2206507 (Migration)
[2022] AATA 4281
•24 October 2022
2206507 (Migration) [2022] AATA 4281 (24 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Michael Kah
CASE NUMBER: 2206507
MEMBER:Alan McMurran
DATE:24 October 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 175 (Skilled - Independent) visa.
Statement made on 24 October 2022 at 12:41pm
CATCHWORDS
MIGRATION – cancellation – Skilled (Migrant) (Class VE) visa – Subclass 175 (Skilled - Independent) – incorrect information in the visa application – previous visa applications – identity details – debt to the Commonwealth repaid later in full – financial hardship – lengthy stay in Australia – Australian citizen family members – best interests of the children – contribution to the community – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 140
Migration Regulations 1994, r 2.41CASES
Brown v MIBP [2015] FCAFC 141
CFE16 v MIBP [2020] FCCA 1083
Hopkins v MIAC [2007] FCA 1108
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Teoh (1994) 183 CLR 273
MIMA v W157/00A (2002) 203 ALR 5
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Nweke v MIAC [2012] FCA 266
Wan v MIMA (2001) 107 FCR 133
Wan v MIMA [2001] FCAFC 568
Zhao v MIMA [2000] FCA 1235Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
application for review
This is an application lodged on 4 May 2022 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 175 (Skilled - Independent) visa under s.109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant, [named], is a citizen of the Republic of India.
The delegate cancelled the applicant’s visa on the basis that the applicant had failed to comply with sections 101(a) and 101(b) of the Act, because he had failed to disclose information about a previous visa refusal and had provided incorrect answers about his identity on a visa application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 October 2022 to give evidence and present arguments. The Tribunal received oral evidence from the review applicant, the review applicant’s spouse and from a character witness. The applicant’s family attended the hearing.
The applicant was represented in relation to the review by his solicitor who also attended the hearing and made submissions. The applicant informed the Tribunal when asked, that he was ready to proceed and did not require an adjournment.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant Law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act.
Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents, and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Consideration of Claims and Evidence
The Tribunal has had regard to the information in the Department’s file, together with the additional information and submissions made to the Tribunal. The Tribunal has also had regard to relevant judicial authority, the oral evidence from questioning the applicant at the hearing, Department Policy (PAM 3) and the Act and Regulations.
The applicant provided a large bundle of documents and information (electronically) and although the Tribunal may not refer to every document in this decision, the Tribunal nonetheless has considered all the submitted information and documents.
The review involves several steps. Firstly, consideration of the issue of compliance with s.107 by the Department, and the validity of the notice; secondly, whether there was non-compliance as described and particularised in the notice; and thirdly, the exercise of discretion, cancellation not being mandatory, and if there was non-compliance as described in the notice, whether the visa should be cancelled.
For his part, the visa applicant takes no issue with the validity of the Notice, which he submits was validly issued, but presses his case on the basis that there are strong grounds to support an outcome that the visa should not be cancelled. The Tribunal has placed significant weight on the oral evidence provided as referred to below.
Background
The applicant’s history in Australia since he first visited in 2001 is extensive and covers a period in excess of 20 years from 2001 to the time of the Tribunal’s decision. It involves the applicant’s family members, being his spouse and two children.
The applicant is now [age] years old and has established work and social ties in Australia. His 2 children, aged [ages], are Australian citizens, as is his spouse. The children attend a local Public School and High School, near to where they currently live.
The applicant’s visa history has been described in the Department’s file as follows:
Case Summary: [1]
[1] Department file [number]
“Was listed as dependent on VE175. Main visa holder is [Alias A] ([DOB specified],F) CID [number]. 2 other children listed as dependents but not considered as part of cancellation consideration, [Child A] ([DOB specified],F) CID [number] [Child B] ([DOB specified],F) CID [number]
· [September 2001] Client first arrived in Australia holding TR676 under identity [Alias B]
· 26/10/2001 – Protection visa application commenced under identity [Alias B], WA010 granted
· 28/03/2002 – Protection Visa Refused
· 30/10/2002 – Protection Visa Refusal re-notified
· 25/11/2002 – AAT Commenced Protection Visa Refusal
· 11/09/2003 – AAT affirmed Protection visa Refusal
· [September 2003] – Judicial Review commenced Protection Visa refusal
· 20/10/2003 – WA010 ceased (associated to Protection Visa)
· 21/10/2003 – WA010 granted associated to protection visa
· [June 2005] – JR result – Minister Win Protection Visa Refusal
· [June 2005] JR Commenced – FFC Protection Visa Refusal
· [February 2006] Client departed Australia, WA010 ceased.
· [May 2006] JR result – Minister Win protection visa refusal
· 25/05/2009 – VE175 application commenced as dependant applicant under identity [the applicant’s name]
· 14/03/2014 – VE175 granted
· [October 2014] – Client arrived in Australia holding VE175 in the name of [the applicant]
· [November 2018] – Client departed Australia holing VE175
· [January 2019] – Client last arrived in Australia holding VE75.
· 20/10/2019 – Client commenced citizenship application
· 30/04/2021 – NJL issued to visa holder for comment regarding the identity issues
· 24/05/2021 – Statutory declaration from VH in response to NJL, admitting to “changing his name and date of birth to avoid large appeal cost debt and he is deeply remorseful for my actions
· 27/09/2021 – Citizenship refused”At the hearing, the Tribunal provided the visa history details listed above to the applicant. The applicant acknowledged the details were correct and does not dispute the recorded history. The Tribunal finds that the Department summary accurately reflects the applicant’s visa history.
Is the Notice compliant with s.107?
S.107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one or other of the provisions mentioned in s.107(1)[2]. 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.
[2] The relevant sections mentioned are sections 101,102,103,104 and 105.
Relevantly in the present case, s.107(1) requires the Minister to consider whether the visa holder has complied with s.101[3]. On 14 April 2022, the Department issued a Notice of Intention to Consider Cancellation (“NOICC”) under s.109, also referred to in these reasons simply as ‘the notice’.
[3] Section 101(a) All questions on it are answered and (b) no incorrect answers are given or provided;
The Tribunal has considered the validity of the notice, the contents of which is not repeated here in detail. The Tribunal is satisfied however that it contains sufficient particulars to enable the applicant to identify and address the issues. The notice provided particulars of non-compliance, as set out below, the non-compliance being with s.101 (a) (did not provide answers) and (b) (gave incorrect answers) .
The Tribunal finds that the delegate had reached the necessary state of mind to engage s.107 and that the notice complied with the statutory requirements and was compliant with the notification requirements. The applicant’s representative, when asked, agreed this was the case and submitted that the notice was compliant.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The ‘non-compliance’ identified and particularised in the s 107 notice was non-compliance with s.101 in the following respects, as set out by the delegate in the Department decision:
·“Possible non-compliance with section 101(a):
I consider that you did not comply with section 101(a) of the Act because I consider you did not provide answers to the Department in your Skilled Independent (Subclass 175) visa application Form 1276 ‘Application for general skilled migration to Australia’ in the following instances:
By not providing details of your previous identity when asked at Question 37 ‘Other names your spouse/independent partner is or has been known by (including name at birth, previous married names)’ I consider that you have not complied with section 101(a) because subsequent information before the Department indicates that you previously used the identity [Alias B], born [date specified].
·“Possible non-compliance with section 101(b)
I consider that you did not comply with section 101 (b) of the Act because I consider you have provided incorrect answers to the Department in your Skilled Independent (Subclass 175) visa application Form 1276 ‘Application for general skilled migration to Australia’ in the following instances:
· At Question 64 of the form where you are asked to provide all countries in which you have lived for a total of 12 months or more during the last 10 years, you declared that you had not travelled outside of India from 1985 to time of application.
· At Question 71 of the form where you answered NO to the following question: Have any outstanding debts to the Australian Government or any public authority in Australia?
· At Question 72 of the form where you answered NO to the following question: Have you or any other person included in this application ever been refused an entry permit of visa to Australia?
· On Question 75 of form, where you were asked if you have previously been to Australia, held or currently hold a visa for travel to Australia, but you declared N/A.
· On Question 93 of the form, under ‘Declaration for all applicants’, by signing the declaration, confirming that the information in the application was complete, correct and up to date in every detail. However I consider you did not do so.
Available information from Department checks confirmed that the applicant travelled to Australia in October 2014 using a previous identity. [In] September 2001 he had arrived in Australia under the name [Alias B], born [date specified], using Indian passport [number] issued [in] 1999, while holding a Tourist visa subclass 676 (now ceased). .
When the applicant departed Australia [in] February 2006, the applicant had also accumulated a Commonwealth debt of AUD$[amount] confirmed in a “Final Debt Notice” issued by the Department and dated [in] November 2005 and to which the applicant did not respond. When returning to Australia in 2014, the applicant did not declare this debt and used his new identity in order to avoid recognition, with the objective of not paying the debt.
The Tribunal pursued these issues at the hearing with the applicant.
Hearing – evidence- was there relevant non-compliance?
The Tribunal sought to understand from the applicant, in his own words, what he had done in respect of the claimed non-compliance. The applicant used the phrase or words to the effect “I adopted another identity”. When asked by the Tribunal why he had done so, he responded that he was “sorry, I will never repeat that lie. I was very embarrassed.”
The subclass 175 visa application
The applicant said he had proposed to his spouse that they should move to Australia shortly after they had married in 2007, and that he would make all the arrangements for the application. He said his wife played no part in the preparation or submission of the document other than for signing where asked to do so by the agent who prepared the form.
The applicant asked about the advice he had received for lodgement of the application. He said that his Indian agent informed him he would not be successful with the visa application if he told the truth, because of his prior visa history in Australia. He said the agent told him for a fee, he could arrange for the applicant to have ‘a new identity’. He said it cost him AUD $1500. He said he did not want to tell his wife as he did not want her to know. He did not seek advice from anyone in Australia. He said he knew that if he had to tell his wife why the visa would not be granted, he would be very embarrassed, so he instructed the agent to start the process in 2007 of obtaining his new identity and without telling her. He said his new identity took some time and the application was not ready with the agent until 2009.
The Tribunal finds on the applicant’s own evidence that in answer to question 37, declaring whether the applicant had been known by any other names, the applicant had failed to answer correctly by not giving his name which he had previously used in travelling to Australia. The Tribunal finds this was not inadvertent or accidental but deliberate in order to avoid detection.
The Tribunal directed the applicant’s attention to the 5 specific questions the subject of the notice and the answers he had given. Those questions related to completion of the visa application by him as an interdependent (or family) applicant for the subclass 175 permanent residency visa application by his spouse, granted on 14 March 2014 by the Department.
The Tribunal repeated each of the questions 64, 71, 72, 75, and 93 of the visa application, as set out in the notice, and the applicant’s responses which he had given to the Department. The applicant confirmed in answer to the Tribunal that in relation to each question, he had given wrong answers.
The Tribunal asked why he had done so. He said he was afraid that if he told the truth he believed he would not receive the visa, and that he used the false identity to prevent disclosure that he had previously been to Australia, that while there he had a visa application for protection refused, and that he had left behind a large debt owed to the Commonwealth.
The Tribunal asked whether the applicant wished to add anything to his explanation for the non-compliance, which he had readily conceded, and noted he had already admitted to the Department in his Statutory Declaration made 27 May 2021, a copy of which was provided to the Tribunal. In that declaration he says: “I admit that I change my name and date of birth to avoid large appeal cost debt and I am deeply remorseful for my actions”.
In a more recent declaration made 20 September 2022, the applicant sets out his travel history to Australia in the period 2001-2006, saying that: “by the time I left Australia, I had a significant debt to the Commonwealth. I did not know how I was going to pay the debt, but I knew I wanted to live in Australia in the future.”
The Tribunal notes that in a lengthy submission dated 20 September 2022, the applicant’s solicitor representative sets out his chronology[4] as to the timing of the events relevant for consideration in this application for review. The solicitor submits that: “It is conceded that the answers given by the Review Applicant in his application form, as identified above were incorrect, and accordingly, that the Tribunal should find that he did breach s101 of the Act, and that there was non-compliance by the Review Applicant in the way described by the notice provided on 14 May 2022.”
[4] legal submission 14 October 2022 at pages 3The Tribunal has listened to the evidence, the applicant’s responses, and considered the solicitor’s submission, which the Tribunal accepts. The Tribunal finds that the applicant did not answer all questions as required and provided incorrect answers to the specified questions.
For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has found that there was non-compliance with section 101 of the Act, it must now consider whether the visa should be cancelled pursuant to section 109 (1).
Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2) and cancellation of the visa is not mandatory in this instance.
In Minister for Immigration and Citizenship v Khadgi and Another [2010] FCAFC 145 (“Khadgi”), the Federal Court set out the relevant principles in considering section 109.[5] The Tribunal is required to consider circumstances prescribed in regulation 2.41 of the Regulations. Khadgi proposes that “consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under section 109”, and in accordance with relevant authority, the Tribunal as decision-maker, must engage in an ‘active intellectual process’’ with each of the prescribed circumstances [6].
[5] Khadgi at par 57
[6] see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105]
In exercising this power, the Tribunal must consider the applicant’s response(s) (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, as set out in reg 2.41 of the Regulations, were addressed both in written submissions and in the responses given by the applicant in oral evidence at the hearing.
The prescribed circumstances
Briefly, they are:
· what is the correct information
· what was 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
· any contribution made by the holder to the community.
The Tribunal finds this is not a case involving a non-genuine or bogus document. Rather, it is an instance where information, as set out above, provided by the applicant, was incorrect, omitted, and not true at the time it was given with the application.
While the above 10 factors must be considered[7], they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. 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 mandatory consequences of cancelling the visa, international obligations and non-refoulement, and ‘any other’ relevant matters.
[7] Khadgi
Policy considers that delegates and decision-makers should also consider the following additional 4 matters:
·whether there are persons in Australia whose visas would, or may be cancelled under section 140 (the consequential cancellation provision);
·whether Australia has any relevant international obligations and agreements that may be breached by a visa cancellation, and where for example there are children in Australia whose interests may be affected, and which considerations are to be treated as “primary” in regards to the best interest of those children;
·any mandatory legal consequences, such as indefinite detention, bar to further entry or visa application unless the Minister intervenes, and whether the person might then be liable to detention as an unlawful non-citizen and therefore liable to forcible removal
·any other relevant matters including hardship caused to both the visa applicant and family members
It should be stated at the outset in consideration of the proper exercise of the discretion, that it is potentially a complex exercise which will vary in each case as personal circumstances dictate. Consideration may vary according to the available information and documentation, its integrity, the seriousness of any alleged breaches or admissions, submissions made and accepted from the applicant and any credibility issues.
Policy suggests that decision-makers should not weigh matters that are (obviously) adverse to the visa holder, as grounds for cancellation have already been made out. However emphasis should be given to any information which should be weighted in the visa applicant’s favour, and prior to the exercise of the discretion. In doing so, the Tribunal is further mindful that there is no obligation (or ‘onus’) on the visa holder to establish that the visa should not be cancelled. Instead, it is for the decision-maker to find based on a real state of satisfaction from the available information and supporting documentation, and not “simply because the visa holder has failed to show cause why it should not”[8] (be cancelled).
[8] See Zhao v MIMA[2000]fca1235 at [25] and [32].
The Tribunal has therefore gone on to consider if it has reached the required level of ‘a real state of satisfaction’, on the available information and documentation, whether the visa should be cancelled.
Consideration of the Relevant prescribed factors
The correct information
The applicant has confirmed in his evidence and the Tribunal accepts that the correct information is as follows:
·(Q 37) the applicant’s other name by which he is also known or had been known and which was the name used for a protection visa application previously, in Australia, was [Alias B].
·(Q 64) during the previous 10 years, the applicant had previously stayed in Australia for more than 12 months before lodgement of the 175 visa application
·(Q 71) “yes” to the question that the applicant had an outstanding debt to the Australian government
·(Q 72) “yes” to the question of a prior refusal of a visa, as the applicant had been refused a protection visa
·(Q 75) “yes” to the question of having previously held a visa for travel to Australia
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 applicant made the application as secondary applicant to his wife’s visa application and provided the incorrect information himself to the agent in India who prepared and submitted the document. The information recorded by the agent was central to the question of whether the visa should be granted, particularly as previous refused applications which entail government debt cannot be waived or disregarded and the debt is repayable before further consideration of another visa. It is unlikely in those circumstances that the applicant would have been granted the visa.
The Tribunal finds accordingly that the decision to grant the visa was based on the incorrect information, using the applicant’s alias and his incorrect answers intending to avoid the obligation to repay the Commonwealth debt.
The circumstances in which the non-compliance occurred
The circumstances have been considered and set out above in summary of the applicant’s evidence at the hearing. He explained that following his marriage, and intention to return to Australia with his spouse, he had been advised his application would not succeed based on his prior migration history in Australia. He accepted a proposal to change his identity to avoid discovery of his prior identity associated with that migration history.
The applicant has conceded that he knew what he was doing was wrong and is remorseful. He understood and conceded that providing the incorrect information was deliberate with a view to obtaining a successful outcome for the visa application. The applicant’s spouse was not involved in the preparation and submission of the application, other than to execute the document where indicated. The applicant stated that the preparation of his new identity documents required some planning and took place over a two-year period from 2007 until 2009. He said his objective in providing the incorrect information was “to get the visa”. He accepted willingly the offer from the agent to provide the documentation. He said this was a common occurrence in India. He said his wife was ignorant as to the process.
The applicant did not seek to blame the agent or any other person and accepts responsibility for his actions at the time.
Following arrival in Australia in 2014, the applicant made no disclosure to the Department or to his wife of the circumstances and the incorrect information, until he was unable to obtain a driving license. He said that his wife does not drive and for family and work purposes it was necessary for him to have a license. When his license application was initially refused by the RTA (now the RMS), he had to explain things to his wife. He told her that the RTA had discovered his real identity (through biometric matching). He thought this happened in about 2016 when his license was blocked, although it was subsequently issued when he reapplied a few months later and he was provided with a license. He does not know why this occurred after his real identity became known.
The Tribunal notes that the applicant only expressed his remorse following the discovery by others of his real identity, and after receiving the cancellation notice. Otherwise, the applicant remained content to rely upon the incorrect information used to obtain the visa and would not have revealed the truth. The Tribunal is satisfied in this instance that the applicant intentionally and willingly breached the requirements of the Act to achieve his objective.
The present circumstances of the visa holder
The applicant refers to his personal circumstances in his statutory declarations made 27 May 2021 and 20 September 2022. He also makes reference to his family and the likely impact on them following the cancellation. He is currently occupied at the time of decision as an [occupation 1] at [Employer 1] in [Sydney].
The applicant confirmed the contents of the statutory declarations were correct and no changes or additions were submitted. The Tribunal does not repeat in these reasons the formal contents of those documents, both of which have been considered. In summary, the applicant states that he regrets his past behaviour, sets out his work history prior to Australia, his visa history from 2001 until 2006 and then his arrangements to return between 2007 and 2014.
The applicant states and the Department has confirmed for the Tribunal that the applicant’s Commonwealth debt has been repaid in full. This was done only after proceedings were brought in this Tribunal.
The applicant has submitted several character references supporting his application. He also relies upon oral evidence from the witness, [named], who is an Australian permanent resident, presented at the hearing. The Tribunal has heard and accepts that the applicant has a substantial work history and is well regarded by colleagues.
The applicant stresses the importance to his family of him remaining in Australia. This is because his wife and two children are now Australian citizens, his own citizenship application having been refused, and that his family intend to remain in Australia to enable his two daughters to complete their education. The two children are aged [ages] respectively. The eldest child has provided her own statement for consideration in these proceedings. It is submitted, and the Tribunal accepts, that the family will suffer significant financial hardship and dislocation following the applicant’s return to India. It is submitted, and the Tribunal accepts, that the education of the two children will be significantly impacted, as will their well-being. The Tribunal accepts it would be difficult also for the applicant who will need to relocate, find a suitable place to live, and find employment.
The evidence discloses and the Tribunal accepts that the family lives in modest rental accommodation in [Sydney] and survives on the incomes jointly of both the applicant and his wife. The Tribunal finds that the present circumstances are relevant matters and weigh in favour of the applicant in the particular circumstances of this case.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Other than for the matters the subject of these proceedings on review, there is no other information before the Tribunal which might indicate adverse behaviour by the applicant or issues arising because the applicant has not met his other obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal finds it is not aware of any other instances of non-compliance by the applicant which are known to the Minister or any other adverse information in that regard.
The time that has elapsed since the non-compliance
The visa application the subject of the incorrect answers was made in May 2009. The process for completion of that application took place over a 5 year period until the visa was granted on 14 March 2014. This was a significant time frame during which the applicant could have corrected the incorrect answers but elected not to do so. Following discovery in 2016 from biometric matching, the process for action taken by the Department occurred until 14 April 2022 when the Department issued the notice of its intention to consider cancelling the applicant’s visa.
Approximately 15 years have passed since the initial action by the applicant in 2007 to accept the proposal for his identity change, the preparation of relevant documents for that purpose, submission of the visa application with incorrect information and its processing (over a further five year period) and then process since 2014 up to the time of decision, including identifying the incorrect information in 2016.
The Tribunal finds that in that period from 2007 up until his statutory declaration to the Department on 27 May 2021, the applicant made no attempt to correct the information. The Tribunal finds that although a substantial period of time has elapsed since 2007, the events leading up to cancellation are still relatively recent within the timeframe of processing for consideration and subsequently cancellation by the Department, within the knowledge of the applicant himself, and a significant period during which he may have chosen to correct the record. The Tribunal finds that the initiation of the process is not so far distant that it should now be regarded as inconsequential or a relatively “minor” non-compliance given the time lapse.[9]
Any breaches of the law since the non-compliance and the seriousness of those breaches
[9] See Khadgi at [22],p.268
The Tribunal finds that there are no known breaches of the law since the initial non-compliance (in 2009 with lodgement of the visa application).
Any contribution made by the holder to the community.
The applicant presents as a hard-working employee for [Employer 1] as an [occupation 1]. In between his work and family commitments, he told the Tribunal he has no spare time available and does not participate in any sport or other activities, except for caring for the children, transporting them and looking after his wife.
He has provided evidence supported by his character witnesses and his employer, that he has been active in raising donations for the [named] charity. This occurs approximately 4 times a year when the applicant’s employer at the store where he works actively encourages patrons to donate over the course of the week. The evidence is and the Tribunal accepts that the applicant is active in this employer sponsored event and has been recognised for his achievements in obtaining donations.
The Tribunal finds there is no other evidence of any contributions made by the applicant to the community outside his family and work.
Other factors?
The Tribunal has also been mindful to consider other relevant factors to be applied towards the exercise of the discretion.
Whether there would be consequential cancellations under s 140?
In this instance, the applicant’s wife gave evidence. She confirmed and Department records confirm that herself and the two children are Australian citizens. She said the children would complete their education in Australia. One child is currently in [grade] and the other in [grade]. She explained that she works currently in a [business] in Sydney on an annual salary around $54,000 per annum. She said she has obtained qualifications in [an occupation] with a Certificate and Diploma.
She said she had not really thought about how she would live without the applicant. She said she wants him to stay in Australia to support her as “he does everything”. She said he has a substantial relationship with both daughters. They are very close. She said they have no other relatives in Australia and are a very close-knit family unit. She confirmed she does not drive and would find life more difficult being entirely dependent upon public transport.
The Tribunal asked about the children returning to India with their father. She thought they might be able to visit him “on holidays”, or in circumstances if he were able to return to visit Australia. But she was unsure about that. She said that if the applicant leaves, she will remain and have to survive as best she can. She said the girls will be extremely upset and it is unlikely they will be able to afford substantial costs to maintain contact with the applicant by visiting India. She anticipates there will be a separation between her daughters and their father of some years’ duration. This is at a critical time in the girls’ ages, and his involvement as a parent for this time will be entirely “missed” because of his absence.
She explained that she was initially extremely angry at her husband because of his previous behaviour in providing incorrect answers for the visa, which has now imperilled the whole family. Currently however she is extremely anxious, and her health has deteriorated as the matter has progressed. She also has her own medical issues which require his assistance to help look after her when she is temporally incapacitated through ill-health.
Other than for the above information provided by the applicant’s spouse, however, the Tribunal finds there would be no consequential cancellations under section 140.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
Non-refoulement refers to the principal under international human rights law that guarantees no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. The principle applies to all migrants at all times, irrespective of their migration status.
The Tribunal has not had any regard to a prior protection visa application in 2001 brought by the applicant in Australia and which was ultimately unsuccessful. The applicant has made no submissions in that regard nor any claim anticipating harm were he to be returned to India, and that might be relevant in the context of this particular decision.
The Tribunal finds therefore that there is no evidence before it, nor does the applicant claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation.
The Tribunal further finds that there are no mandatory legal consequences following a cancellation, such as the applicant becoming unlawful, provided he were to comply with any conditions relevant for his removal, and without the need for him to be in detention. The possibility of detention seems to the Tribunal to be unlikely in this instance. Following the applicant’s removal, there would be no bar to prevent him from making a further valid application for a visa in due course, but which anecdotally would be likely to be processed over several years while he remained offshore, and with uncertain prospects.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa
The Tribunal is mindful that the Federal Court has said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia.[10] Clearly in this case, the children’s best interests at a young age are to remain close to both parents. The Tribunal has already touched upon the impact on the children above.
[10] Wan v MIMA (2001) 107 FCR 133, at [27]-[28].
The Tribunal heard from the applicant that if the visa were cancelled, the children will remain in Australia with their mother, but in significantly reduced financial circumstances. The applicant submitted it was not realistic for the family, and in particular, the children to return to India where they were culturally and linguistically estranged. Both parents have submitted that as the mother and the two children are now Australian citizens, they would prefer to remain in Australia with or without the applicant, and where the two children may complete their education. The eldest daughter provided an eloquent written submission as to the effect on her personally resulting from her father’s visa cancellation. She is anxious that she will not be able to continue at her school as her mother cannot drive and she would not be able to attend extracurricular school activities. Her anxiety has also caused her personal distress and depression and which is affecting her academic performance.
It is well-established that the best interests of a child or children are to be treated as a primary consideration.[11] Provided any other consideration is not treated as being inherently more significant than the best interests of the child, a decision maker is entitled to conclude, after a proper consideration of the evidence and other material before them, that the strength of other considerations outweighs the best interests of the child.[12] So, for example, the Tribunal might conclude that the best interests of the child require a visa not to be cancelled, but that the damage to the child’s interests that would flow from cancellation would be of only slight or moderate significance.[13] The Tribunal finds that is not likely to be the outcome in this case, where the damage to the child’s interests is likely to be more than slightly or moderately significant.
[11] See Wan v MIMA [2001] FCAFC 568 at [32], Nweke v MIAC [2012] FCA 266 at [18]–[21], MIMA v W157/00A (2002) 203 ALR 5 at [77], and Hopkins v MIAC [2007] FCA 1108 at [34], [37]. Note that these judgments concern cancellation under s 501 and rely, following MIMA v Teoh (1994) 183 CLR 273, on the legitimate expectation of visa holders to have the best interests of their children treated as a primary consideration, a principle of common law procedural fairness. Accordingly, they do not provide direct authority for the Tribunal’s review of s 109 decisions. However, they do provide useful practical guidance on how to ensure a child’s best interest are in fact treated as a primary consideration when that obligation arises.
[12] Wan v MIMA (2001) 107 FCR 133 at [32].
[13] Wan v MIMA (2001) 107 FCR 133 at [33].
The UN Convention on the Rights of the Child 1989 ensures that the best interests of the child is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[14] The visas of Australian-born children will be automatically cancelled where they hold the visa because their parent held a visa, and that was cancelled.[15] As noted, that will not be the outcome in this case where the children are now Australian citizens in their own right.
[14] CFE16 v MIBP [2020] FCCA 1083 at [25], Brown v MIBP [2015] FCAFC 141 at [28].
[15] s 140(3)
The Tribunal accepts the evidence in this case that the children are strongly bonded with both parents. The Tribunal further notes that the family are all aware of the father’s circumstances, and the likely consequences of his departure in terms of their living in Australia. The Tribunal accepts the submission from the eldest daughter, asking the Tribunal not to send her father away. The Tribunal further accepts that in this instance it has been established on the evidence that the father plays a significant role in the upbringing of the children and care for his wife and in financial provision for the family.
The Tribunal finds it places significant weight on these findings. A question arises whether in this instance, the evidence establishes the best interest of the children outweigh the remaining considerations, which tend to favour a finding that the visa should be cancelled. The Tribunal regards the best interests of the children as a primary consideration when deciding whether the visa should be cancelled, and that this is an instance where the interests of those children outweigh other considerations. They are at an important stage in their development, well-established as young citizens in Australia, and looking forward to a continuing family relationship supported by both parents. Department policy itself provides that where there are children impacted by a cancellation decision, decision-makers are obliged to treat as a primary consideration those best interests of the children.
The term “best interests” is not defined and is largely in this Tribunal’s view a matter of common sense. Where you have a loving and supportive family, with no other instances of wrongful or aberrant behaviour, genuine contrition which the Tribunal accepts, community support from both employers and social contacts, financial independence through employment and with reasonable prospects that will continue, there is significant weight in favour of the applicant. This is not to “accept” that the provision of the incorrect information was in some way insignificant or trivial. It was a serious error of judgement by the applicant himself and one which he regrets, but which was in the circumstance, nonetheless, deliberate and intended to deceive.
The Tribunal has referred to the degree of hardship that will undoubtedly result for the remaining family members, and which takes into account the evidence of their current modest financial circumstances and the likely future costs associated with education for the two children and the medical requirements for the applicant’s spouse, which have been touched upon in the evidence, and which the Tribunal accepts.
Summary
The Tribunal has considered the totality of the evidence, the information provided and available from the Department, and the lengthy submissions provided for the Tribunal’s hearing. The Tribunal has found that the applicant provided incorrect answers in the manner particularised (and conceded by him) by the Department notice, in breach of s.101 of the Act.
The Tribunal has accepted that the applicant’s departure from Australia will cause his family considerable hardship, given that they have lived together since 2014 and have formed strong social, financial, and employment ties to Australia. This alone would not be persuasive against cancellation. The Tribunal has placed the greatest weight however upon the paramount consideration of the best interests of the children, their welfare, and support and which it has found would be significantly adversely affected.
Weighing all these considerations and having carefully listened to the evidence at the hearing, an advantage not available to the Department delegate, the Tribunal has formed the view that the weight of evidence supports the applicant and a decision that the visa should not be cancelled. This weighting is not intended in any way to minimise the seriousness of the applicant’s deception, but rather to give predominance to the children who are likely to be more adversely affected by the decision than anyone else.
The Tribunal finds therefore that the weight of the factors considered and outlined above leads to the conclusion that the correct and preferable decision is that the visa should not be cancelled.
Conclusion
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act.
Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that in the exercise of discretion, the visa should not be cancelled.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 175 (Skilled - Independent) visa.
Alan McMurran
MemberATTACHMENT – 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.
four.
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