1918279 (Migration)

1918279 (Migration) [2021] AATA 5391 (26 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1918279
MEMBER:Margie Bourke
DATE:26 November 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 26 November 2021 at 7:21pm
CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – incorrect information in application – identity claims – undisclosed change of name – applicant provided false or misleading information to conceal his identity – failed to meet the criteria for PIC 4020 – relationship breakdown – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 359AA, 375A, 376
Migration Regulations 1994 (Cth), r 2.41; Schedule 4, PIC 4020
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information in the application form for the visa in breach of s.101(a) and (b) the Act. The delegate had given notice of a breach of s.103 of the Act but concluded in the decision record that there was no non-compliance with s.103 of the Act. The issue in the present case is whether that ground for cancellation is made out, namely non-compliance with s.101 of the Act and if so, whether the visa should be cancelled.
The matter was originally scheduled for an in-person hearing. The Tribunal advised the applicant by email dated 17 August 2021 that due to the extended lockdowns in Victoria, the Tribunal intended to invite the applicant to attend the hearing by video.
The Tribunal had regard to its objective is to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the applicant and the nature of the review. The Tribunal considered that if the hearing was conducted by way of video, this would allow the applicant a fair opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and enable the Tribunal to properly assess the evidence before it. The Tribunal noted that the hearing did not involve an extensive amount of paperwork and documents to be put to the applicant during the hearing. The Tribunal considered that further unnecessary delay in the matter should be avoided, and as the matter could properly be conducted by way of video hearing, waiting for the availability of in-person hearings was not appropriate. For all these reasons the Tribunal considered that this review could properly be conducted by way of video hearing. The applicant was invited to attend hearing by video, and the applicant provided a hearing response that he would attend the hearing. The Tribunal did not receive any objection from the review applicant or his representative to the matter proceeding by video.
The applicant appeared before the Tribunal by video on 22 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, who was invited to attend by video if possible but elected to attend by telephone.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing by video.
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
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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. In the submissions and in the hearing, the applicant’s representative indicated that there was no issue that the s.107 notice met and 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.
It is noted by the Tribunal that the s.107 notice referred to non-compliance with both s.101 and s.103 of the Act. In the Department’s decision record dated 1 July 2019, the delegate concluded that there was non-compliance only with s.101 of the Act. Accordingly, in this decision record, the Tribunal will only assess whether there was non-compliance with s.101 of the Act.
The non-compliance identified and particularised in the s.107 notice in relation to non-compliance with s.101 of the Act was in the following respects: the visa applicant lodged an application for a Partner (subclass 309/100) visa in New Delhi on 6 August 2013. In the application form for the visa the application recorded at question 10 that his family name was [Name 1], and his given name was [Name 2]. At question 14 which asked for any other name the applicant is known by or had been known by including name at birth, previous married names or aliases the applicant did not record an answer.
At other questions the applicant recorded his sex as male, his date of birth and place of birth, his passport details and the names and dates of birth of his parents and two siblings.
In a different form, Form 80, the applicant provided his given name and family name as [Name 2] [Name 1], and his sex, date of birth, place of birth and passport details in answer to a question as to his current details recorded on his passport, birth certificate, family book or travel document. In this form at question eight, in answer to a question whether the applicant had ever been known by other names, or spellings of his name, he recorded the answer, “No”.
In both the application form and the form 80 there is a warning that giving false or misleading information is a serious offence. In the application form the declaration includes that the applicant understands that if he or any member of his family unit or third party acting on his behalf provides, or has provided in another application, false or misleading information or bogus documents either knowingly or otherwise, his visa application may be refused, and if it is refused on this basis the applicant may be subject to a three year ban in relation to visas to which the fraud criterion applies, and any visa granted may be cancelled. The applicant declared that the information he had provided in the forms is complete and correct and up-to-date in every detail. The applicant signed the declaration on the forms and dated the forms.
The applicant provided documents in support of his application for the visa. The applicant was granted a subclass 309 visa on 7 October 2014. The applicant was granted a permanent subclass 100 visa on 22 February 2016.
After the grant of the visas the Department received information that the applicant had provided incorrect information in support of his application in relation to his identity claims. Specifically that Department was informed that the applicant had fraudulently changed his name from [Mr A] to [Mr B, comprised of Name 2 and Name 1], the motivation of which was to conceal adverse information and obtain a visa to migrate to Australia. The Department found the applicant provided incorrect answers to questions about his identity on the application forms.
In the notice the Department specifically identified that the applicant did not comply with s.101(a) of the Act when he did not provide an answer to question 14 in the application for migration to Australia by partner form, when he did not record an answer to the question as to whether he had been known by any other name, including name at birth or previous married name or aliases. In the notice the Department specifically identified that the applicant did not comply with s.101(b) of the act when he answered questions on the application for migration form and the form 80 by recording that he is [Mr B], born on [date], that he holds a genuinely issued passport as this identity and has never been known by any other name.
In the notice the Department identified that the applicant had declared that he had given correct, accurate and up-to-date information in his visa application but it appears he had failed to do so.
Prior to the hearing the applicant’s representative provided written submissions dated 25 August 2021, and in the hearing the applicant gave similar evidence, that he changed his name because he was advised by an astrologer or fortune teller to do so, and otherwise there might be health concerns for him in the future. The applicant gave evidence that there was no other reason for the change of his name. The representative submissions emphasised that the Department has not indicated the reasons for why the applicant did not reveal his identity as the information was not to the Department.
The applicant stated that he did have property in India under his birth name of [Mr A], and he has not made any effort to change the property into his current name but it could easily be done by signing a document. The applicant stated that he did not read the application forms and other form when he signed them, and the omission or incorrect answers in relation to his previous name was simply the mistake of his agent.
In prehearing written submissions dated 25 August 2021, the applicant’s representative submitted in some cultures meaning behind names carries huge importance, and can affect a person’s fortune and future. The Tribunal accepts this is the case, and accepts that if names have huge importance, changes of name are consequently important. The Tribunal finds that the decision of the applicant to change his name is a decision he remembers, and was done for a reason of importance to the applicant.
The Tribunal discussed with the applicant that there was no document that connected the applicant’s previous name and current name that has been provided to the Department or the Tribunal. The applicant referred to his ration card, provided to the Department which records the applicant’s name (with his family members) as [Mr B], and it records that he changed his name [in] 2006, and refers to a newspaper cutting of that date. The applicant claims this is evidence that he had recorded he had changed his name. The Tribunal notes that this document contains the name of the applicant as [Mr B], and records that he had changed his name. It is not clear when this document was provided to the Department by the applicant. The Tribunal accepts that the applicant has conceded that he was previously known by another name. The Tribunal considers that there is no document that records that [Mr A] applied to change his name to [Mr B], or that the former then became the applicant.
The Tribunal accepts that the applicant had changed his identity and name prior to making the application for the visa. The Tribunal is not satisfied that the reason the applicant changed his name was based solely on the advice of an astrologer or fortune teller, but accepts the applicant may have consulted an astrologer or fortune teller. The Tribunal is in the same position as the Department – it is not satisfied based on the information before it, that the information is available as to why the applicant changed his name and identity in 2006.
The issue in this review is that the applicant provided incorrect information to the Department at the time of application, and omitted to answer a relevant question to the Department at the time of application, in relation to whether he had previously been known by any other name or any other spelling of his name.
I am satisfied based on the written submissions and the oral evidence of the applicant in the hearing, and the submissions of the applicant’s representative in the hearing, that the non-compliance as claimed occurred. The Tribunal notes there is no evidence that the applicant’s passport was not genuinely issued in the name of the applicant as [Mr B]. However, the Tribunal is satisfied that the applicant did not record an answer to question 14 on the application form as to whether he had been known by any other name, including another name at birth or previous married name or aliases, and therefore the applicant had not complied with s.101(a) of the Act. The Tribunal is satisfied that the applicant had recorded in the form 80 that he was not known by any other name or spelling of his name. The Tribunal is satisfied that the applicant had recorded that his name was [Mr B], born on [date] and has never been known by any other name, and declared this information was correct, accurate and up-to-date. Therefore the Tribunal is satisfied that the applicant has not complied with s.101.(b) of the Act as he provided incorrect answers in the application for the visa.
For these reasons, the Tribunal finds that there was non-compliance with s.101(a) and (b) of the Act by the applicant in the way described in the s.107 notice.
Certificates issued on the Department file
There was a s.375A certificate dated 10 July 2019 issued on the Department file which related to numerous folios. The Tribunal wrote to the Department advising it has some concerns as to the validity of the certificate in relation to all 43 folios covered by the certificate. The Department revoked the s.375A certificate in a revocation notice dated 11 August 2021 and issued a s.376 certificate dated 11 August 2021 in relation to 49 folios on the Department file.
The s.376 certificate dated 11 August 2021 related to 8 folios that had been given to the minister in confidence and to which s.375A did not apply, and the remaining 41 folios the certificate recorded that disclosure of this material would be contrary to public interest because it would disclose lawful methods for preventing, detecting and investigating breaches observations of the law which would all be likely to prejudice the effectiveness of those methods.
The Tribunal provided a copy of the s.376 certificate dated 11 August 2021 to the applicant, and invited submissions in relation to the validity of the certificate. The Tribunal also provided the applicant with a copy of the previous s.375A certificate and the revocation notice.
The Tribunal considered the applicant’s submissions that the certificate was not valid in relation to the public interest folios, and initially was almost persuaded that the scope of the certificate did not establish disclosure was contrary to the public interest for reasons specified in the certificate that would form the basis for a claim by the Crown in the right of the Commonwealth in a judicial proceeding that the information contained in the documents should not be disclosed. However upon further review of the documents and the certificate and the case, the Tribunal was satisfied that the certificate records that public disclosure of these documents would be detrimental, and would impact or prejudice the effectiveness of methods, and would form the basis of a claim by the Crown in the right of the Commonwealth in a judicial proceeding. The documents detail the priority and internal working methods after allegations are received from sources. Further the information covered by the certificate is complex, involves many agencies and communications and methods of investigation.
The in confidence folios relate to a detailed and complex allegation about the applicant, and have a clear quality of anticipated confidentiality in the information provided. The source of the allegation is not identified, but could be identifiable by the content of the information.
The Tribunal is satisfied that the s.376 certificate is signed and dated 11 August 2021 and for the above reasons, is valid and properly engages s.376 of the Act. The Tribunal is satisfied that it should not exercise its discretion and disclose the information or documents to the applicant.
In the hearing, the Tribunal discussed the s.376 certificate with the applicant and his representative. The Tribunal was careful to balance the decision that the certificate was valid and the information should not be disclosed with ensuring fairness to the applicant in the hearing. The Tribunal was also cognisant of the number of folios covered by the certificate, and that this could become confusing or overwhelming for the applicant. For this reason the Tribunal elaborated on the nature of the documents covered by the s.376 certificate dated 11 August 2021.
In relation to the in confidence folios, the Tribunal identified that folios 2, 26, 42, 67 and 149 were the same document, and was in the form of detailed allegations. The Tribunal identified that folio 1 is a reference to that document, and that folio 53 and 54 is a referral email to an overseas office to follow-up the allegations, and a response that included the overseas office was closed in that country and a referral to another post in another country. The Tribunal confirmed that the information in the detailed allegations would be put to the applicant pursuant to s.359AA in the hearing.
The Tribunal advised the applicant and his representative in the hearing, that in relation to the public interest folios, the folios 9 to 21 were referrals to internal Department units for assessment of the allegations (including referrals to bogus documents). The Tribunal advised the folios 36 to 40 were Department assessment case notes including information from another identified person in a position to know the applicant in relation to his passport. The Tribunal advised that folios 56 to 58 were email and case notes regarding referral for assessment, folios 62 to 68 were enquiries of persons in India in relation to non-genuineness of documents. The Tribunal advised that folios 75 to 78 related to advice that the applicant’s passport was unverifiable as being obtained illegally. The Tribunal advised that folios 133 to 134, 157 to 162 and 164 to 167 were assessment reports, casenotes and conclusion of enquiries.
Therefore prior to the information being put to the applicant pursuant to s.359AA, the Tribunal was satisfied that the applicant and his representative was made aware, that despite the large number of folios prevented from disclosure by the certificate, the documents and information related to the one main source of allegations and the investigations made in relation to those allegations by the Department.
After this extensive explanation of what the nature of the documents were, the Tribunal then referred to the Department’s decision record dated 1 July 2019 and in particular the conclusions by the delegate at paragraph 60 of that decision, that although the Department was informed in the allegations that the visa applicant had sought to conceal adverse information in relation to his previous identity, after its investigations, the Department was unable to confirm the existence of the adverse information. The Tribunal identified that the allegations provided to the Department were made before the Department’s decision, and there had been no further allegation made after the Department’s decision.

The Tribunal then put the gist of the information provided in the allegation to the applicant in the hearing pursuant to s.359AA of the Act.
The particulars of the information in the allegation was that because of an issue in another country the applicant had created false documents to obtain a new identity and to arrange a new passport. The Tribunal explained that this amounted to fraudulent information, false and misleading information and the creation of false documents in relation to his identity. The relevance of this information for the review was that the applicant may not have met the required criteria of PIC 4020(1) or (2A), in that he had provided false or misleading information or that he could not satisfy the decision-making in relation to his identity at the time of the grant of the visa. The Tribunal stated that if it relied on the information that the applicant could not meet the criteria for PIC 4020, in that he provided false or misleading information to conceal his identity, this would be a reason or part of the reason for affirming the decision under review in the context of assessing whether the visa should be cancelled. (The Tribunal clarified it was not assessing whether the applicant met the criterion for PIC 4020 in this review.)
The Tribunal allowed a break in the hearing for the applicant and representative to consult. After the short adjournment the applicant indicated he wished to respond in the hearing. The applicant stated he disagreed with the information provided and had not been involved in any activity in any other country.
The representative also sought to make submissions at this point, and the Tribunal agreed that this was an appropriate time for the representative to make submissions in response to the s.376 certificate and the information put to the applicant under s.359AA. The representative stated that the applicant maintains the certificate was invalid for the reasons in the representative’s written submissions. The representative stated that the information the subject of the certificate has not been subject to any independent evaluation and the Tribunal should give it no weight. The representative submitted the applicant has not denied having another name. The representative submitted that the Department has not been able to find any existence of adverse information against the applicant.
The Tribunal has considered that the applicant has admitted that he was previously known by another name, and did not advise the Department at the time of application of his previous name in relation to the application for the partner visa, which is the subject of this review. The Tribunal has considered that the Department was provided with a detailed allegation and based on the information available to the Tribunal, the Department made extensive enquiries in relation to those allegations.
The Tribunal accepts that the allegations made to the Department, led to the Department making extensive enquiries. The Department discovered during the course of those enquiries that the applicant had previously been known as [Mr A]. The Tribunal accepts that the applicant admitted to the Department that he had a previous identity and stated that he was previously known as [Mr A], and had changed his name.
The Tribunal finds that the information covered by the s.376 certificate dated 11 August 2021 does not add to the information already available to the Tribunal in relation to this review. The Tribunal accepts that there is no reliable information before the Tribunal that the applicant was involved in any activity in another country or that the applicant created false documents in order to obtain a new identity or to arrange a new passport. The Tribunal accepts that the applicant had a previous name that he did not disclose at the time of application. The Tribunal gives no weight to the allegation except in so far as it disclosed to the Department that the applicant had not complied with s.101 of the Act. This fact is conceded by the applicant prior to any information being put to him pursuant to s.359AA.
For these reasons, the Tribunal does not give any weight to any other matters contained in the allegation, or the other folios or information contained and covered by the s.376 certificate dated 11 August 2021 that may be considered to contain adverse information to the applicant.
It should be noted that most of the information in the public interest folios covered by the s.376 certificate either repeat the content of the allegation, or record methods or communication in relation to the enquiries made by the Department. The conclusion reached by the Department that there is no confirmation that there is any adverse information in relation to the applicant, must be considered by the Tribunal as information that is not adverse and must be recognised by the Tribunal accordingly as relevant information.
Accordingly, the Tribunal gives no weight to the information contained in the allegation or the information covered by the s.376 certificate dated 11 August 2021, except to be satisfied that the applicant had previously been known by an alternative identity, [Mr A], and that no adverse information was confirmed to exist in relation to the applicant’s change of name to [Mr B].
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     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 that the applicant had a previous name, [Mr A], and now uses the name [Mr B]. The applicant gave evidence that it was an oversight, and that he did not read the document prepared by his agent or explain that he had changed his name. The applicant stated that he had changed his name on the advice of an astrologer and not for any concealment purposes. The sponsor stated that people change names all the time in India and it is of little consequence. The applicant’s representative indicated in the hearing that the applicant now understood the importance of giving the correct information in a visa application. The Tribunal discussed with the applicant the importance of giving the correct information in an application for a visa, particularly in relation to an applicant’s identity. The Tribunal accepts the evidence that the applicant understands the importance of providing correct information to the Department about his name and identity in application for a visa to migrate to Australia. The Tribunal gives the correct information, which is the identity and previous identity of the applicant in his application for the visa, weight in favour of cancellation of the visa.
The content of the genuine document if any: – there is no genuine document in this review, as the delegate concluded that there was no non-compliance with s.103 of the Act. Therefore this consideration does not apply.
Whether the decision to grant the visa was based wholly or partly on the incorrect information or bogus document: – the information to grant the visa was based on an assessment that the applicant had provided the correct information in his application for the visa and supporting documents. The applicant and his representative submit that if he had provided the information that he had previously used another name, and that name was known and been able to be assessed, he would still have been entitled to the grant of the visa. The Tribunal approaches the matter in a different way. The grant of the visa was based wholly or partly on incorrect information. The grant of the visa was based on an assessment that the applicant had complied with all criterion, including PIC 4020, that the applicant had not provided false or misleading information, and had satisfied the Minister as to his identity. As the applicant has stated he did provide false or misleading information by not disclosing that he had a previous name, and had changed his name. The Tribunal is not satisfied that the applicant would have met the criteria of PIC 4020(1) at the time of the grant of the visa, and therefore the decision to grant the visa, and was based wholly or partly on the incorrect information provided by the applicant. The Tribunal gives the fact the decision to grant the visa was based wholly or partly on incorrect information weight in favour of the cancellation of the visa.
The circumstances in which the non-compliance occurred: – the applicant stated that the non-compliance occurred because he did not read the documents of his application for the visa, and the mistake was made by his agent to whom he had not provided thorough information in relation to his name. The applicant stated it was merely an oversight. The applicant stated he had changed his name on the advice of an astrologer in the interests of his health in the future. The applicant states he changed his name in 2006, seven years before the application for the visa was made. The Tribunal accepts the submission of the applicant’s representative that the meaning of names can be important, and this can be the reason for a person to change their name. The Tribunal accepts the reason for a person to change their name would be one of importance to the person. The Tribunal discussed with the applicant that there were no documents confirming the process of his change of name from [Mr A] to his current name of [Mr B], so there was no linking evidence of any legal process of the change of name. The Tribunal accepts the applicant has provided a ration card which was recorded after his change of name, and records on it that he had changed his name in 2006. Drawing all this evidence together and assessing it, the Tribunal accepts the applicant has changed his name to [Mr B], and accepts it was an important decision for the applicant. The Tribunal does not accept the applicant would overlook when applying for a visa that he had changed his name, and that it was an “oversight” that he provided the incorrect information, or omitted to record an answer about his previous name.
The Tribunal accepts the applicant was previously known by the name [Mr A]. The Tribunal notes that in two forms completed by the applicant, the application for migration and the form 80, the applicant provided incorrect information to the Department. The incorrect information was provided by omission by the applicant when he did not record an answer to a question in the application form as to whether he had changed his name or ever used a previous name. The incorrect information was provided directly in the form 80 where the applicant declared that he had never been known by previous name. Further the Tribunal has considered that the applicant has signed both forms, and declared them to be correct, complete and up-to-date in every detail.
The Tribunal has assessed the evidence before it and finds that the information provided by the applicant that he did not have a previous name has been consistently and clearly declared to be the correct information by the applicant to the Department. The Tribunal is not satisfied that the incorrect information occurred in circumstances that were merely accidental or an oversight. The Tribunal gives weight to the circumstances in which the non-compliance occurred in favour of cancellation of the visa.
The present circumstances of the applicant: – The Tribunal is satisfied that the applicant has resided in Australia for seven years, and has been employed at the same [workplace] since his arrival in Australia in 2014, and has been employed on a permanent full-time basis since 2016. The Tribunal is satisfied based on the evidence of the applicant, that he does not socialise much. The Tribunal accepts the applicant’s evidence that he goes to the gym every day and works out for an average of two hours, but does not socialise with or befriend people at the gym. The Tribunal accepts that the applicant has little contact with his family in India, and does not have strong social connections with many people in Australia.
The Tribunal is satisfied that the applicant and the sponsor have separated since February 2020, and that the applicant moved out of the home purchased by the applicant and sponsor, in February 2020. In considering the present circumstances of the applicant, the Tribunal is not required to consider whether the applicant meets the criteria for the visa, but only the weight to be given to the applicant’s present circumstances. The Tribunal accepts the applicant’s evidence that in his present circumstances, the person he is closest to, and has regular communication with, is his ex-spouse - the sponsor. The Tribunal is satisfied that the applicant and the sponsor consider themselves separated but with the potential to possibly reconcile. The Tribunal accepts that the sponsor has three adult children, and, based on the applicant’s evidence, accepts that he has little contact with those adult children. The Tribunal is satisfied based on the evidence of the applicant and sponsor, that they have not met in person since March 2021. The Tribunal accepts that they communicate on a daily basis. The Tribunal accepts the applicant is aware of factors in the sponsor’s life, including mortgage relief granted by the bank, and that the eldest daughter has moved out of her mother’s home in recent times. The Tribunal accepts the evidence of the sponsor that the main reason for their separation was financial pressure, and that since their separation she has maintained the responsibility for the payments of the mortgage on their home that she lives in with her children. The Tribunal accepts the evidence of the applicant that on a couple of occasions since their separation he has assisted her financially with the mortgage payments. The Tribunal accepts that since the separation, the parties live physically independent and financially separate lives.
The applicant stated that he and the sponsor may reconcile and move back together any day. The Tribunal accepts the applicant and sponsor remain in regular contact, but there was no evidence as to why reconciliation is likely in the near future, after 21 months of separation. The Tribunal accepts that financial pressures may have led to the separation, but there was no evidence that they had developed any strategy to share financial responsibilities or resolve financial pressure as a couple. The Tribunal accepts that the evidence of the applicant and sponsor that they remain in regular communication and are supportive friends. The Tribunal accepts the applicant and sponsor have separated as a married couple, but maintain a constant friendship and provide emotional support to each other. The Tribunal gives the present circumstances of the applicant weight in favour against cancellation of the visa.
Subsequent behaviour of the visa holder: – The applicant’s representative also submitted that the applicant advised the Department when his relationship with the sponsor broke down. The Tribunal considers this a positive factor in its assessment of the applicant’s subsequent behaviour with the Department, and gives this weight in favour against cancellation of the visa.
Other instances of non-compliance: –in the decision record, the delegate recorded that the applicant had applied for two tourist visas in 2014, and in these two previous applications the applicant had also failed to disclose his other identity by indicating on the application forms that he had not been known by any other name. It was recorded that both visa applications were granted and the applicant travelled to Australia as the holder of visitor visas on temporary stays. It must be recorded that the Tribunal did not have access to these application forms, containing the responses of the applicant in these application forms. As part of the application for review, the applicant provided the Tribunal with a copy of the Department’s decision record. In the hearing of the applicant stated he had used a different agent for his tourist visa applications. He stated it was a Malaysian agent and he arranged for the agent to apply for the tourist visas and all he had to do was provide his passport. The applicant stated that he did not have to do anything and was not sure if he ever read or signed the application forms. It is highly relevant to this review if the applicant has in addition to the application for the partner visa in 2013, lodged two more visa applications in which he did not declare to the Department that he had been known by a previous name. The applicant’s representative advised the Tribunal that in the current visitor visa application an applicant is asked to record an answer whether they have ever been known by any other name. The Tribunal is not aware of the questions asked in the 2014 tourist visa application form. The Tribunal discussed with the representative that it would seem unlikely that the delegate would record this in a decision record if it was not correct. The Tribunal has considered the applicant’s evidence of his lack of knowledge of the applications for the tourist visas, and that any error was the fault of the agent. After assessing the evidence before it, the Tribunal is satisfied that it can rely on the information in the Department decision record when there is no evidence before it to suggest that information is not reliable. The Tribunal finds that the applicant provided the incorrect information to the Department about not having another name in two temporary visa applications in 2014.
The Tribunal has assessed the applicant’s subsequent behaviour with the Department and notes the behaviour in applying for two other visas in which he did not record his previous name, or advise that he had been known by any other name. The Tribunal notes that the applicant explains this was the fault of his agent, and that he did not read the application forms or provide the required information to this other agent. The Tribunal has assessed the subsequent behaviour of the applicant, and notes it is similar to the non-compliance with s.101 of the Act that led to the consideration of cancellation of the applicant’s visa. The Tribunal gives the applicant’s subsequent behaviour toward the Department weight in favour of cancellation of the visa.

The time that has elapsed since the non-compliance: – according to the Department’s decision record the non-compliance occurred in October 2014. However the incorrect information or the omitted information which amounts to the non-compliance was recorded in documents that were dated 25 July 2013. Therefore the Tribunal is satisfied that a period of eight years and four months has elapsed since the non-compliance occurred in the provision of the information, and seven years has elapsed since the grant of the subclass 309 visa which occurred in October 2014. The Tribunal accepts this is a significant period of time and gives this weight in favour against cancellation of the visa.
Any breaches of the law: – there is no evidence that the applicant has committed any breaches of the law and the Tribunal gives this weight favour against cancellation of the visa.
Contribution to the community: – the Tribunal is satisfied that the applicant has remained in full-time permanent employment for the same employer since 2016, and the Tribunal is satisfied that the applicant has remained supportive to the sponsor even after their separation in February 2020. The Tribunal accepts this as evidence of contribution to the community and the Tribunal gives this weight in favour against cancellation of the visa.
Mandatory legal consequences: – there is no evidence that there would be any consequential cancellations under s.140 of the Act if the applicant’s visa was cancelled. There is no evidence that the cancellation of the applicant’s visa would breach any of Australia’s commitment to international treaties or conventions. The applicant’s representative submitted in the hearing that cancellation of the applicant’s visa would not give rise to a breach of Australia’s international commitments under treaties or conventions to which Australia is a signatory. The Tribunal gives these considerations no weight.
There would be legal consequences for the applicant upon the cancellation of the visa, including the possibility of detention and deportation. S.48 of the Act may be engaged, but this may not be the case in relation to further partner applications. PIC 4013 exclusion periods may also limit the applicant’s ability to successfully apply for the grant of other visas for a specified period. I note that these consequences apply in assessment of most visa cancellation situations however the Tribunal gives these considerations weight in favour against cancellation of the visa.
Other relevant matters, including hardship: – The Tribunal has considered the potential hardship, particularly to the sponsor in this matter if the applicant’s visa was cancelled. The Tribunal accepts that the sponsor and applicant live separately, and have been separated for 21 months. The Tribunal accepts that the sponsor is financially independent, is currently employed, is responsible for the mortgage of the home, and currently resides with the two youngest of her three adult children. The Tribunal accepts the sponsor is not financially or physically dependent upon the applicant, and has not personally met with the applicant since March 2021. The Tribunal accepts her evidence that the applicant and the sponsor communicate regularly, and that she relies on him for emotional support. The Tribunal accepts that the sponsor will experience some loss and hardship, despite the fact she has been separated from the applicant for 21 months, if the applicant’s visa is cancelled. The Tribunal gives weight to the potential hardship to the sponsor in favour against cancellation of the visa.
The Tribunal has also considered factors created by the covid-19 pandemic. The Tribunal has considered the submissions in relation to the global pandemic. The Tribunal considers that Australia has (relatively speaking) been a fortunate place to reside in during the pandemic. The Tribunal accepts that there are current travel warnings in relation to travel to India. The Tribunal accepts that the factor of the covid-19 pandemic and the destruction the pandemic caused in India, even now that vaccinations are available, must be considered as a hardship for the applicant in this review, if the visa is cancelled. The factors of the ongoing global effects of the covid-19 pandemic, and the different consequences caused by the pandemic in different countries and the current travel warnings by DFAT, and the hardship this may cause to the applicant, are matters to which the Tribunal gives weight in favour against cancellation of the visa.
The Tribunal has considered all the above matters and carefully weighted and balanced the factors in favour of cancellation of the visa, and the factors against cancellation of the visa. The Tribunal finds that the weight given to the correct information that should have been provided to the Department in relation to the applicant’s identity and whether he had previously used or had another name, outweighs the weight the Tribunal gives to other factors in this review.
The Tribunal has carefully assessed the factors in relation to the applicant’s present circumstances, the time that has elapsed since the non-compliance, the applicant’s subsequent behaviour to the Department, the potential hardship to the sponsor and the factors created by the covid-19 pandemic, as these are the factors that the Tribunal gives the most weight in favour against cancellation of the visa.
However, the Tribunal has balanced this with the weight it gives to the information that the applicant has provided incorrect information to the Department and omitted to provide information to the Department about his identity or previous identity, in relation to this visa application and other visa applications in other instances of non-compliance. The Tribunal gives these considerations the most weight, and finds they outweigh all other considerations and weight in favour against cancellation of the visa.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.
Margie Bourke
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.
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).
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.

[2021] AATA 5391

26 November 2021

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