2213326 (Migration)

2213326 (Migration) [2023] AATA 2372 (30 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2213326

MEMBER:Maxina Martellotta
DATE:30 June 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 30 June 2023 at 12:49pm
CATCHWORDS
MIGRATION – cancellation – Partner (Resident) (Class BS) visa – Subclass 801 (Spouse) – incorrect information in the visa application – bogus documents – family composition – no identity documents in the alias name – cultural usage of non-legal names associated with characteristics – support to vulnerable community members – significant contribution to the community – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007, s 50
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 116, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.41
CASES
Guo v Minister for Immigration [2018], FCCA 1173
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 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa as they concluded the applicant had not complied with s 101(b) of the Act in that the applicant had provided incorrect information in relation to his spouse visa application and also provided bogus documents. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is [age] years of age. He is a Nigerian citizen. According to the applicant’s evidence he married in March 2016, and he resides in Australia with his spouse.
According to Department records, the applicant applied for a Combined Partner (Subclass 820/801) visa on 24 August 2016. He was granted a Provisional Partner (Subclass 820) visa on 12 May 2017 and granted a Partner (Subclass 801) visa on 2 August 2019. [In] November 2020 the applicant applied for a Conferral of Citizenship. The Department initially approved the application but [in] May 2022 the approval was cancelled on the grounds that the applicant was no longer of good character.
On 7 September 2022 the Department decided to cancel the applicant’s Partner (Subclass 801) visa and is the subject of this review.
Cancellation of the visa
The notice
On 7 June 2022 the applicant was issued with a Notice of Intention to Consider Cancellation (the NOICC) of his Partner visa based on non-compliance with s 101(b) of the Act. That provision requires that visa applications are to be correct and specifically no incorrect answers are given or provided.
The NOICC set out that the applicant provided incorrect information when completing:
·     An online application form ‘Application for migration to Australia by a partner’ on 24 August 2016
·     A Form 80 ‘Personal particulars for assessment including character assessment’ on 27 March 2017
·     An online application form ‘Partner visa application − information for permanent state processing’ on 13 September 2018
Further the NOICC specifies that when providing documents in support of the Conferral of Citizenship process the following original documents were provided on 9 November 2021:
·     Letter from [District 1] Local Government dated 29 March 2021
·     Sworn affidavit from [Person A] signed 30 March 2021
·     Registration of birth documents in the [applicant’s name]
The NOICC states that according to a report provided by the Department’s Document Examination Unit dated 4 February 2022 the letter from the [District 1] Local Government and affidavit were assessed to be fraudulent documents and the Registration of birth document was assessed to be a non-original document of low-quality generation.
The NOICC further stated that information before the Department indicated that the applicant had been known as [Alias A] and had been refused a visa to [Country 1] under that name [in] April 2004.
The particulars in the NOICC state that the applicant failed to declare that he was also known as [Alias A] in addition to also being known as [Alias B] in each of his Partner visa applications and failed to provide any of his aliases in the completion of the Form 80.
The NOICC sets out that the applicant had signed the declarations in each of the ‘Application for migration to Australia by a partner’ and ‘Partner visa application – information for permanent stage processing’ and on the basis of this information the delegate concluded the applicant had not complied with s 101(b) of the Act.
The applicant’s response
On 17 June 2022 the applicant provided what he described as an informal response to the NOICC in which he advised that a formal response would be provided by his lawyer but he detailed that an honest error had been made and provided details of his personal circumstances, including his studies in Australia and his business which provides [industry 1] services.
On 17 June 2022 the applicant’s (then legal representative) provided the following submissions in response to the NOICC:
a)    In terms of whether the NOICC complied with s 107 of the Act, the delegate identified three possible non-compliance instances which included the provision of bogus documents but only two instances of non-compliance were specified relating to the possible partner visa form and the Form 80 and the power to cancel is limited only to those two aspects and not in relation to the provision of alleged bogus documents.
b)    It is conceded that the applicant failed to comply with s 101(b) of the Act because he failed to include the name [Alias A] in response to questions in the forms.
c)    The correct information is that the applicant’s legal name is [the applicant’s name] and he has aliases of [Alias B] and [Alias A] and this information ought to have been disclosed in the following forms:
·     the ‘Application for migration to Australia by a partner’;
·     the ‘Partner visa application – information for permanent stage processing’; and
·     the Form 80 ‘Personal particulars for assessment including character assessment’.
d)    The applicant used the name [Alias A] once at his father’s instruction when applying for a [Country 1] visa in 2004, some 20 years previous when he was in his [age range].
e)    He had not otherwise ever used or had identity documents issued in that name. He did not disclose this name because he has never used that name and it was a special name his grandmother used for him. This is a practice particular to his Yoruba tradition. His father suggested he use that name when applying for a [Country 1] visa as it may increase his chances of getting a visa. An academic article, An Introduction to Nigeria’s Yoruba People was submitted and another journal article was also referenced.
f)     Since leaving Nigeria he was not frequently referred to as [Alias A] as this was a name particular to his relationship with his grandmother. His failure to provide the alternative alias was not with any false purpose.
g)    He did not always declare the name [Alias B] because it is a nickname.
h)    It was contended that the fact that he failed to disclose his second alias would not change his good character assessment.
i)   These current circumstances and his contribution to Australian society through his community work and his profession should be given great weight for not cancelling the visa.
j)   In terms of the documents provided assessed as fraudulent, he had lost his birth certificate and requested his sister to obtain a new one. He relied upon his sister’s advice that the documents were genuine. If the documents provided are bogus this was done without his knowledge, and he otherwise accepts full responsibility for errors made in completing his application which were not intentional.
k)    The submissions otherwise dealt with the consequences of having to leave Australia and the impact this would have on himself and his wife.
The delegate’s decision
On 7 September 2022 the delegate decided to cancel the applicant’s visa. The decision record noted the matters set out in the s 107 notice and concluded that the applicant did not comply with s 101(b) of the Act. Having found that grounds for cancellation existed, the delegate considered whether the visa should be cancelled taking into account the applicant’s submissions on those matters. The delegate concluded having weighted up the relevant factors they were satisfied that the grounds to cancel outweighed the grounds not to cancel the visa.
The application for review
The applicant applied for review of the delegate’s decision. The applicant provided the Tribunal a copy of the delegate’s Decision Record.
The applicant appeared before the Tribunal on 24 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse [named] and the father of a former client and now family friend [Friend A]. In the Tribunal’s assessment the applicant and witnesses provided credible evidence. The Tribunal was impressed by the candid and open way in which the applicant responded to questions put to him at hearing. His evidence and explanation of events were consistent and supported by third party statements, as well as documents detailing his study, employment, business and community activities.
The applicant was not represented in relation to the review. Other evidence considered by the Tribunal included materials the applicant had provided to the Department as well as documents the applicant provided to the Tribunal.
The documents submitted in support of the review application included:
·     Copy of correspondence from the Western Australian [named agency] thanking the applicant for gifting to the State of Western Australia a copy of the applicant’s book ‘[title]’.
·     Applicant email dated 8 April 2023 providing a statement of circumstances.
·     Copy of the applicant’s marriage certificate.
·     Written statement dated 25 March 2021 provided by applicant’s wife.
·     Statements of good character provided by applicant’s friends.
·     Applicant’s statutory declaration dated 21 September 2022.
·     Applicant affidavit sworn before the [named court in Nigeria] dated [in] March 2023 regarding a change in name.
·     Copy of Police Character Certificate issued by Nigerian Police dated [in] March 2023 with attached fingerprint form.
·     Medical reports for the applicant’s wife dated 4 December 2019.
·     Copy of applicant’s Nigerian passport and copy of his National Identification number.
·     Student enrolments, Diploma certificate, [specified qualification], first aid certificate and copy of his academic record and transcript.
·     NDIS clearance check.
·     Newsletter dated July 2020 featuring the applicant.
·     Registration, BAS and insurance documents relating to the applicant’s business [Business 1].
·     Photographs of the applicant working with clients
·     Australian National Police Certificate dated [in] June 2022 including the name [Alias A].
·     Contract of purchase of the applicant’s residence dated April 2018; applicant’s wife’s [agency] loan.
·     Applicant’s undated written statement addressed to the Tribunal.
·     Post-hearing submissions were also provided (email dated 28 April 2023).
Non-disclosure certificate
A certificate dated 13 September 2022 issued under s 375A of the Act pertaining to the cancellation decision, was included on the Department’s file. The legislation requires the Tribunal to do all things necessary to ensure that a document or information certificated under s 375A is not disclosed to any person other than the member constituted to the case.
Under s 375A, the Minister can certify that the disclosure of any matter or information contained on identified folios of the Departmental file would be contrary to the public interest because it would disclose:
·lawful methods for preventing, detecting and investigating breaches or
evasions of the law which would or be likely to prejudice the effectiveness of
those methods; and
·information was provided ‘in confidence’, the provider of the information has
not consented to the disclosure of the information to the review applicant
The Tribunal notified the applicant in writing about the existence of the certificate and provided a copy of the certificate. The applicant was invited to make submissions with respect to the validity of the certificate. The Tribunal noted in the event it found the certificate to be valid, the material covered by the certificate was in part covered in the delegate’s decision, and in any event to the extent the information was adverse to the applicant and may form the reason or part of the reason for affirming the decision under review, the Tribunal would need to put the gist of the information to the applicant.
The applicant did not make any submission as to the validity of the certificate and confirmed this at hearing.
The Tribunal is satisfied that the signed certificate states a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest. Accordingly, the Tribunal considers the certificate valid. As such, the information to which it is subject cannot be disclosed in any detail.
In broad terms the gist of the information covered by the certificate relates to internal Departmental communication about the applicant’s identity and processes by which documents provided by the applicant were assessed. The Tribunal notes information has already been disclosed to the applicant in the delegate’s decision, and in his response to the Department’s notice advising that his visa may be cancelled. As such, the Tribunal did not consider there was any information covered by the certificate which had not otherwise been put to the applicant for comment or response.
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.
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 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(b) of the Act. The details of the notice have been set out above.
The question that arises 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. As noted, the delegate concluded that this non-compliance resulted when the applicant provided incorrect information when completing:
·     An online application form ‘Application for migration to Australia by a partner’ on 24 August 2016
·     A Form 80 ‘Personal particulars for assessment including character assessment’ on 27 March 2017
·     An online application form ‘Partner visa application − information for permanent state processing’ on 13 September 2018
As noted, written submissions provided by the applicant’s representative acknowledged that the applicant had provided incorrect information by failing to disclose the alias [Alias A] in all three of these forms and for failing to re-disclose the alias [Alias B] in the Form 80.
The applicant confirmed this to be the situation in his oral evidence to the Tribunal and also in written statements he submitted to the Tribunal.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) of the Act by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
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 reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations). Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
In submissions and in his evidence the applicant states that he provided incorrect information due to oversight on his part. It had been many years since he had been referred to by the name [Alias A] and he was not trying to hide that information. Likewise with the alias of [Alias B] it was an oversight on his part which resulted in that information not being repeated in the Form 80.
The correct information
The applicant provided incorrect information when answering questions in the ‘Application for migration to Australia by a partner’ and the ‘Partner visa application − information for permanent state processing’ when providing details of his family and given names as they appear in his passport; he stated that he had also been known as [Alias B] and failed to provide any information about aliases in his Form 80.
As confirmed in written submissions and evidence the correct information is that the applicant’s legal name is [the applicant’s name] and he has aliases of [Alias B] and [Alias A] and this information ought to have been disclosed in the following forms:
·the ‘Application for migration to Australia by a partner’
·the ‘Partner visa application – information for permanent stage processing’; and
·the Form 80 ‘Personal particulars for assessment including character assessment’

The tribunal gives this factor significant weight in favour of the visa being cancelled.
The content of the genuine document (if any)
The Tribunal notes that the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents). As such this is not a relevant consideration.
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
This factor requires consideration of the actual decision made to grant the visa and not engage in speculation of what might have happened if that information had been provided.[1]
[1] Guo v Minister for Immigration [2018], FCCA 1173 at [35]
The delegate concluded that if the Department was aware of the applicant’s aliases it would have prompted further examination and assessment in particular in relation to the character requirements. In this case the applicant was granted a visa in his legal name and based on information confirming his personal details.
It is apparent that the visa was granted on the basis of information provided by the applicant and that did not include details of his aliases.
Taking into account the above matters the Tribunal places significant weight on this being a factor in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant provided the following evidence:
a)    The name [Alias A] was one that his grandmother gave to him. It is not his legal name but represented a particular characteristic identified by his grandmother. This is consistent with the customs and practices of his tribe, the Yoruba people.
b)    For that reason, he never considered it to be a legal name and so many years have passed since use of the name; it did not even occur to him to disclose this in his visa applications as it was not a name that has been in usage since leaving his grandmother in Nigeria. In failing to disclose the name he was not in any way trying to hide the fact of that name.
c)    He agrees that this name was used by him in a visa application to [Country 1] he made when he was in his [age range]. At the time his father was assisting him to try and better his opportunities. His father advised him to use the name his grandmother had bestowed upon him because it would bring him ‘better luck’. He was young and naïve and relied upon his father’s guidance. He had no identity documents in that name. He has never since that one occasion used the name in any official capacity.
d)    His failure to re-disclose the alias [Alias B] in the Form 80 was an honest oversight on his part.
The Tribunal found the applicant’s description of the circumstances in which the non-compliance occurred plausible and credible. It accepts that the failure to disclose the name [Alias A] was largely due to the fact that it was a name particularly associated with his grandmother and tribal customs and has not been used since leaving that family context in Nigeria. The Tribunal accepts that his failure to disclose the alias was not deliberate but was because given the passage of time since usage, it did not occur to him to do so. The Tribunal also accepts that the failure to re-disclose the alias [Alias B] in the Form 80 was a honest mistake on his part.
The Tribunal further notes that his evidence about the cultural usage or occurrence of the allocation of non-legal names associated with characteristics, is consistent with academic articles provided to the Department in support of his response to the NOICC.
The Tribunal also notes that there is no evidence that the applicant has had identity documents issued in the name of [Alias A].
For these reasons the Tribunal gives this factor moderate weight as a reason against cancelling the visa.
The present circumstances of the visa holder
The applicant provided the following evidence about his present circumstances. The Tribunal notes that this evidence is consistent with evidence provided by other witnesses at hearing, written statements provided by third parties and documents before the Tribunal. The Tribunal accepts the claims made by the applicant as detailed in the following evidence, and finds:
a)    The applicant lives in Perth with his wife. Despite hoping to have their own children this has not been possible.
b)    They are Christians and are actively involved in their church community. They are both very involved in programs providing support to vulnerable community members.
c)    He and his wife have purchased their own home. They both work. His wife is employed by [Employer 1].
d)    He works in the [industry 1] sector, initially as an employee for a service provider. He established his own business [Business 1] in 2021.   He is passionate about his work and his clients.
e)    He is highly regarded by clients and colleagues. He is often asked to present at community events to talk about his work. He has written a book which speaks about [a related topic]. He wrote it during COVID-19 with the hope it would provide people with hope and inspiration.
f)     His future plans include building his business and expanding his role in providing high quality [services] to clients. He especially would like to get involved in working with vulnerable youth who are experiencing challenges.
g)    He deeply appreciates the opportunities that living in Australia have provided to him and is very upset and regretful that his errors have resulted in the current situation. He emphasised that he made honest mistakes for which he is very sorry.
The Tribunal noted that colleagues and friends have provided statements attesting to the applicant’s good character and the significant contributions he has made to the community through his work in [industry 1]. The Tribunal received oral evidence from [Friend A]. [Friend A] gave evidence his son lived with significant [challenges]. The family first met the applicant in 2016 when allocated to be his son’s support worker, he was an important support until his son’s death in 2020. [Friend A] gave evidence regarding the significant and positive impact that the applicant gave during his time working with his son. Over time they have come to consider the applicant to be a family friend. [Friend A] considers the applicant to be a valuable member of the community who has made a significant contribution not only to his son’s but also the family’s wellbeing. He fully supports the applicant.
The applicant’s wife also provided evidence confirming their personal circumstances. She was born in [Country 2]. She is an Australian citizen. She and the applicant met through their studies. She confirmed that from her cultural experience it is not uncommon for people to be given different ‘non-legal’ names by family members. Her husband in no way intentionally misled the Australian government. She and her husband are actively involved in many charities and programs which seek to provide support to vulnerable members of the community. She works for [Employer 1] and also assists her husband with some of his clients. If the visa is cancelled this would have a significant and devastating impact on them. They are well established in the community, they have bought a home, they both work and contribute. Cancelling the visa would effectively destroy all of this. It also would prevent them from continuing to have the opportunity to make a positive contribution to the Australian community.
The Tribunal attaches significant weight to this factor as a reason against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Subdivision C of Division 3 of Part 2 of the Act contains obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
The delegate’s decision notes the applicant’s co-operation and that the applicant confirmed his contact details and responded to the NOICC within required timeframes.
As noted, the applicant acknowledges he provided incorrect information when completing forms relating to his visa applications. The applicant has taken steps to correct this information.
The Tribunal attaches moderate weight to this as a factor against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
In response to the NOICC the applicant identified that he had provided inconsistent information about his family composition. He provided a detailed explanation of his family members which included a [relative] who resides in Perth, from who he is estranged, [siblings] who live in Nigeria, his father who lives in [Country 3] and his mother who is deceased. The applicant said he did not include his mother’s details because she had passed away. He apologises for errors made regarding inconsistent information about family members.
The applicant’s failure to provide consistent information about his family in combination with his failure to disclose his alias, indicates a pattern of the applicant failing to be accurate in the detail of information being provided. Whilst the Tribunal accepts that this was not intentional it suggests a failure in the applicant’s due diligence when completing forms that have formed the basis of his visa and citizenship applications.
On balance the Tribunal attaches moderate weight upon these matters as a factor in favour of the visa being cancelled.
The time that has elapsed since the non-compliance
The relevant non-compliance in the present case took place on 24 August 2016, 27 March 2017 and 13 September 2018. Given that it has only been over four years since the last non-compliance, the Tribunal gives the factor little weight against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The delegate refers to the applicant’s application for Australian citizenship in which the Department submits he failed to disclose the name [Alias A]. The delegate also refers to documents provided in support of the applicant’s citizenship application some of which have been assessed as fraudulent.
Section 50 of the Australian Citizenship Act 2007 (Cth) provides that a person commits an offence if they make or causes or permits to be made a representation or statement and does so knowing that the representation is false or misleading in a material particular or if they conceal or causes or permits to be concealed a material circumstance and the person does so for a purpose of or in relation to the Act.
The applicant’s evidence was that he had misplaced his copy of his birth registration and asked his sister who is resident in Nigeria to obtain a copy on his behalf from their local area government authority.
The applicant stated that he spoke to a family friend (who he refers to as an aunt) about his request as she works at the local authority. Whilst she was not directly involved in providing the documents, he asked her to speak to people in the office to ensure that his request was dealt with quickly. He said that in Nigeria to get things done in a timely manner it helps if you can have someone speak on your behalf. He denied any suggestion that he asked his ‘aunt’ to provide him with bogus documents. The applicant said that his sister engaged in the process on his behalf.
When he received the documents, he did not register any concerns about their legitimacy as they were from the local government; it did not occur to him to question their authenticity. He was shocked when he received notice from the Department advising that in the assessment of their expert some of these documents were bogus. This has caused him a lot of distress. When he spoke to his sister about this, she was also shocked. He is very upset about the situation and he and his sister did not speak for a period as he could not understand why this had happened.
The Department provided a report which assessed that the letter from the local authority and the affidavit of facts provided by the applicant’s sister to be fraudulent documents. In reaching that conclusion, the expert has noted some limitations in the assessment and observed that there was no evidence of fraudulent alteration to personal data or photographs. Further in relation to the birth certificate the assessment was that it was a non-original document, the quality of the document was not sufficient to allow for a reasoned evaluation.
In this context and given the limitations noted in the report, the Tribunal is left in some doubt and concludes that it cannot rule out the possibility that the documents provided by the applicant in support of his citizenship application may be genuine albeit of a very low quality.
Furthermore, having had the opportunity of hearing the applicant provide his evidence the Tribunal accepts his evidence that he does not know how or why the documents obtained by his sister on his behalf have been assessed as fraudulent and that he provided the documents in good faith in the belief that they were genuine.
In relation to the applicant’s failure to disclose the name [Alias A], as noted the Tribunal is satisfied that this arose from an honest oversight by the applicant.
For these reasons the Tribunal concludes that it is not satisfied that the applicant has breached his obligations under any other law. The Tribunal attaches no weight to this as a factor in favour of cancelling the visa.
Any contribution made by the visa holder to the community
The Tribunal has considered the evidence and made findings regarding the contributions the applicant has made to the community. The Tribunal is satisfied that the applicant is a person who has made and continues to make a significant contribution to the Australian community particularly through his work in [industry 1].
The Tribunal considers the applicant’s contributions to the community to be a significant factor against cancelling the visa.
Other considerations
In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[2] set out a number of matters that, under policy, should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109, as follows.
Whether there are persons in Australia whose visas would, or may, be cancelled under s 140
[2] PAM3 – Migration Act 1958 (Cth) - Visa cancellation instructions – General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140) – s 109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16)
Under s 140 of the Act, if a person’s visa is cancelled under s 109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.
There are no consequential cancellations that would occur if the applicant’s visa is cancelled.
International obligations
It is government policy that when considering whether to cancel a visa any relevant obligations arising under international treaties must be taken into account. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[3] Other than the UN Convention on the Rights of the Child (CRC), non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).[4]
[3] PAM3 Visa cancellation instructions - General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)
[4] See PAM3 - Migration Act 1958 (Cth) - Visa cancellation instructions - General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140) - Australia’s international obligations (re-issue date 21/8/16)
There are no children whose interests would be affected by the cancellation.
Australia’s non-refoulement obligations
The applicant is a Nigerian citizen. There is nothing before the Tribunal that demonstrates that cancellation of the visa would be in breach of these obligations.
Mandatory legal consequences
The policy provides that the Tribunal should have regard to whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.
In this case if the visa is cancelled and the applicant exhausts his appeal rights, he may be detained under s 189 of the Act and removed under s 198 of the Act if he does not voluntarily depart Australia. Under s 48 of the Act he would be prevented from applying for certain visas and he may also be subject to the public interest criterion 4013 which prevents him from working or studying in Australia.
The Tribunal considers that there are significant consequences of cancellation that would impact the applicant, his spouse and his clients. If cancelled, the applicant would not be able to remain in Australia, he and his wife would have to leave the country, abandon their work, their home and their community. The Tribunal gives this factor significant weight against cancelling the visa.
Conclusions
The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant provided incorrect information in his application for a Partner visa and is satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act.
Overall, the Tribunal concludes that the factors in favour of not cancelling the visa far outweigh the factors in favour of cancellation. Whilst the evidence demonstrates that the applicant did not correctly disclose his aliases the Tribunal accepts that on each occasion, this was not intentional but arose from an honest oversight and the applicant has provided a credible and plausible explanation of the circumstances in which that oversight occurred.
Likewise given the Tribunal’s assessment of the level of uncertainty regarding the status of the documents provided in support of his citizenship application it has attached little weight to that factor. The Tribunal otherwise accepts that the applicant acted in good faith when providing and relying on those documents.
Cancelling the visa would have a significant impact upon the applicant and his wife who is an Australian citizen. They have established a home; his wife is in employment and the applicant has an established business. The applicant makes a significant contribution to the community particularly through the work he undertakes in the [industry 1] sector. Third parties have provided evidence demonstrated that he is held in high regard and seen as someone who is making a genuine and real contribution to the community.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Maxina Martellotta
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.
105Particulars of incorrect answers to be given
(1)If a non‑citizen becomes aware that:
(a)     an answer given or provided in his or her application form; or
(b)     an answer given in his or her passenger card; or
(c)      information given by him or her under section 104 about the form or card; or
(d)     a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)Subsection (1) applies despite the grant of any visa.
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 2372

30 June 2023

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