1926025 (Migration)

1926025 (Migration) [2020] AATA 1451 (3 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1926025
MEMBER:Cathrine Burnett-Wake
DATE:3 February 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 03 February 2020 at 5:55pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – incorrect answers on incoming passenger cards and visa applications – criminal convictions and pending charges – claims to be a police informer – formal guilty verdict and sentence – chance of passing character test – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 111
Migration Regulations 1994, Schedule 4 Public Interest Criteria (PIC) 4001; r 2.41
CASES
Brown v MIAC [2010] FCAFC 33
COT15 v MIBP (No 1) (2015) 236 FCR 148
Drake v MIEA (1979) 76 FLR 409
Goundar v MIBP [2016] FCA 1203
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Singh [2016] FCAFC 183
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with ss.101 (b) and 102(b) of the Act due to incorrect answers the applicant provided on incoming passenger cards and onshore visa applications relating to non-disclosure of criminal convictions and pending charges. The delegate was satisfied there was a ground to cancel the visa and the considerations that weighed in support of cancelling the visa outweighed the considerations that weighed against cancelling the visa. The delegate decided to exercise their discretion under s.109 to cancel the visa on 6 September 2019.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Following the cancellation of the applicant’s Subclass 457 visa he was placed into immigration detention, where he currently remains.
On 25 November 2019, the applicant was invited to attend a hearing before the Tribunal on 12 December 2019 in relation to the Subclass 457 cancellation.
The visa applicant also has another matter before the Tribunal (file number [number]) relating to the refusal of his Subclass 820 Partner visa application on the basis the applicant did not meet Public Interest Criteria (PIC) 4020. The delegate in that matter found the applicant provided false or misleading information in a material particular in relation to his Subclass 820 partner visa application and a visa he held in the period of 12 months before the partner visa application was made. Initially this Subclass 820 Partner visa matter was constituted to a different member.
However, on 29 November 2019 the Tribunal received, through the applicant’s representative, a request for both matters to be combined and heard together. The following reasons were put forward by the representative on why the matters should be heard concurrently:
- The view was that the issues in both matters are almost identical, if not, identical;
- To save on Tribunal resources; and
- To save on the Australian government’s costs in transporting the applicant from the immigration detention centre for two hearings.
The Tribunal agreed to this request and Tribunal file number [number], relating to the Subclass 820 Partner visa, was re-constituted so a combined hearing with one presiding member could occur. Although a combined hearing occurred, separate written decisions for the individual matters have or will be prepared as the determinative issues for each review are different and were raised with the applicant separately during the hearing.
Prior to the hearing the Tribunal received two written submissions from the applicant’s representative. However, these submissions did not put forward any claims, other than that the applicant denied allegations relating to pending criminal charges in [Country 1] and that he believed the allegation which provided the basis for those charges had been made up by his wife as the applicant was going through a bitter divorce with her and she wanted sole custody of their children. Further, the applicant told the Tribunal that he had not been aware of the pending criminal charges or a warrant for his arrest being issued in [Country 1], as detailed in the delegate’s decision. The submissions were silent on whether non-compliance had occurred in relation to his convictions and any reasons that may have led to non-compliance.
The applicant appeared before the Tribunal on 12 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [Ms A], the applicant’s current spouse; [Mr A] the son of the applicant’s spouse and [Mr B], a friend and business associate of the applicant.
At hearing the Tribunal requested that the applicant provide supporting evidence to all claims made during the hearing and further requested that any supporting evidence be provided to the Tribunal by 13 January 2020.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing. However, on 8 January 2020, the Tribunal received correspondence from the applicant that he had terminated the services of the representative and [Ms A] would act as the authorised recipient for communications from the Tribunal.
On 10 January 2020, [Ms A] hand delivered to the Tribunal a bundle of supporting documents. A list of these supporting documents is appended to this decision, which the Tribunal has considered in makings its decision.
On 13 January 2020, the Tribunal received correspondence from the representative outlining that he had not received instructions from the applicant to respond and that the applicant may have made arrangements to respond directly to the Tribunal.
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.
Did the notice comply with the requirements in s.107?
The Tribunal has considered the terms of the s.107 notice given to the applicant and the language used by the delegate to inform the applicant of their intention to consider cancellation, subject to the applicant's response to that notice. It 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.
The applicant did not respond to the s.107 notice issued by the Department.
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 reproduced in the delegate’s decision, which was provided to the Tribunal by the applicant when the application for review was made. The decision detailed that there was non-compliance with ss.101(b) and 102(b) of the Act[1] in the following respects:
[1] Section 101(b) of the Act requires a noncitizen to fill in or complete the application form in such a way that no incorrect answers are given or provided.
- [In] March 2015 – The applicant arrives in Australia on a Business Visitor [visa].
- [April] 2015 – The applicant arrives in Australia on a Business Visitor Visa.
- [July] 2015 – The applicant arrives in Australia on a Business Visitor Visa.
- 28 October 2015 – The applicant submitted an application for a Temporary Work (Skilled) (Subclass 457) visa.
o At page 11 under the heading ‘Declaration by applicant’ the applicant answered the following (in bold):
o WARNING: Giving false or misleading information or documents is a serious offence.
I declare that:
§The information provided in this form is complete, correct and up-to-date. Yes
§I understand that if any fraudulent documents or false or misleading information has been provided with this application or if I fail to satisfy the Minister of my identity, my application may be refused and I, and any member of my family unit, may become unable to be granted a visa for a specified period of time. Yes
§I understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. Yes
- 17 December 2018 – the applicant submitted a Partner Combined (Subclass 820/801) visa application which was sponsored by his partner [Ms A] who the Tribunal is satisfied is an Australian citizen.
- 22 July 2019 – the applicant, as part of this partner visa application, uploaded a [Country 1] Police Service […] clearance dated [in] September 2018. This revealed the applicant has the following criminal history in [Country 1]:
- In addition to the applicant’s above convictions, the [Country 1 police service] advised the Department of Home Affairs (the Department) that the applicant was charged with the following criminal offences in [Country 1] prior to his first arrival in Australia:
- The [police service] advised the Department that a warrant had been issued for the applicant’s arrest in [Country 1] in 2016 in relation to his outstanding charges after he allegedly failed to attend a scheduled court appearance.
The hearing
At the commencement of the hearing the Tribunal addressed a number of procedural issues with the applicant.
Combined hearing
Firstly the Tribunal addressed the fact the hearing was a combined hearing for both of the applicant’s matters currently before the Tribunal and that the hearing has been combined by way of written request received by the Tribunal on 29 November 2019 through the applicant’s then representative. The Tribunal outlined the reasons that were put forward (as per paragraph 7 of these reasons) by the representative on why the hearing should be combined and that the Tribunal had agreed to the request. The Tribunal asked the applicant to confirm if he wished to proceed with a combined hearing for both of his matters, to which the applicant confirmed he did. Additionally, the Tribunal asked the applicant to confirm for it that he agreed that any verbal evidence received in the combined hearing whether it is from himself or any witnesses can be used in both matters, to which the applicant confirmed he agreed.
The Tribunal then explained to the applicant in detail the legislative criteria upon which the Subclass 457 was cancelled and on which the Subclass 820 Partner visa refused and the determinative issues in relation to both matters before the Tribunal.
Self-incrimination
The Tribunal then addressed the applicant’s privilege against self-incrimination. The Tribunal explained it was aware of criminal charges pending against him as outlined in the decision record and that there was a warrant out for his arrest in [Country 1]. The Tribunal then proceeded to caution the applicant about self-incrimination and that if he did make any statements regarding the pending charges, they could be used against him in evidence in the separate criminal proceedings. The Tribunal then advised the applicant that if he chose to assert his privilege against self-incrimination when asked by the Tribunal about those matters that the Tribunal would not make any adverse findings against him in that regard because the assertion of his privilege and decision not to answer the Tribunal’s questions on those matters as a result, would be the mere exercising of the applicant’s legal rights. The Tribunal outlined to the applicant that it was not its role to decide whether he is guilty or not of the charges and that was the role of the criminal justice system in [Country 1].
The applicant outlined that he wished to exercise his privilege in relation to any questions from the Tribunal over the pending charges and that he did not wish to discuss them.
The Tribunal noted that in the pre-hearing submissions provided by the representative that the applicant claims he was not aware of any pending charges in 2015 when he came to Australia, nor of an arrest warrant issued in 2016. The Tribunal acknowledged this and outlined that at the outset it accepts that this is plausible. As such, it accepts when completing incoming passenger cards in 2015 and subsequent visa applications he may not have been aware of the existence of the criminal charges or warrant for his arrest. Notwithstanding this, the Tribunal outlined it was cognisant of the fact that there were previous convictions and prison sentences as reflected in the [Country 1 police service] criminal history check and detailed in the decision record of the Department, which were substantial and that the Tribunal would be confining its findings to these convictions in respect to whether non-compliance occurred.
Non-disclosure certificates
Prior to the hearing the applicant submitted an access to documents request for both matters pursuant to s.362A of the Act. A number of documents contained on the Department files were not able to be released due to non-disclosure certificates issued by a delegate of the Minister under ss.375A or 376 of the Act. Copies of the certificates were released to the applicant as part of the s.362A request, however, the Tribunal considered it important to also raise the non-disclosure certificates during the hearing.
The Tribunal explained to the applicant that the Department files for the cancellation and partner matters both contain certificates and notification regarding disclosure of certain information to the Tribunal under ss.375A and 376 of the Act. The applicant and his representative were handed copies of the certificates in the hearing and the Tribunal read the contents of the certificates out to the applicant.
The Tribunal explained it had taken the view that they are valid certificates and accordingly release of information is prevented under the documents covered by the s375A certificate(s) and release of information covered by the s376 certificate(s) is discretionary if the Tribunal thinks it is appropriate. It was explained that the Tribunal had taken the view that the certificates are valid because of public interest reasons. That is, the non-disclosure reasons are clearly specified in the certificates with sufficient detail to identify the claimed harm to the nation or public service and/or an individual. The Tribunal outlined that the certificate material contains information shared between internal sections of the Department, external agencies and persons and the disclosure of this information would be contrary to the public interest.
The Tribunal explained to the applicant that in accordance with the Full Federal Court decision in MIBP v Singh [2016] FCAFC 183, it is required to balance its obligations under ss.375A and 376 with its obligations to provide the applicant with procedural fairness including under ss.359A or 359AA of the Act, where it is possible to do so. The Tribunal explained that s.359A of the Act sets out a procedure for the Tribunal to inform applicants of information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review and invite them to comment on or respond to that information before the Tribunal makes a decision on their application. However, the Tribunal noted that the primary decision record(s), which were submitted with the review application(s), by the applicant fell within the exceptions of s.359A (under s.359A(4)(b)) and contained the majority of the information protected by the certificates and relates to the previous convictions and information regarding the pending charges. As such, the Tribunal would not be relying on information protected by the certificates and was therefore of the view that in this instance there is no obligation for it to put the information to the applicant in accordance with ss.359A or 359AA. The Tribunal did however, provide the applicant with the gist of the information that was certified, outlining it related to his previous convictions and information regarding the pending charges/arrest warrant and included correspondence between the Department, [Country 1 police service] and other parties.
The applicant and his representative were then invited to make submissions on the validity of the certificates and state why the material should be released. The applicant and representative chose not to make submissions on the validity of the certificates.
Verbal evidence of the applicant
At the commencement of the applicant giving verbal evidence, the Tribunal asked the applicant about his convictions in [Country 1]. The applicant stated that he never spent one day in prison and that in his mind he was never really convicted. The Tribunal asked the applicant to explain how this could be the case, when the convictions appeared on the [Country 1 police service] criminal history check he provided to the Department.

The applicant claimed that he was an informer for [Country 1 police service] during the 1980’s and that he had given [the police service] information relating to [a named Country 1] crime gang, regarding their activities, which resulted in multiple convictions of gang members. He claimed that so his cover would not be revealed, as he and his family’s lives would be at risk, he was charged and convicted too so the crime gang would not know he was the informer. It should be noted that this was the first instance the applicant raised these claims. The applicant did not make these or similar claims to the Department or in earlier submissions to the Tribunal.
The Tribunal asked what evidence the applicant had to substantiate the claims he was an informer for [Country 1 police service] and that the charges and convictions were, as he claimed, only so his cover as a [Country 1 police service] informer would not be revealed. The applicant responded he did not have any.
The Tribunal asked the applicant to explain if he was an informer as claimed and if he was only charged so his cover was not revealed, then why would the police record show multiple convictions. The applicant responded that he thought the [Country 1 police service] would not have recorded anything against his name, as they had told him that would be the case. He claimed that when he received the police check he was shocked to see the convictions.
The Tribunal asked the applicant if he attended court in [Country 1] relating to the convictions on the criminal history check, to which he confirmed he had. The Tribunal asked if he appeared before a judge who then passed a guilty verdict, to which he confirmed he had. The Tribunal then asked the applicant to explain if he had gone through a formal court process and was found guilty by a judge then why when completing incoming passenger cards and visa applications did he not declare this information. The applicant stated in response that in his heart he believes he was not truly convicted.
The Tribunal outlined to the applicant that its role was to make findings of fact and that currently, the fact that could be verified, through the [criminal history] check, was that he had been convicted of multiple counts of fraud and sentenced to multiple suspended jail terms. Further, that his claims to the contrary were not supported by other evidence and without evidence to support his claims the Tribunal would rely on the public record available to it to make its findings.
The Tribunal asked what if any evidence the applicant could obtain from [Country 1] to verify his claims and followed that in its view, if his claims were true, then he would likely be able to obtain evidence to corroborate his claims, whether it is from [the police service], a [Country 1] judicial authority or another independent person or office. The applicant outlined he was not sure what evidence he could gather, and it was difficult to do anything whilst he was in detention. The Tribunal noted that he had engaged the services of a representative, and it would be open for him to also engage the services of a lawyer in [Country 1] or someone else to assist him, and given the seriousness of his current situation that it would be in his interests to do so to substantiate his claims.
The Tribunal outlined that given the nature of his claims, and the lack of evidence to support them, that it would provide the applicant with additional time post-hearing to provide evidence for its consideration as without supporting evidence to support the claims the weight the Tribunal would give his verbal evidence, when the public record reflected in the [criminal history] check contradicted that evidence, may be significantly reduced to the point where the Tribunal prefers and makes its findings of fact based on the public record.
The Tribunal discussed with the applicant that if it decided that there was non-compliance pursuant to s.101(b) and/or s.102(b) of the Act it must consider whether the visa should be cancelled, and that the Tribunal had to have regard to a number of prescribed circumstances in considering the exercise of this discretion. The Tribunal detailed each of the prescribed circumstances to the applicant, along with the discretionary considerations outlined in policy.
The applicant told the Tribunal that he was [an occupation] and that he initially came to Australia on a Subclass 457 visa, sponsored by [Business 1]. The applicant’s evidence is this employment relationship broke down within a month or so of his arrival in Australia as the terms and conditions he agreed to and were promised did not transpire and that he believes they deceived him and got him to Australia under false pretences.
The applicant told the Tribunal that around the time of the problems he claims to have experienced with [Business 1], he was expecting his wife and children to be making arrangements to move to Australia, as that was the plan before he travelled to Australia. However, over that period his relationship with his wife broke down and she had made accusations against him regarding inappropriate behaviour towards his daughter, which he categorically denies. He outlined to the Tribunal that he believed his wife had made up a story of inappropriate behaviour so she could get sole custody of their children. Further, that he believed the source of information protected by the certificates on the Department files that the Tribunal had discussed earlier and could not release comes from her. The applicant told the Tribunal that he realises now he was a fool for marrying his previous wife who was much younger than him.
The applicant then told the Tribunal that following him leaving [Business 1] and his marriage breakdown that he then went to work on a Subclass 457 visa with [Business 2] as their [specified role].
The applicant told the Tribunal that [Ms A’s] daughter was working for an affiliate of [Business 2] and she introduced him to her mother. He outlined the way they met was because [Ms A] was a [health worker] and he went along for a treatment.
The applicant told the Tribunal that it was four and a half years ago when he met [Ms A] after what he described as going through a difficult period and that he thought he could not find happiness. He told the Tribunal that he met and fell in love with her and they decided to make a life together.
The applicant told the Tribunal that he and [Ms A] moved in together at the beginning of September 2016 into a property in [one suburb], and six months after, they moved to their current rental property in [Suburb 1].
The applicant told the Tribunal that he is very close to [Ms A’s] son. He outlined that the son had a difficult childhood as his father was an alcoholic and had died. The applicant told the Tribunal that [Ms A’s] son had been mentally tortured as a child, and that he believed he had helped him with his life direction and purpose.
The applicant said that he is not as close with [Ms A’s] daughter, as she has a partner and is busy working. The Tribunal asked if she was going to be providing any supporting evidence as a witness, to which he responded that she was too busy with work and was not able to attend the hearing.
The applicant told the Tribunal that in his down time he loved gardening with [Ms A] and because of her that he had now became a person that cared for nature. He claimed that he now donates to [one charity] on a monthly basis as well as to [another charity].
The applicant told the Tribunal that he is close to [Ms A’s] father, and that he enjoyed spending time with him having long and interesting conversations, and he has become like a father to him.
The applicant told the Tribunal that he had started a company with [Ms A] as he had [developed a process] that produces [product 1], which he claimed sells for $[amount] per kg.
The applicant’s evidence is he has [patents] registered for this technology.
The applicant additionally told the Tribunal that he had current negotiations with [an authority], and that he believed that from his [process] it will create [number] jobs in Australia.
The applicant also gave evidence that an overseas investor was willing to invest [an amount] in this technology. The applicant stated he had a contract for [amount] in negotiation, however, the deal did not proceed as he did not believe the people were good and that he ‘does not deal with crooks’.
The applicant stated that he had negotiations currently pending with people from [several] different countries and it was important that he was out of detention so he could keep things alive with the negotiations.
The Tribunal asked at what stage of commercialisation he was at with [one element of the process] and whether his [technology] in relation to this and the production of [product 1] had been peer reviewed and independently verified as viable. The applicant outlined that he had a business plan, and that the [element] had not been peer reviewed or independently verified, and that he had built a prototype [technology] and that just prior to going to detention he had successfully trialled the mini-prototype and produced what he believes to be [product 1]. He told the Tribunal that he has the [product 1] sample produced by this test, and it was going to be sent to a University for verification; however, he was put into immigration detention before it could be sent.
The applicant told the Tribunal that he was very passionate about the environment and social issues, that his goal with all the money he anticipates to make from his venture was to be able to assist less advantaged people and that there would be no woman, child or homeless person living on the street.
The Tribunal asked whether his business could be run from [Country 1], to which he responded no, as it was set up in Australia.
The Tribunal asked the applicant if he could relocate to [Country 1] with [Ms A], to which he responded he cannot return to [Country 1] due to the safety risks for women. The applicant told the Tribunal that [a large number of] women were raped each month in [Country 1] but did not provide any supporting evidence for this claim.
The Tribunal asked the applicant if he had any family in [Country 1], to which he responded he had [one relative], however, she only contacts him if she requires money.
The applicant told the Tribunal that he has spent the last five years in Australia and he considers himself to be Australian and that he has lived a pure and clean life in Australia.
The applicant outlined that if he had to return to [Country 1] it would ‘kill him’ and [Ms A]. That they cannot live without each other and that he has never been so close to anyone and she was his pillar of strength.
Evidence of [Ms A]
[Ms A] outlined the history of her relationship with the applicant, which was consistent with the applicant’s testimony.
[Ms A] gave evidence to the Tribunal that the applicant was completely open with her, and that he had told her about him being an informer for the [Country 1 police] early in their relationship.
[Ms A] told the Tribunal that she was also aware of the allegations that the applicant’s ex-wife had made against him regarding inappropriate behaviour towards their daughter and that she supports the applicant and believes his ex-wife’s allegations are unfounded and not true.
[Ms A] outlined to the Tribunal that she and the applicant had established the company [Business 3] to take the applicant’s [process] to produce [product 1] to commercialisation. [Ms A] outlined that her role was administrative in the company and she did not really understand the science, but she was aware that the applicant had been actively engaging with potential investors for funding of the company. [Ms A] outlined that she was aware that the applicant had built a [mini-prototype] that she understood from him it was successful; however, they had not had the sample tested yet and that it was still in the drawer at her home. The Tribunal asked if she intended to send it off for verification, to which she responded, not at this stage, and they would when the applicant was released from detention.
[Ms A] outlined that she had struggled financially since the applicant was placed into detention that she was in arrears with rent and would have to move to a different property soon as she could not afford the rent without the income of the applicant.
The Tribunal asked [Ms A] about the applicant’s relationship with her son. She outlined to the Tribunal that her son got along well with the applicant.
[Ms A] outlined that she relied on the applicant financially and emotionally and was finding it difficult without having the applicant around.
[Ms A] outlined that she had in the past suffered from mental health issues, which required treatment, however, she was not currently under medical treatment for such issues.
Evidence of [Mr A]
[Ms A’s] adult son attended the Tribunal hearing and gave evidence in support of the applicant.
Primarily [Mr A’s] evidence was that his mother was in a genuine relationship with the applicant. His evidence was consistent with the evidence of both the applicant and [Ms A] regarding the evolution and nature of the relationship between them.
The Tribunal asked [Mr A] about his relationship with the applicant. The applicant stated he got along with the applicant and enjoys speaking with him and that he would see him if he went to visit his mother.
The Tribunal asked how it would impact him if the applicant was to return to [Country 1]. He responded that he had got used to having the applicant around, so it would be weird if he was no longer there when he went to visit his mother and that it would impact his mother more than him as she seemed happy with the applicant.
Evidence of [Mr B]
[Mr B] told the Tribunal that he was a business associate of the applicant and had met him in 2019. He had since been assisting him with the business development of [Business 3].
[Mr B] told the Tribunal that he had been present for meetings in relation to the applicant’s discussions with potential investors, and that he was aware there was interest in the [the applicant’s process]. However, although there was interest there was no investment yet.
[Mr B] told the Tribunal that he believed there was great potential for the [process]. He did, however, concede that it had not been peer reviewed; nor had the mini prototype the applicant claimed to have built been verified that it did produce [product 1].
Concerns of the Tribunal raised at the end of the hearing
The Tribunal outlined to the applicant that it had serious concerns, specifically in relation to the applicant’s evidence of being an informer for [the Country 1 police service] and that the charges and convictions were only to prevent his identity as an informer for [the police service] from being revealed, as his evidence in relation to these matters was not supported by any independent evidence. Additionally, that there was no documentary evidence before the Tribunal regarding his [product development], the claimed registered trademarks, and the establishment of [Business 3] or about the potential investors in the [process]. The Tribunal informed the applicant that it was not yet convinced about the truth of these matters based on the oral evidence of the applicant and witnesses.
The Tribunal outlined to the applicant that it wanted to afford him the opportunity to present supporting evidence to address its concerns.
The Tribunal gave the applicant three weeks to gather and provide supporting information he wished the Tribunal to consider, and advised the applicant if he required more time to gather such evidence he could ask the Tribunal for an extension of time.
Post hearing submissions and further claims not raised during hearing
On 10 January 2020, the Tribunal received 296 pages of supporting documents from the applicant which the Tribunal has considered in reaching its decision. A list of these documents is appended to this decision.
The applicant’s post hearing written statement
The applicant’s written statement, provided as part of the 296 pages of post hearing documents, elaborated on the oral evidence provided during the hearing and made further claims that were not raised during the hearing (as detailed above) about his past, which can be relevantly summarised as follows:
- The applicant was raised in the [Church 1] faith which he claims is [details deleted]. He claimed his father was a priest and his family was heavily involved in all church activities. Further, that he became a priest in the [Church 1] in [year] and was promoted through the ranks very quickly.
- The applicant ran a [business] for more than 30 years, doing business with governments, [and various] industries. The applicant stated his clients included:
·The applicant stated because of his business and church connections, that he had contact with many government departments. As such he was approached by [Official A] of the [Country 1 police service] and asked to infiltrate a group known to them as [gang name]. The applicant stated he was told that it was necessary to bring in an unknown and unregistered person due to the influence of this group and that [the police service] had gone through police personnel and court officials but they did not have anyone that they could trust. The applicant stated he was introduced to [Member A], [Member B] and [Member C]. The applicant states that he was also introduced to magistrates and high-ranking people in government departments. The applicant states that he found out that these people were all members of the [Party 1] political party, which he claims was a terrorist group in [Country 1] at that time. The applicant claims he was able to determine (and inform [Official A]) that this group was planning [criminal operations] in [Country 1].
·The applicant states that he was assured that he would not be held accountable for any actions taken whilst involved in this process and would not have any criminal convictions documented against his name. The applicant states that this operation was successful and resulted in the convictions and jailing of [Member B], [Member C] and others and the cessation of this criminal activity. The applicant states he was informed by [Official A] that in order to guarantee his personal safety, it was necessary to show a conviction against his name so that those who were convicted did not realise how they were caught.
·The applicant states that he did not serve any time in prison for the crimes that have been recorded against him and that it was always his belief and understanding that there would never be any record of criminal conviction against his name.
·The applicant states this is why he has never declared any criminal activity on his entry card to Australia.
·The applicant states that when the [government] came to power those whom he allegedly assisted to help convict such as [Member C] is now [in a senior role] and that [Member B] is a [senior role]. The applicant states as these are two men that he helped to convict, this demonstrates that the new government is prepared to install ex-convicts into positions of power in [Country 1].
·The applicant states these individuals would see his police record and that as he did not serve time they will therefore realise he was the one who informed on them. The applicant states it is for this reason that it is not safe for him to return to [Country 1] as these people will want to do him harm.
·The applicant states that as the convictions on his police record are for matters from the 1980s, he has had no contact with anyone in relation to these cases since that time and is therefore unable to state where they might be or whether they are in fact still living. He claims to have found out that [Official A] passed away in the last two years and [another official] passed away in the last six years.
·The applicant states he was invited to Australia by [Business 1], including [Executive A] with whom he signed a [contract] in 2015 as they were interested in developing [another project].
·The applicant states he was invited to come to Australia on a business visa, promised motor vehicles, housing and a large sum of money but once he arrived, he was not provided any of these things. He states he was stalled and put off and after some months of negotiation and changes to his original agreement, only offered a 457 visa by [Business 1]. He states this was not what was originally offered to him and that he would not have come to Australia on such a visa. The applicant states he did not sight the visa application and his signature was coerced out of him on the understanding that it had to be done quickly as he would become illegal in the country and they would sort it out later. He states as he did not have the funds to return to [Country 1] he had to accept them at their word.
·The applicant states he came to Australia with the understanding that his then wife was going to pack up their belongings and follow him within a couple of months, bringing their [children] so that he could begin their new life in Australia together. He states he had discussed this for many months prior to visiting as a family in early April 2015 as they were also invited to go to [another country], but chose Australia because of its sunny climate and the big potential that was offered by [Business 1].
·The applicant states within one month of arriving in Australia he discovered that his then wife was not packing up to come to Australia but was filing for divorce from him in [Country 1]. He states she refused to accept any communication from him and would not let him have any communication with his children. He states he was then informed that the reason for the divorce was he was being accused of inappropriate behaviour towards his [daughter]. The applicant states he was never served any warrant to this effect and that to his knowledge he was never charged with these offences. He states they were only accusations that his then wife used to try to get a divorce from him and sole custody of their children.
·The applicant states his ex-wife’s accusations could not be proved and his divorce case was dismissed from court. He states he never received any written confirmation of any of these accusations or this information. He states this this was what he was told by the lawyer for [Business 1], [Lawyer A]. The applicant states when his divorce case was dismissed from court his then wife changed her legal representation to another firm.
·He states that in 2018 he received an application for divorce from his then wife's new legal representation which did not include any accusations of inappropriate behaviour towards his daughter. The applicant states he has never seen any written paperwork relating to these accusations, nor has he been served any summons or warrants relating to any accusations at all since being in Australia or even in [Country 1].
·The applicant states he has been wanting to obtain a divorce from his ex-wife [named] since 2015 when his relationship with [Ms A] began so that they could have a clean life together going forward.
·The applicant states that he has come to know that [his ex-wife], along with a former business partner of his and other business associates in [Country 1] were spreading rumours that he had fled the country leaving them all destitute and had stolen money from them. He states these rumours were relayed to him by [Lawyer A] and [Executive A] from [Business 1]. He states he has never seen any written accusations to this effect or been told this in person by anyone that he knows in [Country 1]. He states he has never taken money from any person with the intent to de-fraud them. He states he has always worked very hard and had a good reputation for being an honest businessman and upstanding person.
·He states he believes that the people from [Country 1] were working hand in hand with [Business 1] in Australia to try to force him to sign over the intellectual property for [another project] so they could sell it for themselves and cut him out.
·The applicant states after cutting ties with [Business 1] that he was requested to sign a form to the effect that [Mr C] representing [Business 2] would take over his 457 visa in order for him to remain in Australia and to receive an income. He states he agreed to do this for his own safety and protection and that he does not recall going through the visa application with his representative to ensure that everything was correct.
·The applicant states that his agreement with [Business 2] was that they would form a company [Business 4], and they would support him under the 457 visa requirements. He states he was only a shareholder in this company and did not hold any legal position. He states during this time with [Business 4] he [developed product 2] that was originally patented under his name but the full patent did not have his name [in the proposal] and so they were able to cut him out of any deal to sell the product on the open market. He states he was again denied rights to his own [product] and the possibility of securing a better future for himself in Australia.
- The applicant states that shortly after that time he was told by [Business 2] that they could no longer support him financially and he was forced to leave the premises within minutes without any of his papers, work, tools or anything. He states the company even tried to stop him from taking his own laptop; he was working on other [projects] and had some sensitive paperwork in the office which he was not allowed to take with him.
- The applicant states that a copy of a bank statement (as provided to the Tribunal on 10 January 2020) was dated after his departure from those premises showing a deposit of $[amount] into the [Business 4] business account which he presumes is a payment for the [product 2] as he cannot understand why else they would use that account. As this money has gone through a business account that he is part of and as this [product was developed] by him, he believes that he has a right to a percentage of that income.
- He states that neither [Business 1] nor [Business 2] as his 457 visa sponsors have paid tax or medical expenses on his behalf. He states he has only ever been paid cash and it is recorded as a loan. He states as his visa was signed under duress and without full explanation and consent he only became aware of these irregularities recently.

The applicant throughout the hearing portrayed himself as a victim of circumstances. His oral evidence and written statement reveal he believes he has experienced a sequence of very unfortunate and highly unusual life events, has been caught up in personal and business situations that have had negative consequences for him and he has not caused or contributed to or had any fault in these circumstances.
During the hearing the Tribunal was struck by the applicant’s presence and the confident manner in which he spoke. The applicant presented to the Tribunal as a highly intelligent person who was convinced that the explanations he provided were the only plausible explanation available. Despite the applicant’s confidence, the Tribunal was not convinced of his explanations, particularly in relation to his criminal record, given the absence of independent supporting information to support the applicant’s explanation when contrasted to the clear public record about the applicant’s criminal history and recent circumstances in [Country 1].
Repeatedly throughout the hearing the Tribunal told the applicant that its role was to make findings of fact, and that any claims he made, in order for the Tribunal to give them greater weight than the public record the applicant provided to the Tribunal, needed to be supported by independent evidence. The Tribunal acknowledges the evidence of [Ms A], [Mr A] and [Mr B] and that in the case of [Ms A] and [Mr B] their evidence was corroborative of the applicant having [developed a process to produce product 1] and that the applicant had built a mini-prototype of this [process]. Critically, their evidence was not, in the Tribunal’s view, corroborative of the applicant’s explanation for his criminal convictions in [Country 1], although [Ms A] did give evidence he had told her early in their relationship that he was an informer for [the police service].
As it stands, the Tribunal has taken verbal evidence from the applicant and received a written statement, however, it does not have before it any supporting corroborative information that the convictions recorded against his name on the [criminal history] check were only recorded to protect him from harm of those he had informed on.
In the post hearing statement provided by the applicant he made further unsupported claims in relation to his claimed time as an informer and why he could not obtain documents, including: having been a priest in [Church 1] and a business person of 30 years working with major companies, which were the major factors of him being asked to be a police informer; that the key players had died who could attest to his time as an informer was true; and that too much time had passed and he was no longer in contact with other people who could provide support to his claims.
The Tribunal has formed the view and finds that the applicant’s claims of being a police informer and that the convictions were not ‘true convictions’ are not plausible and it is not persuaded given there is no corroborative information that in the Tribunal’s view outweighs the public record before the Tribunal in the form of the [criminal history] check.
The Tribunal therefore finds the convictions listed against the applicant for fraud on the [criminal history] check to be factual record, which the Tribunal relies on for making its findings that there was non-compliance with ss.101(b) and 102(b) of the Act.
Section 98 of the Act provides that 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.
By operation of s.99 of the Act, 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 ss.100, 101(b), 102(b), 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.
Section 100 of the Act provides that 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.
Section 111 of the Act provides that cancellation provisions apply to s.109 whether the non-compliance was deliberate or inadvertent.
The applicant in his own testimony gave evidence to the Tribunal confirming that he was charged with fraud, went to court and appeared before a judge who passed a guilty verdict and was sentenced accordingly. Notwithstanding the claims made by the applicant that he believed they were not true convictions, which the Tribunal has rejected, it finds that he still knew and was aware of the fact that he had been charged and convicted at the time he completed his incoming passenger cards and subsequent visa applications.
The Tribunal further notes that the application form for both the applicant’s Subclass 457 visa and Subclass 820 Partner visa, which has been reproduced and inserted into the delegate’s decision for the 467 visa cancellation specifically asks:
· ‘has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?’
The applicant made claims to the Tribunal that he believed that the convictions would have been removed, or not appeared on any official records. Given the question asked on the application form(s) the applicant, if answering as he claims on the basis he believes the convictions would not appear or would have been removed from official records, the proper course of action for the applicant in the Tribunal’s view was for him to declare to the Department his claimed history as an informer and detail the circumstances regarding the convictions he received that he believed would not appear in, or would have been removed from, official records.
The Tribunal notes that in the applicant’s post hearing statement he claims he was coerced into signing paperwork for his original Subclass 457 visa application and that he does not recall checking his subsequent Subclass 820 Partner visa application to ensure the details he provided were correct. Given the operation of ss.98, 99, 100 and 111 of the Act as detailed above, his claims relating to not knowing the information provided was incorrect as he didn’t complete the forms and/or check them for accuracy, does not cause the Tribunal to find that the applicant is not responsible and cannot be held accountable for the incorrect information he provided in those visa applications.
Furthermore, and in any event the applicant did provide information on his passenger entry cards that he did not have any criminal convictions.
For these reasons, the Tribunal finds that there was non-compliance with ss.101(b) and 102(b) of the Act by the applicant in the way described in the s.107 notice in respect of the applicant’s convictions.
Should the visa be cancelled?

100. 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).
101. 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 Migration Regulations 1994 (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.

102. 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
103. Section 100 of the Act explains what constitutes an incorrect answer for the purposes of cancelling a visa under s.109. It makes it clear that an answer to a question is incorrect even if the person who gave the answer, or caused the answer to be given, did not know that it was incorrect.
104. This means that a person's state of mind is irrelevant in determining whether an answer is incorrect and that, for example, an answer is incorrect irrespective of whether the person fills in their visa application form or passenger card in such a way as to intentionally deceive the Department or makes a genuine mistake in filling in their visa application form or passenger card.
105. In this matter, the correct information relates to the answers the applicant provided regarding his previous convictions. The Tribunal has already found the applicant provided incorrect information by not declaring the convictions detailed on his [criminal history] check. In considering this factor the Tribunal has not given any consideration or weight to the information about pending charges/arrest warrant as it accepts he did not know about those.
106. The applicant provided incorrect information on five separate occasions on his three entries into Australia on the incoming passenger cards and on his Subclass 457 visa and Subclass 820 visa application forms relating to his convictions.
107. The Tribunal considers the provision of incorrect information on five separate occasions to be a serious matter. The Tribunal therefore finds that this consideration supports the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight in the applicant’s circumstances.
The content of the genuine document (if any)
108. This consideration is not relevant in the applicant’s circumstances as the genuine nature of a document is not a relevant factor. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
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
109. Any country has a sovereign right to determine who can enter its borders. As the applicant did not declare his convictions he denied the authorities an opportunity to appropriately assess his character to determine his suitability to enter Australia.
110. The visa applicant was subject to Public Interest Criteria (PIC) 4001 for his visitor entries to Australia and his Subclass 457 visa application. PIC 4001 provides:
Either:
(a)the person satisfies the Minister that the person passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

111. Regarding the character test for the purposes of PIC 4001 a person does not pass the character test,[2] if the person has a substantial criminal record.[3] For the purposes of this character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[2] Character test is defined in s.501(6) of the Act.
[3] Substantial criminal record is defined in s.501(7) of the Act.
112. For the purposes of determining whether an applicant has been sentenced to a term of imprisonment of 12 months or more within s 501(7), it is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant: see Drake v MIEA (1979) 76 FLR 409 at 415-418. A sentence to a term of imprisonment which is suspended falls within the section: Brown v MIAC [2010] FCAFC 33 (Moore, Rares, Nicholas JJ, 20 April 2010) at [11]-[12].
113. The applicant’s [criminal history] record demonstrates that he was sentenced to multiple prison terms in excess of 12 months, which is considered a substantial criminal record.
114. The character test prescribed by law governs who Australia assesses as suitable to enter its borders. Those with a substantial criminal record would not usually be permitted to enter.
115. Although the Tribunal is not making findings on the character test in this decision, it is of the view that the applicant would not likely have been granted a visa and/or permission to enter Australia if his convictions were declared and that the grant of visa(s) to him and/or his immigration clearance was based, wholly or partly, on incorrect information. On that basis the Tribunal is of the view that the applicant gained an advantage by being granted visas that he was not likely entitled to.
116. The applicant’s answers regarding his past convictions on multiple occasions, in the Tribunal’s view, indicate that he was aware of this and has purposely and successfully, at least initially, deceived the Australian government to gain entry into Australia. This is, in the Tribunal’s view, significant and serious and causes the Tribunal to find that this consideration supports the cancellation of the applicant’s visa, a consideration which the Tribunal gives significant weight.
The circumstances in which the non-compliance occurred
117. The circumstances of the non-compliance occurred by way of the applicant completing the three incoming passenger cards along with the Subclass 457 and Subclass 820 visa applications incorrectly, by not declaring his criminal convictions as detailed on the [Country 1 police service] criminal history check.
118. As already detailed, the Tribunal has rejected the applicant’s claim that it is his belief the convictions were not true convictions and were never meant to be recorded on official records, and this is the reason he never declared them.
119. The applicant also claims that he was coerced into signing the initial Subclass 457 visa application and that he does not recall checking his subsequent Subclass 820 visa application to ensure details were correct.
120. Given the operation of ss.98, 99, 100 and 111 of the Act as detailed above, the Tribunal has found the applicant’s claims relating to not knowing the information provided was incorrect as he didn’t complete the forms or check them for accuracy, does not relieve the applicant of his responsibility for the incorrect information he provided. Furthermore, and in any event the applicant did provide information on his passenger entry cards that he did not have any criminal convictions.
121. The applicant claims that he was coerced into signing the application form relating to his Subclass 457 visa with [Business 1], however, he does not claim the information was incorrect in the application form; rather that he had preferred not to have applied for a 457 visa and the visa had to be lodged quickly so he signed in haste. As it stands at no point has the applicant conceded that incorrect information was provided, therefore his claim he was coerced is a separate issue and does not in this instance relate to whether or not correct information was provided for the purposes of non-compliance.
122. The Tribunal therefore finds that this consideration supports the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight.
The present circumstances of the visa holder
123. The Tribunal accepts that the applicant is in a spousal relationship with [Ms A], an Australian citizen, and the cancellation of his visa impacts them both. The Tribunal accepts that their separation whilst he remains in detention is having emotional and psychological impacts for both of them. The Tribunal further notes the email received from [Ms A] which states the applicant’s mental health has declined further whilst he is in detention on the basis that he is being forced to live with many other men that he does not know, of being idle in a confined space, of eating food that is not well made or agreeable to his digestion, of losing his possessions. The Tribunal also notes that the applicant was referred to a psychologist by his general practitioner in September 2019, as a copy of the referral was provided to the Tribunal. However, the Tribunal has not received a report from a psychologist about the applicant. The Tribunal further notes that [Ms A] has also recently been referred to a psychologist by her general practitioner on 9 January 2020, with a copy of the referral being provided to the Tribunal. The referral outlines that she has previously been treated for major depression in 1990, was on antidepressants for 10 years and developed [a health condition] in 1990, a condition which she still suffers from. Again, a report from a psychologist about [Ms A’s] current mental and emotional health has not been provided to the Tribunal.
124. The Tribunal accepts that the visa cancellation by a delegate of the Minister has impacted the applicant’s ability to work in Australia and the lack of income affects himself and [Ms A]. The Tribunal further accepts [Ms A’s] evidence that she is unable to pay the rent in the [Suburb 1] property without the applicant’s financial contribution, that she has fallen into arrears with rental payments and will need to move to a smaller property. Documents pertaining to [Ms A] falling into arrears of rent have been provided to the Tribunal, including email correspondence between [Ms A] and the property manager. The Tribunal accepts this evidence.
125. The applicant made claims that he was particularly close to [Ms A’s] adult son and that he played a significant part in his life. However, the Tribunal is of the view that the applicant’s view of his relationship with [Mr A] was conflated. The evidence provided by [Mr A] and [Ms A], who both told the Tribunal the applicant and [Mr A] were fond of each other and got along well. However, [Mr A’s] evidence to the Tribunal was that he would not go out of his way to initiate contact with the applicant; rather it would occur if [Mr A] was visiting his mother and the applicant was home. The Tribunal accepts there is a genuine connection between the applicant and [Mr A] and that [Mr A] does have a concern about the applicant’s personal circumstances, however, that concern is more for his mother’s well-being if the applicant was to leave Australia, which was the verbal evidence provided by [Mr A] at hearing. The Tribunal does not accept that the applicant has played a significant role in [Mr A’s] life.

126. The Tribunal accepts that the applicant has developed other meaningful relationships in Australia, including with [Ms A’s] daughter and in particular her father, who has provided a statutory declaration in support of the applicant and his daughter’s relationship. The Tribunal accepts the applicant’s evidence that the cancellation of his visa by a delegate of the Minister and his subsequent detention prevents him from seeing people he has meaningful relationships with such as [Mr A] and [Ms A’s] father in person. However, the Tribunal notes the applicant is not prevented from speaking to such people on the telephone while he is in immigration detention as detainees are allowed the use of their personal mobile telephones in immigration detention.
127. The Tribunal accepts that the company [Business 3] established by the applicant and [Ms A] is constrained in its operations if the applicant is not able to participate day-to-day in its activities. The Tribunal also notes the email received from [Ms A] on 28 January 2020 detailing that the applicant’s detention is impacting on progressing operations and discussions with potential investors. However, the Tribunal notes that this company is yet to commercialise its only product, and the initial concept mini-prototype [process] can’t be progressed to a full scale functioning prototype until it is independently verified that it does produce [product 1]. The applicant claims that they have not sought peer review for the [product 1] production due to its current high market value and because there is a great deal of industrial espionage around this product and the process is not something they want too many people knowing until they have secured proper legal advice and patents. The Tribunal did not find this evidence of the applicant convincing for the reasons that follow.
128. The applicant claimed at hearing that he had various patents registered to his name; however, the Tribunal notes that based on the information provided to the Tribunal, only initial patent applications have been lodged for the [product 1 process] and the most recent were done so in January 2020, after the hearing. The Tribunal has no information before it that at the time of this decision any patent applications lodged by the applicant have been approved.
129. Evidence has been supplied to the Tribunal, which includes email correspondence, between the applicant and potential investors who have shown initial interest in his [product 1 process] concept. However, this evidence does not demonstrate ‘multi-million’ and ‘billion’ dollar deals currently are or were being negotiated, as the applicant claimed in his oral evidence to the Tribunal. The information made available to the Tribunal indicates that investment in the range of tens of thousands of dollars has been discussed for initial investment to develop a prototype, but such proposals have not progressed further than initial discussion. The applicant has also not provided any evidence that he has an agreement or negations with [the named authority] as claimed and has not provided the Tribunal with any evidence or further explanation of how [number] jobs would be created by the commercialisation of his [process] as the applicant claimed in his oral evidence to the Tribunal.
130. The applicant also claimed that he was not able to transfer the operations of [Business 3] to [Country 1]. The Tribunal acknowledges that re-establishing a business in another country would likely cause additional financial expense for the company, with the potential establishment of a new company structure. However, as the business is not at commercialisation stage, and was being operated out of the applicant’s home at the time he was detained, the Tribunal considers such expense would be minimal.
131. The applicant claimed that [Ms A] could not relocate to [Country 1] because it would not be safe for her because [a large number of] women are raped there each month. The Tribunal does not accept this evidence as it is entirely unsubstantiated. The Tribunal does however acknowledge that the upheaval involved for [Ms A] in potentially relocating to another country would be significant, cause her additional financial cost and could cause her emotional hardship by being physically separated from her children and her father, whom it is evident to the Tribunal she is very close to.
132. The applicant made a number of claims about his personal circumstances that the Tribunal has considered but has found weigh neither in support of nor against the cancellation of the applicant’s visa. These circumstances include the applicant’s claims:

his ex-wife, who he was currently going through a divorce process with, was spiteful and had made up allegations that he was inappropriate towards their daughter in order to gain exclusive custody of her;

his ex-wife and ex-business associates in [Country 1] along with his initial Subclass 457 sponsor conspired together in order to ‘steal’ the applicant’s intellectual property in regard to one of his [products];

his ex-wife and her associates were harassing him and [Ms A] over social media; and

he is owed money by his previous employers and they have done wrong by him.

133. Overall, the Tribunal finds that the applicant has established a life with [Ms A] and her family in Australia and receives and provides significant and important emotional and social support through those relationships which causes the Tribunal to find that this consideration weighs against the cancellation of the applicant’s visa, which the Tribunal gives considerable weight.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
134. The Tribunal is not aware of subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act. As such, the Tribunal finds this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
Any other instances of non-compliance by the visa holder known to the Minister
135. The Tribunal is not aware of any other instances of non-compliance by the visa applicant. As such, the Tribunal finds this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
The time that has elapsed since the non-compliance
136. In order properly to consider this factor, the Tribunal must bring to mind the time which has elapsed since the non-compliance: MIAC v Khadgi (2010) 190 FCR 248 at [105]-[107]. The Tribunal notes that the last instance of non-compliance occurred on 17 December 2018, when the Subclass 820 Partner visa was submitted.
137. The Tribunal acknowledges that the applicant has been in Australia for approximately five years and during that time he has established personal and business connections. However, a relatively short time period of 13 months has elapsed since the last instance of non-compliance.
138. Given the recent timeframe in which the last non-compliance occurred the Tribunal finds this consideration supports the cancellation of the applicant’s visa and the Tribunal gives it some weight.
Any breaches of the law since the non-compliance and the seriousness of those breaches
139. The Tribunal is not aware of any breaches of the law that have occurred since the non-compliance. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Any contribution made by the holder to the community.
140. The applicant has claimed that the [process] producing [product 1] will, in the future, have wide reaching impacts on the environment and community. However, the Tribunal is not persuaded. The evidence before the Tribunal is that only an initial mini concept prototype has been [built]. This mini concept prototype has not been independently verified as viable technology, nor that it produces [product 1] as claimed. Furthermore, there is no evidence that the patents have been approved; only that they have been lodged, most of which were only lodged after the hearing.
141. The applicant gave evidence at the Tribunal hearing of making regular monetary donations to various charities and has provided bank statements to support his evidence. The Tribunal accepts this evidence but considers the donations are not significant in their frequency or quantum and therefore reflect only a modest contribution to the community.
142. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa but on the evidence provided to the Tribunal only gives this consideration modest weight.
Consideration of the Departmental PAM 3 guidelines
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
143. Following the cancellation of the applicant’s Subclass 457 visa by a delegate of the Minister the applicant become an unlawful non-citizen and was detained under s.189 of the Act. There is no suggestion that he would be detained indefinitely as a [Country 1] citizen nor is there evidence before the Tribunal that he would be prevented from returning to [Country 1] if he so chose. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.109 from applying for any visa not prescribed for the purposes of s.48 of the Act while in the migration zone. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation. Additionally, the Tribunal notes the applicant’s Subclass 820 visa application is still yet to be decided by the Tribunal. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Whether there would be consequential cancellations under s.140
144. The cancellation of the applicant’s visa will not result in any consequential visa cancellations for others as there were no secondary applicants attached to the applicant’s Subclass 457 visa. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child
145. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
146. 'Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
147. The Tribunal finds that in the applicant’s circumstances the cancellation of his visa would not lead to his removal from Australia in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.
148. There is nothing in the applicant’s circumstances as presented to the Tribunal which prevents his claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for a protection visa by s.48A of the Act. The applicant may face issues regarding his character.
149. The applicant raised claims that he would face harm by those who he claimed to have informed on if he was to return to [Country 1], and who were now in positions of power, including being [in senior roles]. However, the Tribunal has rejected the applicant’s claim that his convictions were for the purpose of not revealing his identity to those he allegedly informed on, which follows that it also rejects the applicant’s subsequent claim that he was a police informer and those he allegedly informed on will cause him harm if he returns to [Country 1].
150. As the Tribunal has found the applicant was not a police informer it finds that there is no real chance or real risk of any type of harm to the applicant if he were to return to [Country 1].
151. However, there is no suggestion before the Tribunal that consideration of the applicant’s character issues could mean that his claims to protection were he to apply for a protection visa, would not be considered. The Tribunal notes that the promulgation of Direction No. 75 - Refusal of Protection Visas relying on s.36(1C) and s.36(2C)(b) of the Act, issued by the Minister under s.499 of the Act on 6 September 2017 with effect from 7 September 2017, mandates that decision makers must consider an applicant’s claims for protection under s.36(2)(a) of the Act and any claims for complementary protection under s.36(2)(aa) of the Act before considering any character or security concerns.
152. The Tribunal has considered whether the applicant’s circumstances may engage ‘non-refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s.36 of the Act. It has also considered claims of harm against which a protection visa would not provide protection (see BCR16 and Goundar v MIBP [2016] FCA 1203). It finds however, as it has rejected the applicant’s claim of harm, and as no other claims of harm arise based on the reasoning as outlined in this decision, Australia would not be in breach of its international obligations pursuant to any of these international agreements as a result of cancellation.
153. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
154. The Tribunal has covered the claims made by the applicant regarding the degree of hardship that will be caused to him and his spouse [Ms A] in detail under the prescribed considerations, and has attributed weight to them in its considerations to exercise its discretion to cancel or set aside the cancellation of the visa.
155. The Tribunal is aware that the applicant has pending charges against him and an outstanding arrest warrant in [Country 1]. The charges remain unproven and potentially instigated by an aggrieved ex-partner, as per the evidence provided by the applicant to the Tribunal. It is the role of the [Country 1] criminal justice system to determine whether the applicant is guilty or not of the charges, not that of the Tribunal. The Tribunal therefore does not give the pending charges weight as they are not proven; as such they do not weigh in favour of cancellation.
Conclusion
156. 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 in respect to the convictions. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant and [Ms A] may experience hardship, including financial and emotional hardship, if the applicant’s visa is cancelled. While these circumstances weigh in favour of exercising its discretion to not cancel the visa, the Tribunal gives more weight to the considerations that weigh in support of the cancellation of the applicant’s visa, including the circumstances in which the applicant’s non-compliance occurred where the Tribunal found that the applicant failed to declare on five separate occasions the 19 counts of fraud that he was convicted of and the combined 15 years prison sentences he received for those convictions. In the Tribunal’s view the considerations that weigh against the cancellation of the applicant’s visa were not sufficient to outweigh the considerations that weigh in support of the cancellation of his visa.
157. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
158. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Cathrine Burnett-Wake
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.

102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given.

105Particulars of incorrect answers to be given

(1)If a non‑citizen becomes aware that:
(a)     an answer given or provided in his or her application form; or
(b)     an answer given in his or her passenger card; or
(c)      information given by him or her under section 104 about the form or card; or
(d)     a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)Subsection (1) applies despite the grant of any visa.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

Attachment
DOCUMENT LIST

Document Title/Description Date Folio

1 Cover Letter for Submission 10 January 2020 469

2 Statement of [the applicant] (signed) 9 January 2020 467

3 Medical referral from [Doctor A] ([named] Medical Centre)
(signed)
[Doctor A] refers the Applicant to [another practitioner] for further psychological assessment 19 September 2019 463

4 Affidavit of [Ms A] (signed) 10 January 2020 462

5 Medical certificate from [Doctor A] ([named] Medical Centre)
(signed)
[Doctor A] outlines [Ms A’s] mental health. 9 January 2020 459

6 Residential Tenancy Agreement of [the applicant] and [Ms A] (signed) 8 June 2017 459

7 Email correspondence between [Ms A] and [her named] Property Manager [at named real estate])
The correspondence is in regard to the extension of the Applicant’s lease.

6 December 2019 – 8 January 2020 455

8 Letter from [Mr D] ([Business 5]) 7 January 2020 448

9 [Bank] – Statement
Account Name: [the applicant] Statement Period
28 February 2017 – 31 March 2017 447

10 [Bank] – Statement
Account Name: [the applicant]
It appears this document was submitted to show that the Applicant has paid rent and made charitable contributions

From last statement dated 30 November 2016 – 30 December 2016 446

11 Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application – Form 888
by [Mr E] (signed) 13 May 2018 444

12 Statutory Declaration of [Mr E] (signed)
Incl. [Mr E] identity documents 7 March 2018 443

13 Email from [a family member]
This email is addressed to ‘my sweet sister inlaw’. It appears this letter is intended for [Ms A]. The email is of a personal nature whereby the author writes about the situation in [Country 1] and about [Ms A’s] relationship with [the applicant] 8 January 2020 441

14 Certificate of Registration of a Company
[Business 3] (ACN [number]) 23 August 2018 440

15 Consent to Act as Director, Secretary and Public Officer
(of [Business 3]). (Signed by [Ms A]) 23 August 2018 440

16 Share Certificate (Certificate Number 1) for [Business 3]
(signed by [Ms A]) 23 August 2018 439

17 Share Certificate (Certificate Number 2) for [Business 3]
(signed by [Ms A]) 23 August 2018 438

18 Business Plan – [Business 3]
Version 1.2 11 November 2018 438

19 Official Receipt
(Service Request Type: Patents New Application (Provisional))
(Application Number: [number]) Date submitted
24 February 2019 414

20 [Equipment]
By [the applicant]
Patent Number: [number]
IP Registration: [number] 413

21 Official Receipt
(Service Request Type: Patents new Application (Provisional))
(Application Number: [number]) Date submitted:
08 January 2020 411

22 Provisional Specification
[Business 3] [Equipment] 410

23 Official Receipt
(Service Request Type: Patents New Application (Provisional))
(Application Number [number]) Date submitted:
08 January 2020 408

24 Provisional specification
The [Business 3] [Element] for the [Business 3] [Equipment] 408

25 Official Receipt (Service Request Type: Patents New Application (Provisional)
(Application Number: [number]) Date submitted
08 January 2020 406

26 Provisional specification
The [Business 3] [Process] 406

27 Official Receipt
(Service Request Type: Patents New Application (Provisional)
(Application Number: [number]) Date submitted
08 January 2020 405

28 Provisional specification
The [Business 3] [Process] 404

29 Official Receipt
(Service Request Type: Patents New Application (Provisional))
(Application Number: [number]) Dated submitted
08 January 2020 403(i)

30 Provisional specification
The [Business 3] [Process] 403

31 Official Receipt
(Patents New Application (Provisional))
(Application Number: [number]) Dated submitted
08 January 2020 402

32 Provisional specification
The [Business 3] [product 1] Process 401

33 Official Receipt
(Service Request Type: Patents New Application (Provisional)
(Application Number: [number]) Date submitted
8 January 2020 399

34 Provisional specification
The [Business 3] [Process] 399

35 Certificate of Registration of a Company of Registration of a Company
[Business 4] 16 November 2016 397

36 Australian Securities and Investments Commission Application registration as an Australian company
for [Business 4]
(electronically signed by [name]) 16 November 2016 397

37 Official Receipt
(Service Request Type: Patents New Application (Provisional))
(Application Number: [number]) 18 May 2018 395

38 Official Receipt
(IP Australia batch reference: [number]) 18 May 2018 364

39 Official Receipt
(Service Request Type: Patents New Application (Provisional)) Date submitted
18 May 2018 393

30 Provisional Specification
[product 2] 393

41 Notice of filing for provisional patent application
Application number: [number]
Applicant name: [Business 4]
[product 2] information sheet 15 November 2018 389

42 Letter from [Mr D] (CEO, [Business 5]) to [Business 3]
The letter acknowledges ‘[the applicant]’ as [developing the product]. 07 January 202 379

43 Letter from [name] (CEO, [Business 6]) to [Business 3]
The letter expresses interest and is a letter of intent to participate in [the applicant’s] projects 18 December 2019 379

44 Email from [a business address]to
[6 business contacts]

5 October 2019 378

45 Email from [that business address] to [the applicant]
The author of this email gives the recipient directions to get to a presumed meeting location 4 September 2019 378

46 Email correspondence between [the applicant] and [the business address]
This correspondence is in regard to ‘[Another product] information’. 22 September 2019 – 24 September 2019 377

47 Notes for the Agreement with [the applicant] &/or [Business 3] with [three entities] 376

48 Email correspondence between [one entity] and [the applicant] 27 July 2019 – September 2019 375

49 Draft Agenda of Teleconference on [a product 1] Project 373

50 Email correspondence between [Mr F], [Mr B], [another person] and [the applicant] 8 July 2019 373

51 Profile of [an investor business] 370

52 Electronic invitation for a between [the applicant], [Ms A] and [Mr F] (meeting scheduled [in] July 2019 at 1pm at [an address in] Melbourne VIC, 3000) 368

53 Email Correspondence between [Mr B], [another person] and [the applicant]
This email is in regard to an investment opportunity 20 April 2019 368

54 Email correspondence between [Mr F], [the applicant], [Mr B] and [Ms A] 16 July 2019 – 27 July 2019 367

55 Letter from [Mr G] ([Business 7]) to the Chief Executive Officer of [Business 3] to [the applicant]
This letter confirms the company’s interest ‘in facilitating the development and ultimately the manufacture of the [Business 4] and or [Business 3] products’. 19 July 2019 366

56 Email correspondence between [Mr G], [the applicant], and [another person]
Incl. Powerpoint presentation ‘The [Business 3] [named] Process: Business Plan – September 2019’
The email correspondence is in regards to the time schedules, cost implications and particulars for phases 1, 2 and 3. 14 July 2019 – 20 July 2019 365

57 Email correspondence between [Adviser A] (Senior Advisor – [for a named] MP) and [the applicant]
The email correspondence is in regard to setting up a meeting between [the applicant], [Adviser A] and officers from [a state authority]) -12 April 2019 351

58 Presentation/Handout of [Business 4] [product 2] 350

59
Correspondence from [Mr C] (Director, [Business 4]) to [the applicant]
In this correspondence the author confirms that [the applicant] was terminated from [Business 4]. Among other assertions, the correspondence asserts that

Work conducted by [the applicant] from November 2016 is property of [Business 4]

Claims that [Business 3] is owned by [another person] and sponsoring [the applicant] is false

1 March 2019 343

60 Express envelope addressed to [the applicant] and [Ms A], [at address] 342

61 [Bank] – Business Account
Addressed to [Business 4] Statement period 1 May 2019 – 30 June 2019 341

62 [Bank] – Business Account
Addressed to [Business 4] Statement period 1 July 2019 – 31 July 2019 341

63 Confirmation document regarding end ownership of intellectual property (signed by [Mr H] (Director, [Business 8]) and [the applicant] and [Ms A] 19 October 2017 340

64 Official Receipt (IP Australia batch reference: [number]) Date submitted
18 October 2017 340

65 Official Receipt (Patents New Application (Provisional) (Application Number, [number]) Date submitted
18 October 2017 339

66 Proposal to [a named business] for Design and Development of “Next Generation” [specified] products – Draft
By [Business 3] 11 November 2018 338

67 Email correspondence between [three state agency officials], and [the applicant].
This correspondence is in regards to setting up a meeting and subsequently discussing material which [the applicant] provided [one named official]. 9 April 2019 – 24 July 2019 332

68 Head of Agreement
(signed by lessee only – [Business 3] 15 April 2019 324

Section 102(b) of the Act requires a noncitizen to fill in or complete their passenger card in such a way that no incorrect answers are given.

[2020] AATA 1451

3 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Charge

Natural Justice

Document	Title/Description	Date	Folio
1	Cover Letter for Submission	10 January 2020	469
2	Statement of [the applicant] (signed)	9 January 2020	467
3	Medical referral from [Doctor A] ([named] Medical Centre) (signed) [Doctor A] refers the Applicant to [another practitioner] for further psychological assessment	19 September 2019	463
4	Affidavit of [Ms A] (signed)	10 January 2020	462
5	Medical certificate from [Doctor A] ([named] Medical Centre) (signed) [Doctor A] outlines [Ms A’s] mental health.	9 January 2020	459
6	Residential Tenancy Agreement of [the applicant] and [Ms A] (signed)	8 June 2017	459
7	Email correspondence between [Ms A] and [her named] Property Manager [at named real estate]) The correspondence is in regard to the extension of the Applicant’s lease.	6 December 2019 – 8 January 2020	455
8	Letter from [Mr D] ([Business 5])	7 January 2020	448
9	[Bank] – Statement Account Name: [the applicant]	Statement Period 28 February 2017 – 31 March 2017	447
10	[Bank] – Statement Account Name: [the applicant] It appears this document was submitted to show that the Applicant has paid rent and made charitable contributions	From last statement dated 30 November 2016 – 30 December 2016	446
11	Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application – Form 888 by [Mr E] (signed)	13 May 2018	444
12	Statutory Declaration of [Mr E] (signed) Incl. [Mr E] identity documents	7 March 2018	443
13	Email from [a family member] This email is addressed to ‘my sweet sister inlaw’. It appears this letter is intended for [Ms A]. The email is of a personal nature whereby the author writes about the situation in [Country 1] and about [Ms A’s] relationship with [the applicant]	8 January 2020	441
14	Certificate of Registration of a Company [Business 3] (ACN [number])	23 August 2018	440
15	Consent to Act as Director, Secretary and Public Officer (of [Business 3]). (Signed by [Ms A])	23 August 2018	440
16	Share Certificate (Certificate Number 1) for [Business 3] (signed by [Ms A])	23 August 2018	439
17	Share Certificate (Certificate Number 2) for [Business 3] (signed by [Ms A])	23 August 2018	438
18	Business Plan – [Business 3] Version 1.2	11 November 2018	438
19	Official Receipt (Service Request Type: Patents New Application (Provisional)) (Application Number: [number])	Date submitted 24 February 2019	414
20	[Equipment] By [the applicant] Patent Number: [number] IP Registration: [number]	413
21	Official Receipt (Service Request Type: Patents new Application (Provisional)) (Application Number: [number])	Date submitted: 08 January 2020	411
22	Provisional Specification [Business 3] [Equipment]	410
23	Official Receipt (Service Request Type: Patents New Application (Provisional)) (Application Number [number])	Date submitted: 08 January 2020	408
24	Provisional specification The [Business 3] [Element] for the [Business 3] [Equipment]	408
25	Official Receipt (Service Request Type: Patents New Application (Provisional) (Application Number: [number])	Date submitted 08 January 2020	406
26	Provisional specification The [Business 3] [Process]	406
27	Official Receipt (Service Request Type: Patents New Application (Provisional) (Application Number: [number])	Date submitted 08 January 2020	405
28	Provisional specification The [Business 3] [Process]	404
29	Official Receipt (Service Request Type: Patents New Application (Provisional)) (Application Number: [number])	Dated submitted 08 January 2020	403(i)
30	Provisional specification The [Business 3] [Process]	403
31	Official Receipt (Patents New Application (Provisional)) (Application Number: [number])	Dated submitted 08 January 2020	402
32	Provisional specification The [Business 3] [product 1] Process	401
33	Official Receipt (Service Request Type: Patents New Application (Provisional) (Application Number: [number])	Date submitted 8 January 2020	399
34	Provisional specification The [Business 3] [Process]	399
35	Certificate of Registration of a Company of Registration of a Company [Business 4]	16 November 2016	397
36	Australian Securities and Investments Commission Application registration as an Australian company for [Business 4] (electronically signed by [name])	16 November 2016	397
37	Official Receipt (Service Request Type: Patents New Application (Provisional)) (Application Number: [number])	18 May 2018	395
38	Official Receipt (IP Australia batch reference: [number])	18 May 2018	364
39	Official Receipt (Service Request Type: Patents New Application (Provisional))	Date submitted 18 May 2018	393
30	Provisional Specification [product 2]	393
41	Notice of filing for provisional patent application Application number: [number] Applicant name: [Business 4] [product 2] information sheet	15 November 2018	389
42	Letter from [Mr D] (CEO, [Business 5]) to [Business 3] The letter acknowledges ‘[the applicant]’ as [developing the product].	07 January 202	379
43	Letter from [name] (CEO, [Business 6]) to [Business 3] The letter expresses interest and is a letter of intent to participate in [the applicant’s] projects	18 December 2019	379
44	Email from [a business address]to [6 business contacts]	5 October 2019	378
45	Email from [that business address] to [the applicant] The author of this email gives the recipient directions to get to a presumed meeting location	4 September 2019	378
46	Email correspondence between [the applicant] and [the business address] This correspondence is in regard to ‘[Another product] information’.	22 September 2019 – 24 September 2019	377
47	Notes for the Agreement with [the applicant] &/or [Business 3] with [three entities]	376
48	Email correspondence between [one entity] and [the applicant]	27 July 2019 – September 2019	375
49	Draft Agenda of Teleconference on [a product 1] Project	373
50	Email correspondence between [Mr F], [Mr B], [another person] and [the applicant]	8 July 2019	373
51	Profile of [an investor business]	370
52	Electronic invitation for a between [the applicant], [Ms A] and [Mr F] (meeting scheduled [in] July 2019 at 1pm at [an address in] Melbourne VIC, 3000)	368
53	Email Correspondence between [Mr B], [another person] and [the applicant] This email is in regard to an investment opportunity	20 April 2019	368
54	Email correspondence between [Mr F], [the applicant], [Mr B] and [Ms A]	16 July 2019 – 27 July 2019	367
55	Letter from [Mr G] ([Business 7]) to the Chief Executive Officer of [Business 3] to [the applicant] This letter confirms the company’s interest ‘in facilitating the development and ultimately the manufacture of the [Business 4] and or [Business 3] products’.	19 July 2019	366
56	Email correspondence between [Mr G], [the applicant], and [another person] Incl. Powerpoint presentation ‘The [Business 3] [named] Process: Business Plan – September 2019’ The email correspondence is in regards to the time schedules, cost implications and particulars for phases 1, 2 and 3.	14 July 2019 – 20 July 2019	365
57	Email correspondence between [Adviser A] (Senior Advisor – [for a named] MP) and [the applicant] The email correspondence is in regard to setting up a meeting between [the applicant], [Adviser A] and officers from [a state authority])	-12 April 2019	351
58	Presentation/Handout of [Business 4] [product 2]	350
59	Correspondence from [Mr C] (Director, [Business 4]) to [the applicant] In this correspondence the author confirms that [the applicant] was terminated from [Business 4]. Among other assertions, the correspondence asserts that Work conducted by [the applicant] from November 2016 is property of [Business 4] Claims that [Business 3] is owned by [another person] and sponsoring [the applicant] is false	1 March 2019	343
60	Express envelope addressed to [the applicant] and [Ms A], [at address]	342
61	[Bank] – Business Account Addressed to [Business 4]	Statement period 1 May 2019 – 30 June 2019	341
62	[Bank] – Business Account Addressed to [Business 4]	Statement period 1 July 2019 – 31 July 2019	341
63	Confirmation document regarding end ownership of intellectual property (signed by [Mr H] (Director, [Business 8]) and [the applicant] and [Ms A]	19 October 2017	340
64	Official Receipt (IP Australia batch reference: [number])	Date submitted 18 October 2017	340
65	Official Receipt (Patents New Application (Provisional) (Application Number, [number])	Date submitted 18 October 2017	339
66	Proposal to [a named business] for Design and Development of “Next Generation” [specified] products – Draft By [Business 3]	11 November 2018	338
67	Email correspondence between [three state agency officials], and [the applicant]. This correspondence is in regards to setting up a meeting and subsequently discussing material which [the applicant] provided [one named official].	9 April 2019 – 24 July 2019	332
68	Head of Agreement (signed by lessee only – [Business 3]	15 April 2019	324