2118504 (Migration)

[2022] AATA 5259

2118504 (Migration) [2022] AATA 5259 (21 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Atul Bhardwaj

CASE NUMBER:  2118504

MEMBER:K. Chapman

DATE:21 July 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 485 (Temporary Graduate) visa.

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

Statement made on 21 July 2022 at 6:49pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – applicant incorrectly answered questions in visa application – applicant failed to declare pending criminal charges – provision of a bogus document or information that is false or misleading – applicant engaged in a deliberate course of conduct to deny knowledge of the pending criminal charges – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 100, 101, 107, 109, 111, 140, 189, 198, 359AA, 362A
Migration Regulations 1994, r 2.41; Schedule 4, Public Interest Criterion 4020

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
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 485 (Temporary Graduate) visa under s.109(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The delegate cancelled the visa on the basis the first named applicant had not complied with sub-section 101(b) of the Act, in that he incorrectly answered questions in his Subclass 485 visa application, and a prior Subclass 574 visa application, regarding whether he has ‘ever been charged with any offence that is currently awaiting legal action’. In those visa applications, the first named applicant indicated he was not the subject of any pending criminal charges. The issue in the present review is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The delegate referred to the first named applicant having the following pending criminal charges in [Country 1], arising from his prior employment as a [Occupation 1] in [Jurisdiction 1, Country 1]:

   a.[Offence 1];

   b.[Offence 2]; and

   c.[Offence 3].

4. It is common ground that these charges remain active and they were not declared in the relevant Subclass 485 or 574 visa applications. The applicant contends he was unaware of these charges until 2021, when he was notified by the Department of Home Affairs during the visa cancellation process.

5. For the purposes of the Tribunal’s jurisdiction, the only decision that is before it is that with respect to the first named applicant (hereafter ‘the applicant’). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

6. On 7 December 2021, the applicant applied to the Tribunal for review of the visa cancellation decision. A copy of the delegate’s decision was provided with his application for review. The Tribunal initially scheduled a review hearing for 17 May 2022. It was postponed at the request of the applicant and rescheduled for 6 June 2022. Prior to the review hearing, the applicant submitted material including, inter alia, written submissions, Affidavits, references, academic information, email correspondence, visa information, police clearances and medical information. All submitted material has been duly considered by the Tribunal.

7. The applicant appeared in person before the Tribunal on 6 June 2022 to give evidence and present arguments. The Tribunal also took evidence from the second named applicant in person. The applicant was represented in relation to the review by his solicitor (‘the representative’). The Tribunal granted until 27 June 2022 for post-hearing material to be submitted. Such material was received and included Affidavits from the applicant, his wife and his brother in India. They have been duly considered by the Tribunal.

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

   ISSUES AND LAW

9. The issues in the present case are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

10. Sub-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, 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.

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence at the review hearing

12. The applicant’s evidence to the Tribunal at hearing may be summarised as follows. The Tribunal informed the applicant of his right to exercise the privilege against self-incrimination in respect of any pending criminal matters. The applicant advised he understood this right. He informed the Tribunal he had several pending criminal matters in [Country 1], as described in the delegate’s visa cancellation decision. The applicant indicated he had contacted the authorities in [Jurisdiction 1] regarding an update on these matters. The Tribunal did not canvass the particulars of these pending criminal matters given their status.

13. The applicant confirmed all documents he submitted to the Tribunal contain true and correct information. He outlined that he holds a [degree] and is [employed] at [Workplace 1]. He has [been] at that [workplace] since October [2018]. The applicant completed undergraduate studies in [Occupation 1] in India, a [further qualification] in [Country 1] and [another qualification in Australia]. The applicant advised he previously worked [in Country 2], then came to Australia to pursue [further studies].

14. The applicant agreed that he received the Notice of Intention to Consider Cancellation (NOICC) of his Subclass 485 visa and responded to it through the representative. The applicant indicated he had read and understood the delegate’s visa cancellation decision. He advised the Tribunal he was unaware of any pending criminal charges until he received the NOICC on or around 27 September 2021. The applicant confirmed to the Tribunal his lack of knowledge of the pending charges until receipt of the NOICC.

15. The applicant agreed with the information contained in the delegate’s visa cancellation decision indicating he answered in the negative to the relevant questions in the Subclass 485 and 574 visa applications pertaining to charges currently awaiting legal action. He agreed he made the Subclass 485 visa application on 2 October 2018 and the Subclass 574 visa application on 10 February 2014. 

16. The Tribunal canvassed with the applicant the following passage from the delegate’s visa cancellation decision:

    “Publicly available records in [Country 1] in [Jurisdiction 1] show that the [Occupation 1 licence], issued to the visa holder, was suspended on 16 May 2006 by the [Occupation 1 registration board] (the Board). The ‘Finding of Fact’, written by the Board, states that the visa holder, by allegedly engaging in [deleted], were a threat to the public health, safety or welfare of [Jurisdiction 1]’s citizens. The ‘Finding of Fact’ also states that the Board charged the visa holder with a violation of its regulations.”

    The Tribunal asked when the applicant first became aware of this information. He advised he first became aware when he received the NOICC.

17. The Tribunal canvassed with the applicant the following passage from the delegate’s visa cancellation decision:

    “In addition publicly available records in [Country 1] in [Jurisdiction 1] asserts that on 07 June 2006 the Board, in their ‘Final Decision and Order’, issued a Summary Suspension Order against the [Occupation 1 licence] held by the visa holder, based on an arrest warrant issued against him for [specified allegations]. The Board further states that on 20 June 2006 [an authorised legal body] issued a 16 count indictment against the visa holder based on allegations of [Offences 1, 2 and 3]. The Board states that the visa holder failed to appear at the criminal proceedings and a bench warrant was issued. The Board further states that the visa holder was working in [Country 1] on a visa and flew back to India on [date] April 2006, approximately one week after the first [client] filed the criminal complaint against him. The Board found the visa holder’s conduct to be morally and professionally inexcusable and ordered that the visa holder’s licence to practice [Occupation 1] in [Jurisdiction 1] was immediately subject to ‘permanent revocation’.”

    The Tribunal asked when the applicant first became aware of this information. He advised he first became aware when he received the NOICC.

18. When asked specifically by the Tribunal when he first became aware of the Board process, the applicant confirmed it was upon receipt of the NOICC. He confirmed this answer to the Tribunal. The Tribunal also outlined to the applicant the pending criminal charges as listed by the delegate (referred to above). The Tribunal asked when the applicant first became aware of these charges. He advised he first became aware when he received the NOICC. The applicant confirmed this answer to the Tribunal.

19. The Tribunal raised with the applicant that the above information outlined from the delegate’s decision might tend to suggest that he has been charged with offences that are currently awaiting legal action in [Country 1] and that he gave incorrect answers on this topic in his Subclass 485 and 574 visa applications, in the manner outlined by the delegate. The applicant was invited to comment and replied that the Department is correct he answered these questions incorrectly but he didn’t know of the charges at that time. The applicant maintained that had he known of the charges earlier he would have disclosed them. The applicant also advised he took responsibility for the information he provided in these visa applications, noting he didn’t know of the charges when he applied for the visas. The applicant agreed he had given incorrect information in his visa applications, although he claims he did so unwittingly.

20. The Tribunal canvassed the provisions of s.100 and s.111 of the Act with the applicant. The Tribunal raised with him that the evidence might tend to suggest he provided incorrect answers in his Subclass 485 and 574 visa applications concerning pending criminal charges, even though he claimed not to be aware of them at the time of these visa applications. The applicant was invited to comment and maintained he would have answered the questions differently had he known of the pending charges at the time of application. He advised that he resided in India and [Country 2] with no pending charges there. The applicant explained that [Country 1] charges appear to have proceeded in his absence. He contends he would have returned to [Country 1] had he known about the charges. He added that he departed [Country 1] to care for his ill mother and to return to his wife whom he had married in September 2005.

21. The applicant unequivocally confirmed to the Tribunal that he never knew about the [Jurisdiction 1 Occupation 1 registration board] process, the pending criminal charges or the potential arrest warrant until he received the NOICC from the Department in 2021. The applicant informed the Tribunal he would have returned to [Country 1] to deal with these matters had he known of them earlier. He added that his [Country 1] visa had naturally expired.

22. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised with the applicant that the Departmental file [contains] the following information (a full copy of each document was provided to the applicant at the hearing):

    ·[Country 1] records indicating he has been charged with offences that are currently awaiting legal action in [Country 1], as outlined in the delegate’s visa cancellation decision. They are [Offence 1], [Offence 2] and [Offence 3]. These charges were filed in [Country 1] on 20 June 2006. Further records from [Country 1] indicate his [Country 1 ID number] is likely associated with these charges;

    ·a copy of the Order for Summary suspension from the [Occupation 1 registration board] in [Jurisdiction 1] dated 16 May 2006, which outlines the history of the allegations against the applicant, notes that the complainants had filed reports with the Police, notes that an arrest warrant had been issued in respect of him and notes that upon his written request a Show Cause hearing will be scheduled within thirty days for him to contest the suspension;

    ·a copy of the Final Decision and Order from the [Occupation 1 registration board] in [Jurisdiction 1] dated 28 June 2007, which outlines the procedural history of the allegations against him, including the following references:

    o[at page 1] “…an arrest warrant issued against the Respondent for allegations of [Offence 1] and  [Offence 2]. On June 20, 2006, [an authorised legal body] issued a 16-count indictment against the Respondent based on allegations of [Offences 1, 2 and 3]. The Respondent failed to appear at the criminal proceedings and therefore a bench warrant was also issued. The Respondent, who was working in [Country 1] on a visa, flew back to India on April [date], 2006, approximately one week after the first [client] filed the criminal complaint against the Respondent.”;

    o[at pages 1-2] “…the Board sent an initial Notice of Intent to Revoke [the Occupation 1] License of [the "Respondent"], License No. [deleted], on March 20, 2007. The Notice instructed the Respondent to request a hearing in writing within thirty (30) days of the Notice. On March 27, 2007, the Respondent submitted a written request for an evidentiary hearing. Pursuant to the Respondent's request, the Board scheduled an evidentiary hearing on May 15, 2007, at 9:00 a.m. The Board sent the Respondent notice of the hearing at his most recent address of record with the Board. The Respondent's counsel was also sent a copy of the notice of the hearing. On May 15, 2007, the day of the hearing, the Board waited until 9:37 a.m. for the Respondent, or his counsel, to appear. The Respondent failed to appear. The Board then proceeded to hear and determine this matter in Respondent's absence…”; and

    o[page 9, at paragraph 9] “As a result of information on [clients] A, B and C, the Board issued a Summary Suspension of the Respondent's license on June 7, 2006. A Show Cause hearing was requested by the Respondent. On July 18, 2006, a Show Cause hearing was held before a quorum of the Board. The Respondent failed to appear, but his attorney was present and indicated that the Respondent would not contest the summary suspension of his license until after the upcoming criminal trial, depending upon the outcome of same. On September 12, 2006, the Respondent failed to appear for his criminal trial. Consequently, there is an outstanding bench warrant for the Respondent's arrest.”

23. The Tribunal indicated the above information is relevant to the review as it tends to suggest that the applicant was aware he had been charged with offences currently awaiting legal action in [Country 1], prior to applying for the Subclass 574 visa on 25 February 2014 and the Subclass 485 visa on 2 October 2018, and that he provided incorrect answers in those visa applications. This information also might tend to suggest that the applicant was aware of the Board’s process well before he was issued the NOICC by the Department. This information also tends to suggest the applicant provided false information to the Tribunal and it casts doubt upon his credibility.

24. The Tribunal informed the applicant that if it was to rely upon this information it would be the reason, or a part of the reason, to affirm the decision to cancel his Subclass 485 visa under s.109 of the Act. The applicant confirmed to the Tribunal he understood why the information is relevant to the review. When asked by the Tribunal if he would like to comment on or respond to the information now or if he would like additional time to do so, the applicant advised he would like more time. The Tribunal granted an adjournment so the applicant could confer with the representative.

25. Following the adjournment, the representative raised with the Tribunal potential time lines for response to the information. The Tribunal granted another adjournment for the applicant to confer with the representative, following which it was agreed the applicant would make a written response to the s.359AA information not later than 27 June 2022 (a period of 3 weeks following the review hearing). For completeness, the Tribunal also provided a copy of the Form to seek information pursuant to s.362A of the Act (such Form being lodged after the hearing and documents furnished to the representative by the Tribunal Registry staff). The Tribunal notes that following it raising the s.359AA information, the applicant presented as extremely nervous and his speech became very rapid.

26. The Tribunal also canvassed with the applicant that he submitted an Affidavit dated 27 May 2022, where at paragraph 12 he indicates, “I had no knowledge about the alleged [client] complaint or the pending court case until the Australian Visa Cancellation Department notified us in Oct 2021.” The Tribunal asked the applicant if this is true and correct information. He maintained that it was.

27. The Tribunal raised with the applicant that it might have difficulty accepting paragraph 12 of his Affidavit contains true and correct information given the information discussed today from the ‘Final Decision and Order from the [Occupation 1 registration board] in [Jurisdiction 1]’, dated 28 June 2007, which indicates it is likely he had some engagement in their process even though he did not personally attend a hearing. For example, it indicates that it is likely the applicant and his attorney engaged with the complaints process by requesting a Show Cause Hearing in 2006, where the Attorney was present and indicated that the applicant would not contest the summary suspension of his license until after the upcoming criminal trial, depending upon its outcome. It also likely indicates the applicant requested an Evidentiary Hearing on 27 March 2007. The applicant advised the Tribunal he would prefer to respond in writing. The Tribunal permitted him to do so.

28. The Tribunal asked the applicant if he provided incorrect information to the Department in relation to his Subclass 485 and 574 visa applications. The applicant confirmed that he did but maintained he didn’t know of the incorrectness of the information prior to receiving the NOICC. The Tribunal raised with the applicant that it might have difficulty accepting his evidence on this topic given the information discussed pertaining to [Country 1] records provided to him. The applicant advised the Tribunal he would prefer to respond in writing. The Tribunal permitted him to do so.

1. The Tribunal raised with the applicant that if he failed to provide correct information in relation to his Subclass 485 and 574 visa applications regarding any charges awaiting legal action, this might tend to weigh in favour of cancelling his Subclass 485 visa. The applicant was invited to comment. He advised the Tribunal he would prefer to respond in writing. The Tribunal permitted him to do so.

2. The Tribunal raised with the applicant that if he failed to provide correct information in relation to his Subclass 485 and 574 visa applications regarding any charges awaiting legal action, this might tend to suggest that the decision to grant him the Subclass 485 visa was based wholly or partly on incorrect information and this might tend to weigh in favour of cancelling his visa. The applicant was invited to comment. He advised the Tribunal he would prefer to respond in writing. The Tribunal permitted him to do so.

3. The Tribunal raised with the applicant that the delegate referred to the topic of Public Interest Criteria 4020, which concerns the provision of a bogus document or information that is false or misleading in a material particular in relation to his visa applications. The Tribunal asked the applicant if he wished to say anything about this topic. He advised the Tribunal he would prefer to respond in writing. The Tribunal permitted him to do so.

4. The Tribunal canvassed the applicant’s daily routine with him. The applicant [is employed at Workplace 1] three days per week. He also conducts [various other work]. He wants to live and work in Australia and have his children grow up in this country. He wants to contribute to the Australian community.

5. The Tribunal canvassed with the applicant his present circumstances. Over the last year he has had many sleepless nights, nightmares and has been under a lot of stress (as has his family) due to the visa cancellation. He added that his family has been affected, however his children are doing well at school. The applicant’s wife (the second named applicant) has been working as an [occupation]. They want to remain in Australia.

6. The Tribunal canvassed the applicant’s family composition and circumstances both in Australia and India. The applicant is married with two children. His daughter is in [a grade] and his son is in [a grade] at school. They are doing well at school, like the Australian way of life and will be affected if they have to return to Indian culture. The applicant advised the children don’t know the local Indian language and if the visa is cancelled their education and lives will be affected. The applicant explained that he has lost professional connections in India and his connections are in Australia. He explained that the family lived on limited means during his [study]. He advised their financial situation is not great but his wife is working full time so their finances are slowly improving.

7. The Tribunal raised with the applicant that it is carefully considering Australia’s international obligations flowing from the Convention on the Rights of the Child and asked him for further information about his children. The applicant advised the children are going well at school, his daughter has high excellence and wishes to pursue University in the future and there are better educational opportunities in Australia.

8. The applicant indicated he had not breached any Australian laws or other visa requirements. He advised the Tribunal that he has made a contribution to the Australian community through volunteering for the Tamil community in Australia. He has also financially contributed to the construction of [a Tamil facility in Australia]. Further, the applicant has assisted small groups to apply for grants. The applicant also submitted material attesting to his academic work that assists the Australian community.

9. The Tribunal canvassed the mandatory legal consequences of visa cancellation with the applicant. In response, he advised that he holds a Bridging Visa E and has no further response. The Tribunal canvassed the consequential cancellation of the visas of the secondary applicants, by operation of s.140 of the Act, if his visa is cancelled. The applicant does not want the visas of his family members cancelled in the circumstances. The applicant confirmed to the Tribunal that if his visa is cancelled his wife and children will depart Australia together with him. The applicant confirmed there were no other international obligations of Australia relevant to his matter.

10. The Tribunal canvassed issues of hardship with the applicant. He submitted that the family have been experiencing financial hardship since they arrived in Australia in 2014. The applicant only had a monthly salary of $2,000 whilst he was studying. From 2018 he has undertaken casual [employment]. His wife (the second named applicant) is working full time [and] she wants to seek permanent visa opportunities. She has [a specified professional] background and if the visas are cancelled it will impact her aspiration for permanent residence. The applicant advised he is too old to seek permanent residence himself. He wants to stay in Australia for the sake of the children’s education. The applicant explained his wife earns around $54,000 per annum and he makes between $20,000 and $40,000 per annum depending upon his ability to source casual employment.

11. When asked by the Tribunal if there was any reason why he or his family could not return to India, the applicant advised that his children’s education is in Australia. They are doing well here and have been in the country since they were young. He explained the children would have language and cultural issues if they returned to India. The applicant noted he has not been to India since 2014. The applicant has his mother and brothers residing in Chennai, India. He had no further information to provide concerning them. The applicant confirmed he and his wife are vaccinated against COVID-19, their daughter is partially vaccinated and their son is not given his age.

12. The applicant concluded his evidence by contending he maintained his integrity in Australia. He maintained he didn’t know about [Country 1] pending criminal charges until he received the NOICC. He asked for his family circumstances to be considered and also too his contribution to the Australian community. The applicant indicated it is not a good option to return to India, he has not been there in a long time and he wants permanent residence in Australia. The applicant reiterated he didn’t know of any adverse matters in [Country 1] until he received the NOICC and he would respond fully in writing to the s.359AA information.

13. The Tribunal took evidence from the second named applicant in person. It may be summarised as follows. She married the applicant in September 2005. When asked by the Tribunal if she knew why her family members visas were cancelled, she replied that there was a misunderstanding at the [workplace] in [Country 1] where her husband once worked and he has some charges pending. The second named applicant explained that once they had received the NOICC her husband indicated to her he has an issue.

14. The second named applicant graduated [in] 2004 and is now [working]. The impact of visa cancellation would be significant given her children are doing really well and they don’t want to depart Australia. The second named applicant confirmed that she and the children would depart Australia together with the applicant if his visa is cancelled. She advised that her husband is very honest and genuine. He [has] an excellent reputation. The second named applicant confirmed she had no further evidence to provide.

15. The applicant was invited to comment upon his wife’s evidence if he wished to do so. He explained that they have not returned to India since 2014. He has pursued his education in Australia and worked hard. He noted there is financial hardship in India. He also advised of his financial hardship in Australia, particular during the peak of the COVID-19 pandemic when he worked as a [occupation]. The applicant also works in hospitality to supplement his income. The applicant advised he is very stressed due to the visa cancellation. He believes he can secure employment anywhere in the world, however his children are doing well in Australia and enjoy the way of life in this country. Their educational opportunities are better in Australia.

16. The applicant advised that after eight years in Australia he doesn’t have the best job. The family has been through a lot of challenges and he wants to obtain permanent residence. He didn’t expect the visa cancellation to happen and affect everything. The applicant wants to stay in Australia and try to resolve the charges in [Country 1]. He requests consideration of his circumstances and those of his family, including the academic excellence of his children. The applicant indicated they’ve had financial hardship in Australia and miss their family at home. The applicant believes regardless of the charges he’s shown integrity in Australia. He noted that his colleagues’ careers have prospered but he is waiting for this matter to resolve. The applicant still works part time in hospitality in addition to [his main job].

17. The applicant confirmed to the Tribunal he had completed giving his evidence at the review hearing. The applicant and the representative confirmed they would reply in writing to the s.359AA information not later than 27 June 2022. Following this discussion, the review hearing concluded.

    Post-hearing material 

18. The applicant, through his representative, submitted Affidavits from himself, his wife and his brother Mr [A] (who lives in India), following the review hearing. In summary, the applicant’s brother contends that after the applicant returned to India on [date] April 2006 due to their mother’s illness, he moved away from the family home with the second named applicant. According to the applicant’s brother he later received a phone call from the room mate of the applicant in [Country 1] advising of the situation with the Board and the charges. The applicant’s brother contends he wrote to the Board requesting a hearing and then he engaged an advocate for him. Ultimately, the applicant’s brother advised he did not pursue the matters further as the advocate apparently advised his brother’s presence was required in [Country 1] to do so. The applicant’s brother further contends that he did not tell the applicant or the second named applicant of any of these matters so they could move on with their lives and as his own wife (who is related to the second named applicant) did not wish him to do so.  

19. The applicant and the second named applicant, in their respective Affidavits, maintain they did not know of the pending criminal charges until they received the NOICC. They also outline their individual and family circumstances. They both request the applicant’s Subclass 485 visa not to be cancelled. The Tribunal has carefully considered all submitted material.

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

20. Section 107 of the Act 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.

21. The Tribunal notes that the NOICC dated 27 September 2021 was properly despatched by the Department to the applicant. He responded to the NOICC, through his representative, on 22 and 25 October 2021 and also on 1 November 2021. The applicant’s response included material such as multiple references and employment information. 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 the provisions of s.107 of the Act.

22. Therefore, in the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the statutory requirements.

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

23. The Tribunal must consider 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(b) of the Act.

24. The s.107 notice particularises non-compliance with s.101(b) of the Act by the applicant in relation to his Subclass 485 and Subclass 574 visa applications. It indicates the applicant incorrectly answered questions in those visa applications in relation to whether he has ‘ever been charged with any offence that is currently awaiting legal action’. The Tribunal notes that the applicant does not dispute the following charges from [Jurisdiction 1] in [Country 1] remain awaiting legal action:

    a.[Offence 1];

    b.[Offence 2]; and

    c.[Offence 3].

25. It is common ground that these charges were not declared in the relevant Subclass 485 or 574 visa applications, noting the applicant denies knowledge of them at the time he made those applications. Having regard to the evidence before it, the Tribunal is satisfied that the applicant has provided incorrect answers in the manner particularised in the s.107 notice, given the charges pre-date the relevant visa applications. Therefore, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

26. 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).

27. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information;

    ·     the content of the genuine document (if any);

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

    ·     the circumstances in which the non-compliance occurred;

    ·     the present circumstances of the visa holder;

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

    ·     any other instances of non-compliance by the visa holder known to the Minister;

    ·     the time that has elapsed since the non-compliance;

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches; and

    ·     any contribution made by the holder to the community.

28. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

29. The Tribunal has duly considered the applicant’s response to the NOICC. This response includes supporting material such as multiple references and employment information. On balance, the Tribunal finds that the response of the applicant to the NOICC weighs moderately against cancellation of his visa, given it confirms the employment contribution made by the applicant [and] the second named applicant in [a field], the applicant’s contribution to not-for-profit activities, the achievements of his children and his lack of criminal convictions.

30. The correct information in relation to the relevant questions in the Subclass 485 and 574 visa applications, as previously outlined, is that the applicant has been charged with offences that are currently awaiting legal action in [Country 1]. The applicant contends he provided incorrect answers regarding this topic unwittingly and had no knowledge of the pending charges until he received the NOICC from the Department on or around 27 September 2021. The Tribunal does not accept this contention for the following reasons.

31. The applicant repeatedly informed the Tribunal that he had no knowledge of the pending charges or the [Occupation 1 registration board] investigation into his alleged conduct until he was presented with the NOICC. However, the information raised with the applicant pursuant to s.359AA of the Act (at paragraph 22 above) makes clear that an attorney was appointed for the applicant and there was engagement on his behalf with the Board’s disciplinary process which was based on allegations of criminal conduct. For example, various hearings were requested in response to Board correspondence and the attorney attended the Show Cause hearing on 18 July 2006 to advise that the applicant “…would not contest the summary suspension of his license until after the upcoming criminal trial, depending upon the outcome of same.” The Tribunal places high weight upon the information contained in the Board’s decision record given its official source. Accordingly, the Tribunal is satisfied that the procedural aspects of the Board’s disciplinary process are as outlined in the relevant records.

32. On balance, the Tribunal finds it to be inconceivable that an attorney was appointed without the knowledge of the applicant to engage with the Board during its investigative process. The suggestion that the applicant’s brother was able to provide instructions to the attorney without the applicant’s knowledge is fanciful. The Tribunal notes that during the review hearing, once the applicant was presented with the s.359AA information, his demeanour become noticeably characterised by nervousness and rapidity of speech. Further, whilst accepting the applicant’s mother suffered illness in 2006 (and accepting the submitted medical records as to her general health), the Tribunal does not accept that a professional in the position of the applicant would depart [Country 1] so hurriedly then cease contact with acquaintances in [Country 1], such as his roommate who purportedly had engagement with the applicant’s brother, leaving his routine affairs unattended by falling into a void of communication. It is also worth pausing to reflect that the applicant departed [Country 1] very rapidly after the first complaint was made to the Police by the respective [client].

33. The Tribunal is of the view that an outlandish narrative has been constructed post-hearing by the applicant, his brother in India and the second named applicant. This narrative falsely suggests the applicant had an attorney appointed on his behalf without his knowledge, with his brother keeping the allegations secret from him for many years. The Tribunal, rather, is satisfied the applicant was aware of the Board’s investigative process in 2006, after he hurriedly departed [Country 1] following criminal allegations being made against him, and that he engaged offshore to an extent with their process through an attorney. Accordingly, the Tribunal is satisfied that the applicant was aware of the pending criminal charges in [Country 1], given they were a central topic in the Board’s disciplinary process. Of note, the Tribunal records that the criminal matters are allegations only and their veracity must be determined in a properly constituted Judicial setting. For completeness, the Tribunal also notes that it is unnecessary to hold a second hearing to take evidence from the applicant’s brother given the fancifulness of the narrative proffered in the post-hearing material, when considered in combination with the other outlined matters such as the applicant’s demeanour at the review hearing.

1. The false information submitted in the relevant visa applications regarding the pending criminal charges is, in the view of the Tribunal, a very serious matter. This is particularly so given the applicant has doggedly maintained to the Department and the Tribunal, over a significant period, that he had no knowledge of the pending charges in [Country 1]. Additionally, it is likely that the applicant would have had more scrutiny applied to his relevant visa applications had he properly declared his outstanding criminal charges. These circumstances weigh very strongly in favour of cancelling the applicant’s Subclass 485 visa, given the deceptive nature of the incorrect information submitted. For completeness, the Tribunal finds that there is no circumstance in the present matter regarding the content of a genuine document and therefore no weight is given to that prescribed circumstance.

2. The Tribunal forms the view that the decision regarding the applicant being granted the Subclass 485 visa was based wholly or partly on incorrect information. That is, the applicant’s visa application untruthfully submitted he had no charges for any offence currently awaiting legal action. Given this topic is central to the grant of any Australian visa and is relevant to the consideration of Public Interest Criterion 4020, had the true information been known to the Department the applicant would likely not have been granted the visa. Following careful consideration, the Tribunal finds that the circumstances in relation to the grant of the Subclass 485 visa to the applicant weigh very strongly in favour of cancelling his visa.

3. The Tribunal finds that the applicant engaged in a deliberate course of conduct to deny knowledge of the criminal charges pending in [Country 1], so he increased his prospects of obtaining an Australian visa. It is also worth pausing to reflect that the incorrect information regarding the pending criminal charges in [Country 1] only came to light when the Department conducted integrity checks, with the applicant never volunteering the true information to them. Following careful consideration, the Tribunal finds that the circumstances in which the non-compliance occurred weigh strongly in favour of cancelling the applicant’s Subclass 485 visa.

4. The applicant submits that his present circumstances weigh against the cancellation of his visa. He indicates his visa should not be cancelled as it will have an adverse effect on his career, the career of his wife, her permanent visa aspirations and the education of his two school aged children. Further, he submits his not-for-profit activities and his employer and that of his wife will also be adversely affected. The Tribunal is satisfied the applicant is wanted by his employer and not-for-profit organisations, as is his wife by her employer, and that the children are doing well in Australian school. The Tribunal also accepts the veracity of the references submitted in support of these matters. On balance, the Tribunal finds that the applicant’s present circumstances weigh strongly against cancellation of his visa, particularly given he aspires to remain in Australia permanently with his immediate family.

5. The Tribunal has carefully considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act and also whether there are any other instances of non-compliance by the visa holder. There are no adverse matters before the Tribunal with regard to these matters. Therefore, on balance, the Tribunal finds that these matters weigh moderately against the cancellation of the applicant’s Subclass 485 visa.

6. The time that has elapsed since the non-compliance with s.101(b) has been carefully considered by the Tribunal. The applicant made the application for the Subclass 574 visa on 10 February 2014 and the Subclass 485 visa on 2 October 2018. Given these periods of time are of some years’ duration, on balance, the Tribunal finds that these matters weigh against the cancellation of the applicant’s Subclass 485 visa. However, they only weigh slightly against cancellation given the gravity of the non-compliance.

7. There is no evidence of any breaches of the law since the applicant’s non-compliance and the Tribunal affords this circumstance moderate weight against cancellation of his Subclass 485 visa. The applicant contends that he has made a contribution to the community through his [employment] and not-for-profit activities. He has submitted references attesting to these matters. Following careful consideration, the Tribunal finds that these matters weigh moderately against the cancellation of his Subclass 485 visa.

8. 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.

9. The Tribunal has considered 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. As outlined above, the mandatory legal consequences of visa cancellation were canvassed with the applicant at the review hearing. If the applicant’s Subclass 485 visa is cancelled and he does not hold a valid visa he will become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act. He may also be subject to s.48 of the Act, which limits further specific onshore visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. Further, the applicant may be subject to an exclusion period regarding future visa applications. There is no evidence before the Tribunal to suggest that the applicant would be subject to indefinite detention and be unable to be removed to India. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s Subclass 485 visa given they are the intended consequences of the legislation.

10. The Tribunal has carefully considered all other relevant matters, including the degree of hardship that may be caused to the applicant (and his immediate family) if his Subclass 485 visa is cancelled. As outlined above, the applicant contends he and his family would face hardship in relation to their employment, education, living standards and aspiration to remain in Australia permanently.

11. The Tribunal accepts if the applicant’s visa is cancelled, then the second named applicant will have her aspirations for permanent residency curtailed, along with the aspirations of her family. The Tribunal accepts the applicant and his wife would lose employment for a time if the visa is cancelled. However, the Tribunal is satisfied they would both obtain work in the near term following a period of adjustment given their skill sets. The Tribunal accepts that the applicant has rendered assistance in the not-for-profit sector as he outlined in his evidence and in the submitted references (for example regarding his assistance in preparing grant applications). Hardship to these organisations and to the applicant’s employer (and that of his wife) would be caused by the cancellation of his visa.

12. The Tribunal accepts that the applicants would face hardship adjusting to life outside of Australia for a time. Further, the Tribunal accepts the third and fourth named applicants would face disruption to their schooling in Australia and this would cause them significant hardship, noting they are performing well in their current studies (for example as outlined in the submitted material regarding the academic achievements of the fourth named applicant). The Tribunal also accepts that hardship would be faced by the children regarding the adjustment required to depart Australia having resided here from a young age as temporary visa holders and being unfamiliar with other languages and culture, noting also that family support is available to them in India.

13. On balance, the Tribunal finds that the applicant and his immediate family would face a significant degree of hardship if his visa is cancelled and this weighs strongly against the cancellation of his Subclass 485 visa.

14. The Tribunal notes that the visas of the second, third and fourth named applicants would be consequentially cancelled under s.140 of the Act (and the mandatory consequences of visa cancellation applicable to them) if the applicant’s visa is cancelled. This weighs strongly against cancellation of the applicant’s visa, particularly given their employment, education and lifestyle situation.

15. The Tribunal has carefully considered whether any of Australia’s international obligations would be breached if the applicant’s Subclass 485 visa is cancelled. The Tribunal notes there is no persuasive evidence before it to suggest any non-refoulement obligations would be breached by cancelling the applicant’s visa. Nor is there any such evidence pointing to the applicant and his immediate family being prevented from returning to India.

16. The Tribunal has also carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CRC) and as is relevant to the family unit the International Covenant on Civil and Political Rights (ICCPR). The Tribunal acknowledges that ‘the best interests of the child’ must be treated as a primary consideration by administrative decision makers. Accordingly, the Tribunal has done so in this matter and elevates the weight afforded to the evidence, detailed above, which is suggestive of hardship being faced by the applicant’s two children, which weighs against cancellation of the visa. With respect to this hardship, in particular the disruption to their schooling, the Tribunal affords strong weight against cancellation of the visa. For completeness, the Tribunal notes that the primary consideration in relation to the children may be balanced against other considerations, a matter to which it shall later return.

17. The Tribunal is satisfied that the applicant’s family unit will remain intact if his visa is cancelled, given all applicants are temporary visa holders and they would depart Australia together. This is particularly so given the evidence of the applicant and the second named applicant on this topic. Accordingly, the Tribunal is satisfied that this consideration weighs neither in favour of, nor against, cancellation of the applicant’s visa.

18. On balance, the Tribunal is satisfied that Australia’s international obligations regarding family unity principles and the best interests of the child would not be breached if the applicant’s visa is cancelled. Although the disruption to the schooling of the third and fourth named applicants and their need to adapt to the culture and language outside of Australia would create significant hardship to them, their best interests are served by remaining as a family unit with their parents. This will be the case as all applicants are temporary visa holders who would depart Australia together if the applicant’s visa is cancelled.

19. For the reasons outlined above, the Tribunal is satisfied that Australia’s international obligations regarding family unity principles and the best interests of the child would not be breached if the applicant’s visa is cancelled, particularly given that the family unit will remain intact and they would remain together regardless of their visa situation. The Tribunal records that it has duly considered all relevant matters in the applicant’s case.

    CONCLUSION

20. The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 485 visa. For reasons previously expressed, the Tribunal finds that the applicant engaged in a sustained dishonest course of conduct to conceal his pending criminal charges in [Country 1]. In doing so there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

21. Following careful consideration, the Tribunal does not accept the contentions advanced on behalf of the applicant that his circumstances and those of his family warrant continuation of his Subclass 485 visa. The Tribunal is cognisant that ‘the best interests of the child’ is a primary consideration, which in the applicant’s case weighs strongly against cancelling his visa. In addition, the Tribunal notes that other factors weigh against cancellation of the visa as previously outlined. However, the gravity and sustained nature of the dishonest course of conduct pursued by the applicant, in order to obtain his Subclass 485 and 574 visas, weighs very strongly in favour of cancellation of his visa. On balance, following much consideration, the Tribunal finds that the circumstances in favour of cancelling the applicant’s visa outweigh those circumstances to the contrary.

    DECISION

22. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 485 (Temporary Graduate) visa.

23. The Tribunal has no jurisdiction with respect to the other applicants.

    K. Chapman

    
    

    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.