective immigration histories, displayed by both the applicant and [Ms E] in oral evidence further supports this conclusion. Whilst the Tribunal accepts that [Ms E] has had difficulties with her adult son who rejected her relationship with the applicant, it does not accept that this circumstance fully accounts for the lack of co-habitation for a significant period of time in the claimed relationship. Given the aforementioned matters, the Tribunal also does not accept that the applicant has had a meaningful relationship with his biological son, [Master J], and the other step children, until more recent times.

Notwithstanding the above matters, the Tribunal is prepared to accept that the applicant is now in a co-habiting relationship with [Ms E] (and the children previously outlined) and has been since 19 September 2018. The Tribunal accepts that the applicant provides some care and support to [Ms E], their son together and her other children (including her adult son [Mr K] who is being treated for mental health issues). The Tribunal also accepts that the applicant provides some financial support to the household, although it notes that [Ms E] derives the majority of her income from Centrelink benefits. The Tribunal also accepts the applicant provides some financial support to his nine biological children residing in [Country 1]. Following careful consideration, in relation to the present circumstances of the applicant, the Tribunal affords moderate weight against cancelling his Subclass 155 visa. The Tribunal more fully addresses considerations relating to the relevant children and international obligations below.
While the factors prescribed in r.2.41 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.
The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention. As outlined above, the mandatory legal consequences of visa cancellation were canvassed with the applicant at the review hearing. If the applicant’s Subclass 155 visa is cancelled and he does not hold a valid visa he will become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act. He may also be subject to s.48 of the Act which limits further specific visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. However, as is relevant to the present matter, the applicant is not prevented from applying for a protection visa in Australia. This is an option he may choose to explore if he wishes. Therefore the Tribunal finds that the applicant would not be subject to indefinite detention if his Subclass 155 visa is cancelled. In the circumstances of the present review, the aforementioned matters weigh neither in favour of, nor against, cancellation of the applicant’s Subclass 155 visa. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in any other person having their visa cancelled pursuant to s.140 of the Act. Accordingly, that circumstance weighs neither in favour of, nor against, cancellation of the applicant’s Subclass 155 visa.
The Tribunal has carefully considered all other relevant matters, including the degree of hardship that may be caused to the applicant and his family members if his Subclass 155 visa is cancelled. As outlined above, the Tribunal accepts that some matters regarding the present circumstances of the applicant weigh against cancellation of his visa. The Tribunal also accepts there will be a high degree of hardship for him if his visa is cancelled in relation to leaving his son ([Master J]), [Ms E], his brother ([Mr A]) and his family, and other members of the Somali community in Australia. Further, the applicant would face the hardship of departing Australia for less favourable living conditions than he has enjoyed for over 7 years. Balanced against this is the fact that the applicant has demonstrated a willingness to return to [Country 1] in the past when he voluntarily returned there during October 2017 and planned to stay for a few months, until abbreviating that visit on account of his current visa difficulties. Further, the applicant has nine biological children and three former partners residing in [Country 1] with whom he would be in closer geographical proximity if he departed Australia. On balance, the Tribunal finds that the degree of hardship that may be caused to the applicant if his Subclass 155 visa is cancelled weighs moderately against the cancellation of his visa.
The Tribunal accepts that hardship would be caused to [Ms E] if the applicant’s visa is cancelled as previously outlined. On balance, the Tribunal affords this consideration moderate weight against cancelling the applicant’s visa. Additionally, the Tribunal accepts that the applicant’s brother, [Mr A], would also face hardship if the applicant’s visa is cancelled. Whilst the Tribunal is prepared to accept that the applicant has assisted his brother in the past with his health condition, it does not accept he is now a significant provider of care given his new residence with [Ms E], his work schedule and that his brother’s own adult son resides with him. On balance, the Tribunal affords the hardship faced by [Ms E] and [Mr A] (and his own family) moderate weight against the cancellation of the applicant’s visa. The Tribunal accepts that some upset might be faced by the applicant’s friends throughout the Somali community in [State 1] if his visa is cancelled and it affords this circumstance slight weight against the cancellation of the visa.
The Tribunal accepts that the applicant now resides with his son, [Master J], and seeks to build a closer relationship with him. The Tribunal accepts that [Master J] has had health problems but according to the applicant’s most recent oral evidence he has recovered well from them. With respect to the applicant’s step-children (those children of [Ms E]’s who reside with the applicant, including her adult son [Mr K]), the Tribunal accepts that the applicant’s presence is a stabilising one and he has developed a bond with these children. However, for reasons previously outlined, the Tribunal does not accept the strength and depth of such relationships as has been contended on behalf of the applicant, particularly given that he has only recently commenced co-habitation with them and for a reasonable period of time was in a relationship of paid employment with respect to them.
The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and, as is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR). The Tribunal acknowledges that ‘the best interests of the child’ must be treated as a primary consideration by administrative decision makers. Accordingly, the Tribunal has done so in this matter and elevates the weight afforded to the evidence, detailed above, which is suggestive of hardship being faced by the applicant and his biological son, and the step-children, which weighs against cancellation of the visa. With respect to the hardship faced by [Master J] if the applicant’s visa is cancelled, the Tribunal affords strong weight against cancellation of the visa. With respect to the other children of [Ms E] residing with the applicant the Tribunal affords moderate weight against cancellation of the visa. On balance, the Tribunal is satisfied that the family unit which [Ms E]’s children (including [Master J]) have known for the majority of their lives, a family unit without the co-habiting presence of the applicant until recent times, would remain sufficiently intact and viable even if the applicant’s visa was cancelled given [Ms E]’s demonstrated ability to support these children whilst in receipt of Centrelink benefits.
With respect to the applicant’s nine biological children who reside in [Country 1], there is limited evidence before the Tribunal with respect to their best interests as the applicant did not strongly press matters in relation to them. On the one hand the Tribunal accepts that the applicant provides some remittance income to these children, whilst on the other if he departed Australia he would be in closer geographical proximity to them. On balance, the Tribunal is prepared to accept that their interests are better served with the applicant remaining in Australia, rather than returning to Somalia where the frequency of contact remains uncertain. Accordingly, with respect to the best interests of these children, the Tribunal affords moderate weight against cancellation of the applicant’s visa. Regarding the family units of these children, the Tribunal finds that the cancellation of the applicant’s visa would have no impact upon their complexion. For completeness, the Tribunal notes that the primary consideration in relation to children may be balanced against other considerations, a matter to which it shall later return.
The Tribunal has carefully considered whether any of Australia’s international obligations would be breached if the applicant’s Subclass 155 visa is cancelled. As previously outlined, the applicant contends that non-refoulement obligations would be breached by cancelling his visa as he cannot return to Somalia and he is not a national of any other country. The Tribunal notes that his representative (a solicitor and registered migration agent) confirmed at the second review hearing that no claims were being made by the applicant other than relating to the refugee and complementary protection criteria. Notwithstanding the concerns of the Tribunal in relation to the veracity of the applicant’s claims for protection relating to Somalia and East Africa generally (noting that the Tribunal does not accept the truthfulness of any instances or fears of harm that he has claimed, nor does it accept his expressed reasons for not fully raising claims whilst offshore given the credibility concerns previously outlined), he remains entitled to apply for a protection visa in Australia even if his Subclass 155 visa is cancelled. Further, he is not currently facing cancellation of a protection visa, his visa has not been cancelled on character grounds and Ministerial Direction Number 75 (commencing on 6 September 2017) directs Departmental decision makers to assess refugee and complementary protection claims before considering any character or security concerns.
Therefore, paying due regard to the authority in the matters of COT15 v MIBP (No.1) [2015] FCAFC 190 and MIBP v Le [2016] FCAFC 120, the Tribunal is satisfied that it is not required to assess the applicant’s non-refoulement claims, which might be the subject of fulsome consideration in a protection visa application if he made such an application, and that his circumstances may be distinguished from those referred to in BCR 16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (13 June 2017). Accordingly, the Tribunal finds that the cancellation of the applicant’s Subclass 155 visa would not breach any of Australia’s non-refoulement obligations. This consideration weighs neither in favour of, nor against, the cancellation of his visa. For the reasons outlined above, the Tribunal does not accept that Australia’s international obligations regarding family unity principles and the best interests of the child would be breached if the applicant’s visa is cancelled, particularly given that the Tribunal has duly considered such matters in the exercise of its discretion.
CONCLUSION

100. The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 155 visa. For reasons previously expressed, the Tribunal finds that the applicant engaged in a sustained dishonest course of conduct to conceal his true family circumstances and to fabricate his claims in relation to fearing return to Somalia. In doing so there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.
101. Following careful consideration, the Tribunal does not accept the contentions advanced on behalf of the applicant that his circumstances and those of his family warrant restoration of his Subclass 155 visa. The Tribunal is cognisant that ‘the best interests of child’ is a primary consideration, which in the applicant’s case weighs strongly against cancelling his visa. In addition, the Tribunal notes that other factors weigh against cancellation of the visa as previously outlined. However, the magnitude and sustained nature of the dishonest course of conduct pursued by the applicant in order to obtain his Subclass 202 visa, attempt to sponsor one of his wives for an offshore Subclass 309 Partner visa and in seeking to retain his Subclass 155 visa, weigh very strongly in favour of cancellation of his visa. On balance, following much consideration, the Tribunal finds that the circumstances in favour of cancelling the applicant’s visa outweigh those circumstances to the contrary.
102. 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
103. The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
K. Chapman
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.

[2018] AATA 5364

26 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies