2213870 (Migration)

[2022] AATA 4285

2213870 (Migration) [2022] AATA 4285 (23 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr James Wardlaw

CASE NUMBER:  2213870

MEMBER:Margie Bourke

DATE:23 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 23 November 2022 at 5:12pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – incorrect information provided in visa applications – correct name, date of birth and visa history not declared – application for further student visa refused, period as unlawful non-citizen and grant of Bridging E visa – paid municipal council to obtain new citizenship card – new passport a bogus document – discretion to cancel visa – previous partner visa application may have been granted if correct information had been provided – previous relationship ceased and incorrect information repeated in current application – consequential cancellation of wife’s visa – combined hearing of both reviews – one child an Australian citizen – wife not complicit in provision of incorrect information and cancellation of her visa set aside – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 101(b), 107, 109(1), 140(2), 375A
Migration Regulation 1994 (Cth), r 2.41

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

1. 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 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his answers for his application for a Partner visa, and had not complied with s.101(b) of the Act, and therefore there were grounds to cancel his visa under s.109 of the Act, and the delegate was not satisfied there were sufficient reasons not to cancel the visa when weighed against the reasons for cancellation of the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. As a consequence of the cancellation of the applicant’s visa, on the 15 September 2022, the Department also made a decision to cancel the applicant’s wife [Ms A]’s visa as she had subsequently been sponsored by the applicant, pursuant to the consequential cancellation provisions in s.140(2) of the Act. The applicant and his wife had both applied for review of the Department’s decisions, and had the same representative, and the presiding member was constituted the reviews in relation to cancellation of the visas of both the applicant and the applicant’s wife. At the invitation of the Tribunal, the applicant and his wife consented to the matters being conducted by way of a combined hearing.

4. The Tribunal considered its objectives to provide a mechanism for review that is fair, just, informal, economical and quick. The Tribunal considered the circumstances of the applicant and the circumstances of his wife (who had recently given birth to her second child) and the nature of the review. The Tribunal was of the opinion that the conduct of the combined hearings by way of video would allow both review applicants the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and to properly assess the evidence before it. The hearing did not involve an excessive amount of paperwork to be put to either applicant during the course of the hearing. The hearing was scheduled at a time when the availability of in-person hearings was restricted due to the ongoing pandemic. For all the above reasons the Tribunal decided it was appropriate for the combined hearing to be conducted by way of video.

5. The applicant and his wife appeared before the Tribunal on 21 November 2022 to give evidence and present arguments. The Tribunal combined hearing was conducted with the assistance of an interpreter in the [Country 1] and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing by way video.

7. This decision record applies only in relation to the application for review of the decision to cancel the visa of [the applicant], and he is referred to in this decision record by the term ‘the applicant’.

8. The applicant applied for review under the name of [the applicant], and recorded in the application for review that he is also known as [Alias], with the date of birth in [Year 1].

9. 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

10. Nondisclosure certificate : – There is a nondisclosure certificate dated 26 September 2022 issued on the Department file pursuant to s.375A of the Act. The Tribunal provided the applicant with a copy of this certificate. The Tribunal finds that the certificate is valid as it is signed, dated, identifies that disclosure would be contrary to the public interest because it discloses lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods, and properly engages s.375A of the Act.

11. The applicant’s representative provided the Tribunal with a submission prior to the hearing that the applicant did not intend to make any submission as to the validity of the certificate. The applicant acknowledged the certificate pertains to the method of biometric testing and facial image matching, and the applicant conceded that the facial image comparison is correct. The Tribunal discussed with the applicant and his representative in the hearing that the folios in the certificate related to reasons for the referral to the facial image examination unit, and that the actual report in relation to the facial recognition and its conclusions were not subject to the nondisclosure prohibition. The Tribunal advised that the reasons for the referral to the facial image examination unit were not relevant to the Tribunal review or its decisions. The Tribunal advised that the conclusion in the actual report, which is not covered by the nondisclosure certificate and its prohibition directions, is relevant, and were generally disclosed by the Department in the s.107 Notice dated 6 June 2022 and the Department’s decision record dated 15 September 2022.

12. Introduction: – 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.

13. 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.

14. In the present matter, 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?

15. 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), that the applicant provided incorrect answers in his application for the visa.  The  s.107 Notice is dated 6 June 2022, and the non-compliance in the Notice identifies that the applicant lodged a Combined Partner subclass 309 / 100 visa application on 25 March 2013, sponsored by his then partner, [Ms B], and in the application form, the applicant stated he had never been refused an entry permit or visa to Australia, had never held nor currently holds a Bridging visa E, and had never previously been to Australia nor held a visa to travel to Australia. In the application form the applicant declared his name as [the applicant], his date of birth as [Date 1], left blank as to whether he had been known by any other previous name, and provided details from his [Country 1] passport including the passport number, the date of issue, the date of expiry and the issuing authority. The applicant declared that all the information he provided was correct, and that he understood that if he provided false or misleading information in the application, the visa may be refused and any visa granted may be cancelled.

16. The information in the s.107 Notice identified that the applicant was granted a subclass 309 visa on 4 December 2013, and he arrived in Australia [in] January 2014. On 12 February 2015 the applicant provided the Department with further information in support of the permanent stage processing for the subclass 100 visa, including that his name was [the applicant], his date of birth was [Date 1], and he left blank the response in relation to whether he had been known by previous names. The applicant was granted the subclass 100 visa on 11 August 2015.

17. Subsequent biometric facial image comparison investigation and assessment by the Department revealed that [the applicant] with date of birth [Date 1] had previously been known by the name [Alias] with date of birth [Date 2].  [Alias] had applied for a student visa on 19 March 2007, been granted a student visa on 19 July 2007 and arrived in Australia is the holder of a student visa [in] July 2007. He was granted work rights with his student visa. An application for a further student visa made on 23 October 2008 by [Alias] was refused by the Department on 23 December 2008, and after 21 July 2009 he became an unlawful citizen in Australia. On 10 January 2013 [Alias] was granted a Bridging visa E, and departed Australia [in] January 2013.

18. The s.107 Notice dated 6 June 2022 advised that the information provided by [the applicant] in his application for the visa made on 25 March 2013 contained incorrect information because he had previously been known as [Alias], , and had been refused a visa in Australia, had held a Bridging visa E, had previously been to Australia and held a visa to travel to Australia, had been known by previous name, and had been granted permission to work in Australia. Based on this information the conclusion in the Notice was that the applicant had not complied with s.101(b) of the Act because he had provided incorrect information in the Combined Partner visa application made on 25 March 2013, and the information provided on 12 February 2015.

19. In response to the s.107 Notice the applicant provided a statutory declaration dated 25 July 2022, in which he declared that he understood that the only way he could return to Australia was if he applied for a visa under a different name. The applicant stated that he approached a municipal council and paid $3000AUD to $5000AUD to obtain a new citizenship card which was entered into the government database so he could apply for a new passport under a different name. The applicant declared that he applied for the Partner visa on 25 March 2013 using the new passport and new name. The applicant declared that he thought he would not be able to return to Australia under his original name.

20. The applicant’s representative provided a submission to the Tribunal in which it is stated that the applicant obtained a birth certificate and passport in the name of [the applicant], date of birth [Date 1], and on 25 March 2013 and applied for the partner subclass 309 / 100 visa. The applicant and the representative both stated in the hearing that the applicant had provided the incorrect information in his application for the visa in 2013 and 2015 as set out in the s.107 Notice.

21. Based on the applicant’s statutory declaration that he provided to the Department, the applicant’s representative’s written submissions, and the applicant’s oral evidence and his representative’s submissions in the hearing, the Tribunal is satisfied that there was non-compliance by the applicant in the way described in the s.107 Notice.

22. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

23. 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).

24. 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 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.

25. 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.

26. The Tribunal has considered the information the applicant provided to the Department in his statutory declaration dated 25 July 2022, his wife’s statutory declaration, attachments, and the representative’s submissions to the Department and to the Tribunal. The Tribunal accepts the information the applicant provided in his statutory declaration, including that the applicant is a [Country 1] citizen and his correct name is [Alias] and correct date of birth is [Date 2]. The Tribunal also accepts that the applicant’s parents separated when he was six years old and he and his younger sister were raised by his mother and grandparents. The Tribunal accepts the applicant’s family were farmers and were not well off. The Tribunal accepts that at the current time the applicant’s grandfather is deceased, his grandmother is retired, his mother is currently unwell and unable to work, and his sister works for a [company] in [Country 1] and is the main source of income for his family.

27. The Tribunal accepts that the applicant came to Australia as the holder of a student visa but did not complete his studies here. The Tribunal accepts that the applicant has previously worked in a [Workplace 1], and a [Workplace 2] as [an Occupation 1], and currently works as an [Occupation 2]. The applicant declares that if he had remained in [Country 1] in 2013 he was worried about how he would financially support his mother and sister.

28. The applicant declared that before he left Australia in 2013, he made investigations as to how he could return. The applicant declares that he understood he could only return to Australia if he applied for a visa under a different name. The applicant declared that after he arrived in [Country 1] in 2013 he made investigations as to how he could obtain an identity under a different name.

29. The applicant declares that he was in a genuine relationship with his partner who sponsored his application for the visa in 2013, and that this relationship ceased in May 2017. The applicant states he is now divorced from his first wife and they had no children together. The applicant declared in his statutory declaration dated 25 July 2022, and has consistently maintained in subsequent submissions and evidence in the Tribunal hearing, that his first wife, did not have any knowledge that the applicant provided incorrect information and a fraudulent identity in his application for the visa made 25 March 2013.

30. The applicant declares in his statutory declaration dated 25 July 2022, and maintained in written submissions and his oral evidence in the hearing that he married his current partner in [Country 1] [in] February 2018. The marriage was an arranged marriage, and first marriage certificate recorded the applicant’s original name, [Alias]. The applicant declares that he arranged to obtain an updated certificate with the name [the applicant] recorded on the marriage certificate. The applicant declares in his statutory declaration, and maintained in written submissions and his oral evidence in the hearing, that he advised his current wife prior to her collecting the updated marriage certificate that he used the name [the applicant, given name] in Australia, and to trust him and not worry about the name being on the marriage certificate. The applicant states that his current wife did not know that he had previously been unlawful while in Australia or that he had used a false identity or provided incorrect information to the Department, until he received the s.107 Notice in July 2022.

31. The applicant declares in his statutory declaration dated 25 July 2022, and consistently maintains in the written submissions provided to the Tribunal and in his oral evidence at the hearing, that he used the false identity in the sponsorship documents in the application for the partner visa made by his current wife, [Ms A].

32. The Tribunal has considered all the above information, and accepts the information the applicant provided about his family circumstances in [Country 1]. The Tribunal accepts that the applicant’s current wife was not complicit in the provision of any incorrect information or the use of his fraudulent identity in the application for her visa.

33. The Tribunal accepts the evidence of the applicant that he made enquiries prior to leaving Australia about how he could return, and that he believed he would require a new identity, to apply for a visa to return to Australia under a different name. The Tribunal accepts the evidence of the applicant that he obtained a new identity under a different name when he returned to [Country 1], and used fraudulent documents with the new name to obtain a [Country 1] passport with the new identity. The Tribunal accepts the evidence of the applicant that he obtained the new identity and [Country 1] passport without the assistance of an agent.

34. The correct information: – the correct information is that the applicant’s name at the time of application was not [the applicant], born in [Year 1], but his correct name and identity was [Alias] born in [Year 2]. The correct information also includes that the applicant had been known by another name, had previously travelled to Australia, been the holder of a visa in Australia, been refused an application for a further visa in Australia, been the holder of a visa with permission to work in Australia, and been the holder of a Bridging visa E. The correct information includes several answers provided by the applicant that were incorrectly given in the application for the visa in 2013. The correct information includes a fraudulent identity of the applicant in the application for the visa made 25 March 2013 and in the permanent visa processing stage on 12 February 2015. The Tribunal gives this consideration weight in favour of cancellation of the applicant’s visa.

1. The content of the genuine document (if any) : – the Department has not alleged that any non-genuine document was provided with the application for the visa. The applicant was not put on notice that it was alleged he had provided a nongenuine or bogus document, and had therefore not complied with s.103 of the Act. The applicant has given written and oral evidence that he obtained a genuinely issued [Country 1] passport by the [Country 1] authorities on the basis of fraudulent citizenship identity documents obtained by the applicant, but these fraudulent identity documents were not provided with the application. The genuine document in relation to this review is the applicant’s passport in the applicant’s ‘correct’ name of [Alias]. The passport in the name of [the applicant] was issued by the [Country 1] authorities on the basis of nongenuine identity documents, and this passport was provided with the application for the visa. The applicant’s representative submits that the applicant acknowledges that he secured a bogus document to gain entry to Australia. However, the Tribunal accepts that the actual passport provided was a genuine document issued by the [Country 1] authorities. The Tribunal gives this consideration neutral weight, neither in favour for or against cancellation of the applicant’s visa.

2. The decision to grant the visa was based, wholly or partly, on the incorrect information provided : – the applicant submits in his statutory declaration dated 25 July 2022 that he now understands that there was no need to make the application for the visa under a different identity, and he could have applied the offshore partner visa under his correct identity. The Tribunal accepts that the applicant had been refused a visa in Australia, and had remained unlawfully in Australia for a period of approximately 3 ½ years prior to making application for the visa. The applicant’s representative in a submission made to the Department dated 27 July 2022, (and the applicant relies on these submissions before the Tribunal), that if the applicant had lodged the application for the partner visa offshore using his correct identity documents, this would have been a valid application for the visa, and as the relationship was a genuine relationship, the visa application would most likely have been approved under his correct identity. This submission relies on several assumptions, and the Tribunal notes the applicant’s claim that the relationship with his sponsor ceased in 2017 and they are currently divorced. This does not by itself confirm that the relationship with the sponsor was genuine. The Tribunal recognises that a Departmental decision-maker may have genuine concerns of the bona fides of an applicant due to his poor migration history. The Tribunal has carefully considered this submission, and is cautious about the hypothetical nature of this assessment; in applying under a false identity, the applicant has deprived the Departmental decision-maker of the ability to assess the applicant’s previous migration history, any character assessment of his correct identity, and the genuineness of the relationship with his sponsor at that time. However, generally speaking, the Tribunal accepts the basis of this submission, and finds that the decision to grant the visa was not based, wholly or partly, on the incorrect information provided, that is the fraudulent identity of the applicant, or his omission to provide the correct information of his previous travel to Australia and visa history. Therefore, the Tribunal gives this consideration weight in favour against cancellation of the applicant’s visa.

3. The circumstances in which the non-compliance occurred : – the Tribunal is satisfied based on the written and oral evidence of the applicant that the applicant provided information in relation to his fraudulent identity and the incorrect answers in relation to his visa history in his application for the visa made 25 March 2015, and repeated the incorrect information in relation to his fraudulent identity at the permanent visa processing stage on 12 February 2015. I am satisfied, based on the oral and written evidence of the applicant, that the applicant made enquiries prior to departing Australia after being unlawfully in Australia for approximately 3 ½ years, in relation to obtaining a visa to return to Australia. I am satisfied based on the written and oral evidence of the applicant, that the applicant made arrangements to obtain a Bridging visa E and to depart Australia after he had satisfied himself that he needed to obtain a new identity in [Country 1], and lodge an application for the visa under that new identity in an attempt to obtain a visa to return to Australia. I am satisfied based on the written and oral evidence of the applicant that the fraudulent identity and incorrect information in his application for the visa was part of a researched and calculated plan to mislead the Australian visa authorities. The Tribunal accepts that the applicant was concerned to try to provide support to his mother and sister in [Country 1] by earning an income in Australia. The Tribunal accepts that the applicant wished to continue his relationship with his then partner in Australia. The Tribunal is satisfied that the applicant was motivated by his wish to return to and remain in Australia. The Tribunal is satisfied that the circumstances in which the non-compliance occurred involved that the applicant intended to mislead and defraud the Australian authorities to obtain his objective to return to Australia as the lawful holder of a visa, even if not as the holder of a visa under his correct name. The Tribunal gives this consideration weight in favour of cancellation of the applicant’s visa.

4. The present circumstances of the applicant: – the Tribunal is satisfied that the applicant and his current wife were married in [Country 1] [in] February 2018, and reside in Australia in rental accommodation. The Tribunal is satisfied that the applicant currently works as [an Occupation 2] and is the main source of financial support for his family. The Tribunal is satisfied that the applicant’s wife is [an Occupation 3], and has worked in Australia in [a work] sector. The Tribunal is satisfied that the applicant and his wife have two children, a [child] born in [year] and a second [child] born in [year]. The Tribunal is satisfied that the older [child] is an Australian citizen by the descent, and the second child was born after his parents’ visas were cancelled so does not have Australian citizenship. The Tribunal is satisfied that the applicant and his wife consider the education, career and healthcare prospects for their children are significantly better in Australia.

5. The Tribunal is satisfied that the applicant’s grandfather is deceased, his grandmother is no longer working, his mother is unwell and his sister works in a factory in [Country 1]. The Tribunal accepts that the applicant wishes to change his employment in the near future, but that his employment prospects and ability to earn an income to support his family are more significant and reliable in Australia. The Tribunal accepts that the applicant’s wife worked in [a work sector] during the pandemic. The Tribunal accepts that the applicant’s wife will return to work when her newborn baby is older. The Tribunal accepts the evidence of the applicant that he is currently experiencing significant financial pressure and has many outstanding bills. That Tribunal accepts that the applicant and his wife do not currently use childcare facilities, and that the applicant’s mother is presently in Australia visiting the family. The Tribunal is satisfied that both the applicant and his wife have been referred under a mental health care plans for psychological support due to their stress and psychological illhealth. The Tribunal accepts the evidence of the applicant that his relationship with his wife is under significant strain, partly due to the cancellation of their visas and his role in bringing that about. The Tribunal gives the consideration of the present circumstances of the applicant weight in favour against cancellation of the applicant’s visa.

6. The subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act: – the Tribunal is satisfied based on the written and oral evidence of the applicant, that the applicant used the fraudulent identity in the sponsorship of his wife’s application for the visa made on 17 June 2018. The Tribunal accepts that the applicant responded to the s.107 Notice in July 2022 by acknowledging he had provided incorrect information and used a fraudulent identity. However the Tribunal places more weight on the fact of the applicant continued to use the fraudulent identity used in his application for the visa in 2013, in the sponsorship of his current wife in 2018. The Tribunal gives this consideration weight in favour of cancellation of the applicant’s visa.

7. Any other instances of non-compliance by the applicant : – in the Department’s decision record the delegate gives weight to the [Country 1] passport issued in the name of [the applicant], and based on the applicant’s statutory declaration dated 25 July 2022, the delegate finds that this passport is a bogus document within the meaning of s.5(1) of the Act because it was issued on the basis of fraudulent identity documents and therefore obtained because of a false or misleading statement. The Tribunal notes that this information about the basis of the [Country 1] passport in the name of [the applicant] was provided by the applicant, and is relevant to the information provided at the time of application and the false identity in the passport and incorrect information provided at the time of application. There is no other evidence before the Tribunal of non-compliance by the applicant, other than the information set out in paragraphs above, concerning the matters identified in the s.107 Notice, and the fact the fraudulent identity was continued to be used by the applicant in his sponsorship of his current wife’s visa application. The Tribunal recognises that these matters are relevant, but the Tribunal has considered these circumstances of non-compliance elsewhere in this decision record. There are no other instances of non-compliance by the applicant that have not been previously considered in this decision record. For this reason the Tribunal gives the consideration of other instances of non-compliance by the applicant neutral weight, neither in favour for or against cancellation of the applicant’s visa.

8. The time that has elapsed since the non-compliance: – the Tribunal is satisfied that the non-compliance of providing incorrect answers with the application for the visa and reliance on the fraudulent identity occurred on 25 March 2013 and 12 February 2015. The Tribunal is satisfied that a significant time has elapsed since the non-compliance occurred, and during this time the applicant has been employed in Australia, has married his current wife, his wife has worked in [a work] sector and notably worked in this sector during the pandemic. The Tribunal is satisfied that the applicant and his wife have two children born in Australia, one of whom is an Australian citizen. The Tribunal gives this consideration weight in favour against cancellation of the applicant’s visa.

9. Breaches of the law by the applicant: – there is no evidence before the Tribunal that the applicant has committed any breaches of the law since the non-compliance occurred. The Tribunal notes that the applicant has undertaken to provide current police clearance certificates to the Department. The Tribunal gives this consideration weight in favour against cancellation of the applicant’s visa.

10. Contribution to the community by the applicant: – the Tribunal is satisfied that the applicant has been employed since his return to Australia as the holder of the visa in 2014. The Tribunal is satisfied the applicant has worked in a [Workplace 1], as [an Occupation 1] and as an [Occupation 2]. The Tribunal is also satisfied that the applicant and his wife are married and have two small children. The Tribunal accepts the applicant’s evidence that he has been a volunteer at a [festival event] in Melbourne. The Tribunal gives this consideration weight in favour against cancellation of the applicant’s visa.

11. Consequential cancellations: – the Tribunal made a decision in relation to the review of the cancellation of the applicant’s wife [Ms A]’s subclass 100 visa in a decision record dated 21 November 2022. The applicant’s wife’s visa had been cancelled pursuant to the consequential cancellation provisions in s.140(2). The Tribunal considered the general visa cancellation powers and determined that after consideration of all the evidence, in the circumstances, the visa of the applicant’s wife should not be cancelled. It is relevant that the Tribunal was satisfied that the applicant’s wife was not complicit in the fraud in relation to the applicant’s identity or the incorrect information he presented to the Department, in relation to his application for his visa, or the sponsorship of her application for her visa. The Tribunal accepted the evidence of the applicant’s wife that in the circumstances that her visa was not cancelled, but the applicant’s visa was cancelled, she would prefer to remain in Australia with her two children, as that would be in the best interests of the two children. The Tribunal accepted the evidence of the applicant’s wife that she would prefer her two children to remain in Australia to access the education opportunities, healthcare and medical system and career opportunities that Australia had to offer. The Tribunal accepted the evidence of the applicant’s wife that she would be conflicted by choosing to remain in Australia if her husband had to depart and return to [Country 1]. The Tribunal accepted the evidence of the applicant’s wife that she may find it practically and financially difficult to manage to care for her two children, and earn a sufficient income if she remained in Australia without her husband.

12. The Tribunal noted that the older child born in [Year 3] is an Australian citizen by descent because both his parents were the holders of permanent resident visas at the time of his birth. The Tribunal anticipates that the younger child would be entitled to Australian citizenship by descent, after the decision of the Tribunal to set aside the decision in relation to the cancellation of the applicant’s wife’s visa. The Tribunal has the benefit of the knowledge of its decision that the consequential cancellation of the applicant’s wife’s visa has been subject to review, and the decision of the Tribunal is not to cancel the applicant’s wife’s visa. The Tribunal gives this consideration neutral weight, neither in favour for or against cancellation of the applicant’s visa.

13. Mandatory legal consequences: – the Tribunal is satisfied that the cancellation of the applicant’s visa results in mandatory legal consequences, including the potential for the applicant to become unlawful, and to be detained, or deported. The applicant would be subject to the limitations pursuant to s.48 of the Act and the exclusion period requirements pursuant to PIC 4013. The applicant’s representative submitted that these limitations and exclusion periods would not apply if the applicant chose to lodge an onshore partner visa. The Tribunal accepts that the applicant may have the option to apply for a partner visa onshore and offshore as a possible migration pathway.  The Tribunal gives the consideration of the mandatory legal consequences weight in favour against cancellation of the applicant’s visa.

14. Australia’s international obligations: – the Tribunal is satisfied that Australia has international obligations as a signatory to the Convention on the Rights of the Child, (CRC), and the International Covenant on Civil and Political Rights, (ICCPR), which are relevant to this review. The Tribunal accepts that the applicant and his wife are married, and have two children, and live as a family unit. The Tribunal has carefully considered the submissions and evidence of the applicant and the applicant’s wife in relation to what is in the best interests of the children, and in relation to the priority of the family unit staying together. The Tribunal accepts that the applicant and the applicant’s wife consider that it is in the best interests of their children to have access to the educational, career and healthcare opportunities and systems in Australia. The Tribunal accepts that ideally it is in the best interests of the children to remain with both their parents in Australia, subject to considerations of other factors and circumstances.

15. The Tribunal has accepted the evidence of the applicant’s wife that it is preferable that she remain in Australia with the two children and that it is in their best interests to remain in Australia to access the educational opportunities and healthcare available in Australia. The Tribunal has considered the evidence of the applicant that if his visa was cancelled he thinks his wife and children would ultimately return to [Country 1] with him, if he was unable to successfully apply for an onshore visa in Australia. The Tribunal has considered the evidence of the applicant’s wife that if she could manage to remain in Australia with the two children, and obtain work here and raise the children until the applicant could rejoin her, that is the course that she would take in the interests of the children. The Tribunal accepts the evidence of the applicant and the applicant’s wife, and accepts they were giving evidence in relation to a hypothetical or future possibility. The Tribunal recognises that it is a choice for the parents as to the value they put on the continuity of the family unity of the two children with both their parents, or the children remaining with their mother in Australia. The Tribunal notes that if the applicant’s visa is cancelled, and he has to depart Australia, the applicant and his wife can choose whether they live separately for a period of time, or they choose to remain as a family unit and the applicant’s wife and children depart Australia with him. The Tribunal is satisfied that a decision to cancel the applicant’s visa would therefore not be in breach of Australia’s obligations to give consideration to the importance of family unity as a natural and fundamental group unit of society pursuant to article 23 of ICCPR. The Tribunal is satisfied that a decision to cancel the applicant’s visa, would allow the applicant’s children to remain in Australia with the applicant’s wife, and still therefore be consistent with the applicant’s and his wife’s submissions that the best interests of the children, include access to the educational opportunities, career opportunities and healthcare systems available in Australia. The Tribunal is satisfied that the best interest of the children can be assessed by their parents after any decision in relation to the cancellation of the applicant’s visa. The Tribunal is satisfied that if the applicant and the applicant’s wife determine that it is in the best interests of the children to remain in Australia with their mother until the applicant is able to return to Australia, then the decision to cancel the applicant’s visa is not in breach of Australia’s obligations under CRC.

16. The Tribunal is satisfied that it must weigh all the evidence before it. The Tribunal has assessed Australia’s obligations as a signatory to both CRC and ICCPR. The Tribunal accepts that it must consider and give priority to the best interests of the children, and must recognise the importance of family unity in its assessment of the evidence. The Tribunal is satisfied that a decision to cancel the applicant’s visa would not breach Australia’s international obligations. However the Tribunal recognises the importance of these commitments, and the weight the Tribunal gives to the considerations under Australia’s international obligations, in particular to the best interests of the children and the importance of family unity, is weight the Tribunal gives in favour against cancellation of the applicant’s visa.

1. Non-refoulement obligations:- there is no evidence before the Tribunal, and the applicant has not submitted any claims that the cancellation of the applicant’s visa or the removal of the applicant from Australia would be in breach of Australia’s non-refoulement obligations. The Tribunal gives this consideration neutral weight, neither in favour for or against cancellation of the applicant’s visa.

2. Other relevant matters: – the Tribunal accepts that the applicant is currently the main financial provider for his family, namely his wife and two children. The Tribunal is satisfied that the applicant is currently financially responsible for paying the family’s bills including the rent, utilities, groceries and other household expenses. The Tribunal is satisfied that if the applicant’s visa is cancelled this will cause a degree of hardship to his family. The Tribunal accepts that the applicant’s ability to earn an income and obtain employment will be reduced if he is required to depart Australia. The Tribunal accepts that the applicant’s wife will be able to return to work in the aged care sector in the near future when her newborn baby is older, and she has the qualifications to earn her own income. The Tribunal accepts however that the applicant’s wife and her two children will experience financial hardship if the applicant is providing financial support from outside Australia. The Tribunal also notes the applicant has claimed he wishes to provide financial support to his mother and sister although there is no documentary evidence that the applicant is currently providing financial support to his family in [Country 1]. The Tribunal gives this consideration weight in favour against cancellation of the visa.

3. Further relevant matters: – The Tribunal also accepts if the applicant’s visa is cancelled he intends to apply for a further partner visa. The applicant’s representative has advised the applicant may be able to apply for a further partner visa sponsored by his current wife either onshore or offshore. The Tribunal notes that as the applicant has provided fraudulent identity documents he may be subject to a lengthy exclusion period in relation to further visa applications, prior to making a successful application for a partner visa. The Tribunal gives this consideration weight in favour against cancellation of the applicant’s visa.

4. The Tribunal has considered all the above matters, and all the written and oral evidence before it. The Tribunal gives the most weight in this review to the correct information and the circumstances in which the non-compliance occurred. While the Tribunal has balanced all the other considerations and the circumstances in this review, the Tribunal finds that the weight it gives to the consideration of the correct information and the circumstances in which the non-compliance occurred, and the applicant’s subsequent behaviour concerning their obligations to the Department, outweighs the cumulative weight of all the other positive considerations in favour against cancellation of the visa.

5. 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 be cancelled.

   decision

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

   Margie Bourke
   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.