1901948 (Migration)

[2019] AATA 6805

1901948 (Migration) [2019] AATA 6805 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901948

MEMBER:Antoinette Younes

DATE:3 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 03 October 2019 at 12:51pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous protection visa application – basis of seeking protection – homosexuality – change in sexual orientation – heterosexual relationship – fathering of four children – voluntary return to Lebanon – requisite level of satisfaction not attained – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107A, 109, 438
Migration Regulations 1994 (Cth), r 2.41

CASES
Abboud v Minister for Immigration and Border Protection (2018)FCA 185
Briginshaw v Briginshaw (1938) 60 CLR 336
McDonald v D-G of Social Security (1984) 1 FCR 354
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v CASA (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that applicant did not comply with s.101 and s. 107A of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 1 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. 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.

8. 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.

   Non-disclosure Certificate

9. Departmental file [number] contains a s.438 Certificate dated 20 July 2010 certifying that folios 75 and 85 are subject to s.438(1)(a) and s.438(1)(b) respectively.  In the course of the hearing, the Tribunal discussed the validity of the Certificate and invited submissions. The applicant did not dispute the Tribunal’s consideration that the Certificate is valid.

   Was there non-compliance as described in the s.107 notice?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.107A of the Act.

11. Section 101 of the Act provides that:

    Visa 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.

12. Section 107A of the Act provides that:

    Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    The possible non-compliances that:

    (a)  may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)  if so specified, can constitute a ground for the cancellation of that visa under section 109;

    include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

13. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal in support of the application for review.  Relevantly, the Tribunal noted the following:

    i)   The applicant arrived in Australia [in] March 2009 as the holder of a [student] visa. On 12 February 2010, the applicant lodged an application for a protection visa, subclass 866.  As part of the applicant’s 866 application, he completed a Form 866C – application for an applicant who wishes to submit their own claims to be refugee.

    ii)     At question 1 of the Form 866C asking “What is your full name”, the applicant replied that his family name is [Family name 1] and his given name is [Given name 1]. 

    iii)   At question 40 of the Form 866C asking “I am seeking protection in Australia so that I do not have to go back”, the applicant replied LEBANON.

    iv)   At question 41 of the Form 866C asking “Why did you leave that country?”, the applicant referred to his Statement.

    v)    At question 42 of the Form 866C asking “What do you fear may happen to you if you go back to that country?”, the applicant referred to his Statement. 

    vi)   At question 43 of the Form 866C asking “Who do you think may harm/mistreat you if you go back?”, the applicant referred to his Statement

    vii)  At question 44 of the Form 866C asking “Why do you think this will happen to you if you go back?”, the applicant referred to his Statement.

    viii) In response to question 45 of the Form 866C asking “Do you think the authorities of that country can and will protect you if you go back? If not, why not?”, he referred to his Statement.

    ix)   The applicant signed the Declaration at section 67 of the Form 866C which states:

    I do solemnly declare:

    ·The information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail.

    …

    ·I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.

14. In support of the application for a protection visa, the applicant provided a Statutory Declaration dated February 2010 in which he essentially claimed that he is seeking protection on the basis that he is a homosexual.  He claimed that:

    i)   He has never been married. He came to Australia on a student visa.  He was born as Sunni Muslim but he does not practise his faith.

    ii)     He comes from a conservative family and his father pressured him to attend the Mosque and read the Koran. His father is an extremely violent man and the applicant complied with the request to avoid confrontation.

    iii)   At the age of 16, he came to the realisation that he is homosexual. The realisation was not instant but came after a prolonged struggle with his sexual identity which commenced at the age of 14 years. He became certain about his homosexuality after engaging in intimate sexual activities for the first time with another male close to his age.

    iv)   His family expected him to marry a woman chosen for him on completion of his studies in Australia. He does not want to return to Lebanon and face the prospects of being forced into a marriage. He cannot tell his parents the truth about his sexual orientation because they would react violently.

    v)    In Australia, he has had a number of casual sexual partners.  Homosexuality is not accepted particularly in the predominantly Islamic Akkar region. If he were to return to Lebanon, he would not have the opportunity to live an openly homosexual lifestyle. Although there are a number of gay venues in Beirut, living in an openly homosexual lifestyle is not acceptable. “Most gay men and women live their lives under the false pretence that they are homosexuals, even going to the extreme length of marrying simply to avoid being labelled a homosexual”.

15. On the basis of the stated claims, although initially the protection visa was refused by the Department, on remittal by the RRT, the applicant was granted a protection visa on 27 February 2012.  The Tribunal observes that the delegate who refused the visa was “prepared to give the applicant the benefit of the doubt, and accept that he is a gay man, or at least that he believes himself to be a gay man”, the delegate did not accept that the applicant had a well-founded fear of persecution.

    Subsequent events

16. The decision record further indicates that:

    a)An application for an Australian passport dated [in] 2015 for [Ms B], date of birth [date] shows that the applicant is her father and her mother is [Ms A] whose address is recorded in [Suburb 1]. A NSW birth certificate dated [date] for [Ms B] shows the applicant as her father and [Ms A] who was born in [Suburb 2], as the child’s mother.

    b)On 21 August 2014, the applicant applied for an Australian citizenship and subsequently provided a completed Form 80, dated 21 September 2017. At question 1 of the Form 80, the applicant provided his name, date of birth is [date], that he was born in [Village 1], Akkar, North Lebanon. At question 17 of the Form, the applicant indicated that from February 2014 until January 2017, he lived at an address in [Suburb 1]. At question 43, the applicant indicated that he has a daughter called [Ms B] born on [date], a daughter called [Ms C] born on [date], and a son called [Mr D] born on [date].

    c)The Department obtained information that the applicant posted “got engaged” on his [social media] account under the name of [Alias 1 in] July 2011, [two dates in October] 2011, and [October] 2013. [In] December 2013, the applicant posted on [social media] comments about an engagement party and “…wife about wat she did today it was amazing party I love you babe”. The date of the engagement [of] July 2011 was prior to the grant of the protection visa.

    d)Departmental records indicate that the applicant departed Australia to Lebanon [in] July 2015 for six weeks.

17. The Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) dated 19 March 2018 to which the applicant responded in a Statutory Declaration dated 10 April 2018. In the Statutory Declaration, the applicant denied providing or causing to provide any misleading or incorrect information to the Australian authorities. He stated that at the time of application for a protection visa and time of grant, he was in a homosexual relationship with a male called [Mr E] who lost interest in him when he sustained burns due to injuries. He claimed to have suffered mental stress and he was also rejected by other men. He stated that he was “very handsome and everyone liked me. However after the incident, other males lost interest in me which caused me loneliness and stress. As a result of that, I thought that gay males were only after sex…”. He stated that he was frustrated at the time during which he met [Ms A]. As far as the [social media] postings are concerned, the applicant indicated that there is no information that he was in a sexual relationship during that period as noted by the Department; the [social media] postings merely said that he was engaged and he did so in order to avoid his family asking him about his marriage. In his view, “sex is secondary for any relationship and the main thing is that emotional attachment. Those gay men were only after sex … There is no evidence and logical and scientific base for the department to conclude that a gay man cannot change his sexual orientation.”

18. In relation to the travel to Lebanon, in his response to the NOITCC, he stated that he travelled to Lebanon for the first time in 2015 and by that time he had formed a heterosexual relationship after being frustrated with his homosexual relationships. He fathered a child at the time as well and consequently, he returned to his family and relatives who already knew that he was married with a child. There was no longer any need for his family to force him into a marriage and he no longer feared being forced into a marriage. Moreover he stated that there is no condition attached to his protection visa that he should not travel to his home country. He returned to Lebanon because his father was very ill and had a stroke. He contacted the Department and sought permission. He also provided his father’s medical documents and when he travelled again, he did the same thing. During both trips, he used the Convention travel document. He fathered his first child [on date], well after the grant of February 2012 of his protection visa. He became depressed by his homosexual encounters and because he was looking for emotional care, he met [Ms A] who showed him loving care. In terms of compelling and compassionate grounds, he has three Australian children and he asks for consideration of their best interests; his wife and children would suffer in case of the cancellation of his visa.

19. In response to the NOITCC and in submissions dated 10 April 2018, the representative reiterated the applicant’s responses in the Statutory Declaration and, amongst other things, noted that “sexual orientation is not permanent and there is no scientifically proven evidence to confirm that a gay person should not or cannot change his sexual orientation and a heterosexual person should not and cannot change his sexual orientation”.  The representative referred to the decision of Abboud v Minister for Immigration and Border Protection (2018)[1] were her Honour Justice Jagot held that the Tribunal’s reasoning, based on the assumption that a person could never change their sexual orientation, was “affected by illogicality of the kind required to constitute jurisdictional error.”[2] In relation to the discretionary matters, the submissions focused on the interests of the applicant’s three children and family, the political and security situation in Lebanon.

    [1] FCA 185 (2 March 2018)

    [2] Ibid, at para 15.

20. The applicant provided to the Tribunal a number of documents including multiple photographs of the applicant with his family and letters of support from a number of people, birth certificates for the four children the youngest of whom, [Ms F] was born on [date].

21. In a Statutory Declaration of 27 September 2019, the applicant referred to his earlier explanations and focused on the best interests of his four young children all of whom are Australian citizens.

22. In a Statutory Declaration of 27 September 2019, [Ms A] provided background information about her upbringing including being raised without a father who left when she was at a young age. She described the applicant as being an “amazing father, carer, protector guardian and contributor to his children and to me. He has a very strong bond with our children.” [Ms A] referred to the relationship with the applicant noting that she met him in 2012 and that he told her about his “ex-boyfriend [Mr E]…”.  She requested the Tribunal to consider her circumstances as a female with four small children and the difficulties that she would face without the applicant.

23. In submissions to the Tribunal dated 27 September 2019, the representative focused on the Australian children all of whom are under five years of age and the potential harm they could face if they had to go to Lebanon to be with their father in case of the visa cancellation.

    Evidence at hearing

24. The applicant gave evidence that he was born in Akkar, North Lebanon on [date]. He has [a number of siblings]. Two [siblings] in Australia and one lives in [Country 1]. He stated that both of his parents live in Lebanon and that his father is unwell so he went to see him last year. He stated that his father was in the Lebanese [defence force] and had retired. He was conservative and had violent tendencies.

25. In terms of education, the applicant gave evidence that he completed the equivalent of year 12 and came to Australia to undertake studies.

26. The Tribunal asked the applicant about his sexual orientation. He stated that when he was about 15 years of age, he was visiting [Mr G] in [City 1] and developed feelings for him. He stated that they engaged in sexual activities. He said he later found another sexual partner, [Mr H] who was living close to where the applicant was living. The Tribunal asked the applicant if he had other sexual encounters when he was in Lebanon and he confirmed that he did not.

27. In terms of homosexual relationships in Australia, the applicant stated that he has had two homosexual relationships, namely with [Mr E] and [Mr I]. The Tribunal asked him about the claim made at paragraph 14 of his Statutory Declaration that he has had a number of “casual sexual partners” in Australia and he stated that this must be incorrect. He later said that he has “tried many guys”.

28. The Tribunal asked the applicant about his current relationship with [Ms A]. He stated that they met during late 2012, early 2013 at [Suburb 3]. He stated he was heartbroken at the time due to being rejected by other males as a result of burns he had sustained during [an] incident. He confirmed that he and [Ms A] are not married and that they have never been engaged. In relation to the [social media] posting [in] December 2013, about an engagement party and his “…wife about wat she did today it was amazing party I love you babe”, he said this was all for his parents who wanted him to marry his cousin, particularly his father.

29. The applicant gave evidence that he has fathered four children to whom he is very close. He stated that he does not live with his family because [Ms A] looks after her mother who is very sick. He stated that [Ms A] is aware of his homosexual encounters and she has no issues with those matters. He referred to Australia being a country of freedom and that one can choose to live the way they want. The Tribunal asked the applicant about any financial contribution he makes towards the children and he stated that he makes payments but they are irregular. The Tribunal asked the applicant how [Ms A] supports the family and he stated that as a carer of her mother, she is in receipt of Centrelink benefits and that he also provides financial support when needed.

30. [Ms A] gave evidence about how she met the applicant and this was consistent with his version. The Tribunal asked her about her current relationship with the applicant and the Tribunal found her evidence in this regard to be problematic; she stated that they were not married, or engaged, or living together but that he is actively involved with the children. She stated that he provides tremendous assistance and support for the children and without him, she would have great difficulties in managing. The Tribunal pressed the witness to provide specific details about the relationship and she later described it as a friendship. The Tribunal queried that if the relationship is that of a friendship, it is difficult to understand that he fathered four children in those circumstances. She stated that they are close friends but have engaged in sexual activities. She stated that she is fully-involved in her mother’s care and she has no time for a relationship.

1. The Tribunal has concerns about the applicant’s evidence; there were inconsistencies in his evidence and he had difficulties providing a coherent account of his sexuality. His evidence about his relationship with [Ms A] was not forthcoming and somewhat defensive. The Tribunal observes that in RRT Matter Number 1006116 which was decided on 12 January 2012, the Member who determined the review expressed the following concerns:

   I found the applicant’s evidence regarding his relationship with [Mr E] lacked detail and was in some minor ways inconsistent. His account of how they met and when they lived together was vague and shifted between the two hearings. His discussion of the relationship was flat and lacked depth; he appeared to have little knowledge of the personal circumstances of [Mr E] and could not describe the relationship. However, the core of his evidence suggested that he and [Mr E] were enrolled in [an education provider] and had met at [a] club in May 2000 and 10 to12 months after the applicant arrived in Australia. They both gave evidence that they recognise each other at the club and later formed a sexual relationship[3].

   …

   After weighing the matters set out above I consider that on balance it is possible that the applicant is a homosexual male and that he has discovered a less restrictive atmosphere in Australia and has adopted a homosexual lifestyle. I accept that if this is true than it would be difficult for him to suppress his sexual orientation if returned to Lebanon.[4]

   [3] At paragraph 133

   [4] Para 136

2. The Tribunal also had difficulties with the evidence of the witness, particularly her evidence that she and the applicant are close friends not partners. The Tribunal is of the view that she has a vested interest in the matter however, based on the available information, it would be unreasonable for the Tribunal to disregard or give little weight to her evidence.  The core of her evidence supports his version.

3. The Tribunal is not an expert in sexual orientation but the Tribunal is of the view that it is plausible that a homosexual person can also at some stage of their lives engage in intimate sexual activities in a heterosexual setting. The Tribunal is of the view that sexuality is complex and to suggest that a person adheres to a particular sexual orientation all their life may not be a realistic reflection of what happens in people’s lives. It is not far-fetched to suggest that there are individuals who are in heterosexual relationships but may also be or have been involved, or could be involved in homosexual activities. Sexuality is personal and in some cases is a developing phenomenon.

4. The Tribunal has carefully considered the evidence of the applicant and [Ms A] and although the Tribunal has concerns, those concerns are not sufficient for the Tribunal to conclude that the applicant has been untruthful about his sexuality.  The applicant has provided copies of his children’s birth certificates, all of which show that he is named as the father, that the applicant’s address is different from [Ms A]’s address supporting their evidence that they do not live together. The birth certificates do not show the date or place of marriage of the parents providing further support for the claim that they are not married. The Tribunal considered a request for DNA testing in relation to the four children and [Ms A] agreed.  The Tribunal does not consider DNA testing under the circumstances to be necessary. On the evidence, the Tribunal is satisfied that the applicant is the father of the four children.

5. The task of the Tribunal in this instance is to determine whether there was non-compliance by the applicant in the way described in the s.107 notice.  The Tribunal acknowledges that there are aspects of the applicant’s case that are problematic including the delay in applying for a protection visa and having fathered four children which could raise doubts about the applicant’s homosexuality claim. However, the Tribunal cannot make a finding with the required level of satisfaction that the applicant has provided incorrect information in the manner described in the s.107 Notice.

6. When the applicant applied for a protection visa, he claimed that he feared harm on homosexuality grounds.  He claimed that the authorities of Lebanon could not protect him. He feared that he would be harmed in case of his return and that the authorities could not protect him. The core claim for protection is homosexuality. The Tribunal observes that although the RRT had concerns about aspects of the applicant’s claims and the Tribunal shares those concerns, the RRT had accepted the substance of the applicant’s claims. He was granted the protection visa on the basis of those claims. 

7. Although it is plausible that the applicant has embellished some aspects of those claims, that potential embellishment cannot in itself discredit the entirety of the applicant’s claims. The Tribunal is not reviewing a protection visa application refusal and the Tribunal appreciates that it is reviewing the cancellation of a subclass 155 visa granted upon the applicant meeting the criteria for that visa.

8. The concept of onus and standard of proof are not generally applicable in the context of administrative decision making[5]. The Tribunal refers to judicial guidance in relation to the cancellation of a visa and in particular the state of satisfaction required.  Although the decision of Zhao v MIMA[6] relates to a cancellation pursuant to s.119 of the Act, its principles are applicable to a cancellation pursuant to s.109. Relevantly, the Court held:

   The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[7]

   [5] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 29.

   [6] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000).

   [7] Ibid, at [25] and [32].

9. The Tribunal considers the cancellation of a visa to be serious and significant, requiring a state or level of satisfaction reached subsequent to the proper consideration and critical evaluation of probative material. In Sullivan v CASA[8], the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences, the Tribunal “would express greater caution in evaluating the factual foundation for the decision to be reached”[9].

   [8] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

   [9] At [120].

10. In that decision, the Court referred to Briginshaw v Briginshaw[10], where his Honour Dixon held[11] ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…”

    [10] Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362.

    [11] At [362].

11. There is no dispute that the applicant subsequent to being granted the protection visa, had returned to Lebanon. In the application for a protection visa, the applicant claimed that he could not return to Lebanon for fear of being harmed on the grounds, amongst other things, of his homosexuality. However linked to the fear of return is that his father would cause him harm if the father were to discover the applicant’s homosexuality. The applicant has provided an explanation that as far as his father is concerned, the applicant is a family man with four young children, that is, not a homosexual man.

12. The Tribunal acknowledges that the applicant fathering of four children raises doubts about his claims of homosexuality. The Tribunal has conducted a hearing and remains to have concerns about the truthfulness of the applicant’s claim.  Although the Tribunal has doubts, those doubts are not sufficient for the Tribunal to reach a level of satisfaction to make a finding that the applicant has provided incorrect answers in the manner described in the s.107 Notice. 

13. In consideration of the evidence as a whole and for the stated reasons, the Tribunal is not satisfied that the applicant has provided incorrect answers to the relevant questions of Form 866C.

14. For the reasons above, the Tribunal has not reached the state of satisfaction required to find that the applicant had provided incorrect answers in the application for a protection visa.  For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

15. As the Tribunal has decided that there was no non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is not necessary to consider the prescribed circumstances set out in r.2.41 of the Regulations. However, the Tribunal is satisfied that even if the Tribunal were wrong about the finding that there was no non-compliance by the applicant in the way described in the Notice given under s.107 of the Act, the Tribunal is of the view that there is a factor that weighs heavily against cancellation.  The applicant has four children who are Australian citizens and dependent on him for support. The evidence before the Tribunal is that the applicant is a loving father who provides significant assistance and support to the mother of the children in the day-to-day care and management of the children. He also makes financial contributions. The Tribunal accepts the evidence that [Ms A] is the primary carer for her mother who is unwell and if the applicant’s visa were to be cancelled, this would have a significant adverse impact on the children and on [Ms A]’s ability to manage. The Tribunal is satisfied that the cancellation of the visa would cause a significant degree of hardship to the applicant and to his family.  The Tribunal is satisfied that this consideration means that the applicant’s visa should not be cancelled.

16. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Antoinette Younes

    
    Senior 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.