1931050 (Migration)

1931050 (Migration) [2021] AATA 1446 (17 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1931050

MEMBER:Stephen Conwell
DATE:17 March 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 143 (Contributory Parent) visa.

Statement made on 17 March 2021 at 3:03pm
CATCHWORDS
MIGRATION – cancellation – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – incorrect answers in the visa application – relationship status – family composition – second child born without the applicant’s knowledge – care and support for applicant’s mother – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 98, 101, 107, 109, 140
Migration Regulations 1994, rr 1.12, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 143 (Contributory Parent) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis the applicant had provided incorrect answers in his visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video hearing. The parties raised no objections as to conducting the hearing by video hearing.
The applicant appeared before the Tribunal on 23 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant’s mother], [Partner A], [and the applicant’s sister]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent (representative). The representative attended the Tribunal hearing. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Background
The Tribunal notes the following information from the evidence before it, including the Subclass 143 visa application forms, the decision record and the submissions and all other supporting documents on the Departmental and Tribunal files.
The applicant is a citizen of Vietnam and is [age] years old at the time of this decision. He was included as a dependent in a Contributory Parent (Subclass 143) visa application lodged by his mother on 6 October 2011. The visa application initially included the applicant’s father and the applicant’s eldest son, [Child 1]. However the applicant’s father and the applicant’s son were both removed from the application at their request.
The applicant stated in the Subclass 143 visa application forms that he had never been married or in a de facto relationship before and claimed to have only one child, his son, [Child 1]. He did not disclose that he had any other children or any other dependents.
The Subclass 143 visa was granted on 9 April 2014.
The applicant arrived in Australia [in] May 2014. The applicant then departed Australia [in] June 2014 and remained offshore until his return [in] August 2015.
[In] December 2015, the applicant’s fiancée, [Partner A] and their two sons arrived in Australia on Visitor visas:
·[Child 1] (born: [date])
·[Child 2] (born: [date])
The applicant married [Partner A] [in 2015] in Australia.
On 25 February 2016, the applicant sponsored [Partner A] for a Partner visa (Subclass 820/801) application, including their two sons as dependents. According to the information submitted in the 820/801 application:
·the couple first met in October 2005 and began their relationship in March 2007;
·their first son, [Child 1] was born on [date];
·the couple separated in [year] without the applicant knowing that [Partner A] was pregnant;
·the couple’s second son, [Child 2] was born on [date];
·the applicant returned to Vietnam in 2015 to visit his ill father; whilst there he met second son, [Child 2] for the first time;
·the applicant’s relationship with [Partner A] recommenced during this time.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101, which requires that a non-citizen must fill in or complete his or her application form in such a way that all questions on it are answered and no incorrect answers are given or provided.
Under s.98 of the Act, 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. Therefore the answers provided in the combined Contributory Parent visa application are taken to have also been provided by the applicant.
In summary, the s.107 notice specifies that the delegate considers that information about the applicant’s true relationship status and the existence of his second Child 1s a dependent child were omitted from the application for a Subclass 143 (Contributory Parent) visa.
The delegate notes the following information from the visa application:
·In the application form 47PA Application for a parent to migrate to Australia the applicant provided the following answer:
At Part H Question 55 where it asked, ‘Relationship status’ the applicant answered, ‘Never married or been in a de facto relationship’.
·On 14 September 2011, in support of the visa application the applicant completed Form 47A Details of child or other dependent family member aged 18 years or over in which he provided the following answers:
At Part B Question 16 where it asked, ‘Dependent’s current relationship status’ the applicant answered, ‘Never married or been in a de facto relationship.’
At Part C Question 27 where it asked, ‘Any dependent children of this dependant’ the applicant answered ‘[Child 1] [date]’.
·On 15 May 2013, in support of the visa application the applicant completed Form 80 Personal particulars for assessment including character assessment in which he provided the following answer:
At Question 22 where it asked, ‘Relationship status’ the applicant answered, ‘Never married or been in a de facto relationship.’
The delegate determined there were grounds for cancellation of the applicant’s visa since, by providing incorrect answers in support of his visa application, the applicant had not complied with section 101(b) of the Act. The delegate had considered the following information in particular before making that determination:
·information provided by the Applicant in his visa application and in support of his visa application;
·the birth certificates for his two children, which were provided in support of [Partner A’s] Partner visa application;
·separate Household Registration Books provided in support of the Applicant’s visa application and a Subclass 600 (Visitor) visa lodged by [Partner A]; and
·country and cultural information relating to Vietnam gathered from the Special Broadcasting Service (SBS) Cultural Atlas.
The applicant concedes that he provided incorrect information by way of omission at Q.27 of Form 47A in not specifying that his second son, [Child 2] was an additional dependent child. As a consequence, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information;
·     the content of the genuine document (if any);
·     whether the decision to grant a visa or immigration clear the applicant 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 applicant;
·     the subsequent behaviour of the applicant 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 applicant known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches;
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual, PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
In the representative’s written submission of 5 November 2020, it is said that the applicant accepts responsibility for his failure to disclose his knowledge, and the existence, of his second child, [Child 2] and therefore concedes that he failed to comply with s.101 of the Act, but that this should be understood in the context of the following submissions:
·     The applicant is regretful that false information was provided in the combined Contributory Parent visa application. Whilst the applicant’s accepts responsibility for the non-compliance, it is submitted that it arose largely out of the advice provided by his former migration agent. It is therefore submitted that these circumstances were beyond his control;
·     omitting the existence of his other son, in and of itself, had no real impact on the assessment of his dependency as prescribed by the regulations. As such, no weight should be afforded in favour of cancellation based on this consideration;
·     the applicant maintains that his relationship with [Partner A] during the period from 2007 to 2009 was not a mutually exclusive de facto relationship. The applicant and [Partner A] contend that, prior to their current relationship and commitment to each other, they had not been in any genuine or continuing de facto relationship with each other;
·     The applicant works hard in Australia to support his family as well as provide support to both his mother and sister. His father died of cancer in Vietnam in 2015;
·     cancellation of the applicant’s visa will have a significant and severe impact on his mother and sister in Australia. He and [Partner A] are his mother’s only carers in Australia and she is currently facing numerous serious health problems requiring the constant care and support offered by the applicant and [Partner A];
·     furthermore, in the event that the Applicant’s visa is cancelled, [Partner A’s] Subclass 820 Partner visa application would have no sponsor and would necessarily be refused — requiring her own departure from Australia;
·     the applicant’s mother ([named]) has several health issues and requires support in the event of an emergency. without the applicant or [Partner A’s] presence and support in Australia, [the applicant’s mother] would be left without any of the support or assistance that she requires.
·     A medical report dated 19 September 2020 from her General Practitioner, [named] notes that that [the applicant’s mother] has been his patient since May 2014. The report states that she was afflicted with kidney stones and hepatitis C in 2014; more recently she has been diagnosed with hypertension in 2019 and in December that year she injured several lumbar spine discs through a fall, which has since limited her mobility. The report notes that [the applicant’s mother] lives alone and is supportive of the applicant’s case to remain in Australia;
·     Whilst the applicant’s sister, [the applicant’s sister] in Australia, it is submitted that she cannot provide the required care and support for their mother, because of her own ongoing medical issues;
·     the applicant claims that he provides support and assistance to his sister for her own health issues. As his sister is a single mother, he assists her to care for her own household, which includes her two young children. A medical report dated 19 September 2020 from the same General Practitioner, [named], notes that [the applicant’s sister] has been his long-term patient since August 2005. She has been diagnosed with severe migraines and with ulcerative colitis since 2016 and with pulmonary tuberculosis since 2017. She requires ongoing medication for these conditions. She is also a hepatitis B carrier. The report supports the applicant’s case to remain in Australia;
At hearing the oral testimony of the applicant, [Partner A] and the two witnesses all echoed to varying degrees, the tenor of the submissions noted above.
The correct information – dependent children
The correct information is that the applicant was the parent of not one, but two dependent children at that time of the application. Whilst the applicant had declared his son, [Child 1] (born [date]) in answering Question 27 in Form 47A, he omitted to declare his other son, [Child 2] (born on [date]).
The applicant had submitted the birth certificates of both sons to the Department in support of the application form Application for migration to Australia by a partner. Both birth certificates record the applicant as the ‘declarant’ to register the birth.
Article 13 of the Law on Civil Status stipulates that [birth] certificates are be issued by the local (commune) authority where the mother is living or registers her permanent address. The application for certificate requires: evidence to prove the birth of the child; … family residence book or temporary residence certificate of the mother; and an identity document for the person who registers the baby.[1]
[1] DFAT Country Information Report VIETNAM (December 2019) [ 5.37]
This information indicates that as the ‘declarant’ for registration of their births, the applicant was aware of the birth of both of his children. Both sons had been born before the applicant had lodged his Contributory visa on 6 October 2011 and before he travelled to Australia [in] May 2014. The applicant’s claim in his Partner visa that he met his second son for the first time when he travelled back to Vietnam in 2015 cannot be correct. The applicant’s claim in his Contributory visa application that he had only one dependent child, was also incorrect.
The correct information – Relationship status
Vietnam’s Law on Residence (2006) establishes the system and policies for household registration (ho khau) and is administered by the Police. Under the law, there are two categories of registration (reduced from four under the previous law): temporary and permanent.[2] The applicant had submitted to the Department his Household Registration Book (HRB) ([number]) with his Contributory Parent visa application. His residential address is recorded as: [Address 1], HCMC.
[2] Ibid [5.44]
In support of her Visitor visa application lodged on 25 November 2015, [Partner A] submitted her HRB ([number]) which lists her residential address was [Address 2]. This residential address was registered [in] May 2011. The HRB records her previous permanent address as being [Address 1], HCMC – the same as the applicant’s permanent residential address as noted in his Contributory Parent visa application.
This information indicates [Partner A] was living at the same address as the applicant until she moved [in] May 2011, a few months before the Contributory Parent visa application was lodged on 6 October 2011.
According to the decision record, the owners of [Address 2] are detailed in the HRB ([number]). One owner is [named and DOB] who is the applicant’s [relative] as per his mother’s Contributory Parent visa application.
In the Partner visa application the applicant stated that his relationship with [Partner A] commenced in March 2007 when they were both living at the same address. They both continued to reside at this residence for the births of their two sons in [specified years], respectively. The applicant claimed that he and [Partner A] separated in early [year], however he continued to live in the same address: [Address 1].
Based upon the evidence, the correct information is that the applicant and [Partner A] were living at the same address until she moved [in] May 2011. The evidence persuades the Tribunal that the applicant and [Partner A] were in a de facto relationship at the time of the Contributory Parent visa application. The applicant’s claim in his Contributory visa application that he had never married or been in a de facto relationship was incorrect.
By not declaring this information the applicant facilitated the grant of the Contributory Parent (Subclass 143) visa. Given the important nature of the correct information (referred to above), and given it was not provided to the Department by the applicant as part of his application, the Tribunal finds that the Contributory Parent (Subclass 143) visa was granted in part, upon incorrect information. The Tribunal gives this consideration significant weight in favour of cancelling the visa.
The contents of the document (if any)
This is not relevant in the present case.
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 applicant made the application as a member of the family unit of his mother. In the submissions before the Tribunal the applicant (through his representative) states that his relationship with [Partner A] during the period of 2007 to 2009 was not a mutually exclusive de facto relationship. The Tribunal finds such an interpretation to be self-serving and it does not align with the factual circumstances revealed in the evidence, including the fact that the couple’s two sons were born during this period – in [specified months], respectively. It is self-serving because of how the criteria in r. 1.12 applies, in relation to a child, with the child’s marital status.

To meet the secondary criteria, the applicant was required to establish that he was a member of the family unit of his mother. Relevantly, r.1.12 refers to a child other than a child who is engaged to be married or has a spouse or de facto partner [emphasis added]. That is, a child who has a spouse or de facto partner cannot meet the definition of the term ‘member of the family unit’ irrespective of financial dependence.
The decision to grant the applicant the Contributory Parent (Subclass 143) visa was partly based on the incorrect information that he had provided or caused to be provided. Accordingly, the Tribunal gives this consideration significant weight in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
It was argued on behalf of the applicant that his relationship with [Partner A] during the period of 2007 to 2009 was not a mutually exclusive de facto relationship, and that their co-habitation as per the HRB records is not a true reflection of their relationship at the time. The applicant claims that these living arrangements arose out of necessity, as they had a common child at that time, and [Partner A’s] family did not approve of their relationship or their decision to have the child at such a young age. It is submitted that consequently, [Partner A] had few options other than to stay with the applicant’s family. It is also submitted that in determining the nature of the relationship the delegate had placed undue weight on information obtained from the SBS Cultural Atlas.
The Tribunal has carefully considered these submissions. It is not persuaded that the delegate’s interpretation of the applicant’s relationship status or the reliance on independent and well-regarded sources of cultural information to be unreasonable, given the evidence of the applicant’s circumstances at the time of his application. Indeed, as mentioned earlier, the Tribunal finds that it is the applicant’s interpretation of his relationship status to be self-serving and not a true reflection of the factual circumstances.
The applicant submits that he did not intentionally fail to comply with the requirements of s.104, but he was poorly advised by the family’s previous migration agent, who didn’t explain that providing incorrect or false information in a visa application may result in cancellation of his visa. No evidence was tendered in support of this claim and at any rate, it would seem to be common sense that providing incorrect or false information in a visa application might have serious consequences for those involved. The Tribunal gives this claim little weight.
For the reasons stated above, the Tribunal has formed the view that the applicant was put on notice of his obligations by signing the declaration on the form. The Tribunal does not accept the applicant’s evidence that the breach was beyond his control.
The present circumstances of the applicant
The applicant states that since his arrival in Australia more than six years ago, he has complied with Australian laws and has worked hard to provide for his family as well as offer care and support to his mother and sister because of their individual medical needs.
At hearing the applicant’s wife, [Partner A] stated that she and the applicant were very young when they became parents with their first child in 2008 – she being [age] years old and the applicant being [age] years old at the time. She stated that after the birth of their first child she and the applicant felt stressed as new parents and often argued. Consequently she returned to live with her parents for two or three months, before returning to live with the applicant and his family. She did not realise the seriousness of this matter until the issue of the s.107 notice. She hoped that her family may be permitted to remain in Australia.
In [the] oral testimony [of the applicant’s sister] she stated she would not be able to take care of their mother without the applicant’s help. She explained that she is a divorced single mother, with two young children. She reiterated that her own health problems hinder her ability to provide adequate care for their mother.
The applicant’s mother also gave oral testimony, stating that she lives with the applicant and his family. She said that in addition to his own work and family responsibilities, the applicant provides her with physical care and support as well as taking her on medical appointments.
The Tribunal accepts the parties’ evidence that the applicant and [Partner A] are the primary carers for his mother and that they also provide support to his sister and her children. It has regard to the medical reports issued in respect of the applicant’s mother and sister. The Tribunal gives this consideration some weight in favour of not cancelling the visa.
The applicant also stated that he works at two jobs – [specified]; he and his family live in their mother’s home. The Tribunal accepts that the applicant provides physical, financial, emotional and other support to his own family and to his mother and sister and her children. The Tribunal accepts that the applicant and his family would experience hardship and dislocation if the applicant was required to leave Australia, particularly since it would mean that his wife’s partner visa application would fail for want of a sponsor. The Tribunal accepts that the applicant wishes that he and his family could remain in Australia. The Tribunal gives this consideration some weight in favour of not cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour or his obligations.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance.
The time that has elapsed since the non-compliance
The incorrect information formed part of the Contributory Parent (Subclass 143) visa application lodged by the applicant’s mother on 6 October 2011. The Subclass 143 visa was granted on 9 April 2014. Almost eight years elapsed since the non-compliance and the issue of the s.107 notice. Accordingly, the Tribunal gives this consideration some weight in favour of cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no other known breaches of the law.
Any contribution made by the holder to the community.
The applicant provided no specific evidence regarding this consideration. However the Tribunal accepts that in the circumstances described by the applicant, his immediate family and his mother and sister are the primary beneficiaries of his care and support (themselves being members of the Australian community), therefore the Tribunal gives this consideration some weight in favour of not cancelling the visa.
The Tribunal has considered each of the prescribed circumstances set out in r.2.41 of the Regulations as well as all other issues when contemplating whether to exercise the discretion to cancel the applicant’s visa. 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 Procedures 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.
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
If the applicant’s visa is cancelled, unless he is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for him to do so in Australia as a result of the cancellation. The applicant may be subject to an exclusion period in relation to future visa applications. The applicant may also lose some entitlements he may have acquired as an Australian permanent resident.
If the applicant is not a holder of a permanent Australia visa he would also be unable to act as a sponsor for his partner.
Whether there would be consequential cancellations under s.140
There are no persons who would be subject to a consequential cancellation under s. 140.
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.
The applicant does not claim there are any children who would be affected by the cancellation of the visa. As previously noted, the applicant has two sons who were born in Vietnam, but who have resided in Australia, along with their mother, [Partner A], for approximately the past five years. It is not in dispute that the best interests of his two children are that they remain with him and their mother as a family unit. If the applicant’s visa is cancelled he will not be able to continue to sponsor his wife and sons for a Partner visa. Consequently they will be able to return to Vietnam together and therefore the Tribunal does not consider that cancellation will result in splitting of the family unit. The applicant has not raised any claims he fears returning to his home country. The applicant does not claim that Australia’s non-refoulement obligations arise in this case. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
As noted above, there is evidence before the Tribunal relating to the medical needs of the applicant’s mother and sister and the applicant’s provision of care to them. In oral evidence, the applicant told the Tribunal that without his support, there will be nobody else who could provide support to his mother and sister. The applicant states that his sister cannot support their mother because of her own medical needs and because she has her own family responsibilities as a single mother. The applicant’s mother spoke about her poor health and the support both she and her daughter receive from the applicant.
While the Tribunal accepts that due to family responsibilities the applicant’s sister cannot provide 24 hour daily care, the Tribunal does not accept that she cannot provide some degree of care, including emotional support, to her mother. The Tribunal is also of the view that the applicant can continue to provide emotional support whether he is in Australia or resides overseas as there would be nothing precluding contact via social media or some other electronic means of communication.
The applicant stated that his main concern is for the care and support that he currently provides to his mother and sister. The representative submitted that the applicant’s family responsibilities make a compelling reason for not cancelling his visa, and that the consequences of such cancellation and the ongoing impact on his family far outweigh the delegate’s stated reasons for cancelling the visa.
The Tribunal accepts that the applicant’s mother and sister would suffer hardship and inconvenience in losing his care and support by the cancellation of his visa.
The Tribunal accepts that the applicant and is family are well settled in Australia and that he provides care and support to his mother and his sister and her family. The Tribunal acknowledges that the applicant and his family have expressed remorse. The Tribunal has considered the totality of the applicant’s circumstances.
The Tribunal acknowledges that there are good reasons why the visa should not be cancelled. Against this consideration, the Tribunal places greater weight on the circumstances in which the non-compliance occurred. The Tribunal finds that the applicant was put on notice of the obligation to inform and the Tribunal does not accept the applicant’s evidence that he was ignorant of it. Importantly, the Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect information.
The Tribunal considers it highly significant that the applicant’s de facto relationship would have precluded him from meeting the requirements of being a member of the family unit of his mother. That is, if the correct information was known, the applicant would not have been granted the visa. In the Tribunal’s view, this consideration outweighs all others.
The Tribunal finds that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, the Tribunal concludes that the visa should be cancelled.
Other considerations
At the start of the hearing the Tribunal disclosed to the applicant the application of a 375A certificate attached to his Departmental file. The Tribunal indicated that in its view the certificate had been validly made because of the reasons stated in them and the justification given and it had been validly issued. An adjournment was granted for the applicant to consult with his representative. The Tribunal asked if the applicant’s representative sought to make any comment or submission regarding the certificate. After conferring with the applicant, no comment or submission was made.
The documents covered by the certificate were administrative and inter-departmental records. These were not considered adverse. As such, the Tribunal assigns no adverse weight to the certificate or to its subject matter.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 143 (Contributory Parent) visa.
Stephen Conwell
Member
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 1446

17 March 2021

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Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction