2212750 (MIGRATION)

2212750 (MIGRATION) [2023] AATA 4362 (17 NOVEMBER 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Dilpreet Singh (MARN: 0956305)
CASE NUMBER:  2212750
MEMBER:James Silva
DATE:17 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 17 November 2023 at 2:33pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in association with application for review of refusal of visitor visa – incorrect answers and bogus document in visa applications – previous name, visas, travel and overstay not declared – passport in different identity – forensic facial image examination and signatures – non-compliance denied and documents supporting current identity provided – at least one and possibly both passports bogus, but not possible or necessary to find which – discretion to cancel visa – vague and unsubstantiated evidence – visa and migration history – possible breaches of conditions – wife in third country and application for contributory parent visa in progress, with applicant as dependant – application for judicial review of refusal of visitor visa in progress – Bridging E visa granted – mandatory legal consequences of cancellation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 103, 107, 109(1), 359A
Migration Regulations 1994 (Cth), r 2.41(g), Schedule 2, cl 600.211(a), Schedule 8, condition 8101

CASE
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The review applicant (former visa holder, ‘applicant’ in this decision) is a national of India, who claims to have been born in [Month, Year 1]. He was granted a Bridging A visa on 7 October 2020, in association with an application for review of a decision to refuse to grant him a visitor visa. On 26 July 2022, the delegate issued a Notice of Intention to Consider Cancellation (NOICC, s.107 notice) because the delegate formed the view there were grounds for cancelling the applicant’s visa under s.109. The applicant did not respond to the NOICC. On 23 August 2022, the visa was cancelled. The applicant seeks review of the decision to cancel the visa.
The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in successive visa applications between 2016 and 2020, and had presented a bogus document (namely an Indian passport in a different identity). Although the applicant did not respond to the NOICC, the delegate noted his comments relating to the visitor visa application[1], and decided to cancel the visa.
[1] This also related to the applicant’s provision of incorrect information about his identity, and led to the refusal of the visitor visa application.
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 to give evidence and present arguments at a hearing held on 21 September 2023 and 3 October 2023. He is represented in this matter by registered migration agent Mr Dilpreet Singh, who did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Background to this matter
The applicant is an Indian man who claims to have been born in [Year 1] (now aged [Age 1]). During the hearing, he indicated that he has [children] in Australia. His wife lodged a contributory parent visa in 2017, which is ongoing. According to the applicant she is currently in [Country 1], awaiting the outcome of the contributory parent visa application. She has unsuccessfully applied for a visitor visa.
Migration history: [the applicant] (DOB [1])
The applicant holds an Indian passport [Number 1], issued in Jalandhar [in] 2016, valid for ten years. This gives his place of birth as [Town 1], Punjab. It names his parents as [Mr A] and [Ms B]; and his spouse as [Ms C].
The applicant’s migration history is, in summary:
§ He lodged a visitor (subclass 600) visa application (‘app-V1’) on 7 July 2016. He arrived in Australia [in] August 2016.
§ On 10 October 2016, he lodged an online visitor visa application (‘app-V2’), which resulted in visa grant on 18 October 2016.
§ On 22 September 2017, he lodged an application to be included as a dependant in his wife’s contributory parent (subclass 143) visa application, which included Form 47PA (Application for a parent to migrate to Australia) and Form 80 (Personal particulars for assessment including character assessment). (‘app-P1’, Form 47PA and Form 80). This application is ongoing.
§ On 7 October 2017, the applicant lodged an online visitor visa application (‘app-V3’), which resulted in the grant of a visitor visa on 18 October 2017.
§ On 6 October 2020, he lodged another online visitor visa application (‘app-V4’).
On 7 October 2020, he was granted a Bridging A visa in association with this application, valid until the visitor visa application was finally determined.
On 20 April 2021, the visitor visa application was refused. The applicant sought merits review of this decision, and on 31 January 2023, the Tribunal (differently constituted) affirmed the decision to refuse the visa. The applicant has since sought judicial review of the Tribunal’s decision (6 March 2023). This application is ongoing.
As noted above, on 26 July 2022, the Department sent a Notice of Intention to Consider Cancellation (NOICC, s.107 notice) of the Bridging A visa associated with the visitor visa application. The applicant did not respond, and the bridging visa was cancelled.
The applicant currently holds a Bridging E visa granted on 20 March 2023, which includes condition 8101 (No Work).
Migration history: [Alias] (DOB [2])
[Alias] holds an Indian passport [Number 2], issued in Amritsar [in] 2008, valid for ten years. This gives [Alias]’s place of birth as [Location] Amritsar. It names his parents as [Mr D] and [Ms E]; and his spouse as [Ms F]. As noted below, the applicant denies that he is [Alias], and claims to know nothing about the circumstances set out below.
According to Department records, and as set out in the decision record, [Alias]’s migration history is:
§ He obtained a student visa and entered Australia [in] June 2009.
§ On 28 October 2009, he was granted a further student visa as the dependant of his spouse [Ms F].
§ On 3 March 2009, he was granted another student visa, also as [Ms F]’s dependant. This visa ceased on 2 May 2010.
§ On 31 May 2010, [Alias] obtained a Bridging E visa on the basis that he planned to voluntarily depart Australia [in] June 2010. [Alias] did not depart on that date but remained in Australia unlawfully.
§ On 4 June 2012, [Alias] obtained another Bridging E visa on the basis of his departure [in] June 2012, which did proceed.
Evidence
The Tribunal has before it following relevant material:
From the Department file
§ The NOICC dated 26 July 2022.
§ Copies of the applicant’s prior visa applications and associated forms, for the period 2016 to 2020, and supporting documents.
These include (among other things) a translated matriculation certificate issued on [Date]; a partial photocopy of his current Indian passport; and partial photocopies of his wife’s passport, and his sons’ passports ([Mr G], [DOB]; and [Mr H], [DOB]), and their birth certificates.
§ Copies of documents relating to [Alias], including a partial photocopy of the passport issued [in] 2008, a bridging visa application signed on 31 May 2010 and acknowledgement of visa conditions signed on 31 May 2010.
§ The Department file includes a two-page ‘Key Findings’ from an assessment dated 28 June 2022 by a forensic facial image examiner, confirming that the applicant and [Alias] are one and the same person.
§ The decision of 20 April 2021 to refuse to grant a visitor visa, on the basis that the applicant did not meet Public Interest Criterion (PIC) 4020.
§ The decision of 23 August 2022 to cancel the Bridging visa A, which replicates the information set out in the NOICC. The applicant submitted a copy of the decision record to the Tribunal.
To the Tribunal
§ With the review application, the applicant provided a copy of the delegate’s decision record, and several copies of several undated Indian ID cards (including an Income Tax card).
§ During the course of the review, the applicant provided a copy of his marriage certificate (poorly legible; perhaps [Month, Year]), and undated photographs which appear to show the applicant at the wedding of one of his sons, and at a birthday gathering at home.
§ The Tribunal wrote to the applicant on 22 September 23 under s.359A of the Act, inviting his comment/response at interview on 3 October 2023, immediately before the resumed hearing.
The applicant attended a Tribunal hearing on 29 September 2023 and 3 October 2023, held via videoconference, as the applicant and his representative are located in Victoria, and the Member is in New South Wales. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The representative did not attend the hearing. The applicant’s son [Mr G] attended the second hearing session as a witness. As noted above, the second hearing session was preceded by an interview during which the applicant provided his comments/response to the Tribunal’s s.359A letter.
At hearing, the applicant appeared to have a limited understanding of Australian migration law and the status of his ongoing contributory parent visa, indicating that his representative was handling these matters. Overall, the Tribunal found the applicant’s oral evidence to be unforthcoming and somewhat confused.
Did the notice comply with the requirements in s 107?
In the present case, the applicant has not raised concerns about whether the notice issued by the Minister’s delegate complied with s.107, and there is nothing in the materials before the Tribunal to raise questions about this. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The s.107 notice identified non-compliance with the following sections of the Act.
§ S.101(b): ‘Visa applications to be correct’: A non-citizen must fill in or complete his or her application form in such a way that: … (b) no incorrect answers are given or provided; and
§ S.103: ‘Bogus documents not to be given etc’: ‘A non-citizen must not give, present, produce or provide […] a bogus document or cause such a document to be so given, presented, produced or provided.’
Non-compliance with s.101(b)
The s.107 notice identified non-compliance with s.101(b) of the Act in the responses that the applicant provided regarding his identity and migration history, in successive visa applications. It identified the following as incorrect information (provided in various applications)[2]
[2] The Tribunal notes that the wording of the questions varies in different visa application forms, and over time. It sets these out to demonstrate the answers that the applicant was providing.
Identity
§ Names: Family name: [the applicant – surname]; Given names: [the applicant – given names]; Date of birth: [Date 3][3]. [VA1, question.7; VA2, page 1-2, VA3, VA4, p.2; VA5, p.2]
[3] The applicant provided these answers in App-V1 (question.7); App-V2 (page 1-2), App-P1, App-VA4, (p.2); and App-V4 (p.2).
§ Question: ‘Are you or have you been known by any other name?’ Answer: ‘No’. [VA1, q.10]
   Question: ‘Is this applicant currently, or have you ever been known by any other names?’ Answer; No. [VA2, p.2; VA3; VA4, p.2; VA5, p.2]
§ Question: ‘Do you have any other current passports?’ Answer: ‘No’ [VA1, q.15; VA4, p.3]
Migration history
§ Question: ‘In the last 5 years, have you visited or lived outside your country of passport for more than 3 consecutive months?’ Answer: ‘No’. [VA1, q.31
   ‘Has this applicant previously travelled to Australia or previously applied for an Australian visa?’ Answer: No. [VA2, p.3., VA3,
§ Question: ‘Have you ever overstayed a visa in any country (including Australia)?’. Answer: ‘No’. [VA1, q.38; VA4 p.10; VA5
   ‘Has any applicant ever overstayed a visa in any country (including Australia?’ Answer: ‘No’. [VA2, p.7; VA3
   ‘Has the applicant ever been in Australia or any other country and not complied with visa conditions or departed outside their authorised period of stay?’ Answer: ‘No’. (VA4, p.10; VA5)
§ Question: ‘‘Have you ever: …been in Australia and not complied with visa conditions or departed Australia outside of your authorised period of stay?’ Answer ‘No’. [VA1, q.42
§ The visa applications also included declarations in which the applicant stated that all information is complete, correct and up-to-date; that they understood that giving false or misleading information or documents is a serious offence; and they acknowledged that providing documents found to be fraudulent or information to be incorrect may lead to visa cancellation.
The s.107 notice, and the subsequent cancellation decision, set out the evidence that led the delegate to consider there was non-compliance:
§ This rested on the assessment of a specialist Forensic Facial Image Examiner, dated 28 June 2022, stating that the applicant’s image matched that of ‘[Alias]’ who, as noted above, uses the name ‘[Alias]’, entered Australia on a student visa [in] October 2009, and obtained a further student visa on 3 March 2009, valid until 2 May 2010. [Alias] obtained a bridging visa E on 31 May 2010, but failed to depart Australia and remained in Australia until 4 June 2012. He departed shortly thereafter.
The applicant did not respond to the NOICC. However, the delegate took into account the applicant’s statutory declaration on 30 January 2021, in which he wrote: ‘I have never forged my identity as I never visited Australia previously and have never done any unlawful activity and have abided by the Australian law. My identity is true and original.’ The applicant made this statement in the context of the visitor visa application he lodged on 7 October 2020 (App-V4), which was subsequently refused.
At hearing, the applicant stated that he did not provide incorrect answers regarding his identity and his migration history. He said that he could not explain or comment on the findings of the forensic facial image examiner, and did not know how he could make any enquiries.
Following the hearing, the Tribunal wrote to the applicant inviting his comments/response at interview to further evidence that had come to light about his non-compliance. (The Tribunal considered that this was further evidence relating to the same non-compliance, and in the same way, as set out in the s.107 notice.) This evidence was found in two sets of documents:
§ Documents from 2014 to 2021: The signature of [the applicant] as it appeared on the Indian passport (issued [in] 2014); a visitor visa application (6 July 2017); on Forms 40SP and Form 80 (14 July 2017) which he signed in relation to the application for a Contributory Parent subclass 143 visa; and a statutory declaration (30 January 2021).
§ Documents from 2008 to 2010: The signature of [Alias] (DOB [2]) as it appeared on Indian passport [Number 2] (issued [in] 2008 and valid to [2018)); on a Bridging E visa application (31 May 2010) and an acknowledgement of visa conditions (31 May 2010).
The Tribunal attached copies of the signatures that appeared in each of these documents. It noted that, aside from the slight spelling difference between ‘[Alias surname]’ and ‘[the applicant surname]’, the signatures were near-identical. The Tribunal also provided a copy of the Key Findings of the Forensic Image Examiner’s assessment. It put to the applicant that all these materials, taken together, appeared to show that he and [Alias] are one and the same person, and that the answers he provided in his successive visa applications were incorrect, as described in the s.107 notice.
At interview, and at the resumed hearing, the applicant said that he had no idea about these matters, and could not provided any further comments or response to the information.
The Tribunal finds that the applicant provided incorrect answers, as particularised in the s.107 notice (relating to his name and previous identity; possession of a prior passport; and his migration history).
Non-compliance with s.103
The s.107 notice identified non-compliance with s.103, with reference to the applicant having used two separate Indian passports, with (slightly) different names and dates of birth:
§ Passport 1 ([Number 2]): [Alias] (DOB [2]), issued [in] 2008 (listing spouse: [Ms F]; father [Mr D]; mother: [Ms E])
§ Passport 2 ([Number 3]): [the applicant] (DOB [1]), issued [in] 2016 (listing spouse: [Ms C]; father: [Mr A]; mother: [Ms B])
The NOICC proceeded on the basis that Passport 2 was the bogus document. It includes the following sentence: ‘I consider it highly likely you intentionally provided the different name and incorrect date of birth to the Indian authorities to obtain a new passport and identity not apparently linked to the adverse immigration history you had accrued under the [Alias] identity […]’. It goes on to describe Passport 2 as ‘the fraudulently obtained Indian passport’. It states that it appears to be a bogus document as it was ‘obtained because of a false or misleading statement’ to the issuing authority regarding his date of birth, and spelling and expression of his name.
The applicant contends (consistently with his response to the alleged non-compliance with s.101(b)) that his current passport is a genuine document, and that he knows nothing about any previous identity or passport.
Relevantly, he submitted documents relating to himself and other family members. It appears that the purpose of this was to show that he used his identity (name, date of birth and family composition) before 2016; and that Passport 2 is therefore not a bogus document.
Although the relevance and reliability of these requires further examination, their purpose appears to be to show that the applicant used his current identity (name and date of birth, supported by family composition) well before 2016; and that Passport 2 is therefore not a bogus document.
The documents are as follows:
§ Marriage certificate issued on [Date] (for a marriage in [Month, Year]) giving his name as [the applicant – given names] (aged 24 at the time of marriage; father’s name [Mr A]).
§ Passport of the applicant’s son [Mr H], issued in Amritsar [in] 2010, showing his parents as [the applicant] and [Ms C].
§ Passport of the applicant’s son [Mr G], issued in Melbourne [in] 2013, showing his parents as [the applicant] and [Ms C].
§ Undated Indian documents, namely an ID card (aadkhar) and Income Tax Department card, in the name [the applicant].

The Tribunal finds that the two passports were both issued to the applicant, and that at least one (and possibly both) is a bogus document. However, for the reasons set out below, it cannot reach the required satisfaction to find that the current passport is a bogus document.
§ As a general comment, the Tribunal notes that the evidence surrounding the applicant’s identity and documentation is in an unsatisfactory state. It accepts and takes into account that in relation to at least some documents, particularly those issued by local authorities, there may be minor variations due to transliteration from Punjabi or Hindi, or due to naming conventions.
§ Having concluded that the applicant and [Alias] are one and the same person, the Tribunal shares the delegate’s view that the applicant likely obtained the second passport for migration purposes (in order to re-enter Australia and avoid the consequences of his poor migration history); and that he a provided false and misleading statement to the Indian passport authorities about his name and date of birth, to obtain a second passport in a different name.
§ However, there is some circumstantial evidence to suggest that the Passport 1 may be a bogus document. The (purported) marriage certificate, issued in [Year], states that the applicant married [Ms C] in [Month, Year], at the age of 24. At face value, this would mean that his date of birth was around [Year 3] (and not [Year 2], as stated in Passport 1). Given the extent of the Tribunal’s credibility concerns, it is reluctant to take the marriage certificate at face value. However, it is worth noting that [Mr G]’s passport, issued in [in] 2013, gives his date of birth as [Date]; [Mr H]’s, issued [in] 2010, gives his date of birth as [Date]. Both identify the applicant and [Ms C] as their parents. In other words, the marriage certificate and the sons’ passports, taken together, suggest that the applicant has identified as [the applicant], born in mid- or late [Decade], with a spouse named [Ms C], well before he obtained the current passport [in] 2016.
§ Taking all these factors together, the Tribunal cannot find with confidence that Passport 1 was genuine and that, as a consequence, Passport 2 is a bogus document. It cannot rule out the possibility that Passport 1 was a bogus document that contained another person’s details (with a similar name and father’s name, but different date of birth and other details), for migration-related reasons (such as adopting that person’s academic result, family composition or other attributes in order to secure a student visa and entry into Australia). This, in turn, leaves open the possibility that the applicant later obtained Passport 2 using his real name, date of birth and other details.
In sum, the Tribunal is satisfied that the applicant has provided a bogus document (or documents) at some time in the past. However, it is not able to find on the available evidence that he failed to comply with s.103 in the way described in the s.107 notice, i.e. by presenting Passport 2 as a bogus document.
Should the visa be cancelled?
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 (that is, non-compliance in respect of s.101(b)), 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).
Consideration of prescribed circumstances
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 and addressed in the following paragraphs.
(a) The correct information
The correct information is that [in] June 2009, the applicant entered Australia using the name [Alias] (DOB [2]; husband of [Ms F]) on Indian passport [Number 2]; and that he remained in Australia unlawfully from 14 June 2010 (when his Bridging E visa expired) until 4 June 2012 (when he presented to the Department for another bridging visa to facilitate his departure from Australia).
The applicant’s statements in his visa applications and related documents relating to his identity (that he had never used a previous identity) and his migration history are significant, as they go to the integrity of Australia’s migration system and show a clear disregard for Australian law.
The Tribunal gives significant weight to this factor in favour of cancelling the visa.
(b) The content of the genuine document (if any)
The Tribunal considers that at least one of the applicant’s Indian passports is bogus. However, for the reasons stated above, it cannot conclude that Passport 2 is bogus, or that there was non-compliance with s.103 in the way described in the s.107 notice.
This consideration therefore plays no role in the Tribunal’s decision.
(c) Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal considers that the decisions to grant the applicant visitor visas on 8 July 2016, 18 October 2016 and 18 October 2017, and to grant him entry into Australia on 2 August 2016 (as the holder of a visitor visa) were based in large part on the incorrect information relating to his identity (including past names) and migration history.
It is a basic requirement for the grant of a visitor visa that an applicant genuinely intends to stay in Australia for the purpose for which the visa is granted. A relevant consideration is whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa he held, was subject to: cl.600.211(a). The applicant’s incorrect answers therefore formed an important part of the reason for the visa grants and immigration history.
The Tribunal places significant weight on this factor in favour of cancelling the visa.
(d) The circumstances in which the non-compliance occurred
The applicant denies that there was any non-compliance. At hearing, the Tribunal queried whether – given his denials about his identity and past migration history – he had reflected on how the facial match and the near-identical signatures had come about. He said that he did not know where to make any enquiries and declined to further engage.
The Tribunal finds that the applicant provided incorrect information, in successive visa applications and associated forms between 2016 and 2020, in relation to his identity (including past identities) and his migration history. It further finds on the available evidence that he decided to conceal his past identity and migration history, on multiple occasions, to secure visas and entry into Australia.
The delegate, in the decision under review, speculated that the applicant had probably obtained a new identity and passport in order to overcome his past adverse migration history. For reasons set out elsewhere in this decision, the Tribunal is unable to reach firm conclusions as to whether this is correct, or whether the incorrect information was an attempt to conceal fraud relating to a past assumed identity and documentation. The Tribunal considers it neither practicable nor necessary to determine this point.
In any event, the Tribunal considers that the circumstances in which the non-compliance occurred – from 2016 to 2020, and over multiple applications – were serious. It agrees with the delegate that they suggested ‘a degree of premeditation and sustained planning and decision-making’. It considers that, even if the applicant relied on agents to assist him with applications, he was aware of the incorrect information.
The Tribunal places significant weight on this in favour of cancelling the visa.
(e) The present circumstances of the visa holder
The applicant currently holds a Bridging E visa without work rights. As noted above, and confirmed at hearing, he has an ongoing application for judicial review in relation to the visitor visa application (application lodged on 6 October 2020, refused on 20 April 2021 and affirmed by the Tribunal on 6 March 2023).
The applicant has been in Australia for over seven years. He has an ongoing Contributory Parent (subclass 143) application. He told the Tribunal that Mr Singh was dealing with that application, but there were no submissions from Mr Singh and the applicant did not provide any update at the resumed hearing. The applicant’s son, [Mr G] made some comments. Piecing together the snippets of information, the Tribunal notes the following:
§ The applicant’s wife, [Ms C], lodged the subclass 143 application in 2017.
§ Later, on 27 September 2017, the applicant completed the forms to be added to his wife’s application.
§ The applicant said that [Ms C] is currently in [Country 1], staying with their youngest son who lives there. In response to questions, he said that the couple last met in person in 2019. At the first hearing session, he said that she holds a Resident Return visa, and plans to return to Australia once the Contributory Parent visa progresses. At the resumed session, the applicant and his son clarified that [Ms C] in fact does not currently hold any Australian visa; she had applied for a visitor visa, without success.
§ The applicant and his son indicated that they had recently received a request from the Department to an Assurance of Support of $10,000 to Centrelink. They did not provide a copy of this correspondence. The applicant indicated that he believed that the Contributory Parent visa would be granted soon, and he would be given work rights.
The applicant currently lives with his son in Melbourne. He said that he does gardening, and goes to a gymnasium, and helps out at a Sikh temple. The applicant noted that he does not have work rights, and also mentioned that he has a [medical condition] (implying that it might restrict or prevent him working, even if he had permission). The applicant’s son said that he also sometimes visits a cousin in [City 1], who works in [Work sector].
The applicant said that he relies on his son for food and other support. He did not substantiate this. He provided several undated photographs showing him at a wedding, and at his birthday party. These are undated, and he commented only briefly on them.
In sum, the Tribunal takes into account that the applicant has been in Australia for over seven years and appears to have good relations with his sons and their families. Nonetheless, his evidence about his activities, social contacts and ‘volunteer’ work (including trips to [City 1] to visit a cousin) was guarded and unforthcoming. His lack of candour, together with his stated hope of being given work permission in the near future, strongly suggest that he is working in Australia in breach of his Bridging E visa conditions.
Taking all these factors into account, the Tribunal places slight weight on this factor against cancelling the visa.
(f) The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The non-compliance occurred over a period of years, from July 2016 (when the applicant lodged a visitor visa application) to October 2020 (when he lodged a further visitor visa application). In the subsequent period, to the present, the applicant has denied that he provided any incorrect information. In doing so, he has failed to correct false information, as required by s.105. In the Tribunal’s view, this behaviour shows the applicant’s disregard to his obligations under relevant parts of the Migration Act.
The Tribunal places some weight on this factor in favouring of cancelling the visa.
(g) Any other instances of non-compliance by the visa holder known to the Tribunal
There are no other known instances of the applicant’s non-compliance with ss.101-105.
In the decision under review, the delegate noted that the applicant failed to comply with condition 8512 (Depart Australia) attached to the bridging visa granted on 31 May 2010; and that he remained in Australia unlawfully for almost two years, from mid-2010 to mid-2012. They went on to note that the applicant may have breached condition 8101 on the successive visas he has held since 2 May 2010, as he had failed to explain how he supports himself in Australia. The Tribunal shares these concerns. As noted above, it was not impressed by the applicant’s continued denial of his previous stay in Australia, or his vague account of his activities and income in Australia.
However, the Tribunal does not consider these relevant considerations under r.2.41(g). It has addressed the non-compliance with ss.101-105 previously (including his failure to correct false information); and it is not satisfied that the applicant’s suspected breach of condition 8101 is either ‘known’ or relates to compliance with ss.101-105.
(h) The time that has elapsed since the non-compliance
The non-compliance set out in the s.107 notice occurred between July 2016 and October 2020, namely a period of over four years. A further three years has passed since the most recent non-compliance, in October 2020.
The Tribunal accepts that the applicant has lived with his family and with a relative in [City 1] for much of this period, and that he may also have established other ties in the community, such as through a Sikh temple. The applicant’s reluctance to talk about or provide details about such activities leaves the Tribunal with little sense of the nature or strength of such ties. Moreover, his vague, unsubstantiated evidence about relying on his son financially adds to the Tribunal’s concerns that he has, in fact, been working in breach of visa conditions, in Melbourne and/or [City 1].
Given the passage of time, the Tribunal places a little weight on this factor against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
As noted above, the applicant has shown significant disregard for Australia migration law, to this day. This includes the non-compliance with s.101(b) that is the subject of this review, his use of a bogus document, and his lengthy illegal overstay from 2010 to 2012. While the delegate suspected that he may have worked in breach of condition 8101, the Tribunal has insufficient evidence to make any adverse finding in that regard.
There is no known instances of the applicant breaching the law outside of the Migration Act. As it is a minimum expectation of visa applicants and holders that they comply with the law, the Tribunal places minimal weight on this against cancelling the visa.
(j) Any contribution made by the holder to the community
The applicant told the Tribunal that he attends a Sikh temple on Wednesdays and Sundays, helping there with cleaning and serving food. A friend takes him there. He did not provide further details or corroborative evidence. He was vague as to any other activities, although he mentioned gardening and going to the gymnasium, and visits to [City 1], and he showed some photographs with his son, daughter-in-law and others.
The Tribunal places a little weight on this factor against cancelling the visa.
Other relevant circumstances
While the factors set in r.2.41 out must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially
There are no persons in Australia whose visas would be affected by the visa cancellation.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations or family unity obligations.
The visa cancellation would not result in the applicant’s removal from Australia, as he holds a Bridging E visa associated with an ongoing judicial review of a decision to refuse to grant him a visitor visa. He would be able to remain in Australia while this judicial review is ongoing.
At hearing, the applicant indicated his and his wife’s strong wish to obtained permanent residency in Australia, and more generally, to stay with their sons in Australia and [Country 1], rather than return to India. Asked if there was any specific reason for his not wishing to return to India (i.e. factors that might relate to non-refoulement obligations), he replied that it is hard to live in India without one’s children. Even if the applicant’s removal from Australia were a prospect, the Tribunal is not satisfied that he has identified any factors that might invoke Australia’s non-refoulement obligations.
The applicant has provided some limited information about family members in Australia, including an adult son with whom he stays in Melbourne. There is no suggestion that there are any children in Australia whose interests would be affected by the cancellation, even if it ultimately resulted in the applicant’s removal from Australia.
This factor is therefore not relevant to consideration of cancelling the visa.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
The applicant currently holds a Bridging E visa, issued in association with an ongoing application for judicial review relating to his visitor visa application. In these circumstances, the Bridging A visa cancellation would not result in him becoming unlawful or liable to detention and removal.
If the visa is cancelled, Public Interest Criterion (PIC) 4013 may apply, and prevent the grant to the applicant of certain visas for a period of three years from the date of the visa cancellation (in this case, till 23 August 2025). This does not apply to Contributory Parent (subclass 143) visas. It would apply to prevent the grant of a Visitor (subclass 600) visa, unless the applicant were able to satisfy the Minister that there were compassionate or compelling circumstances to justify the visa grant, as set out in PIC 4013(1).
As a person who has had their visas cancelled since their last entry into Australia may, under s.48(1)(b)(ii), only make a valid visa application for certain classes of visa which have been prescribed by reg 2.12 of the Migration Regulations. These include partner, protection and bridging visas, among others. The applicant has not indicated any intention to make any such application.
The Tribunal gives this consideration very little weight against cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant has indicated a strong preference to remain in Australia while the Contributory Parent visa application is being processed.
Despite having a representative and two Australia-resident adult sons, the applicant has provided little information about the status of the Contributory Parent visa application, except that he has been asked to provide a $10,000 assurance of support, which they understand to be an indication that the visa is close to being approved. Similarly, the Tribunal gained limited insight as to his and his wife’s separation since about 2019. It appears that his wife lodged the Contributory Parent visa application first and, after travel abroad, has been unable to obtain a visitor visa to re-enter Australia. The evidence suggests that the applicant, having lodged a Contributory Parent visa at a later point, has sought to remain in Australia with his adult children, rather than seek options to join his wife in [Country 1] or reunite with her in India. Overall, the applicant’s and his family’s arrangements are somewhat opaque, but the Tribunal accepts that the applicant’s separation from his wife and their uncertain migration status (pending a decision on the Contributory Parent visa application) is unsettling and may cause some hardship.

Having regard to the applicant’s current migration status and ongoing applications, the Tribunal does not consider that the visa cancellation would have any material impact on his family situation.
The Tribunal accords this consideration a little weight against cancelling the visa.
Summary
The Tribunal has considered the totality of the applicant’s circumstances. It has had regard to the applicant’s written statement, his oral evidence and his circumstances, together with the prescribed circumstances set out in reg. 2.41 and other relevant matters.
Having found that there was non-compliance, it has weighed the considerations against and in favour of the visa cancellation. It has decided to place greater weight on the significance of the non-compliance, which it regards as deliberate and deceptive. Although the last instance of non-compliance was some three years ago, the applicant’s continued denial of it demonstrates an ongoing disregard for Australian migration law. The Tribunal accepts that the visa cancellation may unsettle the applicant and his family further, as they await other visa processes, but it considers that the practical impact will be limited and cause minimal hardship.
After careful consideration of the prescribed circumstances and other relevant matters, the Tribunal is of the view that the visa should 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, insofar as he failed to comply with s.101(b). Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
James Silva
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)    purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)    was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)    giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)    stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)    requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)    visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)    having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2023] AATA 4362

17 November 2023

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