2301259 (Migration) - [2023] AATA 2575

2301259 (Migration) [2023] AATA 2575 (16 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  [Applicant 1]
[Applicant 2]
[Applicant 3]
[Applicant 4]
[Applicant 5]
REPRESENTATIVE:  Ms Sai Priya Sivalohan
CASE NUMBER:  2301259
HOME AFFAIRS REFERENCE(S):          BCC2016/4252456
MEMBER:Deputy President J.L Redfern PSM
DATE:16 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 886 (Skilled - Sponsored) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 16 August 2023 at 11:03am

CATCHWORDS:

REFUGEE – Subclass 886 (Skilled - Sponsored) visa – cancellation under s 109 of the Migration Act – incorrect answers given in previous applications – verification checks conducted by the department – applicant conceded he had previously travelled to Australia and applied for Australian visas on an assumed identity – consideration of prescribed circumstances – best interests of Australian citizen children as primary consideration – decision under review set aside and substituted for a decision not to cancel the visa

CASES:

Bettencourt v Minister for Immigration Citizenship Migration Services and Multicultural Affairs [2021] FCAFC 172

CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor [2020] FCCA 1083

DUX 22 v Minister for Immigration Citizenship and Multicultural Affairs 2022 FCFC (Div 2) 1018

DXQ16 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1184

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

Promsopa vMinister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1480

Re Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634

Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409

Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5

Webb v Minister for Home Affairs [2020] FCA 831

LEGISLATION:

Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 109(1)(b), 109(1)(c), 140(1)
Migration Regulations 1994 (Cth), reg 2.41, r 2.41(a), r 2.41(c), r 2.41(d), r 2.41(e), r 2.41(f), r 2.41(g), r 2.41(i), r 2.41(h), r 2.41(j)

SECONDARY MATERIALS:

Department of Home Affairs, Procedural Instruction – General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 886 (Skilled - Sponsored) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2.The first named applicant applied for the visa on 21 April 2009. On 12 October 2017, a delegate of the then Minister for Immigration and Border Protection cancelled the applicant’s Subclass 886 (Skilled - Sponsored) visa on the basis that the applicant had provided incorrect information in his previous visa applications forms lodged with the Department. The visas of the second, third, fourth and fifth named applicants, the first named applicant’s wife and children, were automatically cancelled as a consequence of that cancellation by force of the operation of s 140(1) of the Act. The first named applicant applied for the review of this decision to the Tribunal. The Tribunal, differently constituted, affirmed the decision under review.
3.The first named applicant sought judicial review. His application was successful, and the decision of the Tribunal was quashed and remitted for reconsideration. The Federal Circuit and Family Court found jurisdictional error on the basis that the Tribunal had failed to have regard to certain evidence and representations before it relating to the best interests of the first named applicant’s children. Relevantly, the Court found that it was possible the outcome may have been different if the Tribunal had considered those matters.[1]
4.For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant. As the other visas were automatically cancelled by force of law and not by decision, the Tribunal has no jurisdiction with respect to the other applicants.
5.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled under s 109(1) of the Act.
6.When the first named applicant arrived in Australia on the Student visa in 2005, he was accompanied by his wife, the second named applicant, and his son, the third named applicant, who at that stage was two years old. The first, second and third named applicants have resided in Australia since their arrival in 2005 and since that time, the first and second named applicants have had three children born in Australia who are Australian citizens. The oldest two of those three children are the third and fourth named applicants in these proceedings.
7.The applicants were represented in relation to the review by lawyer Ms Sai Priya Sivalohan. After the matter was constituted, the Tribunal requested that the applicants provide updated submissions addressing the discretional circumstances, including any submissions in relation to the best interests of the third, fourth and fifth named applicants before the scheduled hearing. Ms Sivalohan provided written submissions and further evidence on 28 July 2023 in relation to these matters and addressing the discretionary considerations. These submissions were extensive, cogent and of considerable assistance.
[1] DUX 22 v Minister for Immigration Citizenship and Multicultural Affairs 2022 FCFC (Div 2) 1018 per Judge Laing at [39]-[40].

The applicants appeared before the Tribunal on 4 August 2023 to give evidence and present arguments. The Tribunal received oral evidence from the first, second and third named applicants.
I have decided to set aside the decision under review and substitute a decision that the visa should not be cancelled. Because the third, fourth and fifth named applicants are minors, I have made a non-disclosure direction under s 378(1) and have decided to anonymise this decision. My reasons follow.
DECISION UNDER REVIEW AND BACKGROUND
The applicant is a citizen of India and is 45 years old. He applied for a Student visa on 29 September 1998 in the name of [assumed name]. There is no dispute that this was not the first named applicant’s name. This is explained in more detail later in these reasons.
This visa ceased in March 2000, following which the first named applicant applied for a protection visa under the name [assumed name]. The application was refused, and the first named applicant sought review of this decision to the former Refugee Review Tribunal (RRT). The decision to refuse his application for protection was affirmed. The first named applicant departed Sydney in August 2003. He made an application for judicial review, which was unsuccessful.
On 20 July 2005, the first named applicant made an application for a Student visa under his own name and arrived in Sydney in August 2005. He was granted further Student visas after this date and in April 2009, he made an application for a Skilled-Sponsored visa, which was granted on 2 December 2013. He applied for citizenship on 2 December 2014. As part of the assessment of his application, it was identified that the first named applicant had previously entered and resided in Australia under the name [assumed name]. This was discovered through undertaking assessments in relation to the first named applicant’s identity.
In summary, the departmental identity assessment report concluded that [assumed Name] and the first named applicant were the same person. This was based on departmental facial comparison recognition reports, using photographic images of ‘[assumed name]’ obtained from his protection application and from the University of Wollongong student records and photographic images of the first named applicant obtained from his visa and citizenship applications. The department also relied on information obtained from New South Wales Roads and Maritime Services using their identity recognition system and site visits undertaken by Department officers in India in relation to the first named applicant’s identity, including the identity card issued by the Electoral Commission of India.
This information is probative and cogent. As such, there appears to be little doubt that the first named applicant entered Australia using an assumed identity in 1999, that he applied for a protection visa under this assumed name and this application was refused and that he sought judicial review of the RRT decision under the assumed name.
The first named applicant now properly concedes these matters.
On 15 August 2017, the first named applicant was notified of the intention by the delegate to consider cancellation of his Subclass 886 (Skilled - Sponsored) visa under s 109 of the Act (the NOICC). He was invited to respond to the particulars for the ground for cancellation raised in the NOICC. The delegate identified a number of incorrect answers provided by the first named applicant to facilitate the grant of his Student and the Skilled visas. Given the importance, I recount those particulars in detail as follows.
It is recorded in the NOICC that in the application for a Subclass 573 Student visa lodged on 20 July 2005, the first named applicant provided responses to the following questions as set out below:
a)   Are you known by any other names? (This includes names before marriage). The answer was ‘No’.
b)   Have you, or any person included in this application to apply for this visa, ever been excluded from or asked to leave any country (including Australia)? The answer was ‘No’.
c)   Have you, or any person included in this application to apply for this visa, ever had any outstanding debts to the Australian Government or any public authority in Australia? The answer was ‘No’.
d)   Have you, or any person included in this application held or currently hold a visa for travel to Australia? The answer was ‘No’.
e)   Have you, or any person included in this application ever been refused an entry permit or visa to Australia? The answer was ‘No’.
It was also recorded in the NOICC that on 21 April 2009, the applicant lodged an application for a Subclass 886 (Skilled - Sponsored) visa. Included in his application were the following questions and answers are set out below:
a)At Question 1 of Form 1276 the visa holder was asked: ‘Your full name’. The answer was: ‘[name]’.
b)At Question 5 of Form 1276 the visa holder was asked: ‘Other names you are, or have been, known by (including name at birth, previous married names, aliases)’. The answer was: ‘N/A’.
c)At Question 31 of Form 1276 the visa holder was asked: ‘Provide details of your previous employment’. The answer was: ‘Royal Motors, Hyderabad, India, Accountant, from Jan 2000 to Aug 2005’.
d)At Question 71 of Form 1276 the visa holder was asked: ‘Have you, or any person included in this application to apply for this visa, ever been excluded from or asked to leave any country (including Australia)?’ The answer was: ‘No’.
e)At Question 71 of Form 1276 the visa holder was asked: ‘Have you, or any person included in this application to apply for this visa, ever had any outstanding debts to the Australian Government or any public authority in Australia? The answer was: ‘No’.
f)At Question 75 of Form 1276 the visa holder was asked: ‘Have you, or any person included in this application held or currently hold a visa for travel to Australia?’ The answer was: ‘Yes, Student visa, Grant number [number]’. The applicant did not declare that he had held any other visas.
The NOICC recorded that, on the evidence available to the delegate, it appeared that the first named applicant was the same person as [assumed name], being the person who had previously applied for, and was granted, a Student visa. This being the case, [assumed name], or the first named applicant, was subject to a three-year exclusion which would have expired after 1 August 2006. It is further recorded in the NOICC that the first named applicant, using his assumed identity, had incurred a legal debt payable to the Commonwealth in the sum of $1,500 which had not yet been paid. In summary, it was concluded that the first named applicant had provided incorrect information in his applications for the Student and Skilled visas and had thereby failed to comply with section 101(b) of the Act.
The first named applicant responded to the NOICC by denying that that he had provided incorrect information or that there had been non-compliance. Notably, the first named applicant denied that he had assumed the identity of [assumed name].
The delegate considered the first named applicant’s response and found that there had been non-compliance in the manner described in the NOICC. After considering the discretionary matters, the delegate decided to cancel the first named applicant’s visa. As already noted, the visas of the second, third, fourth and fifth named applicants were automatically cancelled by operation of law.
The first named applicant sought review of this decision to the Tribunal and the matter was listed for hearing before the Tribunal on 22 August 2018. In submissions made to the Tribunal before the hearing, the first named applicant conceded that he had given incorrect answers in respect of his applications for visas and had used a different identity to travel to Australia between 2019 in 2003. The Tribunal found that the applicant had previously been known as [assumed name] and had provided incorrect answers in previous visa applications and there was non-compliance with s 101 in the way described in the s 107 notice. The Tribunal considered whether the visa should be cancelled. While the Tribunal acknowledged that the best interests of the children was a primary consideration, and that there were other strong reasons why the visas should not be cancelled, these were outweighed by other considerations. The Tribunal decided that the visa should be cancelled and affirmed the decision under review on 27 September 2018.
As noted, by judgement dated 9 December 2022, this decision was set aside by the Federal Circuit and Family Court and the matter was remitted to this Tribunal for reconsideration.
When the first named applicant arrived in Australia, he was accompanied by his wife, the second named applicant, and his son, the third named applicant, who at that stage was two years old. The first, second and third named applicants have resided in Australia since their arrival in 2005 and since that time, the first and second named applicants have had three children born in Australia who are Australian citizens.

RELEVANT LAW AND QUESTIONS FOR DETERMINATION

Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Section 109 provides that if the Minister decides there has been non-compliance, the visa holder’s visa may be cancelled after considering any response provided by the visa holder to the notice and having regard to ‘any prescribed circumstances’.
The prescribed circumstances are set out in r 2.41 of the Regulations and are as follows:
(1)the correct information;
(2)the content of the genuine document (if any);
(3)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;
(4)the circumstances in which the non-compliance occurred;
(5)the present circumstances of the visa holder;
(6)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(7)any other instances of non-compliance by the visa holder known to the Minister;
(8)the time that has elapsed since the non-compliance;
(9)any breaches of the law since the non-compliance and the seriousness of those breaches; and
(10)any contribution made by the holder to the community.
While the factors specified in r 2.41 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: Minister for Immigration and Citizenship 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’. This policy requires delegates to have regard to matters such as, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s 140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
In the present matter, I am 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.
Accordingly, the questions for determination are:
(1)Was there non-compliance by the applicant in the way described in the NOICC, namely was there non-compliance with s 101(b) in the manner particularised?
(2)If the answer to (1) is yes, how should the discretion to cancel be exercised, having regard to any response to the NOICC, the prescribed matters and any other relevant considerations?

CONSIDERATION OF CLAIMS AND EVIDENCE

Outline of Evidence and submissions

Prior to the hearing, the applicants provided statements from the first, second, third, fourth and fifth named applicants. The Tribunal was also provided with character references from friends and associates attesting to the first named applicant’s contributions to the Australian community and good character, a psychologist report from Mr Simon Port, clinical psychologist, dated 28 July 2023 in relation to the diagnosis and treatment of the second named applicant, medical records and reports relating to the mental health of the first, second and third named applicants, documents and letters relating to the academic progress and other related issues relevant to the third named applicant, proof of the citizenship of the fourth and fifth named applicants, documents relating to the application for citizenship for the second named applicant, documents recording details of the first named applicant’s business interests in Australia, records relating to various awards and details relating to a not-for-profit organisation formed by him with a number of other interested community members known as Deccan Australian Welfare Association (DAWA).
The first, second and third named applicants also gave evidence at the hearing.
The first named applicant provided a statement outlining the circumstances as to why he had assumed a false identity when he first came to Australia. He was 19 years old at the time and wanted to come to Australia to assist his family in India who were in difficult financial circumstances. He had applied for a student visa in his real name and when this was refused, he was advised by a migration agent to conceal his identity and travel on a different name. In his statement and in his evidence at the hearing, the first named applicant acknowledged that this was wrongful and said he was very remorseful about this. After he returned to India, he made a new application for a student visa in his name, which was successful. He did not disclose his previous visa applications and also realised that this was wrongful. He said that he was driven to do this by ‘his greed for a better future and love for Australia’. According to the first named applicant, and this is supported by other evidence provided by him, while he was in Australia he worked hard, purchased a franchise, employed staff and paid taxes. He purchased a house and raised his children living in a community that he loved. When he received the NOICC, he was shocked and again made a very foolish decision not to accept the concerns raised or to disclose the true details of his previous applications. He said that he lied to ‘save his family’ but realised that this was wrong and felt very guilty about this. While he had denied the claims in the NOICC, when the matter came before the Tribunal, he decided that he should tell the truth.

The first named applicant also provided documentary evidence confirming the purchase and subsequent sale of his franchise business in 2018 for just under $500,000 and providing a copy of an award that he received from the Federal Member for Watson, Tony Burke MP, known as the ‘Pandemic Hero Award 2020’ and a certificate of appreciation given to him by Tony Burke MP in 2022 recognising his contribution to the community. He was given the Pandemic Hero Award for continuing to drive Ubers during the pandemic to transport essential industries and patients. The first named applicant provided evidence of his work with DAWA. DAWA is a non-profit organisation that provides assistance to members of the migrant community, including people who are homeless or in difficult financial circumstances and need assistance. The first named applicant said that he was instrumental in establishing DAWA. I accept this evidence which is consistent with available public information and a letter from the President of DAWA, Mr Mustafa Mohiuddin, dated 24 July 2023, to the effect that the first named applicant had played a ‘very pivotal role’ in establishing DAWA and continued to be involved. According to Mr Mohiuddin, the work of DAWA was directed to assisting migrants to settle in Australia, providing guidance and assistance with employment, arranging accommodation, organising family activities and festivals and taking care of senior citizens.
I accept the first named applicant’s evidence about his remorse and guilt but also find that he provided incorrect information intentionally to advance his migration outcomes. I accept the first named applicant’s evidence that once he made this error in 2005, he hoped that he could continue living in Australia. I also accept that he was young when he provided incorrect information and that by the time he was found out and confronted with the truth, he was shocked and unfortunately gave further incorrect information to cover up his previous lies. I accept that he did this for the benefit of his family and that he is remorseful and has felt guilty about this for a number of years. The first named applicant was open and forthcoming about his contrition and there is ample evidence before me about the impact that this is had on both him and his family.
The second named applicant also provided a statement and gave oral evidence. According to the second named applicant, she met and married the first named applicant in India. They moved to Australia with their two-year-old son and while she initially struggled in adjusting to living in a new community, they build friendships, purchased a house and had three children born in Australia, each of whom has been raised, educated and integrated into the Australian way of life. This is also the case for her eldest son who, while born in India, has lived in Australia since the age of two. All her children have sporting and community interests and a circle of friends in Australia. She was not involved in the matters that led to the cancellation of her husband’s visa. She was very concerned about her children having to return to India when they did not know the culture or the language. She did not believe they would have the same opportunities that they had in Australia, and she believed they would find it very difficult to adjust and thrive. She was concerned about the conditions for them in India, was concerned about the safety of her daughter and had observed that her children had become anxious and concerned about the prospect of having to move to India. Her two sons are very passionate about playing soccer, they attend the Australian Soccer Academy and go to morning training five days a week. They are talented and were invited to travel to Germany to play their sport but were unable to do so because of uncertainties about their visas.
The second named applicant stated that she had extreme feelings of guilt and mood changes and that she had been diagnosed with stress and depression disorder. This was also having an impact on her family. She said that if the visa of the first named applicant remain cancelled and she, her husband and her firstborn son were required to return to India, the whole family would have to return. It was not viable for three of her young children to remain in Australia without them. The second named applicant also provided a copy of a letter dated 9 January 2015 from the then Minister for Immigration and Border Protection notifying her that her application for Australian citizenship had been approved. It was also noted that she would be invited to attend a Citizenship ceremony. The second named applicant followed this up by letter dated March 2016, noting that there was no explanation as to why her citizenship ceremony had been delayed. She was very distressed by this.
The Tribunal was provided with a report from clinical psychologist, Simon Port, who stated that he had been treating the second named applicant from April 2019 following a referral in December 2018. He reported that she is presently suffering severe symptoms of depression, including suicidal ideation, panic and anxiety. She has a diagnosis of Major Depressive and Generalised Anxiety Disorders, as categorised by DSM – V (Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition) from the cumulative effect following from the unresolved migration related challenges from July 2018. According to Mr Port, these conditions have been causing the second named applicant severe dysfunction and have worsened over time. He recommends that she continue to participate in regular sessions of cognitive behavioural and acceptance program for about 12 to 18 months.
The third named applicant, who is now 17 years old, gave evidence and provided a statement. The Tribunal was also provided with details of his academic record, a medical report from his treating doctor and information relating to his sporting activities. In his statement dated 22 July 2023, the third named applicant stated that he had lived in Australia for the past 14 years, felt that he was deeply integrated into Australian society, was completing his education in Australia and was excelling in soccer, through opportunities available to him in Australia, at a very high level. He was concerned about returning to India and he feared for his safety and security given he had very little connection with the culture, he felt he would be perceived as being different, he would have limited support and would be away from the strong network of friends and connections that he had made in Australia. Most significantly, he was concerned he would face significant language barriers as his primary language of communication was English and the compulsory languages like Hindi, Urdu and Telugu were unfamiliar to him. In a report provided by his doctor dated 24 July 2023, it was noted that the third named applicant had been under his medical care since March 2020. In his opinion, the uncertainty in relation to the family’s visas and the prospect of having to return to India was affecting the third named applicant ‘drastically, both emotionally and psychologically’. A referral was made to Flying High Child Psychology in March 2020 and the Tribunal was provided with a report dated 31 August 2022 from this service. It is recorded that the third named applicant was referred for assessment of low mood and depression. The source of the referral was an injury to his knee that stopped him from playing soccer and concerns over his visa status with his condition worsening during the pandemic and various lockdowns. It was recommended that the third named applicant continue with psychological support.
The Tribunal was also provided with certificates of excellence from the third named applicants school recording that in 2022, when he was in year 11, he was awarded as one of the students in the top 10% in Mathematics and PDHPE. In relation to his sporting activities, the Tribunal was provided with a letter from the Australian Soccer School noting that the third named applicant had been chosen to represent the Academy in Germany in December 2022 because he was a very talented soccer player. As already noted, this did not proceed because of concerns about the third named applicant’s visa status.
At the hearing the third named applicant gave evidence that he was in the final year of his high school education and that he was starting trials in the following week. If he was able to remain in Australia, he was interested in attending University to complete a Bachelor of Business or real estate. He had been very depressed from 2020 and was concerned about the uncertainty of the family’s visas. He said that he would find it very difficult to return to India as he did not have the language, had integrated into the Australian way of life and he was concerned he would not have the same opportunities that he had in playing soccer. He hoped to pursue this sporting career and had been chosen to travel to Germany to represent the Australian Soccer Academy.
The Tribunal that was also provided with statements from the fourth named applicant, who is the second oldest teenage son in the family aged 14, who was born in Australia. In his statement, the fourth named applicant stated that he was ‘scared to even think’ about having to move to India. Education and sport, including playing soccer, were very important to him. One of the main concerns he had was the language barrier because he could only speak, read and write in English. The fifth named applicant, who is the only daughter of the first and second named applicants, is 12 years old. She stated that she was concerned about having to return to India because she did not believe it was safe for girls. She wanted to be a lawyer or a doctor, had a close group of friends and was concerned that the only language that she could communicate through was English.
The third, fourth and fifth applicants attended the hearing as did their younger brother, who is currently six years old. The fourth and fifth named applicants were not required to give evidence but given the age of the third named applicant, and the evidence about the particular anxieties he had faced since 2020, he was invited to provide evidence to the Tribunal.
The Tribunal was also provided with medical reports from Dr Nasheeta Usmani which recorded that in his opinion reporting that the first and second named applicants were suffering from significant emotional distress and psychological damage.
Character references were provided from friends and associates in the community, acknowledging the first named applicant’s nondisclosure and non-compliance but nonetheless attesting to his hard-working nature and community minded good character. Many of the people who provided character references had known the first named applicant for more than 10 and in some cases 20 years. One witness referred to the considerable efforts made by the first named applicant to assist him with his immigration issues and to settle into Australia. Mr Sajid Bavazeer stated that he relied on the first named applicant as ‘an integral member of our supportive and progressive community’ and that he had ‘consistently acted as a catalyst and played a significant role in our collective achievements’, referring to the Indian community. Other witnesses observed that the first named applicant had exhibited kindness, empathy and a genuine concern for others and had made a contribution to the community. The Tribunal was also provided with a letter from Mohammed Arif, Assistant Secretary to the Islamic Association Western Sydney Suburbs (IAWSS) who noted that the first named applicant regularly took any opportunity to provide voluntary community services to others. Mr Arif reported that the first named applicant has a diverse and large group of friends and acquaintances in the local community and is well respected. He also stated that the first named applicant is one of his regular volunteers and he has observed him to be ‘a valuable asset to the community’ and a ‘dedicated volunteer who helps the needful every time’.
Most of these witnesses attended the hearing to give evidence on the first named applicant’s behalf but were not required because I accepted the contents of their character statements in support.
In submissions made to the Tribunal, while it was conceded that there had been non-compliance in the manner described in the NOICC and that the grounds for cancellation had been established, it was contended that the Tribunal should exercise its discretion in favour of setting aside the decision and that many of the factors, but most particularly the best interests of the children, the mental health issues experienced by a number of the applicants, and the first named applicant’s demonstrable services to the community, should weigh heavily against cancellation. Ms Sivalohan provided various articles about the conditions in India, including violence against women, increased crime and poor mental health services. Ms Sivalohan referred to Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR), setting out the importance of the family unit and Article 9 of the Convention on the Rights of the Child which states that a child should not be separated from his or her parents against their will unless such separation is necessary for the best interests of the child.
She referred to publications noting that families are a child’s ‘single most important environment in terms of influence on development’[2] and noted the observations of the Federal Court of Australia in Webb v Minister for Home Affairs about the importance of recognising the best interests of children in considering cancellation and consequential deportation cases.[3] She also noted the observations of the Full Court in Bettencourt v Minister for Immigration Citizenship Migration Services and Multicultural Affairs[4], which was an appeal against a decision of the Minister. In that case, the Full Court found that the reasons of the Minister, which ‘blandly’ expressed a conclusion that the best interests of the children would be served by the revocation of the original decision to cancel the visa, there was no qualitative evaluation of a kind would indicate that Minister had accepted that there would be serious harm to the children if the cancellation decision was not revoked. In brief, the Full Court was not satisfied that the Minister had undertaken an evaluation of the harm and observed that if the executive power is to be exercised with a conscious understanding that it will result in the long-term separation of a child from a loving and supporting parent with a likely long-term harm to the children, it would be expected that the seriousness of this consequence and its consideration would be manifestly expressed in the reasons. This case was about whether the Minister had proper regard to the separation of a parent from the children. While this is unlikely to be the circumstances in this case because of the unequivocal evidence provided that the whole family would return to India if the cancellation decision was not set aside, it was submitted this case in the case of Webb nonetheless provide authority for the proposition that the interests of children should be seriously considered and the question of harm, particularly if it is established that the harm will be serious, should be given proper and sufficient consideration.
[2] Australian Institute of Health and Welfare, 2015.
[3] [2020] FCA 831.
[4] [2021] FCAFC 172.

Was there non-compliance as described in the s 107 notice?

The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice (which I have referred to as the NOICC), being the manner particularised in the NOICC, and if so, whether the visa should be cancelled. The non-compliance identified in the s 107 notice was non-compliance with s 101(b), which relevantly provides that ‘a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided’. The particulars referred to are those set out above, being the answers provided by the first named applicant in his Student and Skilled visas in response to the identified questions included in these applications. The NOICC provided details as to why these answers were incorrect and focused on the previous assumed identity of the first named applicant, his previous applications and a debt that was identified as being owed to the Commonwealth as a result of the failed applications.
Having regard to the evidence about the first named applicant’s previous identity and application, it is apparent that his responses to questions 1, 5, 71 and 75 in his application for the Skilled visa and that all of the answers referred to above in relation to his Student visa were incorrect.
Accordingly, I find there was non-compliance with the provisions of s 101(b) by the first named applicant in the way described in the s 107 notice that the ground for cancellation has been established. I note that this is not in dispute.

Should the visa be cancelled?

As I have found that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising the power to cancel a visa, I must consider the first named applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: ss 109(1)(b) and (c) of the Act. As already noted, the prescribed circumstances are those set out in r 2.41 of the Regulations.

The correct information: r 2.41(a) of the Regulations

In this case, the correct information was that the first named applicant had previously applied for a visa, this visa had been refused and he was excluded from applying for a visa for three years from the date of the refusal, namely until 1 August 2006. In addition, the first named applicant should have answered yes in response to the question about whether he had a debt to the Commonwealth. He answered no and he responded that he was unaware there was a debt. This is no excuse and, as such, the information he provided was still incorrect. This is a significant matter and, if the reasons outlined in relation to the next mandatory consideration, the provision of this incorrect information was material. Australia’s migration system relies on non-citizens who apply to enter and remain in Australia on a visa to provide accurate information that is not misleading. Providing information that is incorrect impacts the integrity of, and confidence in, the migration system. Immigration officials rely on visa applicants providing accurate information. The nature of the correct information was significant. This weighs in favour of cancellation.

Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information: r 2.41(c) of the Regulations

There can be little dispute that if the first named applicant had provided the correct information, namely that he had previously applied for a visa under the name [assumed name], that he had been refused the visa, was excluded from re-applying for a visa until after 1 August 2006 and had an unpaid debt to the Commonwealth, it is likely, at the very least possible, that his student visas and the subsequent skilled visa would have been refused. On his own admission, the first named applicant stated that he knew this. This consideration does not assist the first named applicant and also weighs in favour of cancellation.

The circumstances in which the non-compliance occurred: r 2.41(d) of the Regulations

In this case, there is no evidence that the first named applicant was forced into non-disclosure or was ignorant about the true facts, other than his evidence that he was not aware of the debt. He wilfully provided incorrect information and this weighs in favour of cancellation.

The present circumstances of the visa holder: r 2.41(e) of the Regulations

The first named applicant has four children. The eldest child is 17, a son who was born in India and the second and third children are in their teens with the fourth child, who is only 6 years old. He is currently working in Australia, owns property and has owned a business, has contributed to the Australian community and he and his family have significant connections with the community. These matters way against cancellation of his visa.

The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; r 2.41(f) of the Regulations

It is not in dispute that the first named applicant failed, over an extended period, to provide the correct information to officials and to correct his previous non-disclosures. Nor is it in dispute when he was given the opportunity to do so in 2017, he did not and maintained his denial. This caused expense and inconvenience to the Australian community because the Department needed to make further enquiries to establish his identity and the correct information. This is a matter that weighs heavily in favour of cancellation.
Any other instances of non-compliance by the visa holder known to the Minister and any breaches of the law since non-compliance: rr 2.41(g) and (i) of the Regulations
The other instances of non-compliance by the first named applicant relate to the incorrect information which is the subject of the NOICC. There is no evidence that the first named applicant has otherwise breached the law or failed to comply and, as such, this matter is neutral.

The time that has elapsed since the non-compliance and any contribution made by the holder to the community: rr 2.41(h) and (j) of the Regulations

This is a matter that weighs against cancellation. It has been over 18 years since the first instance of non-compliance and approximately 14 years since the second instance. Since this time, the first named applicant has made significant contributions to the community, evidenced by the awards he has been given and the character references provided by colleagues in the community. I accept the evidence provided about the first named applicant’s contribution and his good character and find that this consideration weighs heavily in his favour.

Other considerations

As already noted, while the factors specified in reg 2.41 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. The Department has issued detailed guidance to decision‑makers on the consequences of cancellation that should be taken into account before making a decision to cancel a visa.
As a general principle, the Tribunal should apply lawful government policy, which includes Departmental guidance, unless there are cogent reasons for not doing so in the particular circumstances of a case.[5] I could not identify any such reasons, and the policy issued by the Department on the exercise of the discretion to cancel is both relevant and persuasive.[6]
[5] Re Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634 (‘Re Drake No 2’)
[6] Refer to the Department’s Procedural Instruction ‘General visa cancellation powers s 109, s 116, s 128, s 134B and s 140’
The policy refers to the following matters:
(1)Whether there are persons in Australia whose visas would, or may, be cancelled under s 140 of the Act.
(2)Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:
a.if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, decision‑makers are obliged to treat as a primary consideration the best interests of the children.
b.whether the cancellation would lead to the person's removal in breach of Australian's non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment.
(3)Whether there are mandatory legal consequences to a cancellation decision, for example three examples:
a.whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia's non‑refoulement obligations;
b.whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening (for example, s 46A, s 46B, s 48, s 48A, s 91E, s 91K and s 91P); and
c.whether, upon cancellation, the person would become an unlawful non‑citizen (unless the person holds another visa that is in effect) and is liable to be detained under s 189, and liable for removal under s 198.
(4)Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).[7]
[7] Department of Home Affairs, Procedural Instruction – General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140) at [4.1].
Notably, all of these matters relate to the consequences of cancellation and I now turn to each of these matters insofar as they are relevant.

Consequential cancellations under s 140 of the Act

The visas of the second and third named applicants have been cancelled automatically under s 140 of the Act by reason of the cancellation of the first named applicant’s visa. The fourth and fifth named applicants and the youngest child in the family are Australian citizens and their right to remain in Australia is not impacted by the cancellation of the first named applicant’s visa. However, these children are significantly adversely impacted by the cancellation of the visas of their parents and older brother. There is evidence that the second and third named applicants have experienced serious mental health issues. There is also country information contained in the country information report on India from the Department of Foreign Affairs and Trade (DFAT) dated December 2020 to the effect that ‘mental health programs continue to suffer from severe constraints in technical, human and material resources’ and that these programs ‘remain a low priority on the public health agenda’. It is further noted by DFAT that there are many barriers linked to the stigma associated with mental disorders, the duration and cost of treatment and in many areas, the geographical distance from healthcare providers.[8] Relevantly, DFAT states at [2.39] of its report that ‘access to mental health care is difficult and patients are subject to stigma and discrimination’.
[8] Refer DFAT Report dated 10 December 2020 [2.42].
This factor weighs heavily against cancellation for a number of reasons. Firstly, the visas of the second and third named applicant will be impacted by the consequential cancellation, yet they were not involved in the non-compliance. There is evidence that both suffer serious mental health issues and the country information from DFAT, which is cogent and persuasive, suggests that getting access to mental health care to treat their serious conditions will be difficult. Both may face stigma and discrimination, and this will be particularly difficult for the third named applicant, who is still young and unaccustomed to life in India. Secondly, the cancellation of these secondary visas will have a significant impact on the family unit. If the second and third named applicants visas remain cancelled, the remaining three children will not only lose their father, but they will lose their mother and oldest brother unless they also accompany the rest of their family to return to India. According to the evidence provided to me, there is no choice in the matter. The whole family will be forced to leave Australia. These matters weigh heavily against cancellation and are relevant to the following factor for consideration, which in my view, outweighs all others in the circumstances of this case.

International obligations: Convention on the Rights of the Child

In 1990, Australia ratified the United Nations Convention on the Rights of the Child which entered into force for Australia on 16 January 1991. Article 3 of the Convention provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
It should also be noted that in the preamble to the Convention, it is stated:
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community …
In CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor (CFE16 and CFD16), the Federal Circuit Court of Australia observed that the critical question in the proceedings was:
Whether or not the reasons of the Tribunal member, read as a whole, indicate that the decision‑maker did, in fact, have regard to the relevant consideration in the Convention as a primary consideration. [9]
[9] CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor [2020] FCCA 1083 at [21] per Riethmuller J.
This was further explained by his Honour, Judge Riethmuller, as follows:
The distinctions in reasoning process may seem subtle until one considers the purpose and effect of the Convention. By adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make a primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures that it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[10]
[Citations omitted]
[10] Ibid at [25].
This issue was subsequently considered by the Federal Court in DXQ16 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs, where the Court held that the Tribunal was bound to take into account the best interests of the appellants’ two children in reviewing decisions of the Minister to cancel the appellants’ visas under s 109.[11] Relevantly, Justice Stewart cited the decision in CFE16 and CFD16 with approval and stated that he was “clearly bound to follow and apply the expression of the rule” about the best interests of the child expressed by the High Court in Teoh v Minister for Immigration and Ethnic Affairs, as formulated in Vaitaiki v Minister for Immigration and Ethnic Affairs and “followed by subsequent decisions of the Court”.[12] More recently, in Promsopa vMinister for Immigration Citizenship Migrant Services and Multicultural Affairs, Allsop CJ referred to some of the matters that should be considered, such as whether children as citizens of Australia would be deprived of the benefits of citizenship, the resultant social and linguistic disruption of their childhood and the loss of educational opportunities in Australia.[13]
[11] DXQ16 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1184 at [37] per Stewart J.
[12] Ibid at [37] referring to Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 and Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5.
[13] Promsopa vMinister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1480 at [54] referring to Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [30] per Branson, North and Stone JJ.
Having regard to these authorities, and consistent with Department guidelines, the best interests of the first named applicant’s children is a matter that should be given primary consideration when exercising my discretion. It is therefore relevant to consider the circumstances of his children, including the third named applicant whose visa has been automatically cancelled, and make an assessment of their best interests.
I accept the cogent and persuasive evidence provided by the first and second named applicant’s children about their fears and concerns of disadvantage and potential discrimination if they were to return to India. I accept they may not have the same educational and sporting opportunities that they would have in Australia. I also accept that they will all face language barriers, which may prove to be a critical disadvantage at this stage of their education and development. I accept that it is unlikely that the third and fourth named applicants will be able to pursue a soccer career in India and that there are justifiable fears about the safety of and opportunities for the fifth named applicant, having regard to the DFAT report, which ‘assesses women across society, but particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence’. Notably, DFAT also observes that ‘long-standing traditional values and gender roles can restrict the participation of women in the workforce and community’.[14]
[14] DFAT Report at [3.133].
In summary, I find that it is in the best interests of the first named applicant’s children that they remain in Australia and further that the three Australian citizen children should be allowed to retain the benefit of their Australian citizenship. This factor weighs heavily in favour of setting aside the cancellation decision.

Hardship

Having regard to the evidence previously outlined, I accept that there will be hardship experienced by the first named applicant and all of the members of his family if his visa remains cancelled. This hardship will be significant and this weighs against cancellation.

Conclusion on the exercise of the discretion

There are a number of important factors that weigh in favour of cancellation. Those factors relate to the deliberate nature of the first named applicant’s actions in providing incorrect information to the Department, which was critical in assessing his entitlement to be granted a visa. The first named applicant gained considerable advantage and his actions compromised the integrity of the migration system. I accept that the first named applicant has made significant contributions to the Australian community, and I accept that he will face hardship and is remorseful. However, it is very important for non-citizens who make applications for visas to be truthful and not wilful or intention in failing to disclose important relevant information. It is equally important that, when issues arise and they are requested to correct previous errors, they are open and honest in their response, regardless of the possible consequences. As the first named applicant was advised during the hearing, but for the time that had elapsed, the significant contribution he has since made to the community and, most significantly, the best interests of his children, there were justifiable grounds for his visa to remain cancelled.
In this case, there is overwhelming evidence that the best interests of the third named applicant and his brothers and sister is for the first named applicant’s visa not to be cancelled and for the family to be allowed to remain in Australia as a productive and cohesive family unit. This factor together with the time that has elapsed, the significant contribution made to the community and the degree of hardship that will be experienced by the first named applicant and other members of his immediate family, outweigh the factors that weigh in favour of cancellation.
As such, taking into account all the relevant factors and weighing them accordingly, I exercise my discretion in favour of the first named applicant and have decided that his visa should not be cancelled.

CONCLUSIONS

I have decided that there was non-compliance by the first named applicant in the way described in the notice given under s 107 of the Act. However, having regard to all the relevant circumstances, as discussed above, I have concluded that the visa should not be cancelled.

DECISION

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 886 (Skilled - Sponsored) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

J.L Redfern PSM
Deputy President

ATTACHMENT – Migration Act 1958 (extracts)

Interpretation
(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.
Interpretation
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).
Completion 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.
Information 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.
Incorrect 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.
Visa 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.
Notice 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.

Decision 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.
Cancellation 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.