1812003 (Migration)

1812003 (Migration) [2018] AATA 5555 (30 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1812003
MEMBER:David Barker
DATE:30 November 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.
Statement made on 30 November 2018 at 3:38pm

CATCHWORDS
MIGRATION – cancellation – Combined Residence Partner visa – Subclass 801 (Spouse) – incorrect answers on five passenger cards – extensive criminal history – deep remorse expressed – convictions declared on further occasions – Department already knew of his convictions – emotional and financial support shared with partner – decision under review affirmed
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Migration Act 1958, ss 5(1), 97 – 105, 107 - 109, 111, 140, 166
Migration Regulations 1994, 2.41, 3.02
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with the requirement that no incorrect answers are given or provided on passenger cards.
The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 24 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [his current partner].
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND
The following history is based on information contained in the Department file and the applicant’s statutory declaration of 17 October 2018.
The applicant is a national of the United Kingdom (UK) and is [age]-years-old. He first arrived in Australia in January 2010 on a [temporary] visa. He was then granted a [different temporary] visa in October 2010, which was valid until October 2014.
The applicant applied for a Combined Residence Partner (820/801) visa (the Partner visa) in May 2014, on the basis of his relationship with his previous partner who was an Australian citizen. He was granted the Partner visa on 24 April 2015.
The applicant’s relationship with the woman who sponsored him for the Partner visa broke down in November 2015 and he met his current partner in December 2015, whilst travelling to the UK to spend Christmas with his parents. He stated that his current partner is a UK citizen of [specified] extract, who he knew previously and that a relationship quickly formed between them, which continued after his return to Australia in January 2016.
During a 10 month period from December 2015 to October 2016, the applicant made five return trips to the UK; the last four times were to visit his current partner.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
Section 107 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 has considered the validity of the Notice of Intention to Consider Cancellation (NOICC). In the Tribunal’s view, the NOICC contains sufficient particulars to enable the applicant to identify and address the issues, and the applicant’s response to the NOICC indicates that he understood the issues that arose. The Tribunal is also satisfied that the delegate had reached the necessary state of mind to engage s.107. The Tribunal finds that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.102 – incorrect information (passenger cards) of the Act, which states:
Section 102 Passenger cards to be correct
A non-citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
On 19 May 2014, the applicant lodged an application for the Partner visa. In his record of responses under “Character Declarations” when asked: "Has any applicant ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” the applicant answered: “Yes”. On the application form, when asked to give details, the applicant answered: “Please refer to the attached statutory declarations and police clearance certificates”.
In support of his Partner visa application, as referenced under "Character Declarations," the applicant submitted the following documents:
· Australian Federal Police certificate dated [in] October 2013 which revealed the following conviction by [Court 1] [in] December 2011: Drive with low range prescribed concentration of alcohol, for which the visa holder received a 6 month good behaviour bond.
UK Police Clearance Certificate dated [in] October 2013 which revealed the following criminal history:
·     [In] July 2005: Taking motor vehicle without consent, for which the visa holder received a caution.
·     [In] October 2005: Theft by employee, for which the visa holder received a caution.
·     [In] February 2006: Burglary and theft, for which the visa holder received a community order 12 months, a fine of £150.00 and had to pay compensation of £[amount].
·     [In] June 2006: Burglary and theft, for which the visa holder received a caution.
·     [In] September 2008: Driving a motor vehicle with excess alcohol, for which the visa holder received a fine of £500.00, had to pay costs of £87.00 and was disqualified from driving for 20 months.
·     [In] March 2009: Common assault, for which the visa holder had to pay £87.00 in costs and received a conditional discharge for 12 months.
·     [In] May 2009:
oDriving a motor vehicle with excess alcohol, for which the visa holder received a community order for 12 months, an unpaid work requirement of 250 hours, a supervision order for a period of 12 months, the visa holder's driving licence endorsed and disqualified from driving for 3 years. The visa holder's supervision requirement was removed [in December] 2009.
oUsing vehicle while uninsured, for which the visa holder received no separate penalty but his driving licence was endorsed.
oDriving while disqualified, for which the visa holder received a community order for 12 months, an unpaid work requirement of 250 hours and a supervision order for a period of 12 months. The supervision requirement was removed [in December] 2009.
oUsing vehicle with no test certificate, for which the visa holder received no separate penalty.
·     [In] September 2009: Breach of suspended sentence supervision order, for which the visa holder was ordered to continue his supervision order and an unpaid work requirement for an additional 20 hours.
·     [In] December 2009: Fail to comply with requirements of community order, for which the visa holder was ordered to continue his community order, an unpaid work requirement for an additional 40 hours and pay costs of £50.00.
·     [In] August 2012: Burglary and theft, for which the visa holder received a caution.
At the time of the applicant’s application for Australian citizenship a check results report dated 24 October 2016 was obtained in regards to disclosable court outcomes and the following results were provided:
· [In] December 2011 at [Court 1]: Drive with low range PCA, for which the visa holder received a 6 months good behaviour bond under s.10 of the Crimes (Sentencing Procedure) Act 1999 and had to pay court costs of $400.00.
· [In] June 2016 at [Court 2]: Driver or rider state false name or home address, for which the visa holder received a fine of $500.00.
· [In] July 2016 at [Court 3]: Drive with low range PCA, for which the visa holder received a fine of $500.00 and disqualified from driving for 3 months.
· [In] September 2016 at [Court 2]: Drive motor vehicle during disqualification period, for which the visa holder received a dismissal under s.10 of the Crimes (Sentencing Procedure) Act 1999.
Since the grant of his Partner visa in April 2015 the applicant has travelled frequently and as such, departed and re-entered Australia on a number of occasions. On each of the following dates, when completing his incoming passenger cards, when asked if he had any criminal convictions the applicant ticked the box denoting "No":
·     [In] July 2015;
·     [In] January 2016;
·     [In] April 2016;
·     [In] May 2016;
·     [In] October 2016.
On each of the aforementioned dates, the applicant, signed and dated the card and declared that “The information I have given is true, correct and complete".
In his oral evidence during the hearing and in statutory declarations prepared by the applicant, dated 12 April 2018 and 17 October 2018, he concedes he failed to disclose his criminal history on incoming passenger cards he has completed when entering Australia on [these dates in] July 2015, [January] 2016, [April] 2016, [May] 2016 and [October] 2016. He notes that on two occasions he ticked the “Yes” box, on [dates in] April 2014 and [September] 2012; and that when entering Australia [in] June 2016 he provided no response to this question on the incoming passenger card.
On the basis of this evidence the Tribunal finds answers provided by the applicant to the question "Do you have any criminal conviction/s?" on incoming passenger cards he filled out on: [dates in] July 2015, [January] 2016, [April] 2016, [May] 2016 and [October] 2016 were incorrect as the visa holder was convicted in the UK of various offences in 2006, 2008 and 2009 and convicted of driving offences in Australia in 2011 and 2016. In order to have provided correct responses, the applicant should have ticked the box denoting "Yes" on each of the incoming passenger cards.
Having regard to the information in the delegate’s decision record and evidence provided by the applicant, the Tribunal finds that the applicant has criminal convictions. The Tribunal finds that by stating ”No” in response to the question about his criminal convictions on passenger cards, the applicant gave an answer that was incorrect. The Tribunal finds that there was non-compliance with s.102(b) by the applicant in the way described in the NOICC.
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 to the visa holder was based, wholly or partly, on incorrect information or a bogus document;
·     the circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches;
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case.[1]
[1] MIAC v Khadgi (2010) 190 FCR 248.
In addition, 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’. This policy requires delegates to also have regard to matters such as whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, whether there are mandatory legal consequences to the cancellation decision and whether the visa cancellation may result in Australia breaching its international obligations. As noted earlier, the prescribed circumstances for the purposes of s.109(1)(c) of the Act are set out in r.2.41 of the Regulations. The Tribunal’s consideration of these matters, based on the evidence before it, follows:
The correct information
On the basis of the records of the incoming passenger cards and Police Certificates and Court records from the UK and Australian authorities before it, which the applicant did not dispute at the Tribunal hearing, the Tribunal finds that the correct information is that the applicant was a person who had criminal convictions in the UK and Australia at the time he answered “No” to a question regarding this issue on passenger cards when returning to Australia on [the five dates in question].
The correct information is that the applicant was convicted of the following offences:
In Australia:
· [In] December 2011 at [Court 1]: Drive with low range PCA, for which the applicant received a 6 months good behaviour bond under s.10 of the Crimes (Sentencing Procedure) Act 1999 and had to pay court costs of $400.
· [In] June 2016 at [Court 2]: Driver or rider state false name or home address, for which the applicant received a fine of $500.
· [In] July 2016 at [Court 3]: Drive with low range PCA, for which the applicant received a fine of $500 and was disqualified from driving for 3 months.
· [In] September 2016 at [Court 2]: Drive motor vehicle during disqualification period, for which the applicant received a dismissal under s.10 of the Crimes (Sentencing Procedure) Act 1999.
In the UK:
·     [In] July 2005: Taking motor vehicle without consent, for which the applicant received a caution.
·     {in] October 2005: Theft by employee, for which the applicant received a caution.
·     [In] February 2006: Burglary and theft, for which the applicant received a community order 12 months, a fine of £150.00 and had to pay compensation of £[amount].
·     [In] June 2006: Burglary and theft, for which the applicant received a caution.
·     [In] September 2008: Driving a motor vehicle with excess alcohol, for which the applicant received a fine of £500.00 fine, had to pay costs of £87.00 and was disqualified from driving for 20 months.
·     [In] March 2009 :Common assault, for which the applicant had to pay £87.00 in costs and received a conditional discharge for 12 months.
·     [In] May 2009:
oDriving a motor vehicle with excess alcohol, for which the applicant received a community order for 12 months, an unpaid work requirement for 250 hours, a supervision order for a period of 12 months, driving licence endorsed and disqualified from driving for 3 years. The supervision requirement was removed in December 2009.
oUsing vehicle while uninsured, for which the applicant received no separate penalty but his driving licence was endorsed.
oDriving while disqualified, for which the applicant received a community order for 12 months, an unpaid work requirement of 250 hours and a supervision order for a period of 12 months. The supervision requirement was removed in December 2009.
oUsing vehicle with no test certificate, for which the applicant received no separate penalty.
·     [In] September 2009: Breach of suspended sentence supervision order, for which the applicant was ordered to continue his supervision order and an unpaid work requirement for an additional 20 hours.
·     [In] December 2009: Fail to comply with requirements of community order, for which the applicant was ordered to continue his community order, an unpaid work requirement for an additional 40 hours and pay costs of £50.00.
·     [In] August 2012: Burglary and theft, for which the applicant received a caution.
The Tribunal has had regard to the applicant’s claim that he voluntarily provided the correct information about his criminal history at the time he applied for the Partner visa in May 2014, when he declared this information on his visa application and also provided the Department with the requested police certificates from the UK and Australian authorities. The Tribunal notes that in his written and oral evidence the applicant has taken full responsibility for providing incorrect responses on the particular passenger cards that have been identified by the Department and that he is deeply remorseful about this matter. The applicant contends this Partner visa was the first visa application he had personally attended to and that this explains why the previous [temporary] visas did not make appropriate reference to his past criminal history. Further to this, the applicant contends that he had provided correct responses to the question as to whether he had criminal convictions on incoming passenger cards he completed on [dates in] April 2014 and [September] 2012 and that on another occasion, [in] June 2016, he left this question blank on the passenger card he filled out on his return to Australia on that date.
The Tribunal accepts that the Department became aware of the incorrect information provided by the applicant on passenger cards completed on [the five dates in question], because of the responses on the application form and associated documentary evidence provided to the Department by the applicant at the time of his application for the Partner visa in 2014. The Tribunal also accepts the applicant gave a correct response on incoming passenger cards he completed on [dates in] April 2014 and [September] 2012.
The Tribunal acknowledges that the applicant has taken responsibility for the incorrect responses about his past criminal convictions he gave on passenger cards he completed on [the five dates in question] and that he feels deep remorse about these incorrect responses. It is apparent to the Tribunal that the applicant is very aware of the potential consequences that he is now facing as a result of failing to disclose his prior criminal convictions on the identified occasions. However, in general, the Tribunal is not persuaded that an applicant’s remorse about a failure to disclose prior criminal convictions would, in and of itself, satisfy the Tribunal that it is not appropriate to exercise the discretion to cancel a visa. This is because the Tribunal is mindful of the risk that an expression of remorse by an applicant in such circumstances, without something more in evidence, risks undermining the purposes of s.102 of the Act.

As a result, whilst Tribunal accepts the applicant provided the correct information in his Partner visa application in May 2014 and on incoming passenger cards, he completed on some entries he has made to Australia, it has given limited positive weight to this fact in its consideration of the exercise of the discretion as to whether to cancel the applicant’s Partner visa.
The content of the genuine document (if any)
As the applicant’s non-compliance with s.102 of the Act did not arise due to the provision of any document in support of his Combined Residence Subclass 820/801 Partner visa application, the Tribunal is satisfied that this consideration is not relevant to the present case. The Tribunal has accordingly given no weight to this consideration when determining whether to exercise its discretion to cancel the applicant’s visa.
Whether the decision to grant a visa (or immigration clear) to the visa holder was based, wholly or partly, on incorrect information or a bogus document
Section 166(1)(b) of the Act requires a non-citizen to provide information required by the Act or the Regulations and r.3.02(1)(b) of the Regulations provides that a passenger card for a person entering Australia must include a question about criminal convictions.
The delegate found that the Department took into account the applicant’s incorrect answers to questions on his passenger cards in deciding whether to immigration clear him on the occasions on which he re-entered Australia on [the five dates in question]. The delegate found that the decision to immigration clear the applicant was based, at least in part, on the incorrect information he had provided about his criminal history. The delegate found that by not providing the correct information on his passenger cards, the visa holder did not undertake the appropriate clearance procedures that are applicable to someone with a significant criminal history.
The Tribunal has found that the correct information is that the applicant had criminal convictions at the time that he travelled to Australia on five occasions between 2015 and 2016. However, the Tribunal considers it significant that the applicant had previously disclosed information regarding his criminal history in statutory declarations he provided to the Department in May 2014, in association with his Partner visa application. His criminal history was also detailed in a UK Police Certificate and Australian Federal Police Certificate he provided to the Department with this visa application. The Partner visa was granted prior to the provision of the incorrect answers on passenger cards on [the five dates in question]. The applicant’s visa was not granted on the basis of the incorrect answers on his passenger cards.
With respect to the issue of immigration clearance, the applicant gave evidence that he correctly answered the question about whether he had any criminal convictions on passenger cards on two previous occasions he entered Australia: [in] September 2012 and [in] April 2014. He said that when he passed through the airport in [City 1] on these flights, he was not detained or otherwise questioned by border officials as a result of providing the correct information about his criminal history. The applicant suggested that the Department was therefore aware of his criminal convictions and that it is incorrect for them to suggest that subsequent decisions to immigration clear him on [the five dates in question] were influenced by his not declaring his criminal history. In summary, the applicant contended that as he was not detained or otherwise questioned before he was immigration cleared when he declared his criminal history on passenger cards, and it follows that providing the incorrect response on other occasions would have no practical effect on the process by which immigration clearance was determined.
As he had previously disclosed his criminal convictions at the time of his application for the Partner visa and also on previous passenger cards in 2012 and 2014, it may appear to be unlikely that the applicant would have been denied immigration clearance had he provided the correct information. This is however, in the view of the Tribunal, an unknown. On the basis that immigration clearance procedures are carried out on each occasion a person enters Australia from an offshore location, the Tribunal is satisfied that the decision to immigration clear the applicant on [the five dates in question] was based, at least in part, on the incorrect information he had provided about his criminal history. The Tribunal has accordingly given some weight to this consideration in support of it exercising the discretion to cancel the applicant’s visa.
The circumstances in which the non-compliance occurred
In the statutory declaration to the delegate, dated 12 April 2018; to the Tribunal, dated 17 October 2018; and in his oral evidence during the hearing, the applicant outlined the circumstances of his criminal offences in the UK and Australia. The Tribunal notes, however, that the issue here is not the applicant’s criminal conduct and convictions but his failure to disclose the convictions when completing the passenger cards. That is, the non-compliance relates to the applicant’s completion of the passenger cards and not the criminal conduct.
The applicant’s evidence is that he essentially filled out the passenger cards in a hurried manner, without giving them due attention. He contends that the frequency in which he was travelling between the UK and Australia and fatigue associated with his hectic lifestyle at that time contributed to him neglecting to complete the passenger cards correctly. He told the Tribunal during the hearing that he didn’t read the passenger cards fully and had not taken into account how serious a document the passenger card is and the potential consequences that any incorrect responses could have for his future in Australia.
The Tribunal accepts the contention that long distance air travel is tiring, especially in the context described by the applicant, where he had a physically demanding job and fitted in trips to spend time with his current partner in periods when he would have otherwise been relaxing or recuperating from work. The Tribunal is not however persuaded a fatigued state would have prevented the applicant from reading the passenger cards in a manner which gave them ‘due attention’. The Tribunal is not convinced as to why filling out these cards in the frequent manner described by the applicant could not have resulted in him habitually providing correct answers to the questions on the passenger cards.
The Tribunal accepts the applicant’s contention that he didn’t read the passenger cards carefully, or take into account the seriousness of the consequence he would face if the passenger cards had incorrect responses on them. The Tribunal has considered the submission from the applicant’s representative that the applicant’s behaviour was a combination of recklessness and ignorance of the proper purpose of the passenger cards, rather than a more deliberate choice to misrepresent his criminal history. The Tribunal accepts this is consistent with the applicant's own contentions, but is not persuaded the applicant's explanation for disregarding the requirement he provide correct information on the passenger cards is a reason to not cancel the visa. In the view of the Tribunal to do so would be to undermine the intention of s.102 of the Act.
The present circumstances of the visa holder
In the statutory declarations and oral evidence provide by the applicant, he states that he has settled in Australia, developing links to his local neighbourhood and the wider Australian community. The applicant has emphasised the positive contribution he makes to Australia, through his pro-social behaviour, either on an informal basis in his local community or through contributions to [two named charities] and through charity work with [another charity] and other organisations. The Tribunal accepts this claim and has given some positive weight to it when considering whether to exercise the discretion to cancel the visa. The Tribunal also accepts the applicant’s claim with regard to the security clearances he has in relation to his current employment and as part of his training as an [occupation 1].
The applicant states he has worked in [Industry 1] in Australia and is a valued contractor. He states that in November 2017 he registered a business name and has plans, currently on hold, to purchase plant and equipment enabling him to develop this [business]. The applicant contends this business will make a positive contribution to the Australian economy and also assist with completion of important [Industry 1] projects in the [specified] region. The Tribunal has reviewed the range of support statements and other evidence available to it and accepts the applicant has a good employment history in Australia. The Tribunal acknowledges his current employment in [Industry 1] will continue to make a contribution to both the economy and development of [that industry]. The Tribunal has given some positive weight to it when considering whether to exercise the discretion to cancel the visa.
The Tribunal has not however placed significant weight on the potential impact upon the applicant's [specified] business when considering whether the visa should be cancelled. In forming this view the Tribunal does not ignore the potential impact upon the applicant and his partner, were the visa to be cancelled. Rather, the Tribunal is mindful of the impact any such outcome could have and has factored this into its consideration of the issues. The Tribunal is of the view that whilst the potential impacts from a visa cancellation will significantly impact the applicant and his partner, consideration of these needs to be balanced with the intent of s.102 and the seriousness of breaching these provisions.
The applicant states that he and his partner reside in rental accommodation and if he had to depart from Australia the lease for this property will be impacted, which would in turn have a negative impact on his partner. The Tribunal acknowledges this may be the case, but on the basis of evidence provided by the applicant, the Tribunal is satisfied the applicant’s partner is in stable employment and that there is no indication she would be unable to meet the current rental commitments. The Tribunal accepts there may be a financial cost to the parties if there is a requirement to break the ease. The Tribunal is not persuaded the applicant, or his partner would face financial hardship in the event they needed to get out of their current lease agreement, or that the applicants partner lacks the acumen to secure herself alternate accommodation.
The applicant contends that he would also need to sell motor vehicles and a motorbike which would negatively impact him, as one of these vehicles is under finance. The Tribunal acknowledges this would cause inconvenience and have an adverse financial impact upon the applicant. The Tribunal is not however persuaded any such impacts are significant enough to provide a reason to not exercise the discretion to cancel the visa.
The applicant said his partner is currently in Australia on a [temporary] visa. He said that she is seeking permanent residency in Australia and that if he had to depart from Australia she would be negatively impacted, as she would be left to look after their dog and their home by herself. The Tribunal accepts this claim and acknowledges the impact that a period of physical separation could have on the applicant and his partner. However, the Tribunal has noted the applicant’s partner has secure employment and is in the process of seeking permanent residency in Australia upon a visa pathway that is not reliant on sponsorship by the applicant. The Tribunal accepts the evidence of the applicant’s partner that conducting a long distance relationship again would be difficult for her and the applicant. The Tribunal has however not placed significant weight on this issue in its consideration as to whether to cancel the visa. The applicant and his partner both hold UK citizenship and have choices available to them with regard to the best way to manage their future relationship arrangements. The evidence makes it apparent the applicant’s partner has a successful career and is not restricted to seeking employment in Australia only. It is also the case that the applicant will not be precluded from seeking to return to Australia at some point if his current visa is cancelled.
The Tribunal acknowledges the applicant and his partner have a pet dog, however the Tribunal has not placed positive weight on this claim when considering whether to exercise the discretion to cancel the visa, as there is no evidence to demonstrate the applicant’s partner would be unable to look after this pet in the circumstance where the applicant departs Australia.
The applicant told the Tribunal that he is currently training to qualify [as an occupation 1]. He said that he has invested nearly $[amount] in this training and only has to sit a final exam before he gets his [initial occupation 1 qualification], which is a step towards getting his full [occupation 1] qualification. He said that he needs to follow this up with further training and that if he had to depart from Australia the training and [work] experience he has to date undertaken would not be credited to any application he made for a [full occupation 1 qualification] overseas. The applicant explained that if he is able to remain in Australia, he should achieve the full [occupation 1] qualification his is pursuing in approximately 12 months’ time. The Tribunal accepts there will be a potentially significant cost to the applicant if he is not able to be credited for the training and [work] experience he has to date achieved in relation to his [practical] training. The Tribunal has placed some positive weight on this claim and the associated benefit to the Australian community from having [fully qualified occupation 1s] who chose to reside in Australia.
Upon overall consideration of this factor, the Tribunal acknowledges that cancelling the visa may result in distress and financial impacts to the applicant and his partner as a result of the disruption of their current circumstances. The Tribunal has given some positive weight to this in its consideration of whether to exercise the discretion to cancel the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the above provisions.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant has stated that upon one occasion he returned to Australia, [in] June 2016, he did not provide an answer to the question regarding past criminal convictions. He contends this supports his claim regarding decisions to immigration clear him on occasions he provided incorrect responses on passenger cards in the 2015 to 2016 period. The delegate’s decision record notes that the applicant entered Australia at [Airport 1], [in] January 2010 and [in] September 2013 and through [City 1’s airport] [in] July 2011. The delegate noted that on these dates, when completing incoming passenger cards, when asked if he had any criminal convictions the applicant ticked the box denoting "No" and signed and dated the card and declared that "The information I have given is true, correct and complete". The applicant did not make any submissions in relation to these prior instances, where he gave incorrect responses on passenger cards, when invited by the Tribunal to comment on any other occasions he had been non-compliant with Departmental requirements he provide correct responses.
The delegate’s decision record notes that the applicant lodged an application for a [Temporary] visa on 6 December 2009 and a [different temporary] visa on 2 August 2010. Under "Character declarations" on both visa applications, when asked if he had ever been convicted of an offence in any country (including any conviction which is now removed from official records, the applicant stated "No".
In relation to his criminal history not been declared on the application for a [Temporary] visa in 2009, the applicant said that his mother applied for this visa on his behalf, as she was keen for him to disengage from the bad company and other circumstances having a negative influence on him at that time in the UK. He said his mother filled out the online application form and that he did not sign any documents associated with that visa application. He contends that in relation to his criminal history not been declared on the [second temporary] visa application, the applicant said he did not fill out this visa application. He said that both the sponsorship and nomination forms were completed by an employee at the company he was at that time working for. He said that he was not asked for any criminal record checks. He said that he did not sign anything on the visa applications. He said the company offered to sponsor him and then some time later, told him the sponsorship had been approved and that he had permission to remain in Australia for a further four years.
The Tribunal is mindful that in accordance with s.100 of the Act, 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. Further, s.111 provides that s.109 applies whether the non-compliance was deliberate or inadvertent. The Tribunal accepts the applicant may have not paid close attention to the procedures by which he gained these previous visas, but has concern that this appears to be emblematic of his tendency to not give due consideration to important documents that make clear to him his legal requirements in relation to immigration matters. The Tribunal is also concerned that the applicant appears to, notwithstanding his acceptance of personal responsibility for giving incorrect answers on the identified passenger cards in the 2015 to 2016 period, ascribe responsibility for these and other issues of concern on to other parties and external factors.
The delegate noted that the applicant lodged an application for Australian citizenship on 9 August 2016. Under "Character Declarations" when asked "Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any 'spent' convictions)?" The applicant responded "Yes" and when asked to give details he restricted his disclosure to "2011 Low range PCA 0.052 section 10 dismissal". The delegate noted the citizenship application was refused on 4 May 2017 based on him failing the character test due to the non-declaration of his convictions, with this decision being affirmed by the Tribunal (differently constituted) on 2 March 2018.
With respect to this issue, in his statutory declaration dated 17 October 2018, the applicant states he thinks that he was careless in answering the identified question under “Character Declarations", by providing information about his criminal offence from 2011 for drink driving but not his other criminal offences in Australia, which at that time also included providing a false name in June 2016 and the second drink driving offence in July 2016, because he believed that he didn't need to disclose what the Department already knew. He states that he did not disclose his UK offences as, once again, he did not think that this was necessary since the Department already had his UK Police Certificate with the list of these offences. The Tribunal does not find this explanation persuasive, or the representative’s submission that when assisted by a migration agent, as with the application for his combined residence partner visa, the applicant provided accurate responses about his criminal history.

The Tribunal finds the applicant has displayed at best a tendency to not give due regard to the requirement he provide accurate responses on documents he provides to the Department and if not given the benefit of the doubt, has deliberately sought to misrepresent his criminal history when applying for Australian citizenship in a manner he perceived may be to his benefit. The Tribunal considers these other instances of non-compliance give significant weight in support of exercising the discretion to cancel the visa.
The time that has elapsed since the non-compliance
In relation to the length of time that has now elapsed since the responses were provided on the incoming passenger cards, the applicant said it is close to three years since he provided the last incorrect response and that he’s not been outside Australia since that time. He said he has no had no further convictions for traffic offences or anything else in the period since October 2016. The Tribunal notes it is more accurately viewed as slightly more than two years since the most recent non-compliance with s.102 of the Act, rather than three years as claimed by the applicant. When considered in conjunction with the other instances of non-compliance discussed in this decision, the Tribunal does not consider this to be a factor that provides support against the discretion that is available to the Tribunal to cancel the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal to indicate the applicant has breached the law since his last offence in September 2016 for driving a motor vehicle whilst disqualified. The Tribunal has given limited positive weight to this fact in its consideration of the exercise of the discretion as to whether to cancel the visa, due to the relatively brief period of time that has in fact passed.
Any contribution made by the visa-holder to the community
The Tribunal is satisfied that in the period the applicant has resided in Australia since 2010 he has, through earning and spending money in Australia, contributed to the Australian economy. The Tribunal is satisfied he has through his work contributed to the development of [Industry 1] projects in the [specified] region. As is discussed elsewhere in this decision, the Tribunal accepts the applicant contributes to the wellbeing of his local neighbourhood and the wider community through his involvement in neighbourhood groups and charity work. The applicant has provided the Tribunal with a number of statements concerning his activities and the Tribunal accepts that the applicant has contributed to the community. The applicant has provided the Tribunal with a number of character references. The Tribunal accepts that those who provided references believe the applicant to be a good person. The Tribunal has placed some positive weight on these contributions when considering the discretion to cancel the visa
Other matters
In addition to the matters set out in r.2.41, departmental policy suggests that consideration should also be given to other relevant factors. These include: whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act; whether there are mandatory legal consequences to the cancellation decision; and whether the visa cancellation may result in Australia breaching its international obligations.
Although not binding upon it, the Tribunal acknowledges that it is appropriate to have regard to these considerations, and any other relevant issue, raised by the evidence before it. Accordingly, these are discussed as follows:
Consequential cancellation
There is no evidence before the Tribunal to indicate that, if the applicant’s visa is cancelled, there are persons in Australia whose visas will, or may, be cancelled under s.140 of the Act.
International obligations
No claims have been made and the Tribunal is satisfied that there are no relevant international agreements that would or may be breached as a result of the visa cancellation. Nor is there any evidence to suggest that cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations.
Mandatory legal consequences
Indefinite detention is not a likely consequence of the decision to cancel the applicant’s visa. As noted above, the evidence before the Tribunal indicates that the applicant could be removed from Australia without breaching Australia’s non-refoulement obligations.
The applicant may become an unlawful non-citizen and be liable to detention and removal from Australia if the visa is cancelled. However, it is open to the applicant to return to the UK within the allowed departure period.
Hardship to the applicant and his partner
The applicant contends that cancelling his visa would have an impact on his partner, as they emotionally and financially support each other and they would both be distressed if they were separated as a result of his visa being cancelled. The Tribunal accepts this claim, but for the reasons discussed elsewhere in this decision, has placed only limited positive weight to it when considering the discretion to cancel the visa.
The Tribunal accepts that the applicant, and more recently his current partner, have resided in Australia and have developed meaningful friendships and social ties with Australians. The Tribunal is not however persuaded he or they would find it difficult to return to the UK. The Tribunal is also not persuaded by the submission that it is not in the applicant’s interests to be “plonked back in the UK” due to his history of not making pro-social life choices when he lived there as a young man. It is for the applicant to take responsibility for making constructive life choices and the evidence before the Tribunal is that he has matured in a manner where he is capable of now doing so.
The Tribunal accepts that if the applicant’s visa is cancelled this would inevitably result in disruption to his plans to live and work in Australia. However, the employment skills gained in Australia are transferable. The Tribunal acknowledges that the applicant has made a significant financial investment in gaining a [full occupation 1 qualification], but is not persuaded this wish for personal career advancement and increased life satisfaction is a factor weighs against cancelling the visa.
The Tribunal accepts that the applicant and his partner may well experience some hardship if he is required to return to the UK. However, it is open to the applicant to make a further visa application from the UK and the applicant’s partner could live with him there during the visa processing period if the parties do not wish to live separately. Alternatively, the applicant and his partner can maintain contact through electronic means with his partner visiting the applicant periodically. The parties could also meet in a third country at regular intervals to maintain contact.
The Tribunal has considered all of the evidence before it, including the applicant’s disclosure of his criminal convictions prior to the grant of the visa and on some passenger cards and that he has not been charged with further criminal offences since October 2016, but has formed the view that the seriousness of the applicant’s actions in providing false answers on passenger cards on the identified occasions, regarding his criminal history, outweighs the factors in favour of not cancelling the visa.
Conclusions
In considering the prescribed and other relevant factors cumulative in relation to whether the Tribunal should exercise the discretion to cancel the visa the Tribunal has taken into account the applicant’s acceptance of responsibility for providing incorrect answers about his criminal history on passenger cards on the identified dates in 2015 and 2016. The Tribunal has also taken into account the applicant’s genuine remorse about the consequences he is potentially facing because of the incorrect manner in which he responded to questions on the passenger cards. The Tribunal has placed some weight, when considering whether there are sufficient factors in favour of not cancelling the visa on the correct information the applicant has given the department on some other occasions with respect to his criminal history, but has placed more weight on the occasions where his criminal history has either not been declared or not declared fully. The Tribunal has also placed weight, when considering whether there are sufficient factors in favour of not cancelling, upon the applicant’s contributions to Australia through his employment, charity work and positive involvement in his local community.
The Tribunal has considered the impacts on both the applicant and his current partner if the visa is cancelled, both in terms of the difficulties this will place upon their relationship and the impact on his partner’s living arrangements and the care of their pet. The Tribunal has also considered the potential impact on the applicant’s goal of becoming [an occupation 1] and the impact financial and otherwise which may result on him not being able to complete training for this career whilst he is in Australia.
When considering the relevant factors cumulatively, the Tribunal is mindful of the intent of s.102 and the important role such a provision has in ensuring the Commonwealth authorities have effective mechanisms in place to subject people entering Australia to necessary checking procedures. The Tribunal finds, notwithstanding the applicant’s claim to have not been subject to extra scrutiny when he declared his criminal history on passenger cards on other occasions, his incorrect responses on passenger cards on the identified dates in 2015 and 2016, resulted in his immigration clearance on those occasions being based, in part, on incorrect information. The Tribunal is not satisfied the applicant been fatigued and not cognisant of the seriousness of filling out the passenger cards incorrectly, or the other factors to which the Tribunal has given some positive weight outweigh the concerns regarding the applicant not providing accurate answers regarding his criminal history on the identified occasions.
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 and factors, as discussed in this decision, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.
David Barker
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.
102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given.
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 5555

30 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice