1812789 (Migration)
[2022] AATA 2252
•29 March 2022
1812789 (Migration) [2022] AATA 2252 (29 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1812789
MEMBER:Justine Clarke
DATE:29 March 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.
Statement made on 29 March 2022 at 1:27pm
CATCHWORDS
MIGRATION – Cancellation – Subclass 100 (Spouse) visa – applicant provided incorrect information – criminal conviction – non-compliance in connection with a previous visa – applicant had provided a bogus document to the Department – applicant’s past offences in the FYROM were not as extensive as the delegate had stated – strong evidence of the applicant’s contribution to the Australian community – consistent and persistent claim to fear returning to Macedonia – applicant was genuinely unaware of the Australian charges – decision under review set asideLEGISLATION
Migration Act 1958, ss 101, 102, 103, 107, 109, 359
Migration Regulations 1994, r 2.41, cl 309.225CASES
Vata v Minister for Immigration [2015] FCCA 1735
MIAC v Khadgi (2010) 190 FCR 248Any 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 on 27 April 2018 to cancel the applicant’s Subclass 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (the Act).
The applicant is a national of the Republic of North Macedonia (previously known as the Former Yugoslav Republic of Macedonia (FYROM)).[1] At the time of this decision, he is [age] years of age.
[1] In February 2019, the country’s name changed to the Republic of North Macedonia.
On 16 September 2014, the applicant was granted a Partner (Migrant) (Class BC) Subclass 100 visa.
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with sections 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. These provisions are found in Subdivision C of Division 3 of Part 2 of the Act. This subdivision was intended, among other things, to prevent non-citizens from benefiting from the failure to disclose or provide accurate and truthful information in a visa application.[2] Therefore, it places an onus on non-citizens to provide accurate information in relation to visa applications.
[2] Explanatory Memorandum to the Migration Reform Bill 1992 at [32].
The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate made the decision to cancel the applicant’s visa because the delegate was not satisfied that, in respect of the applicant’s previously held Partner (Provisional) (Class UF) Subclass 309 visa granted on 17 December 2012, the applicant had complied with sections 101, 102 and 103 of the Act. Section 107A allows a ground for cancellation of a current visa if there is non-compliance in connection with a previous visa. Extracts of the Act relevant to this case are attached to this decision.
On 15 February 2018, a delegate issued a Notice of Intention to Cancel Visa (NOICC) pursuant to s 107.
On 13 March 2018 and 27 April 2018, the applicant submitted information and evidence in response to the NOICC. This included:
·written submissions dated 13 March 2018 and many documents in support, including a statutory declaration made by the applicant’s son [Mr A] on 13 March 2018 (all submitted on 13 March 2018); and
·tax returns for the applicant’s wife [for] the 2016 and 2017 financial years (submitted on 27 April 2018).
In the cancellation decision of 27 April 2018, the delegate noted and considered the applicant’s response to the NOICC. The delegate noted that the applicant agreed that there was non-compliance. After considering the applicant’s response to the NOICC, the various prescribed circumstances in reg 2.41 and other matters (specifically, additional policy considerations set out in the Department’s guidelines, namely PAM 3), the delegate exercised her discretion under s 109 of the Act and made a decision to cancel the visa.
On 3 May 2018, the applicant applied to the Tribunal for review. At all times during this review, the applicant has been represented by a registered migration agent.
The presiding Member notes that, prior to being constituted to her, this review had been constituted to two different Members (including a Senior Member). The Senior Member had invited the applicant to a hearing on two occasions but prior to each of those dates, the representative requested the postponement of the hearing and the Senior Member had agreed to the request. Essentially, the applicant requested the Tribunal to wait until his application for a Bridging E visa had been determined so that an in-person hearing could be held. The written submissions of 1 March 2019 referred to case law supporting the request.[3]
[3] ‘It is clear that the decision to hold a hearing by video-link is discretionary and that the exercise of that discretion may miscarry: SZNPK v Minister for Immigration and Citizenship [2009] FCA 1271, [12]. It is also clear that the Tribunal must consider whether the hearing is likely to be conducted fairly and effectively and whether it would be able to properly make any necessary assessment of the applicant’s credibility if the hearing is conducted using video-link: SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712, [26].
Following constitution of this review to the presiding Member, on 10 September 2019, the Tribunal invited the applicant to an in-person hearing to be held on 3 October 2019.
On 2 October 2019, the applicant’s then representative submitted written submissions (dated 2 October 2019) and extensive information and evidence in support of the case. This included:
·the applicant’s submissions to the Tribunal (sitting in its General Division) in respect of the decision to refuse to grant him a Bridging E visa on character grounds, dated 7 January 2019;
·the Tribunal’s decision to set aside the decision to grant the applicant a Bridging E visa, dated 13 February 2019;
·the applicant’s statement dated 7 January 2019;
·[The applicant’s wife’s] statement dated 4 January 2019;
·[Mr A]’s (the applicant’s son) statement dated 4 January 2019;
·[Mr C]’s (the applicant’s father) statement dated 4 January 2019;
·[Mr D]’s (the applicant’s business associate) statement dated 6 January 2019;
·[Mr E]’s ([official]) statement dated 16 January 2019;
·[Mr F]’s (the applicant’s business associate) letter dated 30 September 2019;
·loan statements for five different bank accounts; and
·a quotation issued by [Company 1] Pty Ltd, dated 15 August 2019.
Following receipt of this material, later on the day of 2 October 2019, the Tribunal postponed the hearing scheduled for 3 October 2019 to a date to be determined.
On 20 January 2020, the applicant appeared in person before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the following persons (all in person):
·[The applicant’s wife];
·[Mr A] (the applicant’s son);
·[Mr C] (the applicant’s father);
·[Mrs G] (the applicant’s mother);
·[Mr H] (the applicant’s brother);
·[Mr F] (the applicant’s business associate) and
·[Mr D] (the applicant’s business associate).
The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages. The applicant’s then representative attended the hearing.
Some further documents were submitted on the day of the hearing, being documents relating to proposed developments at properties in [Suburb 1] and [Suburb 2] which it was anticipated would corroborate evidence expected to be given by [Mr D].
On 11 February 2020, the then representative submitted further evidence, being a photograph of the applicant presenting [Organisation 1] with a cheque for $[amount] and a copy of the certificate of appreciation presented to him by [Organisation 1] in recognition of his contribution to and support of their 2020 Bushfire Appeal.
The progression of this matter from that date to this final decision has been hindered by a number of things, particularly the disruption caused by the COVID-19 pandemic and the Tribunal’s inability to re-list the matter for a second in-person hearing. Key events are detailed below.
On 22 March 2021, the Tribunal sent a s 359(2) letter to the applicant, by way of his then representative, requesting an update of the applicant’s circumstances as discussed at the hearing. Specifically, the Tribunal requested updated information to support the applicant’s submission for the exercise of the Tribunal’s decision not to cancel the visa (emphasis added). In these reasons, the Tribunal acknowledges the error in that statement. The statement should have read, ‘for the exercise of the Tribunal’s decision to cancel the visa’ (emphasis added). The Tribunal informed the applicant that the information should be received by 6 April 2021 and outlined the consequences of failing to provide the information or request an extension of time by this date.
On 23 March 2021, the then representative requested an extension of time until 19 April 2021 and outlined the reasons for requesting an extension. On 24 March 2021, the Tribunal wrote to the applicant, by way of the representative, and agreed to the extension of time.
On 19 April 2021, the representative submitted written submissions dated 19 April 2021 and further evidence, including a detailed statement from the applicant made on 19 April 2021, various medical evidence pertaining to the applicant’s wife, various financial evidence and country information pertaining to the situation with respect to the COVID-19 pandemic in the Republic of North Macedonia. The cover email attaching this information stated:
As set out in the submission, if the Tribunal is not minded to set aside the cancellation on the basis of the attached documentary evidence, it is asked to again take oral evidence from [the applicant] and his wife in order to fully appreciate the devastating emotional impact that separation is likely to have on them in their present circumstances, which include her recent surgery.
On 16 June 2021, an officer of the Tribunal telephoned the representative in order to conduct a technology check ahead of a proposed second hearing to be conducted by video. The representative expressed a request for the hearing to be in person. He gave a few reasons in support of this request. He noted that he was not confident that the applicant and his wife have a suitable or reliable technological connection. In addition, he noted that, given the recent lockdown in Melbourne, he was working in a temporary office and that he did not believe that his clients could attend a video hearing from his temporary office. Further, he expressed the view that, given the nature of the review and the factors to be assessed by the Tribunal and the large element of discretion involved in the case, the matter should be heard in person. The officer requested the representative to outline the reasons for this request in writing and, later that day, the representative sent an email outlining these and other reasons in support of the request for the hearing to be an in-person hearing rather than a video hearing. The email referred to case law supporting the request.[4]
[4] The representative referred to the cases referred to earlier. See footnote 3.
The Tribunal considered these submissions, and on 17 June 2021, the Tribunal sent the applicant an invitation to a further in-person hearing to be held on 5 July 2021.
On 24 June 2021, the representative submitted the completed ‘response to hearing invitation’ form and stated that all of the family members who had given oral evidence at the first hearing intended to give oral evidence at the further hearing.
On 1 July 2021, the applicant’s newly appointed representative informed the Tribunal that he had accepted instructions that day to act for the applicant in respect of the review (Form MR5 attached) and requested the postponement of the in-person hearing scheduled for 5 July 2021 and that the newly appointed representative be provided with sufficient time in order to review the case.
Later that same day (1 July 2021), the Tribunal wrote to the applicant, by way of his newly appointed representative, and agreed to the postponement of the in-person hearing that had been scheduled for 5 July 2021. The letter invited the applicant to an in-person hearing to be held on 4 August 2021.
On 9 July 2021, the representative submitted the completed ‘response to hearing invitation’ form and stated that all of the family members who had given oral evidence at the first hearing intended to give oral evidence at the further hearing.
On 29 July 2021, the representative wrote to the Tribunal to inform that the applicant did not intend to submit any further documents and that he would rely on the written submissions prepared and filed by the previous representative.
On the morning of 4 August 2021, the in-person hearing scheduled for later that day had to be cancelled due to the unavailability of an interpreter in the Albanian and English languages.
On 10 August 2021, the Tribunal wrote to the applicant, by way of his representative, and invited him to an in-person hearing to be held on 27 August 2021.
On 17 August 2021, an officer of the Tribunal telephoned the representative to inform him and his client that the hearing scheduled for 27 August 2021 would need to be postponed due to the announcement by the Victorian Government of the extension of the ‘lockdown’ in Melbourne. Later that day, the Tribunal wrote to the applicant, by way of the representative, to confirm the postponement of the hearing and to inform that a new hearing date was not yet available.
On 18 August 2021, the representative submitted written submissions. The cover email attaching this information stated:
Member, if the Tribunal sees fit to remit the matter on the basis of the information / material already provided to the Tribunal and information contained within this submission, we would certainly welcome this outcome without the need to appear before the Tribunal again to give evidence. If the Tribunal is not inclined to remit the matter without first hearing from the applicant and witnesses, we thank the Tribunal for allowing the applicant another opportunity to present his case by way of hearing.
On 12 November 2021, an officer of the Tribunal telephoned the representative to inquire as to whether the applicant and witnesses met the Tribunal’s new requirements to participate in an in-person hearing. Later that day, the representative provided written information about the COVID-19 vaccination status of the applicant and the proposed witnesses. The representative noted the dates of his office’s Christmas and summer shutdown and his leave and suggested that ‘a hearing in mid to late February 2022 may allow all parties to obtain their required double vaccinations’, as well as the representative time to prepare for the hearing.
The presiding Member understood that in-person hearings were not to be held at the Melbourne Registry in February 2022 but that they could be scheduled for March onwards.
Due to the passage of time since the hearing, the Tribunal confirms that, prior to making this decision, the presiding Member listened to the audio recording of the hearing in its entirety. The hearing was for a duration of five hours and 15 minutes (including breaks) and the audio recording is for a duration of just under four hours and 20 minutes (excluding breaks).
The Tribunal has also carefully considered all the submissions and evidence before it.
At the date of this decision, the Tribunal holds the view that a further hearing is not required.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
Both the NOICC and the primary decision include the following information.
On 22 May 2012, the applicant lodged an application for a Partner (Provisional) (Class UF) Subclass 309 visa. In that application, in response to the question ‘[h]ave you or any other person in this application, ever: [b]een convicted of a crime of offence in any country (including any conviction which is now removed from official records?’, the applicant put a tick in the box to indicate ‘NO’. Further, when asked in that application, ‘[h]ave you or any other person in this application, ever: … [b]een charged with any offence that is currently awaiting legal action?’, the applicant also put a tick in the box to indicate ‘NO’.
The applicant also provided the Department with a translated document titled ‘Certificate’, and with identifying numbers No. [deleted] and dated ‘03.04.2012’, which was said to be issued by the Head of the Police Department, Internal Affairs, [City 1], Republic of Macedonia which stated that, with respect to the applicant, ‘penal evidence records DO NOT EXIST’. The certificate also stated, ‘[t]his certificate is issued on request of the applicant for: to serve as proof before foreign authorities to regulate rights abroad’.
On 17 December 2012, as the delegate was satisfied that the applicant met all the necessary requirements relevant for the grant of the visa (including, presumably, Public Interest Criterion 4001—which concerns the character test—for the purpose of cl 309.225), the applicant was granted the Subclass 309 visa.
[In] December 2012, the applicant entered Australia as the holder of the Subclass 309 visa and completed an incoming passenger card. Within this card, when asked whether he has any criminal conviction/s, he put a tick in the box to indicate ‘NO’.
On 16 September 2014, as the delegate was satisfied that the applicant continued to meet all necessary requirements relevant for the grant of the second stage of partner migration (including, presumably, Public Interest Criterion 4001—which concerns the character test—for the purpose of cl 100.222), the applicant was granted a Partner (Migrant) (Class BC) Subclass 100 visa.
On 7 April 2017, the applicant lodged a Form 1300t (Application for Australian Citizenship) with the Department. In that application, the applicant put a tick in the box to indicate, NO to the following statements.
Question 39. Please answer the following questions for yourself and any children included in your application:
(a) Have you ever 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)? NO
…
(d) Are you presently under a probation order, good behaviour bond, on parole, released on licence or subject to periodic detention overseas or in Australia? NO
(e) Are you aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review? NO
…
(g) Have you ever been charged with any offence overseas or in Australia that is currently awaiting legal action? NO
At Question 52 of the form, which was entitled ‘Part M – Declaration’, the applicant signed and dated the form, declaring, ‘the information I have supplied in this form is complete, truthful and correct in every detail’.
The applicant also provided, with his application for Australian citizenship, a certified English translation of a Penal Records Certificate from the Republic of Macedonia, Number: [deleted] dated 27 September 2017. This document stated that he held no penal records; that is, no final judgment or sentence has ever been passed against him.
Subsequently, the Department contacted the authorities of the then FYROM to verify the authenticity of the penal clearance certificate.
In November 2017, the Primary Court [City 1] in the then FYROM advised the Australian Government that the Penal Records Certificate Number: [dated] 27 September 2017, was counterfeit. The Court advised that the data provided in the document does not correspond with official court records in their criminal records database. The Court advised that, while a document with Number: [dated] 27 September 2017, had been legitimately issued by the Court, it corresponds to the records of another person—not the applicant.
Rather, the Primary Court [City 1] advised the Australian Government that its records state that the applicant has been convicted of six crimes in the then FYROM and, in respect of these offences, has been sentenced to imprisonment of nine years and 11 months aggregate and one year parole as indicated in Primary Court [City 1] document Number [deleted], which relevantly states:
1. 07/04/2009 – Sentenced to 3 Y 11 M imprisonment – status: active
Unlawful deprivation of liberty
Article 140
(1) Anyone who unlawfully imprisons another person, keeps him imprisoned, or in any other way takes away or limits his freedom of movement, shall be punished with a fine, or with imprisonment of up to one year.
Counterfeiting document
Article 378
(1) A person who makes a false document or removes a genuine document with the intention of using such a document as true or who uses the false or corrected document with the intention of using such a document as true or who uses the false or corrected document as true shall be punished with a fine, or with imprisonment of up to three years.
(3) If the crime from item 1 has been committed in relation to a public document, a testament bill of exchange, a check, a public or official book or another book that must be conducted on the basis of a law, the perpetrator shall be punished with imprisonment of three months to five years.
Illegal production, possession and trade in weapons or explosives
Article 396
(1) A person who improperly produces, holds, sells, procures or exchanges with firearms, ammunition or explosive materials shall be punished with imprisonment of three to ten years.
(2) If the object of the crime referred to in paragraph 1 is a larger quantity of firearms, ammunition or explosive materials or firearms, ammunition or explosives that are forbidden to the citizens, the offender shall be punished with imprisonment of at least five years.
2. 20/04/2000 – Sentenced to 3 M imprisonment – status: active
Counterfeiting money
Article 268
(4) A person who falsifies the money that he has received as a genuine will release them in circulation or who knows that false money has been made or that fake money is released into circulation, so it will not [sic]
3. 26/09/2003 – Sentenced to 1 Y parole – status: active
Criminal offenses against the public security
Endangering traffic safety
Article 297
4. 22/02/2008 – Sentenced to 3 Y 3 M imprisonment – status: active
Unlawful deprivation of liberty
Article 140
(4) If an unlawful deprivation of liberty is committed by an official with abuse of office or authorization, he shall be punished with imprisonment of six months to five years.
5. 03/02/2009 – Sentenced to 6 M imprisonment – status: active
Counterfeiting document
Article 378
(1) A person who makes a false document or removes a genuine document with the intention of using such a document as true or who uses the false or corrected document as true shall be punished with a fine, or with imprisonment of up to three years.
6. 02/02/2015 – Sentenced to 2 Y imprisonment – status: active – Article of the law not listed
On 12 January 2018, an Australian Federal Police check confirmed that, on 14 February 2001, the applicant was charged with four offences in Australia and that, [in] February 2014, he was convicted of all four crimes at [a] Court in Victoria. Both the NOICC and the primary decision include the following table outlining these charges and convictions.
Court Result/ Penalty
Charge date
Offence
Count
Conviction & Fine
[date]/02/2014
[date]/02/2001
Theft – [date]/01/2001
1
Conviction & Fine
[date]/02/2014
[date]/02/2001
Possess Ammunition w/out Licence – [date]/01/2001
1
Conviction & 1 month suspended sentence
[date]/02/2014
[date]/02/2001
Possess/Carry Unregistered Handgun – [date]/01/2001
1
Conviction & Fine
[date]/02/2014
[date]/02/2001
Possess Drug of Dependence – [date]/12/2000
1
The application for a Bridging E visa
From information before the Tribunal, the Tribunal is aware that the applicant made an application for a Bridging E (Subclass 050) visa in association with his application for merits review of the cancellation of his Subclass 100 Partner visa.
On 19 November 2018, a delegate of the Minister refused the application pursuant to s 501. Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
On 30 November 2018, the applicant applied to the Tribunal for review of the decision to refuse to grant him a Bridging E visa.
After a two-day hearing on 31 January 2019 and 1 February 2019, on 13 February 2019, the Tribunal (sitting in its General Division and differently constituted) made a decision to set aside the decision then under review and in substitution decided that the applicant not be refused a Bridging Visa E under s 501(1) of the Act. In the present review, the applicant provided the Tribunal with a copy of these reasons for decision. The Tribunal also notes that the various signed statements listed above in paragraph [12] were prepared and filed in respect of the s 501 review.
On 11 April 2019, the applicant was granted a Bridging visa E and was released from immigration detention.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue for determination in this review is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. In considering this issue, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s file, as well as oral evidence given at the hearing.
Was the NOICC validly issued pursuant to s 107?
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.
It was not contended that there was any defect in the NOICC.
From its review of the NOICC, the Tribunal is satisfied that the NOICC 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 s 107.
The Tribunal finds that the NOICC issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the NOICC?
The non-compliance identified and particularised in the NOICC was non-compliance with sections 101(b), 102 and 103. The text of these provisions is attached to this decision.
The Tribunal is mindful that, in a cancellation case, where the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or, on review, the Tribunal).[5]
[5] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
Consideration of non-compliance with s 101(b)
Section 101 provides that visa applications are to be correct, and paragraph (b) specifically requires that no incorrect answers are given or provided.
In the NOICC, it was said that, in his application for the Subclass 309 visa filed on 22 May 2012, the applicant had provided incorrect information on page 20 of his Form 47SP (Application for migration to Australia by a partner) as he answered ‘NO’ to the questions about criminal convictions and criminal charges. Specifically, in the part of the form entitled ‘Part H – Health and Character’, the applicant was said to have indicated ‘NO’ to the following questions:
Have you or any other person in this application, ever:
·been convicted of a crime of offence in any country (including any conviction which is now removed from official records)? NO
·been charged with any offence that is currently awaiting legal action? NO
With respect to the first question, the delegate in the NOICC stated that she considered that the correct information is ‘YES’ as the Primary Court [City 1] (of the FYROM) has confirmed that the applicant has been convicted of six crimes and sentenced to an aggregate of 11 years and nine months imprisonment[6] in that country.
[6] There appears to be slippage because, earlier in the NOICC the delegate had stated, ‘the Primary Court [City 1] records state that you have been convicted of six crimes in FYROM, and have been sentenced to imprisonment of nine years 11 months aggregate, and one year parole for these offences, as per Primary Court [City 1] document [Number]’ (emphasis added). This error in the NOICC was corrected in the primary decision at paragraph [18] which states that the Primary Court [City 1] had confirmed that the applicant had been ‘sentenced to an aggregate of nine years and 11 months imprisonment in that country’ (emphasis added).
With respect to the second question, the delegate in the NOICC stated that she considered that the correct information is ‘YES’ as the applicant’s Australian Criminal Record states that, as at [date] February 2001, he had four pending charges for:
· Theft;
· Possession of Ammunition Without a Licence;
· Possession/Carry an Unregistered Handgun; and
· Possession Drug of Dependence.
The delegate stated in the NOICC that, at the time of the applicant’s declaration (May 2012), these charges were all awaiting legal action and, [in] February 2014, resulted in convictions.
The applicant concedes that ‘[a]nswers to questions on page 20 of the Form 47SP relating to convictions and pending charges should have been answered in the affirmative rather than the negative’.[7] However, as will be explained below, he takes issue with the statement in the NOICC,[8] and in the delegate’s subsequent finding in the cancellation decision,[9] that he had been ‘sentenced to imprisonment of nine years and 11 months aggregate, and one year parole’ in the state now known as the Republic of North Macedonia. It was submitted that such a finding is not open on the evidence. As will be explained, the Tribunal accepts this submission.
[7] The written submissions of 2 October 2019 and 18 August 2021. The applicant also made this concession in the written submissions of 13 March 2018 that were submitted to the Department in response to the NOICC.
[8] This statement is made on page 6 of the NOICC.
[9] This finding is made in paragraph [15] of the primary decision.
Notwithstanding this latter point, the Tribunal finds that there was non-compliance with s 101(b) in the broad way described in the NOICC.
Consideration of non-compliance with s 102
Section 102 provides that passenger cards are to be correct, and paragraph (b) provides that no incorrect answers are given.
In the NOICC, it was said that, [in] December 2012, the applicant had provided incorrect answers in his incoming passenger card ID number: [deleted], as he answered ‘NO’ to the question asking whether he has any criminal conviction/s.
The delegate in the NOICC stated that she considered that the correct information is ‘YES’ as the Primary Court [City 1] has confirmed that the applicant has been convicted of six crimes and sentenced to an aggregate of 11 years and nine months imprisonment.[10]
[10] Again, the Tribunal notes that there appears to be slippage because, earlier in the NOICC the delegate had stated, ‘the Primary Court [City 1] records state that you have been convicted of six crimes in FYROM, and have been sentenced to imprisonment of nine years 11 months aggregate, and one year parole for these offences, as per Primary Court [City 1] document [Number]’ (emphasis added). The delegate sought, in the primary decision, to correct this particular error in the NOICC. At paragraph [23] of the primary decision, the delegate stated that the Primary Court [City 1] confirmed that the applicant had been ‘convicted of five crimes and sentenced to an aggregate of seven years and 11 months imprisonment (in 2000, 2003, 2008 and 2009) prior to his date of entry to Australia’. In this part of the primary decision, the delegate excluded mention of the conviction, on ‘[date]/02/2015,’ of two years imprisonment, presumably because this claimed conviction occurred after the applicant entered Australia on [date] December 2012.
The applicant concedes that ‘[t]he answer on the incoming passenger card completed [in] December 2012, relating to previous convictions, should have been answered in the affirmative rather than the negative’.[11] Again, the Tribunal notes the applicant’s earlier mentioned contention about the delegate’s finding in the primary decision that he had been ‘sentenced to an aggregate of nine years and 11 months imprisonment, and one year parole’. Again, the Tribunal records here that it accepts that submission.
[11] The written submissions of 2 October 2019 and 18 August 2021. The applicant also made this concession in the written submissions of 13 March 2018 that were submitted to the Department in response to the NOICC.
Notwithstanding this latter point, the Tribunal finds that there was non-compliance with s 102 in the broad way described in the NOICC.
Consideration of non-compliance with s 103
Section 103 provides that bogus documents are not to be given. The phrase ‘bogus document’ is defined in s 5(1) of the Act.
In the NOICC, it was said that, as part of the applicant’s application for a Subclass 309 visa lodged on 22 May 2012, the applicant had provided a bogus document to the Department that purports to have been, but was not, issued in respect of him.
The delegate in the NOICC stated that she considered that the penal clearance certificate No. [deleted], dated ‘[date].04.2012’[12]—which purports to have been issued by the Internal Affairs Sector Police Department in [City 1] certifying that, in the FYROM, penal evidence records ‘DO NOT EXIST’ in the applicant’s name—to be bogus.
[12] The applicant also submitted an English translation of the document.
She stated that the Primary Court [City 1] has confirmed that penal evidence records do exist in the applicant’s name because, between the years 2000 to 2015, the applicant had been convicted of six crimes and sentenced to an aggregate of 11 years and nine months[13] in the Primary Court [City 1] of the FYROM.
[13] Again, the Tribunal notes that there appears to be slippage because, earlier in the NOICC the delegate had stated, ‘the Primary Court [City 1] records state that you have been convicted of six crimes in FYROM, and have been sentenced to imprisonment of nine years 11 months aggregate, and one year parole for these offences, as per Primary Court [City 1] document [Number]’ (emphasis added). The delegate sought, in the primary decision, to correct this particular error in the NOICC. At paragraph [27] of the primary decision, the delegate stated that the Primary Court [City 1] had confirmed that, as at 3 April 2012 (the date that the bogus document was said to have been issued), penal evidence records did exist for the applicant ‘as he had a total of five convictions recorded in 2000, 2003, 2008 and 2009 in the FYROM’.
The applicant concedes that ‘[t]he Penal Clearance Certificate [deleted] was a “bogus document” within the meaning of s 103 of the Act’.[14]
[14] The written submissions of 2 October 2019 and 18 August 2021. The applicant also made this concession in the written submissions of 13 March 2018 that were submitted to the Department in response to the NOICC.
The Tribunal finds that there was non-compliance with s 103 in the broad way described in the NOICC.
Conclusion with respect to the non-compliance described in the NOICC
As has been explained, the applicant concedes that he did not provide correct information to the Department in the way that has been described in the NOICC—subject to the earlier mentioned contention about the statement in the NOICC that he had been ‘sentenced to imprisonment of nine years and 11 months aggregate, and one year parole’—and provided a bogus document to the Department in the way that has been described in the NOICC. Accordingly, the Tribunal finds that there was non-compliance with sections 101(b), 102(b) and 103 by the applicant in the broad way described in the NOICC—save for the statement in the NOICC that he had been ‘sentenced to imprisonment of nine years and 11 months aggregate, and one year parole’, as that issue is addressed below. Accordingly, the Tribunal finds that there are grounds for cancelling the applicant’s visa under s 109 of the Act.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the NOICC given to the applicant under s 107 of the Act (save for the issue of the period of the sentence), 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 any response given by the applicant to the NOICC about the non-compliance and have regard to any prescribed circumstances pursuant to s 109(1)(b) and (c). The Tribunal notes that, in exercising the discretion whether to cancel the visa, it must consider all relevant facts and circumstances up until the time of this decision.
The prescribed circumstances are set out in reg 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 deals with these issues in turn below. In these reasons, the Tribunal adopts the order which the Tribunal considers best suits the flow of ideas and aids comprehension.
The Tribunal has considered the following submissions in respect of these issues:
·the written submissions of 13 March 2018 and of 27 April 2018,[15] in response to the NOICC (both on the Department’s file);
[15] This is a short email which arguably contains some submissions.
·the written submissions of 2 October 2019;
·the written submissions of 19 April 2021 (these submissions and all former submissions having been made by the applicant’s previous representative); and
·the written submissions of 18 August 2021 (made by the applicant’s present representative).
The Tribunal has also considered the oral evidence given at the hearing as well as all other evidence before the Tribunal, including that submitted to the Department and to the Tribunal.
At the outset, the Tribunal notes that it was submitted that, as the previously-constituted Tribunal in the s 501(1) review had been required to give significant attention to the nature and circumstances of the applicant’s history of offending, the Tribunal, as presently constituted, has no reason to depart from the previously-constituted Tribunal’s findings in its s 501(1) decision. The Tribunal accepts this submission.
The correct information: reg 2.41(a)
As noted, the applicant concedes that the correct information is affirmative rather than negative responses to the previously-mentioned questions on the visa application form and incoming passenger card. That is, that in the application for the Subclass 309 visa, when asked whether he had ever been convicted of a crime of offence in any country (including any conviction which is now removed from official records), his answer should have been ‘yes’ and when asked whether he had ever been charged with any offence that is currently awaiting legal action, his answer should have been ‘yes’. And, in the incoming passenger card, when asked whether he has any criminal conviction/s, his answer should have been ‘yes’.
As has also been noted, the applicant’s criminal offending relates to conduct in both the FYROM and in Australia.
Criminal convictions in the FYROM
Both the delegate in the NOICC and in the cancellation decision referred to a letter from the Municipal Court [City 1] to the Australian Embassy in Belgrade, dated ‘[date].11.2017’ and with the subject reference ‘[number deleted]’, with an extract said to be the penal records with respect to the applicant. The original documents in the Macedonian language are on the Department’s file whereas the English translations of the documents, prepared on 3 January 2019,[16] are on the Tribunal’s file.
[16] In his statement of 7 January 2019, the applicant stated that, on 8 October 2018 (which the Tribunal notes was after the delegate had made the cancellation decision), the Department of Home Affairs provided him with a copy of a ‘conviction evidence certificate’ in Macedonian and asked him to provide an English translation of the document. It appears to the Tribunal that the English translation presently before it was the document prepared pursuant to that request.
In the NOICC, the delegate stated that the Primary Court [City 1] had ‘confirmed’ that the applicant had been convicted of six crimes and sentenced to an aggregate of 11 years and nine months imprisonment.
In the cancellation decision, the delegate clarified this, stating:
The correct information is that [the applicant] has been charged and convicted of six crimes between 2000 and 2015 and sentenced to an aggregate of 11 years and nine months imprisonment in the FYROM, Primary Court [City 1]. The offences include Unlawful Deprivation of Liberty, Counterfeiting Documents, Counterfeiting Money, and Criminal Offenses Against the Public Security.
I acknowledged that at the time of visa application and grant on 17 December 2012, [the applicant] had been convicted of five crimes (not six) and sentenced to an aggregate of nine years (not 11 as stated in the NOICC) and nine months imprisonment in the Primary Court [City 1], FYROM in 2000, 2003, 2008 and 2009. I note that [the applicant] was later convicted and sentenced to two further years’ imprisonment in 2015, after the grant of the visa[.]
I further note [the applicant] has not departed Australia since his arrival in 2012 and therefore consider the latest sentence to be unserved.
In the written submissions of 13 March 2018, in response to the NOICC, the applicant’s then representative suggested that there may have been ‘significant doubling up’ of the offences outlined in the NOICC and requested additional time in order to provide further detail in respect of the particulars of the convictions in FYROM.
In the cancellation decision, the delegate stated:
I acknowledge and allowed for [the applicant]’s request for additional response time to verify the details of his FYROM convictions due to his concerns that there may be a potential ‘doubling up’ of the offences listed. To date, (approximately six weeks later) he has provided no alternative record and requests additional time to verify these details. In absence of any information provided to the contrary, I consider the official penal record this Department obtained from the Primary Court [City 1] to be accurate and correct as itemised in the NOICC.
I consider should any errors be identified in relation to any duplication of offences within [the applicant]’s Primary Court [City 1] Record at a later date, it will have no impact on the grounds for visa cancellation as set out in the NOICC. This is because Section 101(b), s 102 and s 103 of the Act have been enlivened in this case due to the visa holder’s non-disclosure/concealment of any prior criminal history including any charges, convictions or pending legal action irrespective of the number or seriousness of the crime/s.
The Tribunal considers that the point made in the last paragraph to be correct. However, the Tribunal also considers it important to note that, in the s 501(1) review, the previously-constituted Tribunal expressly stated that it found itself to be in a ‘difficult position’ to determine the extent and nature of the applicant’s criminal history in the FYROM because of ‘the inconsistencies in several of the offences’ and without the benefit of ‘any other documentary evidence of the convictions in FYROM’.[17] The Tribunal in the present review finds itself in a similar position. Notwithstanding, like the previously-constituted Tribunal in the s 501(1) review, the Tribunal in the present review finds the applicant’s explanation of his criminal convictions in the FYROM—outlined below—to be ‘plausible’.[18]
[17] At paragraph [82].
[18] Ibid.
Further, at the hearing in the present review, the applicant’s then representative submitted that the extract from the penal records with respect to the applicant is ‘suspect’. The representative stated:
The victim in the offence we’ve just discussed [namely, the assault—outlined below], and which [the applicant] has been fairly open and clear about held some form of official position and was probably in a position to have records changed in a manner that was unfavourable to [the applicant], if he wished to, given that Macedonia is not a country known for transparency and lack of corruption.
And that is further reinforced by some of the other convictions which don’t really make any sense in terms of [the applicant]’s travel history. As the previously-constituted Tribunal noted, there is a conviction for counterfeiting money which is said to have occurred when [the applicant] was out of the country. He couldn’t possibly have committed that offence. And then there is a further conviction in 2015 for an unspecified matter. Again, when [the applicant] had been out of the country for at least three [sic] years.
Our submission is that the record itself is suspect[.]
Similarly, the applicant told the Tribunal that, in general, he believed the penal records to be inaccurate because of his status as an Albanian in Macedonia.
As my lawyer said, [in] Macedonia, we all know how people live—especially Albanians; how they live over there. We have nothing—just our lives—when we used to live over there. They can do anything they want. They send in, put in those kinds of documents to us to Immigration—for nine years and 11 months; it never happens. … they don’t have reason to hold these things, to make someone like in jail for nine or ten years and it’s not true. We know what they are doing to us.
100. The Tribunal is aware that there is some country information in support of the suggestion that officials in the Republic of North Macedonia are susceptible to bribery. For example, a 2021 report prepared in respect of North Macedonia states:
Petty corruption remains a pressing issue. According to a 2019 survey, close to 29.5 percent of the population reported having been solicited for a bribe in the past year, while 23 percent bribed an official in the same period.[19]
[19] Jovan Bliznakovski, ‘Nations in Transit 2021 – North Macedonia’, Freedom House. See < The article cites Emina Nuredinovska, Jasmina Ristovska, Natasha Ivanovska, ‘Report on the assessment of corruption’, Macedonian Center for International Cooperation, January 2020, 20. See <
101. Notwithstanding, as noted by the delegate in the extract from the NOICC above, sections 101(b), 102 and 103 have been enlivened due to the applicant’s non-disclosure/concealment of any prior criminal history—irrespective of the number or seriousness of the crime/s.
Below, the Tribunal outlines the details from the extract said to be the penal records with respect to the applicant and the applicant’s specific contentions about the various convictions detailed in that record. The Tribunal notes that the extract from the penal records is not in chronological order. However, in these reasons, the Tribunal has found it helpful to use chronological order. In his statement of 7 January 2019, the applicant provided details of the circumstances of the convictions set out in the penal records. At the hearings in respect of the s 501(1) review and the present review, the applicant also gave oral evidence about a number of these matters.
Penal Item no [deleted], sentence dated [date] April 2000
103. The extract from the penal records provided to the Australian Embassy states that, on [date] April 2000, regarding Penal Item no [deleted], the Municipal Court [City 1] sentenced the applicant to:
INCARCERATION pursuant to Article 268, paragraph 4 of the Criminal Code of the Republic of Macedonia, for a term of 3 months – with ACTIVE status.
104. It will be recalled that both the NOICC and the cancellation decision stated that Article 268, paragraph 4 of the Criminal Code of the Republic of Macedonia concerns counterfeiting money, specifically stating:
A person who falsifies the money that he has received as a genuine will release them in circulation or who knows that false money has been made or that fake money is released into circulation, so it will not [sic][20]
[20] Incomplete text in both the NOICC and the cancellation decision.
105. The previously-constituted Tribunal’s reasons for decision in the s 501(1) review stated that this particular provision states:
A person who releases in circulation false money which he had received as real, or a person who knows the false money were made, or that false money were released in circulation, and who does not report this, shall be punished with a fine, all with imprisonment of up to three years.[21]
[21] At paragraph [30].
In his statement of 7 January 2019, the applicant stated that, at the time of the purported conviction on [date] April 2000, he had not been in the FYROM. Rather, he stated that he had been in Australia from July 1997 until February 2001. For this reason, he stated that he could not explain the purported conviction. Further, he stated that up until October 2018, when the Department had provided him with a copy of the ‘conviction evidence certificate’, he had been unaware of the purported conviction. He stated that he had engaged a lawyer in the FYROM to try to find out more about the purported conviction.
107. At the hearing in the present review, the applicant gave oral evidence that, in 2000, he had been in Australia so it was not possible that he could have been in jail in the FYROM then.
108. In the previously-constituted Tribunal’s reasons for decision in the s 501(1) review, it placed little weight upon this particular conviction because, at the time of conviction, the applicant had not been in the FYROM and because ‘there was no corroborating evidence in respect of this charge, such as sentencing remarks’.[22]
[22] Ibid.
109. In the present review, the Tribunal notes the previously-constituted Tribunal’s findings with respect to Penal Item no [deleted]. Similar to the previously-constituted Tribunal, the Tribunal found the applicant’s explanation regarding this penal item number to be plausible.
Penal Item no [deleted], sentence dated [date] September 2003
110. The extract from the penal records provided to the Australian Embassy states that, on 26 September 2003, regarding Penal Item no [deleted], the Municipal Court [City 1] sentenced the applicant to:
PROBATION SENTENCE pursuant to Article 297, paragraph 3, including Article 300, paragraph 3, of the Criminal Code of the Republic of Macedonia, for a term of 3 months conditional sentence: with 1 year ACTIVE status.
111. It will be recalled that both the NOICC and the cancellation decision stated that Article 297 of the Criminal Code of the Republic of Macedonia concerns endangering traffic safety.
112. The s 501(1) decision stated that this relevantly provides:
(3): a person who commits a crime for items 1 and 2 out of negligence shall be punished with a fine, or with imprisonment of up to one year. Article 1 being a participant in traffic on the public roads, who does not adhere to the regulations, and herewith endangers the public traffic in such a way as to endanger the life and body of people and property to a significant extent.[23]
[23] At paragraph [31].
113. Neither the NOICC nor the cancellation decision stated what Article 300 relates to. The previously-constituted Tribunal’s decision in the s 501(1) review also does not refer to the text of this Article.
114. In his statement of 7 January 2019, the applicant stated the following about this matter and sentence.
I believe that this is a sentence I received for drink driving. I was involved in a car accident. I don’t remember the date of the accident. I went to court for the matter. I received a punishment of what I understand to be the equivalent of a one-year good behaviour bond for this offence. I was not convicted of any other offences in that one-year period.
This was the first time that I came before a court in FYROM.
115. In its s 501(1) decision, the previously-constituted Tribunal noted that the applicant had given oral evidence that:
it was not a big car accident. He had been drinking and drove, he said he did not see the traffic light and hit a car from behind. He recalls going to court but not the date, receiving a good behaviour bond and a fine. He would have been [age range] years of age at the time.[24]
[24] Ibid.
116. At the hearing in the present review, the applicant gave some oral evidence—albeit very brief—about this matter. He said that he had had a car accident but that he believed that there was ‘no conviction, no prison’.
117. Similar to the previously-constituted Tribunal, the Tribunal found the applicant’s explanation regarding Penal Item no [deleted] to be plausible.
Penal Item no [deleted], sentence dated [date] February 2008
118. The extract from the penal records provided to the Australian Embassy states that, on [date] February 2008, regarding Penal Item no [deleted], the Municipal Court [City 1] sentenced the applicant to:
INCARCERATION pursuant to Article 140, paragraph 4, of the Criminal Code of the Republic of Macedonia, for a term of 3 years and 3 months – with ACTIVE status.
119. It will be recalled that both the NOICC and the cancellation decision stated that Article 140, paragraph 4 of the Criminal Code of the Republic of Macedonia concerns unlawful deprivation of liberty, specifically stating:
If an unlawful deprivation of liberty is committed by an official with abuse of office or authorization, he shall be punished with imprisonment of six months to five years.
120. In his statement of 7 January 2019, the applicant provided details about this matter and sentence. He stated that he believed that the charge arose from an incident in which he was involved on 28 August 2007. In the written submissions of 18 August 2021, the representative described that incident as:
a fight with an associate of a friend in August 2007. The man [the applicant] had a fight with had previously served in the Macedonian army [and/or the police force][25] and was boasting about committing acts of sexual violence against Albanian women. Being an Albanian man himself, [the applicant] reacted to the lack of remorse the man displayed and his provocation. An altercation broke out and both physically fought one another when they were in a state of severe intoxication. [The applicant] indicated his remorse for his violent conduct in this incident and has been abstinent from alcohol ever since.
[25] The applicant was unsure which. See his statement of 7 January 2019, paragraph [5](g).
121. The applicant gave further detail of this incident in his statement of 7 January 2019 and in his oral evidence at the Tribunal hearing on 20 January 2020. Presumably, the applicant also gave oral evidence about this incident at the Tribunal hearing in respect of the s 501(1) review, although the previously-constituted Tribunal’s reasons in that matter do not explicitly state so. In the then representative’s closing submissions at the hearing for the present review, it was submitted that the applicant had given detailed evidence about the circumstances in which the assault occurred and that ‘his evidence has been consistent in both hearings where he has given that evidence’. The then representative also commented that the applicant ‘was clearly very affected by having to give that evidence again today’. The Tribunal observed and heard the applicant experience distress in giving oral evidence about the incident, especially the man’s stated claims to the applicant about what the man had done to Albanian women and ‘little girls’, including rape, and how he had no remorse and would do the same again, even if the woman was the applicant’s ‘mother, sister or whomever’.
122. In his statement of 7 January 2019, the applicant also stated:
I was charged in relation to that incident. I do not recall what the charges were. To the best of my recollection, the Police suggested that I was armed at the time of the incident. I believe that the Police claimed that they had recovered some bullets near the scene of the fight. I am certain that I did not use a firearm in the fight between me and the other man.
I went to court. There was a trial. I was originally sentenced to 3 years and 3 months imprisonment at the end of it.
123. In its s 501(1) decision, the previously-constituted Tribunal stated the following about this matter.
[The applicant] advised the Tribunal that he had been taken to the police station the morning after the fight and held there until the trial. He spent 3 years and 10 months in custody in total. At court he was represented by a lawyer and pled guilty to the fight because he had done it and he believed he would get a minimal sentence of six months.
[The applicant] stated that he did not plead guilty to the offence of false imprisonment [see also Penal Item no [deleted] below] as he had not kidnapped anybody. He recalled that at the trial he was accused of forcing the man into the car and holding him against his will but that is not how it happened. He claimed they had all freely got into the car, they both got out of the car to continue the fight and the other man had run away. He could not explain having been found guilty of unlawful arrest performed by an official person [that is, Penal Item no [deleted] as he has never held an official position in FYROM. He did not plead guilty to any firearm charge as he did not have a weapon or ammunition during the fight. He recalls ammunition being displayed at the trial but he strenuously denied they belonged to him. …
[The applicant] firmly believed that being from the minority Albanian ethnicity in FYROM was a factor in his trial, particularly as the man he injured was Macedonian. He went on to explain the tension for ethnic Albanians living in FYROM and how he had not been involved in the Civil War directly as a soldier but he explained; everybody was involved in the Civil War as you had to survive, you had to look after your family and he had exposed himself to risk during the conflict by going to the city to buy food/groceries for his village. He stated that everyone knew that you were Albanian so you were never safe at that time. He said he still considered himself at risk in 2007.[26]
[26] At paragraphs [33]–[35].
124. Similar to the previously-constituted Tribunal, the Tribunal found the applicant’s explanation regarding Penal Item no [deleted] to be plausible.
Penal Item no [deleted], sentence dated [date] February 2009
125. The extract from the penal records provided to the Australian Embassy states that, on [date] February 2009, regarding Penal Item no [deleted], the Municipal Court [City 1] sentenced the applicant to:
INCARCERATION pursuant to Article 378, paragraph 1, of the Criminal Code of the Republic of Macedonia, for a term of 6 months – with ACTIVE status.
126. It will be recalled that both the NOICC and the cancellation decision stated that Article 378, paragraph 1 of the Criminal Code of the Republic of Macedonia concerns counterfeiting a document, specifically stating:
A person who makes a false document or removes a genuine document with the intention of using such a document as true or who uses the false or corrected document with the intention of using such a document as true or who uses the false or corrected document as true shall be punished with a fine, or with imprisonment of up to three years.
127. In his statement of 7 January 2019, the applicant provided details about this matter and sentence. He stated that, [in] August 2007, when the police had come to his house to arrest him in respect of the altercation, they had found a passport that contained his photograph but with someone else’s details in it.
128. He explained:
I had that passport in my possession since late 2001. The reason I had it was because I was involved in assisting the Albanian side during the civil war in 2001. As a result, I never felt safe in FYROM following the end of the conflict. I had that passport in case I ever needed to leave suddenly if I was going to be persecuted for my involvement in the conflict on the Albanian side. I had it because I feared for my life. I remained fearful for my life in 2007. This was common practice amongst Albanian men who had been involved in the civil war. I never used that passport. I had it as a precautionary measure only.
129. He stated that he had been charged separately for the possession of the passport and that, originally, he was sentenced to imprisonment for six months.
130. In its s 501(1) decision, the previously-constituted Tribunal noted that the applicant had given oral evidence that he had pled guilty to having the false passport.[27]
[27] At paragraph [34].
131. At the hearing in the present review, the applicant gave oral evidence about this matter which was consistent with what he had said in his statement of 7 January 2019. He said that he had been given a six-month jail sentence for having the passport and that he had served the sentence.
132. Similar to the previously constituted Tribunal, the Tribunal found the applicant’s explanation regarding Penal Item no [deleted] to be plausible.
Penal Item no [deleted], sentence dated 7 April 2009
133. The extract from the penal records provided to the Australian Embassy states that, on 7 April 2009, regarding Penal Item no [deleted], the Municipal Court [City 1] sentenced the applicant to:
INCARCERATION pursuant to Article 140 paragraph 1, Article 396, paragraph 2, Article 378, paragraph 1, including Article 378, paragraph 3, of the Criminal Code of the Republic of Macedonia, for a term of 3 years and 11 months – with ACTIVE status.
INCARCERATION pursuant to Article 140 paragraph 1, Article 396, paragraph 2, Article 378, paragraph 1, including Article 378, paragraph 3, of the Criminal Code of the Republic of Macedonia, for a term of 3 years and 11 months – with ACTIVE status.
INCARCERATION pursuant to Article 140 paragraph 1, Article 396, paragraph 2, Article 378, paragraph 1, including Article 378, paragraph 3, of the Criminal Code of the Republic of Macedonia, for a term of 3 years and 11 months – with ACTIVE status.
134. It will be recalled that both the NOICC and the cancellation decision stated that Article 140, paragraph 1 of the Criminal Code of the Republic of Macedonia concerns unlawful deprivation of liberty, specifically stating:
Anyone who unlawfully imprisons another person, keeps him imprisoned, or in any other way takes away or limits his freedom of movement, shall be punished with a fine, or with imprisonment of up to one year.
135. As was also explained earlier, both the NOICC and the cancellation decision stated that Article 396, paragraph 2 concerns illegal production, possession and trade in weapons or explosives, specifically stating:
If the object of the crime referred to in paragraph 1 is a larger quantity of firearms, ammunition or explosive materials or firearms, ammunition or explosives that are forbidden to the citizens, the offender shall be punished with imprisonment of at least five years.
136. The s 501(1) decision stated that paragraph or item 1 of Article 396 states, ‘a person who without authorization keeps firearm, ammunition or explosive materials’.[28]
[28] At paragraph [38].
137. Article 378 concerns counterfeiting a document. Paragraph 1 specifically provides:
A person who makes a false document or removes a genuine document with the intention of using such a document as true or who uses the false or corrected document as true shall be punished with a fine, or with imprisonment of up to three years.
138. Neither the NOICC nor the cancellation decision stated the text of paragraph 3. However, the s 501(1) decision stated that this provides:
If the crime from item 1 was committed in regard to a public document, will, bond, cheque, public or official book, or some other book that must be maintained based on the law, the offender shall be punished with imprisonment of three months to five years.[29]
[29] At paragraph [39].
139. In his statement of 7 January 2019, the applicant provided details about this matter and sentence. He stated that:
I believe that matter [deleted] is the outcome of a review or an appeal of the sentences I originally received for matters [deleted] [regarding the passport] and [deleted] [regarding the assault], referred to above.
I am unaware of how a third charge came to be added to the other offences on appeal, or what it relates to.
I remember that my lawyer went to court for the appeal. I did not have to go.
On appeal I received a total sentence of 3 years and 11 months for all matters before the court.
I had spent from [date] August 2007 until June 2011 in custody. This amounts to 3 years and about 10 months. There was a small reduction in my sentence to account for the leave I accrued while working various jobs during my sentence.
140. In its s 501(1) decision, the previously-constituted Tribunal stated the following about this matter.
[The applicant] advised the Tribunal that he was of the belief that this related to his appeal against the sentence he had received on [date] February 2008. He had appealed the sentence as he believed three years and three months for being involved in a fight was excessive. He did not appear at the appeal as he was being represented by his lawyer. His understanding is that all the charges arising from the fight; being the allegation that he had falsely detained the other person, had in his possession a firearm and ammunition and the discovery of the false passport at his home had all formed the basis of his final sentence being 3 years and 11 months which he duly served. He continued to deny that he had falsely detained the man involved in the altercation or had in his possession a gun or ammunition. He indicated that he pled guilty to the crimes he believed he had committed, which were being involved in the fight and possession of the false passport.[30]
[30] At paragraph [40].
141. At the hearing in the present review, the applicant gave oral evidence about this matter which was consistent with what he had said in his statement of 7 January 2019.
142. Similar to the previously-constituted Tribunal, the Tribunal found the applicant’s explanation regarding Penal Item no [deleted] to be plausible.
Penal Item no [deleted], sentence dated 2 February 2015
143. The extract from the penal records provided to the Australian Embassy states that, on 2 February 2015, regarding Penal Item no [deleted], the Municipal Court [City 1] sentenced the applicant to:
INCARCERATION for a term of 2 years – with ACTIVE status.
In his statement of 7 January 2019, the applicant noted this matter refers to a conviction for breaching an unspecified article of the Criminal Code. He stated that, at the time of the purported conviction on 2 February 2015, he had not been in the FYROM. Rather, at that time, he had been in Australia for more than two years. In his own words in that statement:
I am unable to provide any information about this alleged offence as I was not in the country at the time the purported conviction was recorded, and have had no opportunity to hear or defend myself against the charge, whatever that charge might be.
145. At the hearing in the present review, the then representative submitted that this purported conviction was not actually a conviction and that it made no sense.
146. The Tribunal in the present review notes that the Tribunal in the s 501(1) review placed little weight upon this conviction because, at the time of conviction, the applicant had not been in the FYROM and because ‘there was no corroborating evidence in respect of this charge, such as sentencing remarks’.[31]
[31] At paragraph [41].
147. In the present review, the Tribunal notes the previously-constituted Tribunal’s findings with respect to Penal Item no [deleted]. Similar to the previously-constituted Tribunal, the Tribunal found the applicant’s explanation regarding this penal item number to be plausible.
General comments about the applicant’s offending in the FYROM
148. In its s 501(1) decision, the previously-constituted Tribunal noted that the applicant had conceded that his actions in the FYROM were not trivial.[32] The Tribunal continued:
[32] At paragraph [80].
[The applicant] was insistent that he had never been sentenced to 11 years and nine months imprisonment, but 3 years and 11 months, which he has served. He also disputes that there was any finding of fact in respect of his conviction of unlawful deprivation of liberty, having a firearm during the incident in 2007 and clearly disputes two of the convictions recorded against him in the penal extract from FYROM. He indicated his remorse for his violent conduct in the incident in 2007, stating that he had been under the influence of alcohol, which he has abstained from ever since, and felt provoked by the comments of his victim.[33]
[33] Ibid.
149. As has been noted, in the s 501(1) decision, the previously-constituted Tribunal found the applicant’s explanation of his criminal convictions in FYROM to be plausible.[34] The Tribunal continued:
[34] At paragraph [82].
The Tribunal, without any other documentary evidence of the convictions in FYROM and the inconsistencies in several of the offences was in a difficult position to determine the extent and nature of [the applicant]’s criminal history. The Tribunal accepts, based on the evidence, that [the applicant] had spent some 3 years and 11 months[35] in jail in FYROM. The Tribunal accepts that [the applicant]’s alcohol intake had impaired his judgement and that he is now abstinent from alcohol. However, while these factors may help explain his actions, they do not excuse his conduct nor do they mitigate against the seriousness of the crime. … The Tribunal found [the applicant]’s offending, whilst not as extensive as the delegate had determined, was nevertheless serious and resulted in a significant sentence accordingly.[36]
[35] This appears to be an error as the applicant’s evidence was that he had spent three years and ten months in jail.
[36] At paragraph [82].
150. In the present review, it was again submitted that the applicant’s past offences in the FYROM were not as extensive as the delegate had stated. At the hearing, the then representative submitted:
Those items where he was outside Macedonia just don’t make sense. I think the best explanation is that there is corruption of some sort within the Macedonian authorities that has caused those entries to be made. Part of it also seems to be a genuine misunderstanding on the part of the delegate, I think, just arising from the way the sentences appear to be recorded in the Macedonian documents. There is double counting, basically. That is the most sensible explanation and that is the explanation the previously-constituted Tribunal accepted—that there is doubling up of the primary sentence and then the sentence imposed on appeal. I understand that [the applicant] is not a lawyer and does not understand how the exact process has worked, but he does have some recollection of there being an appeal that didn’t appreciably alter the sentence.
151. It was submitted that it was not open on the evidence to find that the applicant had served more than nine years in prison. At the hearing, the then representative submitted:
It is our submission that it is highly improbable that he was in fact sentenced to nine-plus years and the previously-constituted Tribunal accepted that and that was following examination and cross-examination.
152. Later in the hearing, the then representative submitted:
There is one significant offence and that is assault. And I think that, even all these years later, [the applicant] became quite emotional when he described the circumstances in which that occurred. It’s not a justification but it is a reason to extend a level of understanding to that conduct and the conduct was certainly never repeated. And as he himself said, he stopped drinking basically that day and hasn’t really looked back since; did his time and moved on.
153. As noted earlier, it was submitted also that the applicant had given detailed evidence about the circumstances in which the assault occurred and that his evidence had been consistent at both hearings.
154. With respect to the past offences in the FYROM not stemming from the altercation, it was submitted, in the written submissions of 18 August 2021, that the applicant ‘conceded that they were not trivial’ and that ‘he was not seeking to minimise his actions in any way’.
155. Having heard and reflected on all the submissions and evidence before it, the Tribunal in the present review, like the previously-constituted Tribunal in the s 501(1) review, accepts the submissions and evidence that the applicant’s past offences in the FYROM were not as extensive as the delegate had stated, in this case, in the NOICC.
156. Notwithstanding, this does not change the fact that the applicant has conceded that the correct information is affirmative rather than negative responses to the previously-mentioned questions about criminal history in the visa application form and incoming passenger card.
Australian charges and convictions
157. Both the delegate in the NOICC and in the cancellation decision referred to an Australian Federal Police check which confirmed that, on [date] February 2001, the applicant was charged with four offences in Australia and that, [in] February 2014, he was convicted of all four crimes at [a] Court in Victoria. For this reason, in the primary decision, the delegate stated:
The correct information is that [the applicant] also had four pending criminal charges in Australia laid [in] February 2001. These matters were pending before the [Court] for: Theft, Possession of Ammunition W/out a License, Possession/Carry an Unregistered Handgun and Possession Drug of Dependence which all resulted in convictions [in] February 2014.
158. However, in this review, it was submitted that there is no evidence that the applicant was aware of these charges until 2014, when they were prosecuted.[37]
[37] Written submissions of 2 October 2019 and 18 August 2021.
In his statement of 7 January 2019 and at the hearings in respect of the s 501(1) review and the present review, the applicant provided details of the incident in 2001 which he believes to be the incident from which the convictions stem.
160. The applicant stated the following in his statement of 7 January 2019:
I used to run for fitness a number of times a week alongside a [creek]. While on my regular runs one morning, I noticed a bag in the grass near the bank of the creek. The bag appeared to be full, and I stopped to examine it and see what was inside. It contained some clothes, money, a loaded pistol and some ammunition. I decided to keep the bag and its contents.
I kept the gun because it was not unusual for people in FYROM to own guns. Most people did. At that time, it didn’t seem alarming to me to have one. I didn’t have a particular purpose or use for it. It was just kept it at my house because I found it.
At that time I shared a house with two other housemates in [exact address omitted in these reasons]. There was a search warrant executed by Police at the house [in] January 2001. When they executed the search warrant Police found the gun and the ammunition that I kept in my room. I made full admissions to Police about finding the bag and its contents and why I had them.
I now understand that I should not have kept the bag, the money, the gun or ammunition that I found, and this is not something that I would ever do again. In hindsight I realise I should have turned it into the police, but it just didn’t occur to me at the time.
During the search Police also found some medicine at my house which was for sinus problems. It was called Demazin. At that time my mother was residing in FYROM, and she was having health difficulties with her sinuses. I knew this was an effective Australian medication. I was hoping it would help her discomfort. I had the medicine because I was waiting to send it back to her when someone from Australia would be visiting from FYROM. I had asked my girlfriend at the time to help me buy this medicine so that my mum would have enough of it for some time. I kept all the receipts just in case. I didn’t realise it was an offence for me to have it.
The police asked me to come and speak with them [in] January 2001, which I did. I explained to them how I came to be in possession of the bag and its contents, and the medicine. After the interview, they released me. I wasn’t charged. I assumed that this was the end of the matter and nothing further was going to happen about it.
About a month later I received a call about my father’s health problems and I returned to FYROM.
At both the hearing in the s 501(1) review and in the present review, the applicant gave oral evidence about this matter which was consistent with what he had said in his statement of 7 January 2019.
162. After recounting this evidence, and other evidence given by the applicant at the hearing for the s 501(1) review, such as that the applicant had been around [age] years of age at the time, the previously-constituted Tribunal stated:[38]
[38] At paragraphs [25]–[28].
Under cross-examination, [the applicant] disputed the amount of Demazin found in his possession, stating that each packet would have only had 7 to 14 tablets and he could not possibly have had as many tablets as the police had inferred.
[The applicant] stated that the police left a card at his house after the search and he had contacted them on those details and arranged an interview which he had attended the next day. He stated that he was provided with no paperwork in respect of the issues and was unaware that he had been charged with any offences. He left the country shortly after this as he had been advised that his father was suffering from health problems and he needed to return to FYROM.
The Tribunal notes [Mr D]’s evidence about this project in his statement of 6 January 2019, the previously-constituted Tribunal’s summary of his oral evidence given at the hearing in the s 501(1) review and [Mr D]’s oral evidence at the hearing in the present review. As noted earlier, the Tribunal found [Mr D] to be credible and accepts his evidence.
303. The applicant also gave oral evidence about this project in the hearing in the present review. For example, he said:
When I start, first contract in 2018 with [Mr D]. I started a project—he said a little bit before. So, I started but they put me in detention. So, left the job half. When they release me, I finish it. At that time, I was employing contractors.
304. The Tribunal is unsure whether the statements, ‘[w]hen they release me, I finish it. At that time, I was employing contractors,’ concerns what actually happened or whether it was the applicant’s intention to finish the [Location 1] project and to engage contractors to that end. The Tribunal suspects that it was the latter. The applicant’s subsequent evidence supports this view.
305. The Tribunal asked the applicant whether, at the time of the hearing, he was engaging any contractors. He replied that he was not. He said that while people such as [Mr D] wanted to give him work, there was a concern about what would happen if something happened to him (the applicant) and he was unable to finish the work. He said, for this reason he had made the decision to work for [Mr F].
306. In his statement of 19 April 2021, the applicant provided an update on the project at [Location 1] and the status of his business [Company 1] Pty Ltd.
At the hearing, [Mr D] and I gave evidence about incomplete building works at [specific number omitted in these reasons] [Location 1]. That project has continued to be subject to delays because of planning issues that are unrelated to my involvement in the project.
As I said at the hearing, I acknowledged that I have received a substantial deposit for works at [Location 1] and said that I was willing and able to provide the equivalent amount of work to [Mr D] on any other projects for which he was responsible.
I completed work for [Mr D] at [specific address omitted in these reasons] [Suburb 2], and also at [specific address omitted in these reasons] [Suburb 1]. The work that I did included [details deleted]. I take my obligations towards colleagues and customers very seriously, and I believe that [Mr D] is satisfied with the work that I have done for him in lieu of the [Location 1] works.
Because [of] my visa situation, [Company 1] is currently inactive. I cannot take on any major [contracts] while my visa remains cancelled, as I need to be able to guarantee that I can follow through with any promise to complete work. This is why I am only undertaking employee work at the moment. However, if the Tribunal sets aside the decision to cancel my visa, I intend to reactivate [Company 1] and start competing for [contracts] again. I expect the business will be successful and will employ Australian workers.
307. The Tribunal accepts the applicant’s evidence in this regard.
308. It is unclear to the Tribunal whether the applicant, through his business [Company 1], has ever engaged Australian workers or not. Without clear evidence in support, the Tribunal finds that he has not but that he intends to in the future. As explained earlier, only evidence of past or present employment of other Australians is relevant when considering reg 2.41(k).
309. In the circumstances and having considered all the evidence, the Tribunal finds that this factor weighs against cancellation of the visa.
Other matters
310. While the prescribed circumstances set out in reg 2.41 (outlined above) must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248.
311. 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.
312. The Tribunal deals with these issues in turn below.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially
313. There is no information or evidence before the Tribunal that there would be any consequential cancellations under s 140. Accordingly, this factor neither weighs in favour of cancellation of the visa or against cancellation of the visa. Rather, the Tribunal considers this factor to be neutral to its decision-making process.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
314. None of the written submissions specifically addressed this factor and whether there are any international obligations that would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
315. In the cancellation decision, the delegate considered this matter but concluded that there was no information that indicates that visa cancellation would impact on Australia’s international obligations.
316. At the hearing, the Tribunal referred to this matter, including the delegate’s finding that, as the applicant’s son [Mr A] is over 18 years of age, a decision to cancel the applicant’s visa would not be in breach of the Conventions of the Rights of the Child. The then representative submitted that the interests of the applicant’s young niece and nephew (who were discussed earlier in these reasons), were relevant to the consideration of this factor.
317. At this point in the hearing, the Tribunal noted that it had heard from [Mr H], the applicant’s brother and the children’s father, about the applicant’s relationship with the children. The Tribunal asked the applicant to detail his relationship with the children.
318. The applicant gave credible oral evidence that he was very close to the children and said that he thought that this was because he had not been a part of his son’s life when his son was young. He gave detailed oral evidence about the frequency and context in which he spends time with the children, explaining that he sees them ‘nearly every day’, picking them up from their parents’ [business] (after school) and taking them to his home until the parents have finished work and come to collect them.
319. Given the frequency and context in which the applicant spends time with the children, the Tribunal accepts the submission that the obligation to consider the best interests of the child may be an international obligation that may be breached as a result of the cancellation.
320. The Tribunal also notes that the written submissions of 2 October 2019 raised the issue of non-refoulement obligations—albeit in the context of the submission with respect to reg 2.41(c). The Tribunal also notes the applicant’s consistent and persistent claim to fear returning to Macedonia because he believes that his life would be in danger there because he has been informed that the victim of the assault wants revenge. This may be another way in which cancellation of the applicant’s visa may result in the breach of an international obligation.
321. In the circumstances, the Tribunal acknowledges that this factor may weigh against cancellation of the visa. However, the Tribunal considers it unnecessary to consider these claims in detail and make definitive findings because the Tribunal considers that, in this case, there are already sufficient factors weighing against cancellation.
Whether there are mandatory legal consequences to a cancellation decision
322. None of the written submissions addressed the issue of whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.
323. In the cancellation decision, the delegate considered this matter but concluded that the particular mandatory legal consequences which the delegate had detailed were ‘the intended legal consequences of visa cancellation on the basis of providing incorrect information and bogus documents in a visa application and incoming passenger card’. Accordingly, the delegate stated that, for this consideration, she placed little weight in favour of the applicant.
324. This matter was not discussed in any detail at the hearing.
325. Overall, the Tribunal considers that this factor weighs neither in favour of cancellation of the visa nor against cancellation of the visa. Rather, the Tribunal considers this factor to be neutral to its decision-making process.
Any other relevant matters:
326. None of the written submissions specifically addressed the issue of whether there are other relevant matters.
327. In the cancellation decision, the delegate stated that there were no other matters that she considered relevant in deciding whether to exercise the discretion to cancel the visa.
328. This matter was not discussed in any detail at the hearing.
329. The Tribunal notes that the Government’s policy gives one example of a matter coming within this factor, that is, ‘the degree of hardship that may be caused to the visa holder and any family members’. The use of the word ‘including’ before this example makes it clear that it is but one example.
330. The Tribunal considers that it has already considered the degree of hardship that may be caused to the applicant and to his family members in the consideration of reg 2.41(e), so this matter need not be considered again here.
The Tribunal also notes that under departmental policy, whether the visa holder has formed strong family, business or other ties in Australia is a relevant consideration in relation to cancellation of a permanent visa under s 116 but is not included in relation to cancellation under s 109.
332. The Tribunal notes the submissions and evidence, detailed earlier, about the applicant’s strong family and business ties in Australia. The Tribunal considers that it has already considered these matters in other considerations of the exercise of the discretion, so these matters need not be considered again here.
333. However, other ties in Australia, such as community ties have not been considered previously in these reasons.
334. A number of the submissions filed in this review directed the Tribunal to the evidence given by [Mr E], [official].[70] In his statement of 16 January 2019, Mr [E] stated that he had known the applicant since 2014 and described the applicant as ‘a respected member of the Albanian community, who is well liked and frequently attends and participates in community events’. The Tribunal accepts and gives weight to this evidence. The Tribunal considers that this factor weighs against cancellation of the visa.
[70] For example, the written submissions of 2 October 2019 and 18 August 2021, both of which referred to this evidence in the submissions concerning factor reg 2.41(k)—any contribution made by the holder to the community.
Conclusion about whether the visa should be cancelled
335. It was submitted, in the written submissions of 2 October 2019 that:
The exercise of the discretion to cancel under s 109(1) of the Act should be reasonable and proportionate ...
While [the applicant] acknowledges that his conduct was wrong, it is clearly not the role of the Tribunal to punish him for his transgressions. His current circumstances and contribution to the community … weigh overwhelmingly in his favour.
The Tribunal should therefore set aside the decision under review.
336. The written submissions of 18 August 2021 made similar submissions, including the following.
On the basis of [the applicant]’s circumstances considered against the relevant provisions in 2.41 of the Regulations, [the applicant] deserves a second chance given by the Australian community. It is submitted that the countervailing considerations in [the applicant]’s case are sufficient to justify not cancelling his visa, given that, very importantly, he does not represent an appreciable and unacceptable risk of harm to the Australian community.
…
[the applicant] has already been punished[71] for his previous offences, and the Australian community would not want to see this visa cancellation misused to inflict punishment towards a vulnerable individual and his family.
[71] The submissions referred to both his previous imprisonment and the ‘punishment’ of immigration detention from May 2018 to April 2019.
…
… the Tribunal should … give [the applicant] a second chance for him to be able to remain in and continue to contribute to the Australian community.
337. Having assessed all the evidence before it, the Tribunal accepts these submissions.
338. As has been explained, with respect to the factors in reg 2.41, the Tribunal finds that:
· reg 2.41(a) and (b) weigh in favour of cancellation of the visa;
· reg 2.41(c) and (g) are neutral to the Tribunal’s decision-making process;
· reg 2.41(d) weighs more against cancellation of the visa rather than in favour of cancellation; and
· reg 2.41(e), (f), (h), (j) and (k) weigh against cancellation of the visa, with reg 2.41(e) and (j) weighing heavily against cancellation of the visa.
339. As has also been explained, with respect to other factors considered, the Tribunal finds:
·the issues of whether there are persons in Australia whose visas would, or may, be cancelled consequentially and whether there are mandatory legal consequences to a cancellation decision are neutral to the Tribunal’s decision-making process;
·the issue of whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation may weigh against cancellation of the visa; and
·the issue of the applicant’s ties to the community weighs against cancellation of the visa.
340. A visa may be cancelled even if only one factor militates in favour of visa cancellation and all other factors are neutral or against cancellation.[72] However, in this case, the Tribunal gives the most weight to the factors that weigh against cancellation and, accordingly, has determined that the visa should not be cancelled.
[72] See, eg Grewal v MHA [2019] FCCA 533 at [46].
CONCLUSION
341. The Tribunal has decided that there was non-compliance by the applicant in the broad way described in the NOICC 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 not be cancelled.
DECISION
342. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.
Justine Clarke
MemberATTACHMENT – 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.
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.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.
105 Particulars of incorrect answers to be given
(1) If a non-citizen becomes aware that:
(a) an answer given or provided in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.
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.
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