2204089 (Migration)

[2022] AATA 3408

2204089 (Migration) [2022] AATA 3408 (20 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr John Preston Young (MARN: 9251554)

CASE NUMBER:  2204089

MEMBER:K. Chapman

DATE:20 September 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

Statement made on 20 September 2022 at 7:28pm

CATCHWORDS
MIGRATION – Visitor (Class FA ) visa – Subclass 600 (Visitor) – incorrect answers in visa application and entry passenger cards – criminal convictions not declared – discretion to cancel visa – visa granted despite delegate knowing about convictions – brief court proceedings and suspended sentence 15 years ago – non-compliance reckless rather than deliberate – marriage to Australian citizen before cancellation decision and intention to apply for partner visa – fertility treatment – wife’s community work in remote region – applicant’s family and community ties and volunteer work – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101(b), 102(b), 107, 109(1), 100, 111, 359(2), 375A
Migration Regulations 1994 (Cth), r 2.41

CASES
Botha v MIBP [2017] FCA 362
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, on 11 March 2022, to cancel the applicant’s Subclass 600 (Visitor) visa under s.109(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The delegate cancelled the visa on the basis the applicant had not complied with sub-sections 101(b) and 102(b) of the Act, in that he incorrectly answered questions in his Subclass 600 visa application, and in three entry passenger cards, regarding whether he has ever been convicted of an offence. 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. It is common ground, at the time of this decision, that the applicant was convicted of two counts of larceny in Fiji in [Year], regarding the taking of [material] from [a location]. Curiously, a different delegate granted the Subclass 600 visa to the applicant on 8 October 2021, having knowledge of these two convictions, yet the visa was subsequently cancelled without any new information arising.

4. At the time of this decision, the applicant resides in [Region 1] with his wife. She is [a member of a Specified group], working as [an Occupation] in a [work sector] role in [Region 1]. They married in October 2021, prior to the visa cancellation decision, and aspire to apply for a Partner visa.

5. On 21 March 2022, 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. On 3 August 2022, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to provide information outlining why his Subclass 600 visa should not be cancelled. Additionally, the Tribunal provided the applicant with a copy of a non-disclosure certificate dated 23 March 2022, pursuant to s.375A of the Act, inviting his comment upon its validity.

6. The applicant responded to the Tribunal’s correspondence of 3 August 2022 by submitting a Statutory Declaration outlining his contentions in relation to the visa cancellation. He subsequently submitted material including, inter alia, written submissions, third party Affidavits, a medical certificate, Fijian Court documentation, a Marriage Certificate and correspondence from the Department regarding his Bridging Visa E. All submitted material has been duly considered by the Tribunal.

7. The applicant appeared by telephone before the Tribunal on 9 September 2022 to give evidence and present arguments. The Tribunal also took evidence by telephone from the applicant’s wife, [Ms A]. Both were located in [Region 1] when they provided their evidence. The applicant was represented in relation to the review by his registered migration agent (‘the representative’), who appeared by telephone from Cairns.

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

   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. 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.

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. He confirmed all documents he submitted to the Tribunal contain true and correct information. The applicant outlined his background as a Fijian citizen, who previously worked as a labourer in [Work sector 1] and in [Work sector 2]. His mother is an Australian citizen, with whom he reunited in 2019. The applicant has visited her several times as the holder of a Visitor visa. He subsequently met his wife in Australia and they are hoping to raise a family in this country. The applicant and his wife reside together in [Region 1], with her working as [an Occupation]. The applicant’s wife is [a member of a Specified group].

13. The applicant agreed that he received the Notice of Intention to Consider Cancellation (NOICC) of his Subclass 600 visa and responded to it with assistance from the representative. The applicant indicated he had read and understood the delegate’s visa cancellation decision. He advised the Tribunal he was shocked by receipt of the NOICC, as he did not then realise he had a criminal conviction in Fiji. The applicant contended he provided information in the Subclass 600 visa application, and in relevant entry passenger cards, to the best of his knowledge at the time. Upon being presented with a Fijian Police clearance by the delegate, the applicant then understood he had two convictions in Fiji from [Year].

14. The applicant explained to the Tribunal that in [Year] he removed [material] from an abandoned [location], thinking it to be permissible to do so. He was subsequently charged with two counts of larceny, pleaded guilty and was fined seven dollars in Court costs. The applicant confirmed he received a sentence of 6 months imprisonment cumulatively for each offence, with them being suspended for two years. He told the Tribunal he never realised he had convictions because he spent a minimal time in Court and never engaged with the Fijian Police thereafter.

15. Having regard to the information provided by the Fijian Police, the applicant agreed with the information contained in the delegate’s visa cancellation decision indicating he incorrectly answered the relevant questions in the Subclass 600 visa application and in entry passenger cards. He maintained he did so unwittingly. The Tribunal canvassed with the applicant the provisions of s.100 and s.111 of the Act. The Tribunal raised with him that the evidence might tend to suggest he provided incorrect answers in his Subclass 600 visa application and in relevant entry passenger cards, even though he claimed not to be aware of the Fijian convictions at the time. The applicant was invited to comment and agreed that, ultimately, he had provided incorrect information. However, he maintained he did not realise he was doing so at the relevant times.

16. The Tribunal asked the applicant directly if he provided incorrect information to the Department in relation to his Subclass 600 visa application and in relevant entry passenger cards. The applicant confirmed that he did, took responsibility for the information but maintained he didn’t know of the incorrectness of the information prior to receiving the NOICC. The Tribunal raised with the applicant that his failure to provide correct information in relation to his Subclass 600 visa application and in relevant entry passenger cards might tend to weigh in favour of cancelling his Subclass 600 visa. The applicant was invited to comment. He maintained his conduct was unwitting at the time and he expressed remorse that he had not understood his Police history more fully.

17. The Tribunal canvassed the applicant’s daily routine with him. The applicant performs domestic duties on a daily basis, as his wife works full time as [an Occupation]. They reside together [in Location 1] in [Region 1]. The applicant also volunteers with cultural programs involving school children, and helping elders with their gardening, in [Region 1]. Additionally, he helps his brother in law by cleaning and performing repairs to his [vehicle]. In the future, the applicant would like to work in a small business connected to [vehicle activity]. He does not engage in paid work presently.

18. The Tribunal canvassed with the applicant his present circumstances. He and his wife are trying to start a family and are consulting a fertility specialist. She is [a member of a Specified group], employed as [an Occupation] in [Region 1]. She travels from their residence at [Location 1] by [mode of transport] daily to [Location 2] for work. The applicant’s wife mainly provides [a service to specified people]. The applicant prepares his wife’s meals and performs other domestic duties to support her.

19. The Tribunal canvassed the applicant’s family composition and circumstances both in Australia and Fiji. The applicant’s mother is an Australian citizen member of the LGBTIQA+ community, residing in Sydney with her partner. The applicant was estranged from his mother for many years and raised by an Aunt in Fiji. In adulthood, the applicant reconciled with his mother and began to visit her in Australia from time to time. The applicant’s mother is employed in an administrative role in a [workplace] in Sydney. The applicant enjoys visiting his mother in Sydney when the opportunity presents.

20. The applicant’s social life revolves around family [in Location 2]. He resides with his wife and some members of her family live close by. They are all Australian citizens, mostly of [a specified] background. The applicant has an excellent relationship with his wife and her family. The applicant also has a cousin who resides in [a Specified] community in [Region 2]. The applicant has visited him and performed volunteer house repairs in the community there.

21. In Fiji, the applicant has [children] from a previous relationship. They range in age from ten years to twenty one years, with [some] children still minors. The applicant talks to his children regularly. He is also close to the Aunt who raised him and her [children] (his cousins) that he grew up with. The applicant also has numerous extended family members residing in Fiji.

22. 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 by volunteering at a recent cultural day at the local school, assisting with fundraising, assisting training with a school [Sport] team and by undertaking local repairs. He also performs gardening services on a voluntary basis in [Region 1].

23. The Tribunal canvassed the mandatory legal consequences of visa cancellation with the applicant. In response, he advised that he is trying to keep positive and hopes to obtain a good decision. The applicant confirmed to the Tribunal that if his visa is cancelled his wife will depart Australia with him, however he noted it would be very difficult for her to leave her community as one of the few [Specified group Occupation]s in the region. The applicant confirmed there were no other international obligations of Australia relevant to his matter.

24. The Tribunal canvassed issues of hardship with the applicant. He submitted that his wife would face hardship having to leave her community in [Region 1]. The applicant stressed that he did not want to be the cause of her leaving her community, especially as it would deprive the region of one of the few [Occupation]s residing there. The applicant also submitted his Australian citizen mother in Sydney would face hardship if his visa was cancelled, particularly as they had started bonding after many years of estrangement. When asked by the Tribunal if there was any reason why he could not return to Fiji, the applicant advised there was not. Although he added that it would be very hard for his wife to depart Australia.

25. The Tribunal canvassed with the applicant and his representative the particulars of the s.375A certificate, inviting their comment upon its validity. Neither had a comment to provide. Following careful consideration, the Tribunal expressed its preliminary view that the certificate is valid. However, noting the material under its cover pertains to administrative processes by which a copy of the applicant’s Fijian Police clearance was obtained, and the substance of the Police material is contained in the delegate’s decision, the Tribunal proposed to place no weight upon this material. There being no objection from the applicant or the representative, the Tribunal has placed no weight upon the administrative material under cover of the s.375A certificate.

26. The Tribunal took evidence from the applicant’s wife, [Ms A] by telephone. It may be summarised as follows. [Ms A] is [a member of a Specified group] who is a qualified [Occupation]. She gained [work] experience in Cairns and now has [Number] years post qualified experience. [Ms A] relocated to [Region 1] in late 2021, with her husband, to work as [an Occupation] on [a work] team. [Ms A]’s cousin is also [an Occupation] and worked on that team. During the program they managed to [produce a work result] in [Region 1]. Following this program, [Ms A] gained employment as [an Occupation] in a community based setting in [Region 1], focussed on [providing a service to specified people].

27. [Ms A] met the applicant in Cairns, they formed a relationship and subsequently married. When asked by the Tribunal if she knew why her husband’s visa was cancelled, [Ms A] replied that he did not give correct answers relating to a historic criminal record. She added that he didn’t know he had formal convictions until he received a copy of his Fijian Police clearance. [Ms A] advised the convictions related to taking [material] from an abandoned [location] in Fiji many years prior.

28. When asked by the Tribunal of the impact of visa cancellation for the applicant upon her, [Ms A] explained that she is seeing a medical fertility specialist, in an attempt to commence a family with her husband. She noted that if the applicant’s visa is cancelled, they can’t continue this treatment. [Ms A] explained her great passion for [working] in [Region 1] and that she does not want to leave the permanent [position] she has obtained. [Ms A] also does not wish to depart from her patients or her elderly mother who resides in [Region 1].

29. As [a member of a Specified group], [Ms A] wants to remain in her community. She added that the applicant also performs many domestic duties and volunteer services for the local community. [Ms A] wants to remain living in [Region 1] with her husband. She believes her husband genuinely did not know he had criminal convictions from Fiji and fully explained his situation to her once he received the NOICC. [Ms A] requested her husband’s visa not be cancelled. The applicant had no further information to provide following the evidence of his wife.

30. The applicant concluded his evidence by expressing regret that he did not look more carefully into his Fijian Police records. He apologised for providing incorrect information to the Department, albeit unwittingly. The applicant advised the Tribunal he would be very careful in future to provide accurate information to Australian Government agencies. The representative made submissions concerning the Subclass 600 visa being granted by a delegate with full knowledge of the Fijian Police records, the applicant’s aspiration to apply for a Partner visa and a recent notification from the Department confirming the applicant’s Bridging Visa E would not be cancelled on character grounds. Prior to the conclusion of the review hearing, the applicant confirmed he had no further information to provide to the Tribunal.

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

31. 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.

32. The Tribunal notes that the NOICC dated 1 February 2022 was properly despatched by the Department to the applicant. He responded to the NOICC, with assistance from the representative, on 14 February 2022. The applicant’s response included material such as a statement, tenancy information and his Marriage Certificate. 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.

33. 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?

34. 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) and 102(b) of the Act.

35. The s.107 notice particularises non-compliance with s.101(b) of the Act by the applicant in relation to his Subclass 600 visa application. Further, it particularises non-compliance with s.102(b) of the Act by the applicant in relation to three entry passenger cards. In summary, the s.107 notice indicates the applicant incorrectly answered questions in those documents in relation to whether he has a criminal conviction. The Tribunal notes that it is, at the time of this decision, not in dispute the applicant was convicted of two counts of larceny in Fiji in [Year]. These offences relate to the taking of [material] from [a location].

36. It is common ground that these convictions were not declared in the relevant Department documents, noting the applicant denies knowledge of them at the relevant times. 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 convictions pre-date the Subclass 600 visa application and relevant entry passenger cards. It is not relevant that the applicant contends he gave his answers unwittingly. Therefore, the Tribunal finds that there was non-compliance with s.101(b) and s.102(b) of the Act 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: 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.

3. 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].

4. The Tribunal has duly considered the applicant’s response to the NOICC. This response includes the applicant’s contentions concerning why his visa should not be cancelled and material confirming his marriage to [a Specified] citizen. On balance, the Tribunal finds that the response of the applicant to the NOICC weighs slightly against cancellation of his visa, noting there is more contemporary evidence before the Tribunal at the time of this decision.

5. The correct information in relation to the relevant questions in the Subclass 600 visa application and the relevant entry passenger cards, as previously outlined, is that the applicant has been convicted of two counts of larceny in Fiji in [Year]. The applicant contends he provided incorrect answers regarding this topic unwittingly and had no knowledge of the convictions until he received the NOICC from the Department. However, the applicant knew that he had attended Court in [Year] in Fiji with respect to larceny. Therefore, the Tribunal is satisfied the applicant was reckless regarding the provision of the incorrect information to the Department, by not making proper enquiries of the Fiji Police regarding his status. This circumstance weighs moderately in favour of cancelling the applicant’s Subclass 600 visa. 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.

6. The Tribunal forms the view that the decision regarding the applicant being granted the Subclass 600 visa was not based either wholly, or partly, on incorrect information. That is because the delegate who granted the Subclass 600 visa to the applicant was in possession of the information from the Fijian Police after undertaking relevant enquiries. Thus, the Subclass 600 visa was granted to the applicant by the delegate with full knowledge of his convictions for larceny in [Year]. Following careful consideration, the Tribunal finds that the circumstances in relation to the grant of the Subclass 600 visa to the applicant weigh strongly against cancelling his visa. For completeness, the Tribunal notes that the subsequent cancellation of the applicant’s Subclass 600 visa by a different delegate, with no new material to hand, appears to be an example of inconsistent administrative decision making. Such inconsistency, in the view of the Tribunal, should be avoided where possible.

7. The Tribunal is satisfied that the applicant was reckless to the provision of incorrect information to the Department regarding his convictions in Fiji. This is because he knew he had been to Court in [Year] for two charges and it is reasonable he should be expected to have made enquiries regarding the status of those matters. On balance, the Tribunal is also satisfied the applicant did not deliberately attempt to mislead the Department having regard to an assessment of his credit during the review hearing. Following careful consideration, the Tribunal finds that the circumstances in which the non-compliance occurred weigh slightly in favour of cancelling the applicant’s Subclass 600 visa.

8. The applicant submits that his present circumstances weigh against the cancellation of his visa. He indicates his visa should not be cancelled as he is trying to start a family with his [Specified] Australian citizen wife, who is undertaking fertility treatment to do so. Further, the applicant indicates he performs volunteer work in [Region 1] to support the local community. Additionally, he advises that his wife would need to depart her role as [ a Specified group Occupation] in [Region 1] if his visa was cancelled. Also, he would not be able to assist members of his wife’s family in [Region 1] if he departs the region. The Tribunal accepts the veracity of these contentions, as it does the supporting statements he has submitted. On balance, the Tribunal finds that the applicant’s present circumstances weigh very strongly against cancellation of his visa. This is particularly so given he aspires to remain in Australia permanently with his [Specified] Australian citizen wife, who is working as [an Occupation] in [Region 1].

9. 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 600 visa.

10. The time that has elapsed since the non-compliance with s.101(b) and s.102(b) has been carefully considered by the Tribunal. The applicant made the application for the Subclass 600 visa on 6 January 2021 and provided incorrect information in the relevant entry passenger cards some years prior to the time of this decision. On balance, given the passage of time, the Tribunal finds that these matters weigh slightly against the cancellation of the applicant’s Subclass 600 visa.

11. 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 600 visa. The applicant contends that he has made a contribution to the community through his volunteer work in [Specified] communities in [Region 1] and in [Region 2]. He has submitted references supporting his contentions. Following careful consideration, the Tribunal finds that these matters weigh moderately against the cancellation of his Subclass 600 visa.

12. 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.

13. 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 600 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 Fiji. 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 600 visa given they are the intended consequences of the legislation.

14. The Tribunal has carefully considered all other relevant matters, including the degree of hardship that may be caused to the applicant and his family if his Subclass 600 visa is cancelled. As outlined above, the applicant contends he and his wife would face significant hardship if his visa is cancelled and they must depart [Region 1]. This is by way of loss of the ability to reside within the [Region 1] community with family (and inability to continue to provide support to them), loss of access to fertility medical services and loss of employment for his wife. Additionally, it is submitted the local [Region 1] community will suffer hardship if the applicant’s wife is forced to give up her position as [an Occupation] in the region. Furthermore, it is contended the applicant’s mother in Sydney will face hardship if the Subclass 600 visa is cancelled, as they would only see each other on limited occasions when she visits Fiji.

15. Following careful consideration, the Tribunal finds that the applicant, his wife, her family in [Region 1] and the applicant’s mother would face a significant degree of hardship if his visa is cancelled. In particular, the need for the applicant’s [Specified group] wife to involuntarily depart her community would cause serious hardship to her and her family, in the view of the Tribunal. Further, the patients of the applicant’s wife in [Region 1] would also face hardship due to the limited [services] that would remain should she depart the region. Additionally, the local community would face hardship losing the volunteer services of the applicant. On balance, these matters weigh very strongly against the cancellation of the applicant’s Subclass 600 visa.

16. The Tribunal has carefully considered whether any of Australia’s international obligations would be breached if the applicant’s Subclass 600 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 being prevented from returning to Fiji.

17. 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. On balance, the Tribunal is satisfied that no hardship will be experienced by the applicant’s minor children living in Fiji if his visa is cancelled and he returns to that country. Furthermore, the applicant’s wife would depart Australia with the applicant if his visa is cancelled. Accordingly, the Tribunal is satisfied that this consideration weighs neither in favour of, nor against, cancellation of the applicant’s visa.

18. Following careful consideration, 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. The Tribunal records that it has duly considered all relevant matters in the applicant’s case.

    CONCLUSION

19. The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 600 visa. For reasons previously expressed, it is apparent there was non-compliance with s.101(b) and s.102(b) of the Act by the applicant in the way described in the s.107 notice. However, the Tribunal is satisfied he has not deliberately sought to mislead the Department in relation to his criminal record arising from events in [Year]. Rather he was reckless in not making the proper enquiries.

20. Following careful consideration, the Tribunal accepts the contentions advanced by applicant that his circumstances, and those of his family, warrant continuation of his Subclass 600 visa. In particular, the hardship that would be caused to the applicant’s [Specified group] wife, her family, the local community and to the applicant’s mother, suggest the visa should not be cancelled. Further, the fact that the Subclass 600 visa was granted by another delegate with knowledge of the applicant’s background also points against visa cancellation.

21. On balance, following much consideration, the Tribunal finds that the circumstances against cancelling the applicant’s visa outweigh those circumstances to the contrary.

    decision

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

    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.

    102Passenger 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.

    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.