2001670 (Migration)

2001670 (Migration) [2022] AATA 4844 (17 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)
CASE NUMBER:  2001670
MEMBER:R. Skaros
DATE:17 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 17 October 2022 at 10:40am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Federal Circuit Court remittal – ground for cancellation – incorrect information in previous visa application – relationship status – de facto relationship – number of dependent children – consideration of discretion – Australian citizen children – best interest of the children – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 101, 107, 107A, 109, 100, 111
Migration Regulations 1994 (Cth), rr 1.09A, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the applicant’s Subclass 155 visa on the basis that the applicant had not complied with s.101 of the Act in connection with previous visas held.
The applicant provided a copy of the delegate’s decision record with the application for review.
[In] July 2019 the Tribunal (differently constituted) affirmed the Department’s decision to cancel the applicant’s Subclass 155 visa. The applicant appealed the decision to the Federal Circuit Court of Australia.[1] [In] January 2020, the FCFCOA remitted the matter to the Tribunal for reconsideration.
[1] Now the Federal Circuit and Family Court of Australia (FCFCOA).
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 applicant appeared before the present Tribunal on 6 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicant was represented in relation to the review. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.
Did the notice comply with the requirements in s 107?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has reviewed the Notice of Intention to Consider Cancellation (the s 107 notice) and 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 in the following respects:
On 26 July 2009 the applicant applied for the Subclass 457 visa as a member of the family unit of his father, [Mr A]. The applicant completed Form 47A and, in response to Question 16, the applicant indicated that he was ‘never married or been in a de facto relationship’. The applicant was granted the Temporary Work (Subclass 457) visa on 18 August 2009.
On 14 January 2010 the applicant applied for the Regional Sponsored Migration Scheme (Subclass 857) visa as a member of the family unit of his father. He completed Form 47A and, in response to Question 16, he stated that he was ‘engaged to be married’ to [Ms B]. He did not list any dependent children. The applicant was granted the Subclass 857 visa on 11 February 2011.
On 17 December 2015 the applicant submitted a sponsorship for [Ms B] in relation to a Partner visa application. The sponsorship included the applicant’s children, [Child C] (dob [date]) and [Child D] (dob [date]).
On the sponsorship application (Form 40SP) submitted by the applicant the following information was provided:
·Question 24 asked ‘when did you and the visa applicant commit to a shared life together to the exclusion of all others’; the applicant stated ‘3 March 2009’.
·Question 38, the applicant stated that he had been living in [named municipality], Bulacan, Philippines between February 1998 and September 2009.
On 17 December 2015 [Ms B] submitted the application for a Partner visa. In her application form, [Ms B] gave the same address as the applicant gave in the sponsorship form, stating that she lived there from June 2009 to December 2014.
[Ms B] included in her application the birth certificates for [Child C] (born [date]) and [Child D] (born [date]). She also submitted an affidavit from the office of the Municipal Registrar, dated 9 March 2011, certifying that [Child C] could use the same name as his father ([applicant’s surname]).
The delegate considered that the applicant did not comply with s.101 of the Act by indicating he was ‘never married or in a de facto relationship’ on the Form 47A lodged in connection with the Subclass 457 visa. The delegate formed the view, on the basis of information provided in the partner visa application, that the relationship with [Ms B] started in March 2009, prior to the applicant lodging the Subclass 457 visa application. The delegate also considered that the applicant did not declare his son, who was born on [date], in the Subclass 857 visa application.
On the basis of the above, the delegate considered that there was non-compliance with s.101 by the applicant in connection with his previous Subclass 457 and 857 visa applications.
In written submissions to the Department, the applicant indicated that at the time of the Subclass 457 visa application he was in a casual relationship with [Ms B] as they had not lived together. He did not appreciate the term ‘de facto relationship’ and did not consider himself to be the de facto of [Ms B]. He was still dependant on his parents financially. He said he did not know he was expecting a child when the Subclass 457 visa was granted. He said he made the decision to marry [Ms B] in March 2010 and correctly referred to his engagement when he applied for the Subclass 857 visa. He said his father failed to include his child in the Subclass 857 visa application. He said he and [Ms B] committed to a shared life in 2010 and they incorrectly indicated 3 March 2009 on their forms when applying for the partner visa.
In further submission to the previously constituted Tribunal, dated 7 July 2019, the applicant provided background information regarding his relationship with [Ms B] and the circumstances surrounding his father’s decision to include him in the visa applications as a member of the family unit. The applicant stated that he and [Ms B] met when he was studying a diploma course and they became boyfriend and girlfriend. They broke up in 2008, but after a short while the relationship rekindled, and they communicated regularly through text messages and phone calls. In 2009 his parents decided to take him to Australia. He talked with [Ms B] about his travel to Australia and told her that he loved her and would take care of her.
The applicant stated that in August 2009 [Ms B] discovered she was pregnant and told his sister, who later informed the family. He said because [Ms B]’s family was poor, they decided that she would live at his parents’ home, which she started doing in August 2009. The applicant said that his relationship with [Ms B] was that of boyfriend and girlfriend, and that they only made the decision to marry (and became engaged) in March 2010, after the birth of their first child. The applicant said when he completed the forms for the Subclass 857 visa, he referred to his relationship (engagement) to [Ms B] but did not mention his child.
It was submitted that the question ‘when did you commit to a shared life together’ can be vague and involves different interpretations. In the partner visa application, they referred to 3 March 2009 as the date because that was when the applicant promised [Ms B] that he would not forget her but that does not mean they entered a committed de facto relationship. He said they had no migration agent assisting them and answered the question the way they interpreted it. The applicant said that in his Subclass 457 visa application he truthfully answered that he was never married or in a de facto relationship because their relationship was only that of boyfriend and girlfriend, but he did refer to the relationship in the RSMS (Subclass 857) visa application. The applicant referred to the relevant definitions and stated that the evidence provided supports his claim that between March 2009 and February 2011 his relationship with [Ms B] was not a de facto one.
The applicant said he did not intend to mislead the Department to secure a favourable migration outcome. He answered truthfully when completing the Subclass 457 application and the Subclass 857 visa applications. The applicant acknowledged that he did not mention the child in the application but stated that it was an error of judgment as the child was under his partner’s name and not using his surname, so he assumed it was not essential to include the child’s details. He said he did not intend to hide the child from the Department and in March 2011 the child’s birth certificate was changed to reflect the applicant as the father. The applicant stated that if his intention was to hide that he had a child, he would not have changed the birth certificate.
The present Tribunal discussed with the applicant the evidence before it, including that which was provided in the partner visa application, which indicated that he and [Ms B] (from about June 2009) had a mutual commitment to one another, to the exclusion of all others, and that their relationship was genuine and continuing, and they did not live separately and apart on a permanent basis, as indicated by subsequent events. In response, the applicant said the concept of a ‘de facto relationship’ was not common in the Philippines and he did not understand that his relationship with [Ms B] was a ‘de facto’ one.
The applicant acknowledged that on the partner visa sponsorship form he stated that he and [Ms B] made a commitment to a shared life together to the exclusion of all others from March 2009. He explained that this was the date he assured [Ms B] that even if he goes to Australia that she would be the only one he is committed to. The Tribunal noted that it appeared to be more than just a verbal commitment, because a few months later, in June 2009, [Ms B] moved into his family’s home, and they were living together. The applicant said he was trying to make it more convenient for them to stay in touch. He said [Ms B]’s family’s home did not have internet, and because he was going to move to Australia, he wanted to make it easier for her to communicate with him by Skype, so he asked her to move into his family’s home in June 2009.
The Tribunal noted that it appears he and [Ms B] were living together for a few months before he travelled to Australia (in September 2009), that they were committed to a long-term relationship with one another, and that [Ms B] was pregnant with his child. The applicant said he did not find out that [Ms B] was pregnant until August 2009 and that [Ms B] had initially told his sister.
The Tribunal noted that according to the partner visa application, it appears that their family and friends were aware of the relationship and that he financially supported [Ms B]. The applicant acknowledged that their families were aware of the relationship. In relation to the financial aspects of the relationship, the applicant said he was working part-time, and the arrangement was that his parents would financially support him by providing rent, food and living expenses and that any money he made from his part-time job he sent to [Ms B] to assist her during the pregnancy.
The Tribunal remarked that, having regard to all the circumstances of the relationship, including their living arrangements, social and financial aspects of the relationship and the commitment they made to one another, the Tribunal may conclude that at the time he applied for the Subclass 457 visa he was in a de facto relationship, as defined in the Act and Regulations, with [Ms B]. In response, the applicant said at the time he did not understand the concept of ‘de facto’ and he apologises for his mistake.
The Tribunal discussed with the applicant the non-compliance, as described in the s.107 notice, in relation to the Subclass 857 visa and the omission of his son from the application form (Form 47A) which was completed on 3 June 2010 and subsequently provided to the Department. The applicant conceded that he did not declare his son on the application form. He said he was not in the Philippines when his son was born, so could not sign the relevant paperwork to be included on his son’s birth certificate as the father. He said he was unable to travel to the Philippines at the time to sign the paperwork and they did not have sufficient time to send the paperwork to Australia to be signed. He said he returned to the Philippines for his son’s first birthday, completed an affidavit of paternity and provided proof that he was the father, after which his son’s birth certificate was updated to show that he was the father.
He said he acknowledges his mistake, and he now knows he should have indicated his son’s details on the application form even if he did not have the supporting documents.
The Tribunal has carefully considered all the evidence before it and is satisfied, for reasons that follow, that there was non-compliance with s.101 of the Act as described in the s.107 Notice.
The Tribunal considers that the applicant was in a de facto relationship, as defined in s.5CB and Reg 1.09A, at the time the visa application form (Form 47A) for the Subclass 457 visa was provided to the Department (26 July 2009). The evidence before the Tribunal is that in March 2009, at the time the applicant’s parents were preparing to lodge the Subclass 457 visa application and include him in that application, the parties made a commitment to be in a relationship with one another, to the exclusion of all others, even if the applicant travels to Australia. On his own evidence, the applicant said that in March 2009 he told [Ms B] that she would be the only one he is committed to and that he would look after her.
The evidence before the Tribunal also indicates that [Ms B] moved into the applicant’s family home in June 2009 (which was prior to lodgement of the visa application) and that the parties resided together at that address until the applicant travelled to Australia in September 2009. [Ms B] continued to reside in the applicant’s family home in the Philippines. The applicant gave evidence that this was to ensure that they could continue to communicate via Skype. This, in the Tribunal’s view, demonstrates that at the time [Ms B] moved in with the applicant (in June 2009) the parties were committed to maintaining a relationship with one another, including ensuring they could communicate regularly by Skype during the periods that they were physically apart.
The evidence before the Tribunal also indicates that the parties’ family and friends were aware of their relationship. The Tribunal also considers that the financial aspect of the relationship supports a finding that the relationship was a de facto one. While the applicant may not have had the means to support [Ms B] financially at the time of the visa application (in July 2009), the Tribunal notes that at the time [Ms B] was living in the applicant’s family home and the applicant had made a commitment to supporting her. His subsequent conduct, of sending the money he earned from his part-time job in Australia, further supports the view that the parties were, by July 2009, in a committed exclusive relationship with one another.
While the Tribunal is prepared to accept that the applicant may not have become aware of the pregnancy until August 2009 (after the application was made), the Tribunal nevertheless consider that [Ms B]’s pregnancy further supports the view that the parties (at the time of the Subclass 457 visa application) were in a committed relationship.
Having considered the totality of the evidence regarding the relationship, including the length of time the applicant and [Ms B] had known each other, the development of their relationship, when they commenced living together, the commitment they made to one another, the arrangements made so they could regularly communicate when they were physically apart, acknowledgement of the relationship by their family and friends, the pregnancy and the applicant’s subsequent financial support of [Ms B], the Tribunal is satisfied that the applicant was in a de facto relationship, as defined, with [Ms B] at the time the Form 47A for the Subclass 457 visa was provided to the Department.
It follows, and the Tribunal finds, that the applicant had given an incorrect answer regarding his relationship status in the application form for the Subclass 457 visa. The applicant has therefore not complied with s.101(b) as described in the notice.
The applicant conceded that he did not include his son in the Subclass 857 visa application form (dated 3 June 2010) which was subsequently provided to the Department. The applicant’s son was born on [date], therefore, at the time the application form was provided to the Department, the applicant had not provided the requested information about his dependent children. It follows, and the Tribunal finds, that the applicant had not answered all the questions on the application form for the Subclass 857 visa. The applicant has therefore not complied with s.101(a) as described in the notice.
The Tribunal has had regard to the applicant’s explanations that he did not understand the concept of ‘de facto’ at the time of lodging the Subclass 457 visa application. It has also had regard to his explanation that he did not include details of his son because his name was not on the child’s birth certificate as the father. The Tribunal notes, however, that the neither the applicant’s lack of understanding about the term ‘de facto’ nor his name not being on the child’s birth certificate changes the fact that, at the relevant times, he was in a de facto relationship and did have a child. Section 100 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. Further, s.111 states that ss.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.

For the above reasons reasons, 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 reg 2.41 of the Regulations. Briefly, they are:
The correct information
The correct information, as found above, is that at the time the application form for the Subclass 457 visa was given to the Department, in July 2009, the applicant was in a de facto relationship with [Ms B]. The Tribunal also finds that the correct information is that the applicant, at the time the visa application form (Form 47A) was lodged in connection with the Subclass 857 visa application, had a dependant child.
The Tribunal considers that if the correct information was known by the Department, the applicant would not have satisfied the requirements for the grant of the Subclass 457 or 857 visas as a member of the family unit (dependent child) of his father. This consideration weight in favour of cancelling the visa
The content of the genuine document (if any)
There is no suggestion that any non-genuine (or bogus) documents have been provided. Therefore, this factor is not relevant in this case.
Whether the decision to grant a visa to the visa holder was based, wholly or partly, on incorrect information
The applicant applied for the Subclass 457 visa on the basis of being a member of the family unit of his father (the family head). At the time of application, the definition of member of the family unit in Reg 1.12 included a ‘dependent child’ of the family head. The definition of ‘dependent child’ relevantly included a child of the person (other than a child who is engaged to be married or has a spouse or de facto partner).
The Tribunal considers that the applicant was granted the Subclass 457 visa on the basis that he did not have a de facto partner, which satisfied part of the definition of ‘dependent child’, and he was therefore found to be a member of the family unit of his father, for the purposes of the Subclass 457 visa. The Tribunal considers that the decision to grant the Subclass 457 visa to the applicant was based, in part, on the incorrect information that the applicant was not in a de facto relationship. This consideration weighs in favour of cancelling the applicant’s visa.
In relation to the Subclass 857 visa, the definition of dependent child (including those who had previously held Subclass 457 visas and were being included the Subclass 857 visa application as a member of the family unit) excludes a dependent child who has a de facto partner. While the applicant declared in the visa application form that he was engaged to be married, he did not declare that he had a child. Had the applicant declared that he had a child with [Ms B], the delegate would have sought further information regarding the nature of the relationship and would have found that the parties were in a de facto relationship with one another.
The Subclass 857 visa was granted on 11 February 2011, and the Tribunal is satisfied on the totality of the evidence before it regarding the history of the parties’ relationship (as set out above) that, until that time and thereafter, the applicant and [Ms B] continued to be in a de facto relationship with one another. The Tribunal considers that the decision to grant the Subclass 857 visa to the applicant was based, in part, on the incorrect information that the applicant was not in a de facto relationship. This consideration weighs in favour of cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
The Tribunal was concerned that the applicant provided incorrect information to achieve a migration outcome. The applicant gave evidence that he acknowledges that he did not comply, but said the non-compliance was not deliberate. He said he did not understand the concept of ‘de facto’ and did not declare his son because his name was not on the child’s birth certificate. He said while his father’s sponsor company had the assistance of a migration agent, he was left to complete his own visa application. He said he did not intentionally mislead the Department.
The Tribunal considers that the applicant was somewhat reckless or indifferent to the correctness of the information he provided on his visa application forms. The applicant was asked on the visa application form about his relationship status, and one of the options on that form was whether he was ‘married or in a de facto relationship’. The Tribunal considers that if the applicant did not understand the concept of ‘de facto’ then he (or his father as the primary visa applicant) should have sought advice about what ‘de facto’ means before answering that question. The Tribunal also considers that the applicant should have provided details of his son in the Subclass 857 visa application form, together with an explanation regarding the birth certificate, rather than make no mention of him. The Tribunal considers that the circumstances in which the non-compliance occurs weights in favour of cancelling the applicant’s visa.
The present circumstances of the visa holder
The applicant’s present circumstances have changed since he last appeared before the Tribunal (differently constituted), as his children are now Australian citizens. The Tribunal accepts that this is a significant change in the applicant’s circumstances.
More than five years have passed since the applicant was put on notice that his visa may be cancelled. Since that time, the applicant and [Ms B] separated and [Ms B] entered into a relationship with another person (an Australian citizen). In June 2020 [Ms B] and the children were granted permanent residence visas (Subclass 801). Departmental records also indicate that the children became Australian citizens in May 2022.
The Tribunal has received documents (child support assessment) indicating that the applicant shares joint custody of the children with [Ms B]. The child support document indicate that the applicant has the children 51% of the time.
When asked about his relationship with his children, the applicant said he has the children on alternate weeks and on school holidays he looks after them during the day. He said he works [at] [Company 1]) and cares for them during the day while their mother is at work. During the school term he drops them off to school and picks them up. He drops them off to see their friends. He also takes them to afterschool activities, including [sports] practice, and assists with the [sports] team. The applicant said he is very close to his children. They tell him about their day and what they have been doing at school. He knows their friends and they know his work colleagues and when he takes them to [Company 1] (his place of work), his colleagues know they are his children and greet them.
The applicant said he has not told his children that there is a risk he may have to return to the Philippines if his visa is cancelled. He said his son is [age] and his daughter is [age], and he did not want them to worry about his situation as they have enough to cope with going to into their teenage years. He said he cannot imagine life without his children and would not cope if he had to be separated from them. He said his eldest was becoming a teenager and he wanted to be there for him. The applicant said that his ex-wife ([Ms B]), would not let the children go to the Philippines with him.
In addition to the above, the applicant gave evidence that he has been in Australian since September 2009, a period of 13 years. He completed an English course, after which he started working. He currently works [at] [Company 1]. His parents and siblings live in Perth, which is about [number] hours’ drive away from [Town 1].
The applicant said he has no job and no close family in the Philippines. If he had to return to the Philippines, he would be separated from his children and family, and it would be difficult for him to find a job. He said he financially supports his children, including child support payments to assist [Ms B] with their expenses.
The Tribunal considers that the applicant’s present circumstances, including his personal, family and employment ties in Australia weigh in favour of not cancelling the applicant’s 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
There is no information of concern known about the applicant’s obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
There is no information before the Tribunal which indicates any other instances of non-compliance known to the Minister.
The time that has elapsed since the non-compliance
The non-compliance in relation to the Subclass 457 visa occurred over 13 years ago and the non-compliance in relation to the Subclass 857 visa occurred 12 years ago. The Tribunal accepts that a significant period of time has passed since the non-compliance and gives this circumstance some weight, albeit limited, in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant informed the Tribunal that other than a speeding ticket, for which he has paid a fine, he has not breached any laws. There is no evidence before the Tribunal which suggests that the applicant has breached any laws since the non-compliance.
Any contribution made by the holder to the community.
The applicant indicated that he assists with events at his children’s school. He also assists with his children’s [sports] team.
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.
Whether there would be consequential cancellations under s.140
If the applicant’s visa is cancelled no other visas would be subject to consequential cancellation.
Mandatory legal consequences of cancellation
If the applicant’s visa is cancelled and he is not granted another visa, he will become an unlawful non-citizen and subject to detention. There is limited information before the Tribunal which suggests that indefinite detention is a possible consequence of cancellation as the applicant can voluntarily return to the Philippines. The applicant indicated that he has been living with an Australian, however, it was submitted that the applicant’s partner would not sponsor him for a partner visa. It appears therefore that the applicant would not be eligible to apply for any other substantive visa in Australia if the visa is cancelled. The cancellation may also adversely impact future visa applications lodged by the applicant for travel to Australia.
The Tribunal considers that the legal consequences of cancellation, which may result in the applicant being separated from his children who are now Australian citizens and reside permanently in Australia, weights in favour of not cancelling the visa.
Best interest of the children
Departmental policy provides that decision-makers should consider the best interests of children as a primary consideration when deciding whether to cancel the visa. The question that must be considered by the Tribunal is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
The applicant has two children: a [age]-year-old son and a [age]-year-old daughter. The children are Australian citizens, as is their mother ([Ms B]). The Tribunal accepts that the children’s mother would not let them return to the Philippines with the applicant. Accordingly, if the applicant’s visa is cancelled and he returns to the Philippines he will be separated from his children.
The evidence before the Tribunal, which it accepts, is that the applicant is very close to his children and is involved in their day to day lives. He has custody of the children 51% of the time and provides financial support, through child support payments, which are transferred to [Ms B] to assist with the children’s expenses.
The evidence indicates that the applicant is involved in the care and development of his children and that the children have a meaningful and fulfilling relationship with their father. The Tribunal considers that it is in the best interest of the children, both of whom are Australian citizens, that they be cared for and nurtured by both parents. It is therefore in the best interest of the children that the applicant’s visa is not cancelled. For these reasons, the Tribunal gives significant weight to this consideration in favour of not cancelling the visa.
International obligations
The applicant is a citizen of the Philippines. There is no evidence before the Tribunal, and the applicant has not claimed, that cancellation of his visa would lead to his removal from Australia in breach of Australia’s non-refoulment obligations.
In relation to family unity obligations, the Tribunal accepts that if the applicant’s visa is cancelled, it is likely he will have to return to the Philippines. The Tribunal also accepts that the applicant’s ex-spouse will not let the children return to the Philippines with the applicant. In the circumstances, the children will be separated from their father, which would be contrary to the principles of family unity under the Convention on the Rights of the Child (CROC). This consideration therefore weighs in favour of not cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant gave evidence that his mental state has not been very good. He fears leaving his children and does not want them to suffer because of his mistake. He is trying to be strong for his children. The Tribunal accepts that cancellation of the applicant’s visa would cause significant personal, psychological and financial hardship for him and his family members, particularly his children.
Conclusion
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. While the provision of incorrect information led to the applicant being granted visas for which he was not entitled, a circumstance which strongly favours cancellation of the visa, the Tribunal considers that this would not be the preferable decision in all the circumstances of this case. Having carefully considered all the evidence and weighed up all the relevant factors, the Tribunal considers that present circumstances of the applicant and the best interest of the applicant’s Australian children, which favour not cancelling the visa, outweigh other consideration in favour of cancelling the visa. For these reasons, the Tribunal concludes that the visa should not be cancelled.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
R. Skaros
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 4844

17 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction