2101783 (Migration)

[2021] AATA 2777

2101783 (Migration) [2021] AATA 2777 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101783

MEMBER:Jason Pennell

DATE:1 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 1 June 2021 at 8.30am

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – applicant provided incorrect information – knowingly supply the Department with false documentation as part of his visa application – outstanding debts to the Commonwealth – failed to notify the Department of his changed identity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 99, 101, 103, 107, 109, 140, 189, 198
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, 186.213; Schedule 4, PIC 4004, 4013, 4020

CASES
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2.The delegate cancelled the 186 visa on 12 February 2021 on the basis that the applicant did not comply with section 101(b) of the Act, determining that the applicant failed to declare his previous identity, previous Australian immigration history and previous employment history on his previous 457 and 186 visa application forms. Thus,  the applicant has provided incorrect information to the Department of Home Affairs (the Department).

3.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant, [applicant name], (the applicant). The visa for [the second named applicant] was cancelled, not because of any decision, but automatically pursuant to the operation of s.140(1) of the Act. As no decision was involved in the cancellation of her visa under s.140(1), the Tribunal has no jurisdiction with respect [the second named applicant].

5.The applicants appeared in-person before the Tribunal on 18 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A] (the applicant’s current partner). The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicants were represented in relation to the review.

6.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.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.

8.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.

Submissions

9.The applicant submitted the following material to the Tribunal:

(a)Copy of Notice of Intention to Consider Cancellation under Section 109, dated 20 January 2021[1] from the Department of Home Affairs

[1] AAT Case Number 2101783, Doc ID 8116095

(b)Copy of passport for the applicant and his legal wife ([the second applicant])[2]

[2] AAT Case Number 2101783, Doc ID 8116099 and 8116098

(c)Copy of Subclass 186 Employer Nomination Visa grant notification dated 12 January 2019 from the Department of Home Affairs for the applicant and his wife[3]

[3] AAT Case Number 2101783, Doc ID 8116101 and 8116100

(d)Copy of primary notification letter dated 12 February 2021 and decision record dated 12 February 2021 from Department of Home Affairs[4]

[4] AAT Case Number 2101783, Doc ID 8123042

(e)Legal Submissions on 17 May 2021, including[5]:

[5] AAT Case Number 2101783, Doc ID 8428012

(i)       Cover letter from his Representative dated 30 April 2021

(ii)      Evidence of residential address for current partner [Ms A] ([Bank] Statement and letter from [an organisation])

(iii)    Miscellaneous relationship photographs

(iv)    [Mobile] bill showing telephone communication record between the applicant and current partner [Ms A]

(v)     [DNA] report dated 5 May 2021

(vi)    Copy of passport for [Ms A]

(vii)     Copy of passport for [Mr B] (DOB [Date 1]) issued [in] 2007

(viii)    Certificate IV in Hospitality (Commercial Cookery) from [Institute 1] June 2011 issued to [Mr B]

(ix)    Copy of passport for [the second applicant]

(x)     Statutory Declaration from the applicant dated 13 May 2021

(xi)    Birth Certificate for [Master C], born [date] (from relationship with [the second applicant])

(xii)     Birth Certificate for [Master D], born [date] (from relationship with [Ms A])

(xiii)    Applicant’s ATO Notice of Assessment for financial years ending 2017 – 2020

(xiv)   VEVO Visa Details Check for [Ms A]

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

1. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107.  A Notice of Intention to Consider Cancellation (‘the NOICC’) the applicant’s visa under s.109 of the Act dated 20 January 2021  was sent to the applicant by email setting out the relevant provisions and the particulars of the non-compliance. The NOICC advised the applicant that the delegate considered the applicant had not complied with section 101(b) of the Act.  As a result, it advised that the applicant’s visa may be cancelled pursuant to section 109 of the Act and provided him with an opportunity to respond to the NOICC.  

2. Section 101 of the Act states:

   Section 101 Visa 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.

3. Section 99 of the Act states:

   Information 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.

4. The NOICC states that on 26 May 2015, the applicant submitted an online application for the visa. In the application, the applicant declared that he had never previously applied for an Australian visa and that he had never had an Australian visa refused or cancelled.  In addition, the applicant provided employment history at [Employer 1] (Nepal) in various positions between June 2008 to May 2015. In support of his application he provided a letter from ‘[Employer 1 name variant]’ dated 17 February 2015 which stated that he had worked for that business from 2008 to May 2015.

5. Based on the answers provided by the applicant, the delegate assessed that he had met the primary requirements of the visa and granted a Temporary Work (Skilled) (Subclass 457) Visa (‘the visa’) on 25 September 2015. The applicant arrived in Australia [in] November 2015. [6] 

   [6]    Department of Home Affairs - Departmental Movement Records dated 12 May 2021

6. The applicant’s spouse, [the second applicant] (born [date]) applied offshore for a secondary Temporary Work (Skilled)(Subclass 457) visa and this was granted on 21 March 2016. She arrived in Australia [in] July 2016.

7. The applicant and [the second applicant] were then granted an Employer Nomination Scheme (Subclass 186) Visa on 12 January 2019 while he was onshore.

   Applicant previously travelled to Australia

8. The NOICC[7] advised the applicant that a Departmental Forensic Facial Image examination was conducted on 4 November 2020.  This investigation compared two images of the applicant, acquired on 3 June 2015 and 28 August 2018, against two images held by the Department of another person known as [Mr B] (born [Date 1]), acquired 25 February 2010 and 28 September 2012. The opinion of the Forensic Facial Examiner was that the images represent the same person.[8]

   [7]    Notice on Intention to Consider Cancellation (NOICC) dated 20 January 2021 @ p.4.

   [8]    ibid

9. The NOICC details the visa history of [Mr B] and notes that he first travelled to Australia as the holder of a Student (Vocational Education Sector) (Subclass 572) Visa [in] January 2008[9] and departed Australia [in] January 2015. At the time of his departure he was the holder of a Bridging Visa which was in place due to a pending judicial review with the Federal Court related to the refusal of his application for a Temporary Work (Skilled)(Subclass 457) visa.[10]  The Bridging Visa A ceased [in] January 2015 when [Mr B] departed Australia.

   [9]    ibid

   [10] ibid

10. [in] January 2019, the applicant’s application for review was dismissed by Federal Circuit Court. As a result, an order was made that [Mr B] pay the Department’s costs of $1,367.[11]  The NOICC notes that there is no information on Departmental records to indicate the visa holder paid the costs or has entered any arrangement for payment.[12]

    [11]  ibid

    [12] ibid

11. The delegate also noted other similarities between the two identities including:

    (a)The same emergency contact person and address was listed on the incoming passenger card for both.[13]

    (b)The same employer was declared.[14]

    (c)The same father and grandfather names were listed in application forms and/or identifying documents provided to the Department.[15]

    [13]  ibid @ p.5

    [14] ibid

    [15] ibid

12. From the information before the delegate, he considered that the following answers[16] were incorrect at the time the applicant lodged the following applications:

    [16]  Notice on Intention to Consider Cancellation (NOICC) dated 20 January 2021 @ p.5-8

    Temporary Work (Skilled) (Subclass 457) visa on 26 May 2015:

    Before this application, have you ever applied for an Australian visa?

    The applicant answered “no” whereas the delegate considered this answer to be incorrect as Departmental records indicate that five Australian visa applications were submitted under the identity of [Mr B] (born [Date 1])

    Have you ever had an Australian visa refused or cancelled?

    The applicant answered “no” whereas the delegate considered this answer to be incorrect as Departmental records indicate that there were two Australian visas refused under the identity of [Mr B] (born [Date 1]).

    Details of your employment over the past three years

    The applicant provided details of various positions at [Employer 1] / [Employer 1 name variant] continuously between June 2008 – May 2015.  However, the delegate considered this answer to be incorrect as Departmental records indicate that the visa holder was residing in Australia under the identity of [Mr B] (born [Date 1]) during January 2008-December 2009, February 2010-September 2013, and October 2013-January 2015.

    Employer Nomination Scheme (Subclass 186) visa on 23 March 2018:

    Primary applicant - is this applicant currently, or have they ever been known by any other names?

    The applicant answered “no” whereas the delegate considered this answer to be incorrect as Departmental records and investigations indicate that he has been known by the name of [Mr B] (born [Date 1]), and had previously applied for and ben granted several Australian visas under that name.

    Have any of the applicants lived in a country other than the primary applicant's usual country of residence?

    The applicant answered “yes” that Australia was his usual country of residence and that he had resided in Nepal between June 2008 to September 2015.  However, the delegate considered this answer to be incorrect as Departmental records indicate that he was residing in Australia under the identity of [Mr B] (born [Date 1]) during various periods between January 2008 – January 2015.

    Has the applicant been employed in the last 10 years?

    The applicant answered “yes” and claimed that he had worked as a [occupation] for [Employer 1 name variant] in Nepal between June 2008 to September 2015.  However, the delegate considered this answer to be incorrect as Departmental records indicate he was residing in Australia under the identity of [Mr B] (born [Date 1]) between January 2008 – January 2015.

13. The applicant was advised that he must respond to the NOICC within 14 calendar days after the date upon which he was taken to have received the document.  The applicant did not respond to the NOICC to indicate whether he agrees that there was non-compliance.

14. On 12 February 2021, the delegate cancelled the applicant’s visa on the basis of the Departmental investigations and enquiries detailed in the NOICC that indicate that the applicant had provided incorrect information in his visa application and that the applicant had a previous immigration history under a different identity.

15. The applicant is currently onshore with a Bridging Visa E with attached visa conditions 8101 (no work), 8506 (notify new address) and 8207 (no study).

16. 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?

1. 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 applicant’s non-compliance identified and particularised in the s.107 notice was a breach of section.101(b) of the Act in that he failed to declare his previous identity, previous Australian immigration history and previous employment history on his 457 visa and 186 visa applications. By his submissions dated 30 April 2021[17] and oral evidence to the Tribunal, the applicant admitted that there had been non-compliance as described in the NOICC by reason that he:

   (a)was previously known as [Mr B] (born [Date 1]).

   (b)had previously applied for the Australian visas as detailed in the NOICC.

   (c)had been refused a visa as recorded in the NOICC.

   (d)did not reside in Nepal between June 2008 and September 2015 as detailed in the NOICC; and

   (e)did not work for ‘[Employer 1 name variant]’ continuously from 5 June 2008 to 26 May 2015 as detailed in the NOICC.

   [17] Applicants submission dated 30 April 2021; AAT File 2101783 Doc ID 8438012

2. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

1. 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).

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.[18] The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

   [18] s.109(1)(b) and (c) of the Act

(a)    the correct information

(b)    the content of the genuine document (if any)

(c)    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

(d)    the circumstances in which the non-compliance occurred

(e)    the present circumstances of the visa holder

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

(g)    any other instances of non-compliance by the visa holder known to the Minister

(h)    the time that has elapsed since the non-compliance

(i)     any breaches of the law since the non-compliance and the seriousness of those breaches

(j)     any contribution made by the holder to the community

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case.[19] 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.

Correct Information

[19] MIAC v Khadgi (2010) 190 FCR 248

1. Based on the information provided by the Department, and detailed in the NOICC, together with the applicant’s admission made to the Tribunal by his submission dated 30 April 2021 and oral evidence, the Tribunal finds that the correct information at the time of lodging his application for a temporary Work (Skilled) (subclass 457) visa on 26 May 2015 and his form for an Employer Nomination Scheme (subclass186) visa on 23 March 2018 he:

   (a)was previously known by the name [Mr B] (born [Date 1]).

   (b)had previously applied for the following Australian visa’s:

   (i)       applied for Student – Vocational Education Sector (subclass 572) visa on 11 October 2007 and was granted on 4 December 2007.

   (ii)      applied for a further Student – Vocational Education Sector (subclass 572) visa on 11 March 2010 and was granted on 8 April 2010.

   (iii)    applied for a further Student – Vocational Education Sector (subclass 572) visa on 19 October 2011 and was granted on 30 November 2011.

   (iv)    applied for a Temporary Work (Skilled) (subclass) 457) visa on 22 September 2012 and was refused on 3 January 2013. 

   (c)has been refused the following visas:

   (i)       a Temporary Work (Skilled) (subclass) 457) visa - applied for on 22 September 2012 and refused on 3 January 2013.

   (ii)      a further Temporary Work (Skilled) (subclass) 457) visa- applied for on 9 January 2013 and refused on 27 June 2013.

   (d)did not reside in Nepal between June 2008 and September 2015, but rather he resided in Australia as follows:

   ·[January] 2008 – [December] 2009

   ·[February] 2010 to [September] 2013

   ·[October] 2013 to [January] 2015.

   (e)Did not work for the ‘[Employer 1]’ or ‘[Employer 1 name variant]’ in the Nepal from 5 June 2008 to 26 May 2015 as claimed.

2. The Tribunal finds that consistent with the information detailed in the NOICC, the correct information is significantly different to what the applicant had provided in his visa applications. The Tribunal notes that it is very important to the integrity of the Australian Migration system that applicants for visas provide correct information in their applications for a visa. In fact, upon submitting a visa application to the Department, an applicant makes a promise to the Department that the information provided in the application is true and correct.  In this case, the applicant has deliberately and systematically undertaken a course of conduct designed to provide incorrect information to the Department and to knowingly supply the Department with false documentation as part of his visa application. The Tribunal places significant weight on this consideration in favour of cancelling the visa.

The content of the genuine document (if any)

1. In this case, the cancellation of the applicant’s visa was not based on the provision of fraudulent documents in breach of section 103 of the Act. However, the applicant supplied a letter from ’[Employer 1 name variant]’ dated 17 February 2015 that stated he had worked for that business from 2008 to May 2015. However, the applicant confirmed to the Tribunal that he had not worked the business as claimed and that the contents of the letter were false. Nevertheless, the Tribunal gives this consideration no weight.

Whether the decision to grant a visa or immigration clear the via holder was based, wholly or partly on incorrect information or a bogus document

1. The Tribunal is of the view that if delegates had been aware, at the time of their assessment, that the applicant had provided incorrect information in respect of his application for a Temporary Work (Skilled) (subclass) 457) visa on 15 September 2015 and his application for an Employer Nomination Scheme (subclass 186) visa on 12 January 2019, they would not be satisfied that the applicant met the Public Interest Criteria under Regulations 457.224 and 186.213 of the Migration Regulations.

2. Pursuant to Regulations 457.224 and 186.213 of the Migration Regulations:

   (a)Public Interest Criterion 4004[20] requires that the ‘applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that the appropriate arrangements have been made for payment.’

   (b)Public Interest Criterion 4020(1)[21] states:

   4020     (1)  There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)  the application for the visa; or

   (b)  a visa that the applicant held in the period of 12 months before the application was made.

   [20] MIGRATION REGULATIONS 1994 - SCHEDULE 4, Part 1 -- Public interest criteria, 4004

   [21] ibid

3. [In] January 2019 the Federal Circuit Court dismissed the applicant’s application for review of the Tribunal’s decision (differently constituted) to affirm the Department’s decision not to grant the Temporary Work (Skilled) (Subclass 457) visa. As a result, the court ordered the applicant to pay the Minister’s costs fixed at $1,367. The applicant has not paid the Minister’s costs.

4. By providing the incorrect answers in his application the applicant denied the delegate the opportunity of assessing whether he met PIC 4004 and 4020 ( hence Regulations 457.224 and 186.213) resulting in grant of the 457 visa and the 186 visa, to which he may not have been entitled. As such, by providing the incorrect answers, the delegate was denied the opportunity of making a proper assessment of the visa applications and if he had complied with PIC 4004 and 4020. 

5. Notwithstanding that the applicant has submitted[22] to the Tribunal that he undertakes to pay the costs, no arrangement for payment has been made with the Department. In circumstances where the applicant has deliberately and systematically undertaken a course of conduct to supply incorrect information and documentation to the Department as part of his visa application, the Tribunal places no weight in the applicant’s undertaking to pay the costs as claimed.

   [22] Applicants submissions dated 20 April 2021 @ p.2.

6. The Tribunal places significant weight on this consideration in favour of cancelling the applicant’s visa.

The circumstances in which the non-compliance occurred

1. The circumstances in which the non-compliance occurred is because of the applicant providing the incorrect answers in his application for a 457 visa on 26 May 2015, and his application for a 186 visa on 23 March 2018 as detailed above.

2. The applicant admitted the non-compliance to the Tribunal but stated there were circumstances beyond his control being his claim for protection. The applicant relied on a statutory declaration dated 13 May 2021 in which he claims that a civil war occurred in Nepal between the Maoists and the ruling government from 1996 until 2006 during which the life of normal people became very hard.  The applicant claims that his family lived in a rural part of Nepal where Maoist group would come to stay at his parents’ home for food and accommodation. He claims that his parents could not afford to give the food and accommodation to the Maoist soldiers and that he had been affected mentally because of having seen wounded Maoist soldiers and ‘war tools.’ He claims that the soldiers tortured and harmed his family.  He claims that his family complained to the police about the Maoist soldiers and they were arrested and sent to jail. His evidence was that the situation in Nepal started to get better, so he came to Australia in 2008. He claims that the Maoist soldier who were arrested are now being released from jail and have started to threaten his family. He claims that when he returned to Nepal it became worse. As a result, he changed his identity and returned to Australia.

3. It’s not the task of the Tribunal in this application to determine the merits of any claims for protection to be made by the applicant. However, the Tribunal notes that the Department of Foreign Affairs and Trade (‘DFAT’) in its Report dated 1 March 2019 (‘the DFAT Report”)[23] stated that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.  In circumstances where there the applicant did not provide the Tribunal with any evidence of him or his family having been violent toward the Maoists, it appears, on his own evidence, there is no real chance that he will be seriously harmed if he is returned to Nepal. 

   [23] Department of Foreign Affairs and Trade County Report Nepal dated 1 March 2019 @ p.22

4. In addition, despite the applicant’s claim that he and his family were persecuted by Maoist soldiers prior to his arrival in Australia in November 2015, he has not made any application for protection since his arrival, a period of approximately five and half years. On its face the applicants delay in making any claim for protection appears to be excessive. Finally, the applicant is not prevented for making a protection application even if his visa is cancelled.  

5. The applicant’s evidence was that he deliberately changed his identity in Nepal to prevent him being persecuted by the Maoists. However, the applicant deliberately failed to notify the Department of his changed identity. In addition, he failed to inform the Department that he had been to Australia previously and that he had a previously visa application refused. As a result, the non-compliance did not occur in circumstances beyond his control but deliberately.

6. The Tribunal gives this consideration significant weight in favour of cancelling the applicant’s visa.

The present circumstances of the visa holder

1. The visa holder did not respond to the NOICC to provide any information regarding his present circumstances. The applicant entered Australia as [applicant name] on [date] November 2015 and has not departed. Prior to that, he had lived in Australia under his previous identity, [Mr B], between [January] 2008 and [January] 2015. Overall, the applicant has spent approximately 12 years in Australia. The Tribunal acknowledges that during this period of time he would have established some ties in Australia.

2. However, the Marriage Registration Certificate from the Office of the Registrar, [Village 1] Development Committee[24] included in the BRS Assessment Report[25] indicates that the applicant, as [Mr B], married a Ms [E] on 26 March 2010.  On 22 September 2012 the applicant lodged a temporary work skilled visa UC-457 onshore and listed Ms [E] as a dependant applicant /spouse.[26] The application for the temporary work skilled visa was refused on 3 January 2013.   

   [24] Government of Nepal, Ministry of Local Government, Registrar, [Village 1] Development Committee marriage registration Certificate dated 26 March 2010; Translated copied dated 3 June 2010 AAT File No 2101783, Doc ID: 8428012

   [25] Department of Home Affairs BRS Assessment Report

   [26] Australian Government Department of Home Affairs, BRS Assessment Report

3. On 23 March 2018 the applicant, as [applicant name], lodged a Temporary residence Transition visa EN-186. The applicant listed [the second applicant] as dependant applicant /spouse and their visas were granted on 12 January 2019.  The applicant provided the Department with a [Municipality 1] Marriage Registration Certificate dated 12 October 2015 as evidence of his marriage to [the second applicant].

4. The applicant’s evidence was, and the Tribunal accepts, that he is now separated from [the second applicant] and that he is now in a relationship with Ms [A] with whom he has a child known as [Master D], born [date].

5. The applicant and [the second applicant] both gave evidence to the Tribunal. It was their evidence that they are no longer in a relationship. They claimed that it ended in or about February 2020. [The second applicant]’s evidence was that she married the applicant in Nepal on 9 May 2015[27] and travelled to Australia in or about December 2015, approximately one month after the applicant had arrived in Australia. Her evidence was their marriage had been arranged by her family and the reason that she travelled to Australia was to be with her husband. On [date] she lost her child having been born stillborn.[28]  This was no doubt a sad and distressing time for her and the applicant.  In any event she confirmed, that in or about February 2020 her relationship with the applicant ended. She confirmed that she is no longer living under the same roof as the applicant and that she was is in another relationship.

   [27] Victorian Birth Certificate of [Master C] dated [date]

   [28] ibid

6. [The second applicant] was not aware if the Department had been informed of the fact that her relationship with the applicant had ended. In any event she claimed that she could not go back to Nepal as she would be in disgraced having split with her husband and being in a new relationship. She claimed that it would be very difficult for her as a separated woman in Nepal.  Country information[29] reports that it is a costly and difficult process for a woman to divorce their husband in Nepal. Furthermore, it reports that even worse than the time and money of divorce is the social stigma put on divorced women. Many are ostracized from their communities and endure years of abuse. Therefore, based on the country information and [the second applicant’s], evidence the Tribunal places some weight on this fact in favour of not cancelling the visa.

   [29] The Women’s Foundation Nepal 2021, Divorce; >

   Finally, [the second applicant] claimed that if she was forced to return to Nepal, she would be separated from her child’s grave at [a named] cemetery. The Tribunal accepts this and places some weight on this factor in not cancelling the applicant’s visa.

7. However, the Tribunal notes that the applicant and [the second applicant] are no longer in a relationship. She claimed that she wanted to stay in Australia to be with her new partner. [The second applicant] was granted her visa on the basis that she was the applicant’s spouse. Therefore, in circumstances where the applicant and [the second applicant] are no longer in a relationship, her visa is likely to be cancelled in any event. Nevertheless, the Tribunal notes that it is still possible for her to apply for a partner visa.  The Tribunal places some weight on this consideration in favour of cancelling the applicant’s visa.

8. The applicant’s evidence was that he is now in a relationship with Ms [A]. The applicant and Ms [A] have a son, [Master D], born on [date][30] (‘the applicant’s son’). The applicant provided photos of himself and Ms [A] with the applicant’s son together with a letter dated 5 May 2021 from [a DNA clinic][31] in support of his evidence that he was in a relationship with Ms [A] and that he was the father of the child. Ms [A]’s evidence to the Tribunal was that she is a permanent resident of Australia. She stated that she and the applicant are currently in a relationship and that they have a son [Master D] who was born in [year]. She accepted that she would be able to return to Nepal with the applicant if his visa was cancelled but stated that she did not want to live in Nepal and wanted to raise her child in Australia. Nevertheless, she claimed that if the applicant returned to Nepal, she would suffer harm as she relied on his income and she could not care for the child alone. However, her evidence was that she had been working in [a specified industry] and was currently on maternity leave. As such, Ms [A] has skills in [that] industry and would be would be able to obtain employment for the purposes of supporting herself if the applicant’s visa is cancelled and she decides not to return to Nepal with the applicant. Nevertheless, Tribunal accepts that the applicant would suffer hardship if Ms [A] and the child remained in Australia rather than returning to Nepal with him. However, in the circumstances where they would be able to return, the Tribunal places little weight on this consideration in favour of not cancelling the applicant’s visa.   

   [30] Victorian Birth Certificate of [Master D] dated [date].

   [31] DNA [clinic] dated 5 May [20921]

9. Other than his relationship with Ms [A] and his child, the applicant did not provide any evidence of his broader involvement in the community. However, the applicant confirmed to the Tribunal that as [Mr B] he had worked for [Employer 2] in [location], Victoria and that he recommenced work for [Employer 2 under his current name] upon his return to Australia in November 2015. In such circumstances the Tribunal accepts that he has developed some contact with the community while he has been in Australia. Nevertheless, the Tribunal gives this consideration little weight in the applicant’s favour. 

The applicant’s subsequent behaviour concerning his obligations under subdivision C of Division 3 of Part 2 of the Act

1. There is no information before the Tribunal concerning instances of non-compliance by the applicant. As such the Tribunal gives this consideration little weight in the applicant’s favour.

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

1. There is no information before the Tribunal concerning instances of non-compliance by the applicant. As such the Tribunal gives this consideration little weight in the applicant’s favour.

The time that has elapsed since the non-compliance

1. The non-compliance occurred when the applicant lodged his application for a 457 visa on 26 May 2015 (approximately six (6) years ago) and his application for a 186 visa on 23 March 2018 (approximately three (3) years ago).  In circumstances where the applicant first arrived in Australia [in] January 2008 under another identity, the Tribunal does not consider a period of six and three years, from the date of this decision, a significant amount of time. The Tribunal therefore gives this consideration no weight in the applicant’s favour.  

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

1. There is no information before the Tribunal to indicate that the applicant has breached any Australian laws. As such the Tribunal gives this consideration little weight in the applicant’s favour.

Any contribution made by the community holder to the community

1. There is no information before the Tribunal that indicates that the applicant has made a significant contribution to the Australian community. As such the Tribunal gives this consideration little weight in the applicant’s favour.

Consequential cancellations under s.140

1. [The second applicant] was granted her secondary visa on the basis of her being a part of the same family unit as the applicant. If the applicants visa is cancelled this will result in the consequential cancellation by operation of law under section 140(1) of the Act of her secondary ENS visa.

2. However, the applicant’s and [the second applicant]’s evidence is that they are no longer in a relationship. As such, her visa is likely to be cancelled by reason of the fact that she is no longer a part of the same family unit as the applicant.

3. The Tribunal accepts that the cancellation of the visas would mean that [the second applicant] would suffer some hardship. However, as they are no longer in a relationship [the second applicant]’s visa is likely to be cancelled in any event. Accordingly, the Tribunal places little weight on the consideration in the applicant’s favour.

Any breach of international obligations Australia may have because of the applicant’s visa being cancelled

1. The Tribunal has considered if the cancellation of the applicant’s visa would breach the Convention of Rights of the Child (CRC) which states that the best interest of the child must be the primary consideration in making decisions that affect them and that a decision maker considering cancelling a visa must turn their mind to the consequences of cancellation of the visa, especially if the child will be separated for the family unit.  

2. The Tribunal accepts that upon cancellation of the applicant’s visa and his return to Nepal, Ms [A] and his child are unlikely to return to Nepal with him. However, this is a matter of choice between the applicant and Ms [A]. There is nothing preventing Ms [A] and the applicant’s child from returning to Nepal. The Tribunal places little weight on this consideration in the applicant’s favour.   

Mandatory legal consequences.

1. If the visa is cancelled, the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia.

2. In addition, the applicant will be subject to s.48 of the Act which means that he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 because of cancellation. However, the applicant will be entitled to apply for Bridging E Visa to remain lawfully in Australia while finalising departure arrangements.

3. The Tribunal gives little weight to this consideration in the applicant’s favour.

Other relevant considerations

1. The Tribunal is not aware of any other relevant matters that require consideration.

2. 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.

3. The applicant should know that the Tribunal takes the breach of section 101 of the Act very seriously. The extent of to which the applicant has deliberately engaged in a course of conduct to mislead and deceive the Department as to his former identity and his migration history in Australia is so extensive and premeditated that it outweighs all; other considerations in the applicant’s favour. As such, it is the Tribunal’s view that the applicant’s visa must be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.

2. The Tribunal has no jurisdiction with respect to the other applicant.

Jason Pennell
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

1. Interpretation

   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).

2. Completion 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.

3. Information 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.

4. Incorrect 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.

5. Visa 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.

6. Passenger cards to be correct

   A non‑citizen must fill in his or her passenger card in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given.

7. Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

8. Changes in circumstances to be notified

   (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

   (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

   (4)Subsection (1) applies despite the grant of any visa.

9. Particulars of incorrect answers to be given

   (1)If a non‑citizen becomes aware that:

   (a)     an answer given or provided in his or her application form; or

   (b)     an answer given in his or her passenger card; or

   (c)      information given by him or her under section 104 about the form or card; or

   (d)     a response given by him or her under section 107;

   was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

   (2)Subsection (1) applies despite the grant of any visa.

10. Notice 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.

11. Decision 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.

12. Cancellation 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.