2012598 (Migration)

[2021] AATA 5326

2012598 (Migration) [2021] AATA 5326 (22 November 2021)

AppID:           2012598

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012598

MEMBER:Kira Raif

DATE:22 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 22 November 2021 at 3:42pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – incomplete and incorrect answers in visa application – previous visas, residence, applications, overstay and debt to commonwealth under different names not declared – facial image comparison – discretion to cancel visa – non-compliance conceded – application completed by partner – no notification to department that relationship ceased, or attempt to correct answers – no relationship with Australian citizen child – criminal offences and fines without convictions – lengthy residence, community ties, workplace accident and incapacity, and mental health and treatment – hardship if visa cancelled – non-refoulement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 101(a), (b), 104, 107, 109(1), (2), 501
Migration Regulations 1994 (Cth), r 2.41, Schedule 4, criteria 4001, 4004, 4020(2A)

CASE
MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant now claims to be a national of Nigeria born in [Year]. He was granted the Subclass 100 visa in November 2012. On 3 October 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, Notice) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in July 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 22 November 2021 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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.

   Did the notice comply with the requirements in s.107? 

6. 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.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

8. 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 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

10. The applicant made an application for a Partner visa in April 2010 at [City, Country]. The applicant provided the following information on the application form 47SP:

    a.    in response to Question 7 the applicant stated that he had not held a Bridging visa E,

    b.    in response to Question 9 the applicant stated that he had not previously been to Australia and has not held a visa for travel to Australia,

    c.     in response to Question 14 relating to other names the applicant is, or had been known by, the applicant did not provide an answer,

    d.    in response to Question 80 the applicant stated ‘no’ when asked if he had left any country to avoid being removed or been excluded from, or asked to leave any country including Australia,

    e.    in response to Question 82 the applicant stated that he lived in “Nigeria, life” when asked in which countries he had lived for 12 months or more in the past 10 years.

    f.   On 14 April 2010 the applicant signed a declaration at Question 96 stating that the information he supplied was complete, correct and up to date in every detail.

11. The applicant completed Form 80 in which he gave the following answers

    a.    in response to Question 13, the applicant gave details of his Nigerian passport,

    b.    in response to Question 21, the applicant gave the addresses where he lived in the past 10 years, stating that he lived in Nigeria from birth to October 2009 and in [Country] after that time,

    c.     in response to Question 24 the applicant stated ‘n/a’ when asked to provide details of his previous visits to Australia.

12. In April 2010 the applicant signed a declaration at Question 36 stating that the information he supplied in the form was correct in every detail.

13. The applicant included with his application a statement dated 13 April 2010, outlining his relationship with the sponsor. Essentially, the applicant stated that he and the sponsor met in September 2007 as the sponsor was his sister’s pen-pal, in mid-November he asked the sponsor to be his girlfriend and they started to make plans to meet in Nigeria. The applicant stated that in July the sponsor flew to Nigeria to meet him.

14. The applicant was granted the Partner (provisional) visa on 4 June 2010 and entered Australia on 6 July 2010. On 7 November 2012 he was granted the Partner (Permanent) visa.

15. The primary decision record indicates that the Department received information that the applicant had used another identity – [Alias 1] – to apply for a Subclass 457 Temporary Business Entry visa in September 2008. It is also stated that the applicant used the identity of [Alias 2] to travel to Australia in April 2005. The Department conducted a facial comparison in relation to [Alias 2] and [Alias 1] and it was determined that these two identities represent the same person.

16. The applicant attended an interview with officers of the Department on 9 November 2017. It is recorded that the applicant admitted that the photograph of [Alias 1] submitted for the purpose of a protection visa application was of him. The applicant admitted that he had lived in Australia between 2005 and 2008 as [Alias 2] and that a different identity was created by a migration agent in Australia to ”concoct” his protection claims. The applicant is recorded to have admitted that he did not disclose his previous visit to Australia and a different identity in his Partner visa application.

17. Departmental records show that [Alias 2] entered Australia in April 2005 as a holder of a Visitor visa and made an application for a visa in Australia using the identity of [Alias 3]. The application was refused by the delegate and affirmed by the Tribunal. He then sought judicial review and made a request for Ministerial consideration, in which he was unsuccessful. The applicant lived in Australia as an unlawful non-citizen for a period and departed Australia in July 2008.

18. In his written response to the NOICC the applicant concedes that there was non-compliance. However, in his submission to the Tribunal of 10 August 2021 the applicant states that his visa was previously cancelled under a different name and reinstated and the present cancellation of his visa is ultra vires. The applicant states that he has never used a different name which the Immigration has assigned to him and the cancellation of the visa is causing him significant hardship, including inability to pursue study in Australia. In his submission dated 2 July 2021 the applicant also states that he had never used other names which had been ‘made up’ by Immigration. The Tribunal places greater weight on the facial comparison report, which the Tribunal considers to be persuasive evidence that the applicant was previously known by two different names. The Tribunal also places some weight on the applicant’s earlier admissions made in response to the NOICC and in his interview with an Immigration officer, which are referred to in the primary decision.

19. In oral evidence to the Tribunal the applicant states that he was given four names at birth but he has not used other names much. He used one of the names when he first came to Australia. He saw an immigration lawyer, explaining that he wanted to stay and study in Australia and that he could not return to his home country. The lawyer convinced him to change his name which he used to apply for the visa in Australia. He later found out that his visa was cancelled and he was told that he may be deported and excluded for five years. The applicant states that the information about his relationship was true. The applicant confirmed that he had previously held a Bridging E visa but he was told it was cancelled. The applicant states that when applying for the Partner visa, he was scared that he would be rejected and that is the reason he provided false information. The applicant concedes that he provided incorrect answers on the application form.

20. Having regard to the facial comparison report and the applicant’s concessions in response to the NOICC and his oral evidence to the Tribunal, the Tribunal finds that the applicant was known by another name (or names) and previously resided in Australia using different identities. Having regard to the information contained in the primary decision record, as well as the applicant’s concession to the Department made earlier, and despite his present evidence to the contrary, the Tribunal finds that the applicant gave incorrect answers on the application form as described above, particularly when stating that he had not previously been to Australia and has not held an Australian visa or a Bridging E visa and when he referred to his previous residence only in Nigeria. The applicant told the Tribunal that it was his partner and not him who filled in the application form. Even if that  was the case, the Tribunal is mindful that under s.98 the applicant is taken to have completed the form.

21. The Tribunal finds that the applicant completed the applicant form in a way that incorrect answers were given or provided and that there was non-compliance with s. 101(b) of the Act. The Tribunal further finds that the applicant did not answer the question whether he had been known by another name. The Tribunal has found that the applicant used other names during his previous residence in Australia. The Tribunal finds that the applicant completed the application form in a way that not all questions were answered (when the applicant failed to state if he had been known by other names). The Tribunal finds that the applicant did not comply with s. 101(a) of the Act.

22. 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?

23. 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).

24. 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. They are:

    The correct information

25. The correct information is that the applicant had previously held Australian visas and had travelled to Australia. He had made visa applications in Australia using different identities. The applicant was refused visas and had been a holder of a Bridging E visa. The applicant states that when he applied for the Partner visa, he submitted the change of name certificate but even if the applicant did so, he does not dispute the fact that he failed to disclose his past residence in Australia, the previous identity used in Australia and previous visa applications made in different identities.

    The content of the genuine document (if any)

26. 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

27. A decision to grant a visa is based upon the decision-maker’s satisfaction as to the person’s identity. This is particularly relevant to public interest criterion (PIC) 4020(2A) of Schedule 2 to the Regulations and also to a number of other provisions including character and special return criteria. The general provision of information that was false or misleading would have been relevant to PIC 4020(1). These criteria would have been assessed more rigorously had the applicant’s use of a different identity and previous visit to Australia, including a period of overstay, was known to the decision-maker. The applicant’s conduct may have been relevant in assessing the applicant’s character for the purpose of PIC 4001 and s.501. The applicant would have also been required to meet PIC 4004 as the primary decision recored indicates he had incurred a debt to the Commonwealth through his previous visa application and Tribunal review, as well as his judicial review applications. The applicant also provided a statement of his relationship with the sponsor on the basis that he lived in Nigeria whereas he was living in Australia for a period of approximately three years.

28. The Tribunal finds that the decision to grant the visa was based, in part but to a significant degree, on incorrect information.

    The circumstances in which the non-compliance occurred

29. In his response to the NOICC the applicant concedes that he ‘attempted’ to conceal his past travel to Australia between 2005 and 2008 and mislead the Department about his identity because he wanted to be reunited with his wife and was fearful that the Department would not grant him the visa. The applicant refers to his mental health, stating that these matters were beyond his control. The Tribunal acknowledges the evidence relating to the applicant’s mental health, and accepts that the applicant has a condition but the applicant has not satisfied the Tribunal that his condition contributed to the answers the applicant gave on the application form.

30. In his response to the NOICC the applicant refers to his mental health issues, difficulties in accessing treatment and support and the resultant homelessness. As noted above, the Tribunal accepts that the applicant had been suffering from mental health and other health issues and may have been affected by other circumstances of his daily existence, however, the Tribunal is not satisfied these matters affected the applicant’s ability to interact with the Department. This is particularly so as the applicant claims he had deliberately withheld information about his other identity and previous visit to Australia because he was concerned his application would otherwise be refused. That is, the applicant had considered his circumstances, made a rational and in his mind justified decision that he would have better prospects of obtaining the visa if certain information was withheld and on that basis he decided to provide incorrect answers in his application.

31. The Tribunal’s view is confirmed by the applicant’s oral evidence to the Tribunal. The applicant confirmed that he was worried about the circumstances in his home country and did not want to be ‘rejected’ and that is the reason he withheld information. The applicant stated in oral evidence to the Tribunal that he did not recall about the debt to the commonwealth and the Bridging E visa due to his poor mental health but he was aware of the other circumstances such as his change of name and the previous residence in Australia. The applicant’s evidence supports the Tribunal’s view that the applicant had rationally assessed his circumstances and chose to provide incorrect answers because he genuinely believed he would have better prospects in obtaining the visa.

    The present circumstances of the visa holder

32. In his written response ot the NOICC the applicant refers to his poor mental health state which he claims affects his ability to interact with the Department. The applicant outlined his immigration history in his response to the NOICC and the circumstnaces leading to his adoption of different identities.

33. The applicant told the Tribunal that in 2018 he was detained but his visa was restored and he was released. Once he resumed living in the community, he completed a Certificate III in [Subject] and he had previously completed other study. The applicant states that he worked in a [Workplace] in 2014-15 and had an accident and has been incapacitated since that time. He hopes to return to work once his injury heals. The applicant states that he obtained a job in drilling but could not work due to lock-downs and he had not been given permission to work since his visa was cancelled.

34. The applicant confirmed that his relationship with the sponsor ended as she had another man. The applicant states that he had another relationship and has a child from that relationship – who is in the custody of the state – but claims that this partner had also abandoned him.

35. The applicant told the Tribunal that he takes medication for depression, PTSD and bipolar condition. He has been able to continue with the treatment and medication while in detention.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

36. Nothing adverse is known about the applicant’s conduct with respect to the above provisions.

    Any other instances of non-compliance by the visa holder known to the Minister

37. In his response to the NOICC the applicant states that while he was still in [Country], his wife (sponsor) told him she was seeing another person. The applicant stated that by the time his Subclass 100 application was assessed in November 2012, the relationship was ‘as good as over’ yet there is no evidence that the applicant informed the Department about the breakdown of the relationship before his visa was granted, as he was required to do under s. 104 of the Act. In oral evidence to the Tribunal the applicant states that Immigration called the sponsor and she confirmed the relationship, so the relationship has not ended before he was granted the visa.

38. There are no known instances of non-compliance under the Migration Act.

    The time that has elapsed since the non-compliance

1. The application for the visa was made in April 2010. Over eleven years passed since the non-compliance and the Tribunal acknowledges it is a lengthy period.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

2. The applicant states in his response to the NOICC that he had been found guilty of several offences, including posesesion, use, carry prohibited weapon, criminal damage and was fined without conviction. In his submission to the Tribunal of 10 August 2021 the applicant states that he pleaded guilty to the offence of causing criminal damage on the advice of his lawyer even though he had not committed any crime. He told the Tribunal that he was threatened with several years in jail and was told to plead guilty to lesser charges and he did not know any better. The applicant denied assaulting anyone. In oral evidence the applicant also stated that he was charged because the police lied and he had successfully defended the charges. The applicant denied providing information about his convictions in his response to the NOICC stating he did not sign the statement.

3. The Tribunal does not accept the applicant’s explanations offered in oral evidence that he did not commit any offences and was convicted because he was forced to plead guilty by his lawyer or because the police lied. The Tribunal is of the view that the finding of guilt – in this case it may have been the acceptance of the applicant’s guilty plea by the court – is prima facie evidence that the applicant had committed an offence. The Tribunal finds that there had been other breaches of the law.  

   Any contribution made by the holder to the community.

4. The applicant provided in response to the NOICC evidence of having made several charitable donations. The applicant told the Tribunal that he had worked in a nursing home, had contributed to UNHCR and worked with children sniffing glue. He also picks up rubbish on the street. The Tribunal accepts that evidence and accepts that the applicant has made a contribution to the community.

5. 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 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

6. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although there are very limited types of visas he can apply for. The applicant would be subject to an exclusion period in relation to some future visa applications. The cancellation of a permanent visa would result in the applicant losing some benefits that he may have been entitled to as a permanent resident of Australia.

   Whether there would be consequential cancellations under s.140

7. There are no persons whose visas would be subject to consequential cancellation.

   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.   

8. As was determined in the Tribunal matter 1901883, it may not be necessary for the Tribunal to determine whether protection obligations arise in this case as such matters would be considered, should consideration be given to the applicant’s removal from Australia. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

9. The Tribunal is also mindful of the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

10. The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

11. The applicant told the Tribunal that he has an Australian citizen child who is in state custody. The applicant told the Tribunal that he lost contact with his son in 2018 because they lived in different states and the people the child lives with have not made arrangements to make contact. The applicant states that the only way he can have contact with the child is if the child’s mother agrees to it. He last spoke to her in 2018 and she wanted him to find accommodation and live with the child. The applicant states that if he is granted the visa, he wants to live with his son. He states that his mental health would not prevent him from raising the child and he does not need to work as he can rely on compensation and Centrelink payments. The applicant states that the child’s mother agreed for the child to live with him but that had not happened before because they were in different states and they could not see each other due to lock-down.

12. The Tribunal finds the applicant’s evidence unpersuasive. The applicant’s evidence indicates that he has had no contact with his child since 2018 and he only saw his child once since the  child was born. Even if the applicant lived in a different state and could not travel due to Covid lock-downs, the applicant does not suggest he has made any attempt to establish other forms of contact with the child, such as electronic contact or through the child’s carers. The applicant submits that the child’s mother – who left the child in hospital upon birth – wanted the child to live with him, the applicant has not presented any evidence of having taken any steps to make this happen. In such circumstances, the Tribunal has formed the view that there is no meaningful relationship between the applicant and his child. The applicant’s evidence is that the child is in state custody and there is no evidence that the applicant had approached any agency to allow him to have contact with the child or to have a more meaningful relationship with the child. There is no evidence that the applicant has been assessed as being suitable to carry out the parental responsibilities in relation to the child or that  he would be given an opportunity to do so. There is no evidence that the applicant has engaged with the Department of Family and Community Services to obtain custody of the child or otherwise make contact with the child. The applicant does not appear to have taken any steps to get to know his child or to establish a relationship with his child. Having regard to that evidence, and in the particular circumstances of this case, the Tribunal has formed the view that the best interests of the child would not be affected by the cancellation of the applicant’s visa.

13. The Tribunal finds that the cancellation of the visa would not be in breach of Australia’s international obligations.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

14. The applicant refers to his mental health issues and significant harm he would experience if his visa is cancelled, including psychological and emotional hardship. The applicant submits that he has been diagnosed with bipolar and PTSD and requires ongoing care and support. He has been homeless and unable to work in Australia and his circumstances would be significantly worse if he was forced to return to Nigeria where he would face a life of destritution and without psychiatric health care, which would be in breach of ICESCR. The applicant presented very little probative evidence concerning the availability and access to treatment that he may receive outside of Australia. Nevertheless, the Tribunal accepts that hardship would be caused to the applicant, in light of his health condition, if his visa is cancelled.

15. The applicant told the Tribunal that he first travelled to Australia at the age of 17 and has grown up in this country. The Tribunal accepts that the applicant has been residing in Australia for a lengthy period and considers Australia to be his home. The Tribunal is prepared to accept that the applicant has formed friendships and relationships in this country. The Tribunal accepts that hardship would be caused to the applicant by the cancellation of his visa.

16. In his response to the NOICC the applicant states that he aplied for a protection visa in Australia using his brother’s identity ‘under the misguidance of community members’ and the migration agent, although he states the claims were essentially true. The applicant states he was young and native and believed he had no other options. That is, the applicant concedes that he used a false identity and thereby provided false or misleading information in his protection visa application. The Tribunal does not accept that being young and naïve justifies such conduct or that the applicant had any misunderstanding that he was not complying with the immigration laws by using a false identity. The Tribunal considers this non-compliance to be indicative of the applicant’s willingness to disregard the Australian laws and to provide misleading information when he determines it suits his circumstances.

17. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there was non-compliance with s. 101 of the Act and that there are grounds for cancelling the applicant’s visa.

18. The Tribunal has formed the view that there are strong reasons why the visa should not be cancelled. The Tribunal accepts that the applicant has been living in Australia for many years and is well settled here. The Tribunal accepts the applicant has formed relationships in this country and has family, social, employment and community ties. The Tribunal accepts that considerable hardship may be caused to the applicant if his visa is cancelled. Significantly, the Tribunal accepts the applicant has been receiving treatment in Australia and while the applicant failed to present adequate or persuasive evidence about the availability of treatment outside of Australia (if the cancellation of the visa will result in the applicant being required to leave Australia), the Tribunal is prepared to accepts that if the applicant is removed from his treating team in Australia, this and other repercussions of his departure from Australia, may cause him considerable hardship. The Tribunal also accepts the applicant’s evidence that if he was to make another visa application, his stay in detention may be prolonged. Generally, the Tribunal accepts that considerable hardship would be caused to the applicant by the cancellation of his visa.

19. The Tribunal acknowledges that the applicant has an Australian citizen minor child in Australia however, in the circumstances of this case, the Tribunal has formed the view that  the child’s best interests would not be adversely affected by the cancellation of the visa because the applicant has not established a relationship with his child and also because the child is in state care and the applicant has not satisfied the Tribunal that he would be able to raise the child or have a relationship with the child if his visa is not cancelled. The Tribunal has also formed the view that the cancellation of the visa would not be in breach of Australia’s international obligations. 

20. Against these considerations, the Tribunal has considered the nature of the incorrect answers and the effect of this information on the decision to grant the visa. The applicant’s identity highly significant to the assessment of any application. PIC 4020(2A) provides an exclusion period of ten years where a person’s identity cannot be ascertained, indicating the seriousness of a person’s identity when processing visa applications. In this case, the applicant used multiple other identities in his previous visit to Australia and visa applications and failed to disclose all of these in his Partner visa application.

21. Another a significant consideration is the applicant’s debt to the Commonwealth. The information indicates that the applicant previously made a visa application in Australia, sought review by the Tribunal and judicial review. The applicant did not disclose any of these matters in his Partner visa application, stating that  he forgot about these matters. As the decision-maker was unaware of the applicant’s previous applications and different identity, it was not possible for the decision-maker to assess whether the applicant had a debt to the Commonwealth and whether he met PIC 4004. Unless the applicant was able to establish that the debt was paid or that acceptable arrangements were made to repay it, the applicant may not have met PIC 4004 and may not have been granted the Partner visa. These matters were highly significant to the decision to grant the applicant the visa.

22. The Tribunal has formed the view that the applicant had deliberately and knowingly provided incorrect answers in his Partner visa application concerning his previous residence in Australia and his other identities in order to obtain a benefit (an Australian visa). The Tribunal does not accept that he did so because of his poor mental health. Rather, the Tribunal has formed the view that  the applicant believed he may not be granted the visa if the information was known. He then deliberately made the decision that in order to ensure his Partner visa is granted, it would be more beneficial for him to provide false or misleading information in response to multiple questions on the application forms and he did so. There is no evidence to indicate that the applicant sought to rectify the situation since his entry to Australia. He was content, it seems, to rely on the incorrect answers, and to breach the immigration laws, because it better suited his circumstances. The Tribunal has formed that view, despite the applicant’s evidence concerning his mental state which, he claims had affected his interactions with the Department. The Tribunal accepted the applicant’s evidence that he had been diagnosed with conditions but the Tribunal is not satisfied these had affected the applicant’s ability to interact with the Department and provide correct answers in his various dealings with the Department. Rather, the Tribunal has formed the view that the applicant had deliberately withheld information because he made the decision that it would be more beneficial to his visa prospects.

23. The applicant also appears to have been untruthful in his earlier Protection visa application, stating that on advice of his agent, he used a different identity to further the claims made in that application. That is, he has persistently provided false information in his dealings with the Department. There are other instances of breaches of the law and while the applicant claims he was not guilty and had not committed any offences, as noted above, the Tribunal has formed the view that a finding of guilt by a court can be taken as evidence that an offence can be committed.

24. Overall, the Tribunal has decided to place greater weight on the circumstances in which the non-compliance occurred (that is, the deliberate falsehoods in order to obtain the visa) and the fact that the decision to grant the visa was based, in part, on incorrect information. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

    Kira Raif

    
    
    

    Senior Member