1832099 (Migration)

1832099 (Migration) [2019] AATA 4218 (8 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1832099
MEMBER:Helena Claringbold
DATE:8 July 2019
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.
Statement made on 08 July 2019 at 1:57pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) –ground for cancellation – incorrect information in visa application – personal details – citizenship – family composition – previous visa refusal – consideration of discretion – completely false identity – non-genuine documents – intentional and deliberate action – grant of visa based on incorrect information – complete disregard for Australia’s immigration laws – best interest of child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 6 February 2011, the applicant, (the visa holder), lodged an application for combined Partner Subclass 309/100 spouse visas. The application was based on his partner relationship with [Ms A], the sponsor. His mother, [Ms B] and brother, [Mr C] were secondary visa applicant. On 30 March 2016, the partner Subclass 100 was granted to the applicant.
On 26 October 2018, a delegate of the Minister of Home Affairs cancelled the applicant’s Subclass 100 spouse visa under s.109(1) of the Migration Act 1958 (the Act). The cancellation was based on the visa holder providing incorrect information in his application for the Subclass 100 spouse visa.
On 19 June 2019, the applicant appeared before the Tribunal to give evidence and present arguments. He previously provided the Tribunal with a copy of the delegate’s decision record which mirrors the Notice of Intention to Consider Cancellation (NOICC). The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Departmental case files and the Tribunal’s case file and the evidence provided at the Tribunal hearing.
ISSUE
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
Section 109
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards and not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act. This provision provides that a “non-citizen must fill in or complete his or her application form in such a way that: all answers on it are answered; and no incorrect answers are given or provided.
Information detailed in the NOICC, on 23 August 2018 and mirrored in the delegate’s decision record on 26 October 2018, is as follows:
On 6 February 2011, the applicant lodged an application for combined Partner Subclass 309/100 visas. The applicant was listed as the primary visa applicant and his mother [Ms B] (DOB [date]) and brother, [Mr C] (DOB [date]) were listed as dependent visa applicants.
In the application Form 47SP: application for migration to Australia by a partner, the visa holder provided responses to various questions as follows:
·In response to question 6, which asked, ‘Have you or any other person included in this application ever been refused an entry permit to Australia?’ The visa holder answered ‘No’.
·In response to question 10, which asked for the ‘Main applicant’s full name’ the visa holder answered, ‘[Alias 1]’.
·In response to question 12, which asked for ‘Other ways you spell your name’ the visa holder answered ‘N/A’.
·In response to question 16 on form 47SP, which asked for ‘Date of birth’ the visa holder answered ‘[Date 1]’.
·In response to question 20, which asked ‘Of which country are you a citizen? The visa holder answered ‘Afghanistan’.
·In response to question 36, which asked for the visa holder’s parents’ details, the visa applicant provided the following answers:
1.     Family name: [Family name 1]
Given names: [Mr D]
Date of birth: [Date]
Relationship to you: Father
Country of current residence: Deceased
2.     Family name: [Family name 1]
Given names: [Ms B]
Date of birth: [Date]
Relationship to you: Mother
Country of current residence: Pakistan
·In response to question 37, which asked for all the visa holder’s brothers and sisters’ details, the visa holder provided the following answers:
1.     Family name: [Family name 1]
Given names: [Mr C]
Date of birth: [Date]
Relationship to you: Brother
Country of current residence: Pakistan
2.     Family name: [Family name 1]
Given names: [Mr E]
Date of birth: [Date]
Relationship to you: Brother
Country of current residence: Missing
·In response to question 93, which asked, ‘How will you pay your application charge? the visa holder answered ’credit card’ and provided the following information:
Card holder’s name: [Mr F]
    Telephone number: [telephone number]
Address: [Address 1]
·On page 30 on form 47SP, the visa holder declared ‘I declare that the information I have supplied in this application is complete and up-to-date in every details’ and ‘I understand that if I give false and misleading information, my application may be refused, or any visa granted may be cancelled’ The visa holder signed this form on 1 January 2011.
In support of the partner visa application, the visa holder provided his Afghan passport [number], his Afghan Taskira and birth certificate, in the name of [Alias 1], with a date of birth of [Date 1]. The Department conducted integrity checks on the visa holder’s Taskira. On 21 June 2012, the Department received information that the Taskira was a non-genuine document as it was not registered with the issuing authority in Afghanistan. The visa holder’s marriage certificate was consequently deemed invalid as his marriage certificate included reference to the non-genuine Taskira.
As a result, the delegate was not satisfied that the visa holder met the requirements of ‘spouse’ as defined in the Act and assessed the visa holder’s relationship with the sponsor as de facto as defined in the Act. On 31 July 2012, the visa holder’s partner visa application was refused because the delegate was not satisfied that the visa holder had been in a de facto relationship with the sponsor for a period of at least 12 months prior to the time of application. On 4 October 2012, the sponsor applied to the Migration Review Tribunal (MRT) for a review of the delegate’s decision. The MRT was not satisfied that the visa holder had been in a de facto relationship with the sponsor for a period of at least 12 months prior to the application. However, the MRT found that compelling and compassionate circumstances existed due to security concerns for Hazaras in Pakistan and Afghanistan, lack of security in the visa holder’s place of residence and limited employment and movement opportunities for him in Pakistan. [In] May 2014, the MRT remitted the decision to the Department for consideration.
On 10 February 2015, a delegate of the Minister of Immigration and Border Protection refused the Partner visa application. The delegate was not satisfied that the visa holder met PIC 4020(2A) because he/she was not satisfied as to the identity of the visa holder based on his non-genuine Taskira. The sponsor applied to the Administrative Appeals Tribunal (AAT) for review of the delegate’s decision record.
[In] October 2015, the AAT remitted the decision for reconsideration. The AAT found that there were compassionate and compelling circumstances that affect the interests of an Australian citizen to waive PIC 4020(1). The AAT also determined that the visa holder met PIC 4020(2A) as they were satisfied as to the visa holder’s identity.
On 30 March 2016, the visa holder was granted the Partner (Migrant) (subclass 100) visa.
Evidence - Facial image comparison
Facial photographs of the visa applicant were provided to the Department in association with visa applications as per the following:
·[Alias 1] (DOB: [Date 1]) referred to as P1.
·[Alias 2] (DOB: [Date 2]) referred to as P2.
The findings of the facial comparison report are that P1 and P2 represent the same person.
[Alias 2] (P2 and Q2) applied for a [Tourist] visa on 22 January 2007. This application was refused on 3 February 2007 as the applicant did not meet the criteria for the visa.
[Alias 1] (P1 and Q1) applied for a combined Partner (subclass 309/100) visa on 6 February 2011. [Alias 1] was listed as the main applicant with his mother; [Ms B] (DOB: [date]) and brother; [Mr C] (DOB: [date]) included as dependents. The application was sponsored by his partner [Ms A] (DOB: [date]) who is an Australian citizen.
[Alias 1]’s Partner visa applications were refused on 31 July 2012 and 10 February 2015 as the criteria for the visas were not met. These applications were remitted with directions by the MRT and AAT [in] May 2014 [and] October 2015 respectively, and the Department granted the Partner visas to the applicants on 30 March 2016.
On 13 August 2018, the visa holder informed the Department that he previously resided at [Address 2] until 12 June 2018.
Evidence – Tourist visa application by [Alias 2]
Departmental records indicate that [Alias 2] (DOB: [Date 2]) applied for a [Tourist] visa on 22 January 2007. In the visa application form – Form 48R: Application to visa Australia for tourism, [Alias 2] declared that he was a citizen of Pakistan and he held a Pakistani passport [number].
On 3 February 2007, the Department refused his Tourist visa application because the delegate was not satisfied that [Alias 2] met the requirements of the visa as he was intending to travel to Australia for business purposes.
Evidence – [Ms A]
The Department has information which indicated that the visa holder’s wife [Ms A] made a number of money transfers to [Alias 2] in Pakistan on 8 September 2010, 19 October 2014 and 9 February 2015. Departmental records also indicate that [Ms A] was recently residing with the visa holder, [Mr G] and [Mr F] at [Address 2].’
Response to the NOICC
On 6 September 2018, the visa holder’s migration agent responded to the NOICC. He provided a statutory declaration in which the visa holder stated that ‘I agree I have not complied with subsection 101(b) of the Act.’ He went on to state the following:
·‘The correct information is that I was previously refused a tourist visa on or about 3 February 2007.
·The correct information is that my name is [Alias 2]. I had never been known by the name [Alias 1] until I received the bogus Afghani passport and Tazkira and applied for the Australian Partner visa.
·The correct information is that my date of birth is [Date 2]. I had never had the date of birth of [Date 1] until I received the bogus Afghani passport Tazkira and applied for the Australian Partner visa.
·The correct information is that I am a citizen of Pakistan only. I have never been a citizen of Afghanistan.
·I have enclosed a copy of my genuine Pakistani passport and Pakistani National Identity Cards.
·There is other incorrect information in my application that is not raised in the notice. I have enclosed a completed form 47 SP with the correct information (as it should have been at the time of application).
·I have enclosed a form 80 with the correct information (up until present).
·I understand that providing the forms is not for the purpose of a visa application; rather, it is for providing the Department with the correct information. To avoid any ambiguity, if information provided previously differs to information referred to above, the information in the forms referred to above is the correct information.’
The applicant’s migration agent stated that the visa holder, his mother and brother admit that they provided bogus Afghani documents with their partner visa applications. The visa holder and his mother and brother have now provided genuine Pakistani identity documents. Also provided was completed Form 47SP ‘with the correct information as it should have been at the time of application. And a completed Form 80 ‘with the correct information up until present’.
·In response to question 29 on the resubmitted form 47SP, which asked for the visa holder’s parents’ details, the visa applicant provided the following answers:
1.Family name: [Family name 2]
Given names: [Mr G]
Date of birth: [date]
Relationship to you: Father
Country of current residence: [Country 1] visit visa
2.Family name: [Family name 3]
Given names: [Ms H]
Date of birth: [date]
Relationship to you: Mother
Country of current residence: Pakistan
·In response to question 30 on the resubmitted form 47SP, which asked for all the visa holder’s brothers and sisters’ details, the visa holder provided the following answers:
1.   Family name: [Family name 2]
Given names: [Mr I]
Date of birth: [date]
Relationship to you: Brother
Country of current residence: Pakistan
2.   Family name: [Family name 2]
Given names: [Mr J]
Date of birth:
Relationship to you: Brother
Country of current residence: Missing
3.   Family name: [Family name 2]
Given names: [Mr K]
Date of birth:
Relationship to you: Brother
Country of current residence: Missing
4.   Family name: [Family name 4]
Given names: [Mr F]
Date of birth: [date]
Relationship to you: Brother
Country of current residence: Australia Temp Visa
5.   Family name: [Family name 2]
Given names: [Mr L]
Date of birth: [date]
Relationship to you: Brother
Country of current residence: Pakistan
On the evidence before the Tribunal the visa holder previously applied for the Partner Subclass 100 visa which was refused. In that visa application he gave his name as [Alias 1], with a date of birth of [Date 1]. He stated that he was a citizen of Afghanistan. He provided evidence about his family composition and stated that that his father is [Mr D] with a date of birth of [date] and that he was deceased. He stated that his mother is [Ms B] with a date of birth of [date] and that her country of residence was Pakistan. He stated that he had two brothers [Mr C] with a date of birth of [date] with a country of residence of Pakistan and another brother, [Mr E] with a date of birth of [date] with a country of residence as missing.
In his response to the NOICC the visa holder agreed that he had not complied with subsection 101(b) of the Act.
In response to the NOICC the visa holder stated the following:
·His name is, [Alias 2] with a date of birth of [Date 1]. He is a citizen of Pakistan and has never been a citizen of Afghanistan.
·His father is [Mr G] with a date of birth of [date] and at the time of visa application his country of current residence was [Country 1].
·His mother is [Ms H] with a date of birth of [date] with a country of current residence of Pakistan.
·He has five brothers, [Mr I] with a date of birth of [date] and a country of current residence of Pakistan, [Mr J] with no date of birth provided and a country of current residence as missing, [Mr K] with no date of birth provided and country of current residence as missing, [Mr F] with a date of birth of [date] and a country of current residence as Australia and [Mr L] with a date of birth of [date] and a country of current residence of Pakistan.
The Tribunal considered the information relating to the NOICC and the visa holder’s response to the NOICC. The visa holder told the Tribunal that the information he provided in his response to the NOICC is the truth. The Tribunal finds that the information the visa holder provided as part of the partner visa application regarding his personal details and the personal details of his family members to be incorrect information. The Tribunal is of the view that the visa holder provided incorrect information in his Partner visa application regarding his biodata and citizenship and his family members’ biodata and composition.
Based on the outcome of the facial comparison and the visa holder’s admission that he provided incorrect information and bogus documents in the visa application, the Tribunal finds that, the visa holder provided incorrect information in the visa application Form 47SP in relation to questions 6, 10, 12, 16, 20, 36 and 37 and that the Form 49SP was completed in such a way that incorrect answers were given or provided.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal determined that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information

The correct information is as follows: the visa holder’s name is [Alias 2]. He was born on [Date 2]. He is a citizen of Pakistan. On or about 3 February 2007, he was refused a tourist visa to enter Australia. The visa holder’s mother’s name is [Ms H]. She was born on [date]. The visa holder’s father is [Mr G]. He was born on [date] and at that time his country of current residence was [Country 1]. The visa holder’s brother’s name is [Mr L]. He was born on [date] and as detailed his statutory declaration, he was dependent on his other brother [Mr F], who was in Australia.
The correct information is that the visa holder has five brother’s, [Mr I] with a date of birth of [date] and a country of residence of Pakistan, [Mr J] with no date of birth provided and a country of residence as missing, [Mr K] with no date of birth provided and country of residence as missing, [Mr F] with a date of birth of [date] and a country of current residence as Australia and [Mr L] with a date of birth of [date] and a country of current residence of Pakistan.
The visa holder’s name is not [Alias 1] with a date of birth of [Date 1]. He is not and has never been a citizen of Afghanistan. The visa holder’s mother’s name is not [Ms B] with a date of birth of [date]. Her husband is not deceased. The visa holder’s father is not [Mr D] with a date of birth of [date] and he is not deceased. The visa holder does not have a brother named [Mr C] with a date of birth of [date]. He does not have a brother named [Mr E] who is missing.
As detailed in the delegate’s decision record the visa holder’s mother stated that the visa holder has another brother named [Mr I]. She claimed that the details they provided about a non-existent brother; [Mr E], were provided in the partner visa application because they thought it would provide a pathway for a future visa application for a Last Remaining Relative visa for [Mr I] and his family for Australia later. It is unclear to the Tribunal how such an application would progress.
The visa holder provided a completely different and false identity in the partner visa application. He provided incorrect information about his biodata, citizenship and family composition and incorrect information about his family.
The content of the genuine document (if any)
I have not given any consideration to this factor as it is not relevant to this decision.
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
On 6 February 2011, the visa holder lodged an application for a Partner Subclass 100 visa. On 30 March 2016, the partner visa was granted. The evidence before the Tribunal, as provided by the visa holder in his response to the NOICC, is that he provided incorrect information and bogus documents in the application for the combined subclass Partner 309/100 visa application. The incorrect information related to his false identity and biodata and family composition and that of the dependent visa holders’. The Tribunal finds that the grant of the visa holder’s Partner Subclass 100 visa was based, wholly or partly, on incorrect information and on bogus documents.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the visa holder lodged the application for the Partner Subclass 100 visa on 6 February 2011. He provided incorrect information and bogus documents relating his biodata, citizenship and family composition relating to the biodata, citizenship and family composition for the dependent visa applicants. He also provided incorrect information about being refused a tourist visa to enter Australia.
In his response to the NOICC, the visa holder affirmed that the non-compliance occurred. He claimed that he provided incorrect information and bogus documents and included his mother and brother in the Partner visa application, as dependents, due to the security situation in Pakistan and in an attempt to secure visas for them.
The visa holder told the Tribunal the following: previously an application he lodged for a tourist visa for Australia was refused. An application for a visa to enter [Country 1] was also refused. In 2010, under his real identity as [Alias 2] he considered applying for a prospective marriage visa. He approached a migration agent and discussed the application with his brother and his friends. They advised him that if he made the application as [Alias 2] it would be refused. If he applied for the prospective marriage visa he would not have been able to add his mother and brother. He had the file returned to him and people told him that if he applied with Pakistani documents the visa application may take two years. However if he applied using Afghani documents the visa application could be faster. He then obtained the Afghani documents.
The Tribunal accepts that the visa holder provided the incorrect information intentionally. It accepts that the visa holder deliberately provided incorrect information for the purpose of a migration outcome for him and the dependent visa holders who were granted visas to which they may otherwise have not been entitled. The visa holder has not provided any independent evidence or information to support how the security situation in Pakistan specifically affected him or his family. The information he provided is generic in nature and not specific to the visa holder or his family. The Tribunal is of the view that the visa holder could have made the partner visa application using his true identity but deliberately chose not to do so and instead provided false information about his identity and family composition.
The present circumstances of the visa holder
[In] May 2016, the visa holder entered Australia and has resided in Australia since that time. He currently lives with his Australian citizen spouse, [Ms A] and their [age] year old daughter. Also living with them are his brother [Mr F] and [Mr F]’s wife and the visa holder’s father, who is a permanent resident and his mother and his brother [Mr L].
The visa holder told the Tribunal that he supports the sponsor and his child financially and assists in the care of his child. The sponsor told the Tribunal of the difficulty that she would experience if the visa holder departed Australia. She said that she would be left to raise their sensitive daughter and she can’t do it. She said that her daughter has [a medical] condition and is under investigation about her [symptoms]. The visa holder and the sponsor stated that their daughter is close to her father and always wants to be with him. They stated that they want to live together in Australia.
The visa holder told the Tribunal that he has been running a small business with a business partner for about the last six months and received a weekly income of $677. He said that his partner and one employee work in the business. He stated that his father receives a government pension and his mother received a pension until the NOICC. He was unable to say what [Mr F] and [Mr L]’s income is. He said that [Mr F] and [Mr L] are jointly purchasing the house where they all live together.
The visa holder stated that if he was forced to return to Pakistan, his spouse and daughter would remain in Australia due to the security situation, lack of good education and healthcare and limited employment opportunities for the visa holder in Pakistan. The visa holder’s spouse stated that the visa holder’s removal from Australia would cause emotional and financial hardship.
In February 2015, a psychologist stated that the sponsor was referred to him in 2013. She was under his care for the treatment of depression. Other medical documents dated 2015, relate to pregnancy tests and pregnancy planning.
The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
The Tribunal is of the view that the visa holder could not have been under any misapprehension of the requirement that he provide correct information and genuine documents as part of the Partner visa application. The visa holder’s evidence is that he provided an incorrect identity and other incorrect information to obtain visa outcomes. He claims that the provision of the incorrect identity and incorrect information was because of security circumstances in Pakistan and the lack of safety for him and his family. The visa holder has not provided any independent evidence to support a lack of safety for himself or his family. The Tribunal finds that the visa holder intentionally provided a false identity and incorrect information and that information was critical to the grant of the visas. There is no information before the Tribunal that the visa holder, at any time, prior to his response to the NOICC, made any attempt to rectify either the information about his false identity or the other incorrect information he provided.
Any other instances of non-compliance by the visa holder known to the Minister
There is no information before the Tribunal to suggest any other instances of non-compliance by the visa holder.
The time that has elapsed since the non-compliance
The non-compliance occurred when the visa holder lodged the application for the Partner visas. Approximately eight years have elapsed since the non-compliance with s.101 of the Act.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The visa holder told the Tribunal that he had breached the law in relation to speeding and received a fine.
Any contribution made by the holder to the community
In his response to the NOICC, the visa holder submitted that he is running a small business with a partner and one employee. He stated that he had been volunteering for [Organisation 1] during Muharram in Australia. The visa holder’s spouse submitted the visa holder is a good father and helps her with housework and caring for their daughter. The Tribunal accepts that the visa holder is running a small business and may be a good father and assists in the care of his child and volunteers for [Organisation 1].
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially
As detailed in the delegate’s decision record, on 30 March 2016, the visa holder’s mother; [Ms H]/[Ms B] and brother; [Mr L]/[Mr C] were granted Partner visas as members of the visa holder’s family unit. Should the visa holder’s visa be cancelled their visas would be consequentially cancelled under section 140 of the Act.
The visa holder’s mother and brother claim that they cannot return to Pakistan due to ongoing fear of harm, persecution and death at the hand of Sunni extremists because they are Shia Hazaras. The visa holder’s mother has ongoing health issues which impact her mobility and require medical treatment and [Mr L]/[Mr C] is currently engaged in employment in [Industry 1] in Australia.
The Tribunal accepts that the cancellation of [Ms H]/[Ms B] and [Mr L]/[Mr C] visas would present them with some challenges due to resettlement. The Tribunal does not accept the claims made by the visa holder’s mother and brother of harm to them as Shia Hazaras because, the visa holder has not provided the Tribunal with any independent evidence to support these claims about Sunni extremist threats, real or perceived. The Tribunal considered their confirmation of them being complicit and of them being cognisant of the non-compliance committed by the visa holder. Ultimately, [Ms H]/[Ms B] and [Mr L]/[Mr C] were granted Partner visas as a result of the provision of incorrect information and bogus documents by the visa holder. An intended consequence for the provision of incorrect information and bogus documents that would result in the cancellation of the visa holder’s visa is that the visas granted to [Ms H]/[Ms B] and [Mr L]/[Mr C] would be cancelled.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
Non-refoulement obligations
The visa holder stated that his family previously received threatening letters and were forced to close their shop and had no choice but to give the shop to another ethnic group. He stated that he cannot return to Pakistan due to the security situation and ongoing persecution and threats against Shia Hazaras in Pakistan. The visa holder’s migration agent provided information about Hazaras in Pakistan including various media grabs and a DFAT Country Information Report. This information is generic in nature and not specific to the visa holder or his family. The Tribunal has not been provided any independent information about any threat against the visa holder or his family members. The visa holder told the Tribunal that his father continued to own a property in Quetta which is rented to people of a different ethnic group. There is no information before the Tribunal that, the visa holder has lodged any applications for a Protection visa. On the evidence before the Tribunal it is satisfied that Australia would not breach its obligations as a result of the visa cancellation.
Convention on the Rights of the Child (CROC)
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration. Australia is bound by the principles of the Convention on the Rights of the Child (CROC). Article 3 states that in all actions that concern or affect a child, the best interests of the child shall be a primary consideration. Article 7 and 9 focus on the importance of preserving the family unit, not separating children from their parents.
The visa holder told the Tribunal that the sponsor was born in Afghanistan and travelled to Pakistan in about 2000 and lived there until she came to Australia in 2009. He stated that in 2008, when the parties met they were neighbours in Pakistan. In 2010 the parties were married in Quetta, Pakistan. He said that each time the sponsor returned to Pakistan she stayed with him for approximately six months. On 6 February 2011, the application for the Partner Subclass 100 visa was lodged. The partner visa application was based on the visa holder’s relationship with [Ms A], the sponsor. [Ms A] is a dual Afghani and Australian citizen. [In] May 2016, the visa holder entered Australia. On [date], [Ms A] gave birth to the parties’ daughter, who is an Australian citizen. The Tribunal is of the view that it is in the best interest of the child that she reside with both her parents.
The Tribunal has been provided for [Alias 2], the visa holder, translated copies of the visa holders National Identity Cards issued from the Government of Pakistan [in] 2004 and valid [until] 2014 and another issued [in] 2014 with a date of expiry [in] 2021 and a copy of the visa holder’s passport issued by the Islamic Republic of Pakistan [in] 2014. It has also been provided with a translated copy of a marriage certificate issued in Quetta, Pakistan. This recorded a marriage between [Alias 2] and [Ms A in] November 2010. The Tribunal is of the view that when the parties met in 2008 and married in 2010 the sponsor knew the visa holder’s true identity as [Alias 2]. The Tribunal is of the view that the sponsor was complicit in the provision of incorrect information as part of the Partner Subclass 100 visa application. In February 2011, she signed a sponsorship form for the visa holder in the name of [Alias 1]. She continued to provide support for the visa application for the visa holder and for his mother and for his brother with them all providing false identities and incorrect information. The Tribunal’s opinion is that the sponsor knew the visa holder, his mother and brother’s true identities and proceeded with the visa application regardless of the false information provided or the requirement of Australia’s immigration laws.
The visa holder stated that if he were forced to return to Pakistan his wife and child would remain in Australia. He does not think that they could survive in Pakistan. They would have to confine themselves to home because it is dangerous outside. The education and healthcare for his daughter would not be good and it is not possible to earn enough money to support them. The sponsor stated the following: that if the visa holder were forced to leave Australia, she would remain in Australia with the child. She claimed that because of the security situation for Shia’s and Hazaras in Quetta and Pakistan it is not a suitable place for a child. In addition, it would not be safe for her or the visa holder in Pakistan. Separation would cause problems and would not be good for the child. The visa holder is a good father and helps care for the child. He financially supports the sponsor and the child and his departure would not be good mentally for them.
The Tribunal finds that the visa holder was granted the Partner Subclass 100 visa as a result of him providing incorrect information. The Tribunal feels that the visa holder could not have been under any misapprehension about the significance of his actions. He intentionally and deliberately provided the incorrect information and the visas were granted. Knowing that he provided incorrect information as part of the partner visa application which resulted in the grant of the Partner visas, the visa holder entered Australia. His actions show a complete disregard for Australia’s immigration laws.
The visa holder’s migration agent provides information about the living conditions for Shia Hazaras in Pakistan and of the official and societal discrimination they face including being delayed in obtaining identification documentation. The migration agent accepts that the visa holder is not prevented from applying for a Protection visa but submits that the country information is relevant to the best interests of the child. He claimed that the departure of the visa holder would result in the separation of the child from her father as she would remain in Australia with her mother.
The Tribunal considered that the visa holder is a citizen of Pakistan and that both he and the sponsor lived there for many years. It considered the visa holder’s evidence to the Tribunal that he previously worked as a [Occupation 1] in the family’s store in Quetta, which is currently rented to others and that he managed a [business] alternately with his brother. It considered that the visa holder also worked in Islamabad for a time and that he has a brother who is currently living in Islamabad with his wife and [children]. The Tribunal accepts that it is the visa holder and sponsor’s preference to live in Australia with their daughter. It understands that the visa holder’s departing Australia would present difficulties for the family. It understands that the family would need to make a decision about whether they lived together in Pakistan. It considered the visa holder and the sponsor daughter’s age and feels that she would adjust to a lifestyle in Pakistan. It considered that the child has [a medical] condition and is having further medical investigation. However, the sponsor and her daughter are not required to depart Australia. It considered the sponsor’s claim that she would not be able to cope without the visa holder. Ultimately, the decision about the preservation of their family unit is theirs. It accepts that these are calamitous circumstances for the visa holder and his family. However they are a result of the visa holder adopting a false identity and providing incorrect information about him and his family in the partner visa application. The Tribunal found that the decision to grant the visa holder the Partner Subclass 100 visa was based on incorrect information which he provided. The Tribunal feels that there is an expectation that neither the visa holder nor his sponsor nor his daughter should benefit as a result of the incorrect information the visa holder provided. The Tribunal finds that, the requirement that the visa holder depart Australia and the difficulties that may present the family does not outweigh the significant incorrect information the visa holder provided as part of the Partner Subclass 100 visa application or his total disregard for Australia’s legal requirements.
Whether there are mandatory legal consequences to a cancellation decision

A cancellation of the visa holder’s visa may see the visa holder become an unlawful non-citizen. He could be detained and removed from Australia. He could also be limited in the visas he could apply for in Australia or prevented from being granted a temporary visa for a specific time. These consequences are a result of the visa holder’s non-compliance with the criteria for the Partner Subclass 100 visa which lead to the cancellation of his visa. The Tribunal is of the view that the visa holder can avoid any of these difficulties by departing Australia on a voluntary basis.
Other considerations
The Tribunal put to the visa holder information under s.359AA of the Act as follows:
- On 15 June 2016, the Department’s [overseas] post received an allegation that [Alias 1], [Ms B] and [Mr C] arrived in to Australia under non-genuine identities and are citizens of Pakistan. That they misrepresented their familial circumstances and relationship which was material to the grant of their visas.
The visa applicant referred the Tribunal to his response to the NOICC which has been considered and detailed above.
The Tribunal told the applicant that the Department issued a non-disclosure certificate pursuant to s.376 of the Migration Act 1958 (the Act) in relation to certain material which is on the Department of Immigration and Border Protection’s (the Department’s) file [number]. He was advised that the Department sought to restrict the disclosure of folios 104-107 on the basis that disclosure of the information contained in these folios would be contrary to the public interest because it was given in confidence and relates to the Department’s methods for testing the genuineness of documents.
He was told that the Tribunal considers that the s.376 certificate is valid. He was invited to comment on the validity of the certificate. The visa holder did not comment on the validity of the certificate. The Tribunal told the visa holder that it was satisfied that some of the information that is the subject of the certificate is relevant to the review because it relates to the Tazkira’s the visa holder provided for himself, his mother and brother in the Partner Subclass 100 visa applications and is about them not being registered with the issuing office. It explained to the visa holder that he and his mother and brother have confessed to the Department and the Tribunal about providing these bogus documents and this information is recorded in the delegates NOICC and decision record. The Tribunal told the visa holder that the information the subject of the certificate does not introduce any new information or any other information. It stated that the information the subject of the certificate had already been disclosed to the visa holder and he had full knowledge of the information. The Tribunal told the visa holder that there is other information the subject of the certificate which is not relevant to this review. He was advised that this other information is about a person unrelated to this matter and the Tribunal places no weight on the information about the unrelated person.
This decision record is a synopsis of the evidence before the Tribunal. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa holder’s visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.
Helena Claringbold
Member
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)     was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)     stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)     informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)     requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)     visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)     having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2019] AATA 4218

8 July 2019

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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