2214541 (Refugee)

[2023] AATA 2508

2214541 (Refugee) [2023] AATA 2508 (20 June 2023)

ADECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Carina Ford

CASE NUMBER:  2214541

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Genevieve Hamilton

DATE:20 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 20 June 2023 at 3:29pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Malaysia – failure to notify change in circumstances – applicant divorced his wife – member of the family unit – notification by another agency – best interests of Australian citizen children – skilled employment in a regional area – divorce declared in a different visa application – contribution to the community – separation from immediate family – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 36, 48, 97-105, 107-109, 140, 189, 424AA
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.41

CASES

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

BACKGROUND

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 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the review applicant had failed to notify the Department of a change in circumstances.  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. The applicant appeared before the Tribunal on 22 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, and their neighbour.  The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.  The applicant was represented in relation to the review.

4. 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.

5. 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.

6. 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?

7. The first 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 104. 

8. The requirements of s 104 are set out in the annex but generally require that If circumstances change so that an answer to a question on an application form 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, even if a visa has been granted. 

9. The s 107 Notice dated 12 July 2022 particularises the non-compliance as follows: on 28 April 2015, the review applicant’s former spouse [Ms A] lodged an application for a Protection (subclass 866) visa using the Department’s online lodgement facility, including the review applicant as a dependant applicant.  She provided evidence that they were married.  The protection visa was refused and a review application was lodged with the AAT.  On 15 May 2017, the AAT (differently constituted) remitted the decision to the Department with the direction that the review applicant satisfied section 36(2)(c) of the Act, on the basis of being a member of the family unit of his former spouse [Ms A].  The review applicant was granted a Protection (subclass 866) visa on 12 April 2018. 

10. Subsequent to the decision from the AAT, which was relied upon by the delegate of the Department in their decision to grant the review applicant the Protection visa, information available to the Department indicated that the review applicant has been divorced from [Ms A] since [a day in] April 2017.  In particular, during an argument on the same date between him and [Ms A], it appears the review applicant declared a divorce verbally three times, which is considered a confirmed divorce in Malaysian culture.

11. Further to that, on 29 June 2019, the review applicant’s current spouse - [Spouse A] (born [date]) lodged a Combined Partner (subclass 820/801) visa application with the visa holder as her sponsor. In support of the application, the review applicant submitted a Form 40SP – Sponsorship for a partner to migrate to Australia. In response to question 27 on page seven of the form “Have you been married to a person other than the current visa applicant (including if you are still legally married to that person)?” the review applicant answered “yes” and provided the name of his previous spouse as [Ms A variant] (born [date]) and declared that the marriage ended in divorce [in] 2017.

12. The Notice states that:

    As such, at the time of the hearing with the AAT on 15 May 2017, I consider neither the visa holder nor [Ms A] had notified the Department in writing and as soon as practicable of the breakdown of their relationship which happened [in] April 2017. As such, the AAT was not informed of the relationship breakdown before or during the hearing, which led to their decision that the visa holder met section 36(2)(c) based on the information that was no longer correct in the new circumstances. Had the visa holder advised the Department of the change in circumstances before the AAT’s hearing, the Department would have notified them of the change in circumstances as information relevant to their decision, which may have led to them making a different decision.

    …

    This same information was relied upon by the delegate in their decision to grant the visa holder’s Protection visa on 12 April 2018 as departmental decision makers are bound by and must follow directions from the AAT. I therefore consider that the visa holder has not complied with section 104 and accordingly his Protection visa is liable for cancellation consideration under section 109 of the Act.

13. The Notice (and subsequent cancellation decision) are incorrect in one particular: the Tribunal held its final hearing in the protection application on 14 February 2017.  The review applicant separated from his ex wife after the hearings.  Nevertheless the notice is substantially correct in that neither the Tribunal nor the Department were notified by the parties about their separation prior to the Tribunal making its Protection decision.  

14. In a legal submission and responses dated 4 and 12 August 2022, the review applicant conceded that he failed to notify the Department that he was no longer a member of [Ms A’s] family unit and thus failed to comply with s 104 giving rise to grounds for cancellation under s 109. 

15. For these reasons, the Tribunal finds that there was non-compliance with s 104 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

16. 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).

17. 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.

18. 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.

19. Some information on the Department’s file is non-disclosable, as the Tribunal explained during the hearing.  The gist of it confirms that the review applicant and his ex-wife did separate/divorce [in] April 2017.  However there is also information that indicates that the Department was notified of this by another organisation (not Centrelink), on 11 May 2017 (shortly before the Tribunal’s protection decision) and by a notification of change of circumstances completed by the review applicant’s ex wife on 31 July 2017, and her statutory declaration dated 13 February 2018, all of which occurred before the review applicant’s protection visa was granted. 

20. It was submitted in response to the s 107 Notice that the visa should be reinstated because of the considerable time that had passed since the contravention and that the review applicant is now married with two Australian citizen children and contributes to the community as a valued member of his workplace where he fills a skills shortage. 

21. In his personal statement date 3 August 2022, the review applicant provided the following reasons his visa should not be cancelled:

    He is currently married to [Spouse A] and they have two Australian born children. He loves spending time with his family and they plan to settle down in Australia permanently.

    His wife is a “stay at home” mother to take care for their children; as such, he is the sole income earner. If he is to return to Malaysia with his family as a result of a visa cancellation decision, his children will be unable to get used to the environment and lifestyle there. It will be difficult for him to find a job in Malaysia to provide for his family.

    His former spouse “had some issues with some violent people in Malaysia and I [the visa holder] got involved and was threatened that’s why we applied for protection visa at the time which got approved” [sic]. Therefore, if he and his family return to Malaysia, their lives could be at risk.

22. The review applicant submitted the following documents:

    • A Certificate of Islamic Marriage from [Authority 1] that [the applicant] and [Spouse A] were united in an Islamic marriage [in] December 2019
    • A Malaysian passport [number] ] for [Spouse A]
    • A Malaysian passport [number] and a Victorian Driver Licence (number unclear) for the review applicant
    • A screenshot of an “Application for a protection visa” application form lodged [Spouse A] on 15 February 2018, and a letter from the AAT dated 20 September 2021 for Case [number] with the subject line “Reconsideration of Application for Review – [Spouse A]”
    • Character references for the review applicant and [Spouse A] from [Mr A]
    • A Birth Certificate registered in Victoria, Australia for [Child A] born on [date]
    • A Birth Certificate registered in Victoria, Australia for [Child B] born on [date]
    • A letter from [name] – Owner of [Employer 1] dated 02 August 2022 to confirm that the review applicant is employed as a [occupation 1] at the business. The author attested to the review applicant’s work ethics and that “the business wouldn’t be the same without him”
    • A letter from [name] dated 03 August 2022 to confirm that the visa holder is employed by [Employer 1], and attesting to the review applicant’s work ethics, skills and good character
    • A letter from [a named apprenticeship] Provider dated 14 February 2020 in relation to the review applicant’s [occupation 1] apprenticeship or traineeship file
    • A pay slip addressed to the review applicant from [Employer 1] for the period from 18 July 2022 to 31 July 2022 in the position of [occupation 1]
    • A letter from [name] – Apprentice at [Employer 1] dated 8 August 2022 to attest to the review applicant’s good work ethics and professional skills.
    • A letter from [a named] College to certify that the review applicant is currently enrolled as a full-time student at the college in the [his named occupational] course.
    • Multiple photos of the visa holder with his family and friends/colleagues.
    • Family photos including him, his current spouse and their two children.

    ·A letter from the review applicants’ neighbour [named] stating that she knows the family well and would miss their friendship

23. The Delegate cancelled the review applicant’s visa, and the present review application was lodged. 

24. The Tribunal was assisted by a pre-hearing submission from the review applicant’s representative, reiterating and updating that provided in response to the s 107 Notice.

25. The review applicant’s personal statement dated 11 May 2023 reiterated that he had been threatened by people associated with his ex wife.  Late in the protection visa review process he separated from her.  Centrelink called and he confirmed hat they were separated.  The Tribunal made its decision and later he was granted a protection visa.  He tried to build a good life, getting an apprenticeship and completing his [qualification] and further skills.  In 2018 he met his current wife, they married in December 2019 and have two children and are excited to welcome their third child due in [month].  He described their family life together.  He is currently working as a labourer for a [service] company in [Town 1] NSW, with a contract due to end in July 2023.  He reiterated that he was deeply remorseful for not telling the Department that he had separated but, due to his ignorance, he was genuinely confused because he had told Centrelink.  He wanted to continue to work hard, contribute to the community and raise his children who are Australian citizens, giving them emotional support and guidance.  [One child] is [age range].  The family would struggle to survive without his income.  They would be disadvantaged if the family had to go to Malaysia.  He remained fearful of the violent people who were associated with his ex-wife, who threatened to kill him and damaged his car.  There was a risk that they would hear of his return and come after him again, putting his new wife and his children in danger.  His new wife is waiting for the outcome of a protection application due to her abusive ex partner in Malaysia who could also put the review applicant and their children in danger. 

26. The submission included further supporting documents as follows:

    ·Information about labour market shortages

    ·A personal and professional recommendation from the review applicant’s site manager, and an employment reference from his Project Manager, at [his current employer], plus employment documents verifying his employment

    ·A personal recommendation from a colleague and housemate

    ·A recommendation the manager of [Employer 1]

    ·Further family photos

    ·Confirmation that [Spouse A] is now pregnant with their third child

    ·Travel itineraries evidencing that the review applicant goes to [Town 1] for work

    ·Bank transfers from the review applicant to [Spouse A]

    ·The review applicant’s bank statement

    ·VRQA certificate that the review applicant has completed his apprenticeship as [an occupation 1], his transcript, and his [qualification], and his masterclass qualification to train in [his occupational specialty]. 

27. The review applicant was born in [year].  At the hearing he said his father was [an occupation 2], he left the review applicant’s mother when the applicant was young, his mother died when he was [age] and he continued to live with his grandparents, doing the same work that his father and grandfather did after finishing school.  His grandparents passed away before he came to Australia and he has no family in Malaysia.  In 2012 he went to KL and met his ex wife, who already had [children].  They married in 2014.  They had no children as she was no longer able to get pregnant. 

28. Asked why they came to Australia the review applicant said his ex wife’s previous husband had threatened to kill them.  That was what she told him.  His car was damaged and he received warnings.  Asked why this was happening the review applicant said she had done something to her ex husband.  She would not tell him what it was about.  It was something about her tricking him by taking money from him.  He did not know how much money was involved.  He did not know what was in the protection application.  She lodged it; he himself applied for a student visa but was unable to continue studying because of the expense.  The threats came from her ex-husband and his gang.  They said because she had done these things they were going to kill him.  The Tribunal put to the applicant that those claims were vague, and further it was implausible that this matter would be of any further risk to him years later and now that he has separated from her and has a new family. 

29. After they came to Australia his ex wife began contacting other men.  He went out of town to help a friend with car trouble and when he came back she was with another man.  It was after the Tribunal’s protection hearings.  He divorced her immediately as per the Islamic custom.  He broke the door and she reported it to the police and there was an intervention order so he had to leave the house.  Hs still gave her money for food, and took food for the children.  When he stopped giving her money she told the police he had breached the intervention order so he stopped going.  She also sent an email asking him to look after the children while she went on a trip [overseas]. 

30. He met his current wife through friends at a wedding.  She has been married before via an Islamic wedding with no documents.  He did not know when she married or separated.  She came to Australia because her ex partner beat her.  Her mother is deceased and she does not have any contact with her father or her [siblings] because they did not approve of her first marriage.  She does not know how to contact them. 

31. The applicant acknowledged that he had not told the Tribunal or the Department that his marriage had broken down.  He said he really thought Centrelink and the Department were connected when he got the call from Centrelink and confirmed to them that he was separated.  He was also stressed and homeless at the time.  He was really sorry for his ignorance.  The Tribunal put to the review applicant that when he was granted the protection visa he did not contact the Department to say that it was a mistake.  The applicant he assumed the visa was validly granted.  Asked if he ever consulted a migration agent or solicitor about his obligations to the Department having separated, the applicant said that [Agency 1] knew he was separated before the visas were granted.  They did not tell him that he needed to tell the Department.  The applicant said he was not treating his immigration obligations lightly.  [Agency 1] continued to contact him after the Protection decision to help him with his health and police clearances before the grant of the visa, as he was not in direct receipt of any of the correspondence. 

1. The review applicant appealed for lenience in his case.  He wanted to be a good Australian, he has a good new family full of love, he wants to open a [business] and grow up his family in Australia. 

2. The Tribunal heard from the neighbour of the review applicant and his current wife, who strongly praised their characters and personally wished them to stay in Australia. 

3. The applicant’s wife gave evidence.  She said that a partner visa application had been lodged but was invalidated when the review applicant’s visa was cancelled.  She and said she left her ex partner because he was not able to secure her future. 

4. The representative made a post-hearing written submission.

5. The Tribunal turns to evaluate the prescribed circumstances are set out in reg 2.41. 

6. The correct information: It was admitted that the correct information is that the review applicant separated [in] April 2017.  This factor is of neutral weight in favour of or against the cancellation of the visa as the review applicant has never actively claimed to be still in a relationship with his ex-wife.  Indeed, when he sponsored [Spouse A] for a partner visa in 2019 he declared to the Department that he was divorced since [April] 2017.

7. 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 review applicant acknowledged that he was granted a visa in April 2018 on the basis that the RRT thought that he was still a member of the family unit of [Ms A] at the time of the decision.  However, the Tribunal notes that the Department had access to this information from a number of sources before the visa was granted.  The visa grant can only be said to be partly based on the review applicant’s own failure to notify the Department of his changed circumstances.  The Tribunal accords this factor moderate weight in favour of the cancellation of the visa. 

8. The circumstances in which the non-compliance occurred: It was submitted that [in] April 2017 the review applicant became aware his ex-wife had been unfaithful in their marriage and divorced her immediately, verbally in accordance with Islamic tradition.  At the time of the non-compliance he was experiencing a turbulent relationship breakdown.  He was contacted by Centrelink and confirmed he was no longer in a relationship, and mistakenly believed that they had a shared database or would share the information with DHA.  He believed the Department had granted the visa in full knowledge of the breakdown, as he was being supported by [Agency 1] after the Tribunal’s protection decision.  By that time he no longer had access to the visa application documentation.  He was deeply remorseful. 

9. The Tribunal found the review applicant’s explanation of his behaviour plausible, even though it showed something of a want of attention to his obligations to the Department. 

10. The circumstances in which the non-compliance occurred encompass the fact that the review applicant was a party to a protection application.  The Tribunal notes the following from the Tribunal’s Protection decision:

    The first named applicant (the applicant) was born in Terengganu, Malaysia in [year]. She left Malaysia because of racism. She grew up and lived n an Indian populated village. She supported her Indian friends to support Hindu Rights Action Force (HINDRAF). However, she was neglected and threatened by her own Malay race including her family and her ex-husband. Her ex-husband teamed up with a Malay association. He tortured her every day and planned to kill her. She divorced him [details deleted]. 

    The applicant was beaten by a police officer who teamed up with her ex-husband. She
    cannot seek help from the authorities because she supports Indians and no one helped her
    as they only help Muslims in Malaysia. She has married the second named applicant (the
    applicant husband); however her ex-husband is still trying to kill her. Her and her family will
    be physically and mentally tortured until her ex-husband is satisfied. He will torture her
    husband in the workplace until he loses his job. The Malay community will look down,
    neglect and kill them. Her ex-husband did not allow her to move.

    The applicant husband received death threats from Muslim politicians and his wife’s ex-husband for supporting Indians and HINDRAF. The United Malay National Organisation
    (UNMO) took his job away and his children were punished in school for his support of his
    human rights. His house was sprayed with vulgar words and stones were thrown at the
    house every day. He was beaten by the police along with his wife when they sought help
    from authorities. He will be arrested due to his support for HINDRAF and human rights.
    According to an unwritten law, a Muslim cannot support other races.

    …

    At the hearings, the applicants expressly disavowed all the claims related to HINDRAF,

    racism or that they were beaten or targeted by the police or that the UNMO took the

    applicant’s husband’s job away or that the children were punished at school. The applicants

    said they did not understand English and they did not know what was in the application

    which was filled in by a friend of a friend who has returned to Malaysia. I have therefore not

    considered those claims in my assessment.

11. The Tribunal did accept that the applicant’s ex wife had been targeted by her ex husband including after she married the review applicant.  Regarding the evidence of the review applicant it was stated:

    I do not accept that the applicant husband was ever harmed or targeted by the ex-husband as has been claimed. The applicant told the Tribunal that her ex-husband had not hit the
    applicant husband; however the applicant husband later told the Tribunal that he had got
    into many fights with the ex-husband and that the ex-husband hit him. When this was put to
    the applicants under s.424AA, the applicant husband commented that he said he was going
    to be hit by the ex-husband who put his arm out but that he was only threatened and it was
    maybe a misunderstanding as to what he told the Tribunal. However, I do not accept this
    explanation as the applicant husband was clear that he had been actually hit by the ex-husband and I do not accept that the applicant husband could not recall consistently such an
    event. Given this substantial inconsistency, I do not accept that the applicant husband was
    ever targeted for harm by the ex-husband or forced to leave his job because of disturbances created by the ex-husband.

12. It was on the above basis that the Tribunal did not find that protection was owed to this review applicant, only that he was a member of the family unit of his ex-wife.  Aspects of the claims and evidence during the Protection case cast doubt on the applicant’s truthfulness. 

13. The Tribunal gives this factor moderate weight in favour of cancelling the visa. 

14. The present circumstances of the visa holder.  Submissions were made concerning the review applicant’s relationship with [Spouse A]; they have [specified children] born in [years] respectively and are expecting a third child in [month].  The review applicant is working as a labourer at a [service] company in [Town 1] since 21 Feb 2023.  He is working in [Town 1] and transfers money back to [Spouse A] and pays the bills.  He visits Melbourne when he can. He is looking forward to being in a financial position to return to the family home and being actively involved in the upbringing of the children.  He is the sole income earner; she looks after the children.  The Tribunal gives this factor significant weight against cancelling the visa. 

15. The subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act: It was submitted that the applicant had subsequently complied with his obligations.  Subject to the discussion below concerning his stated fears of Malaysia, the Tribunal has no knowledge to the contrary.  In this case this factor is therefore of neutral weight for or against the cancellation of his visa. 

16. Any other instances of non-compliance by the visa holder known to the Minister: It was submitted that there were no other instances of non-compliance, and there is no information before the Tribunal to the contrary.  Again, this factor is therefore of neutral weight. 

17. The time that has elapsed since the non-compliance: it was submitted that more than 6 years have passed, has had two citizen children and cemented a peaceful life in Australia with his family, workplace and community.  The Tribunal gives this factor significant weight against the cancellation of the visa. 

18. Any breaches of the law since the non-compliance and the seriousness of those breaches: It was submitted that the applicant had not breached the law.  However the review applicant volunteered at hearing that during the altercation with his ex-wife he broke a door and was charged with criminal damage.  In the context the Tribunal does not consider this serious.  The Tribunal gives this factor a slight weight in favour of cancelling the visa.    

19. Any contribution made by the holder to the community.  It was submitted that the applicant is a loving family man who supports his family, and is helping to meet labour shortages by working in a regional area.  He is highly valued by his workplace and colleagues who all attest to his good character, work ethic and helpful attitude.  He is a skilled [occupation 1] who has an apprenticeship and [qualification].  [Occupation 1] is also a skilled occupation in demand.  He intends to work in this field again when his financial situation is more stable.  The Tribunal gives this factor significant weight against the cancellation of the visa. 

20. Turning now to matters recommended to the be considered by the PAM 3 guidelines, the Tribunal notes that there will be no consequential cancellations under s 140.

21. The best interests of the children who would be affected by cancellation must be a primary consideration.  It was correctly submitted that this requirement is also reflected in Australia’s obligations under the Convention on the Rights of the Child.  It was submitted that the review applicant is a loving father dedicated to his children’s upbringing and spending quality time with them, providing emotional support to them and their mother contributing to a stable and peaceful family unit.  If he left the children would not have their father to support them through key development stages.  It would be difficult for him to support them financially.  His wife is giving birth and best place to do that is in Australia where she has a settled life.  She has a right to stay here until her protection application is decided on the basis of claims that she fears harm from her abusive ex-partner in Malaysia.  If they all go back the children will face hardship in terms of their standard of living. 

22. The Tribunal agrees that it is clearly in the children’s best interests that the review applicant’s visa not be cancelled.  The Tribunal gives this factor the strongest weight against cancelling the visa. 

23. Whether Australia has obligations under other relevant international agreements that would or may be breached as a result of the visa cancellation (e.g. non refoulement): the applicant is not the subject of a protection finding.  The Tribunal has not found it necessary to consider whether non-refoulement obligations are engaged. 

24. Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.  It was submitted that the review applicant will be liable for detention under s 189 causing immense hardship to him and his family especially his children who are Australian citizens.  The review applicant is subject to the bar in s48A preventing the lodgement of a further protection visa application as he will have had a protection visa cancelled.  An offshore visa application, even if one could be lodged, would be banned for 3 years under PIC4013.The Tribunal gives this a slight weight against cancellation. 

25. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).  It was submitted that if the review is forced to leave Australia and separated from his wife and children this will cause significant hardship to him and his family.  He has concerns about his ability to provide for his family on a Malaysian salary even if they join him there.  He comes from a poor background and is concerned he will not be able to provide a good education, safe housing and sanitary living conditions.  They both face a threat of harm from her ex, and are still at risk because of violent people there associated with his ex wife.  They have no family connections.  He is estranged from his parents and was raised by his grandfather.  Her mother has passed away and she has no other family connections. 

26. The Tribunal was disturbed at the contention that the review applicant would be at risk not just from one but from two ex husbands.  It strained credibility.  The Tribunal found [Spouse A’s] claim to not be in contact with her family, and the stated reason, unconvincing.  The Tribunal does not consider the hardship the review applicant or his family will face if he, and they, return to Malaysia will be anything other than socio-economic.  It gives this factor slight weight against cancellation of the visa. 

27. To sum up, factors pertaining to the integrity of the migration program weigh only moderately in favour of cancellation of the review applicant’s visa.  On the other hand the review applicant’s present circumstances, the time elapsed since his divorce, his contribution to the community and work force, and the best interests of his children, weigh strongly against cancellation of his visa. 

    Conclusion

28. 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.  

29. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    Genevieve Hamilton
    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.

    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.

    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.