2311747 (Migration)

[2024] AATA 971

2311747 (Migration) [2024] AATA 971 (16 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Munashe Rusamo

CASE NUMBER:  2311747

MEMBER:Stephen Conwell

DATE:16 April 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 16 April 2024 at 1:50pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in the visa application – incoming passenger cards – details of previous partners and children – multiple criminal convictions – customary marriage – best interests of Australian citizen children – financial hardship – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007
Migration Act 1958, ss 5(1), 97-105, 107-109, 111, 140,189
Migration Regulations 1994, rr 1.15, 2.41
Restraining Orders Act 1997 (WA)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached:

   i.s.101(b) of the Act which requires an applicant to fill in or complete his or her application form in such a way that no incorrect answers are given or provided; and

   ii.s.102(b) of the Act which requires a non-citizen to fill in or complete his or her passenger card in such a way that no incorrect answers are given.

3. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

4. The delegate found that there were grounds to cancel the applicant’s visa in light of circumstances.

5. The applicant appeared before the Tribunal on 26 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The applicant was represented in relation to the review by his registered migration agent (representative). The representative and his associate attended the Tribunal hearing. The interpreter appeared by video link.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Section 375A Information

1. The Departmental file contains a certificate issued pursuant to s.375A of the Act dated 8 August 2023. The Certificate indicates that disclosure of information contained in redacted form in the attachment titled [redacted] [applicant’s name and ID numbers]' attached to the email contained in TRIM reference [number] of the Departmental file number would be contrary to the public interest because it would “disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.”

2. By emailed letter of 30 November 2023 the Tribunal provided the applicant with a copy of the 375A certificate before the hearing. The letter explained that at the hearing the Tribunal would discuss in a general sense the information the subject of the 375A certificate. At the hearing neither the applicant nor his representative commented upon the validity of the certificate. Tribunal

3. Having found the certificate to be valid, The Tribunal determined that it would provide no further information to the applicant.

4. The Tribunal observed that as this information was discussed in some detail both in the delegate’s decision record (provided by the applicant to the Tribunal) and in the representative’s written submission of 23 February 2023, it would place no adverse weight on the information the subject of the certificate.

   Background

5. [In] December 1997, the applicant and [Wife A] (both Egyptian citizens) were married in Fayoum, Egypt. The written submission claims that this was a customary, not a legal, marriage. In his testimony at hearing the applicant conceded that whilst the marriage was in accordance with their families’ wishes, it was nevertheless a valid marriage. They eventually had four children together, all born in Egypt:

   ·[Child A], born [year of birth];

   ·[Child B], born [a few years after Child A];

   ·[Child C], born [approximately ten years after Child B];

   ·[Child D], born [a few years after Child C].

6. [Wife A] and her children all live in Egypt and have never travelled to Australia. It is claimed that sometime in 2006, the applicant and [Wife A] separated.

7. On 27 March 2008, the applicant met an Australian citizen, [Wife B] whilst she was holidaying in Egypt. At the time, [Wife B] was working as [an occupation 1] in [Country 1].

8. The applicant and [Wife B] quickly began a relationship. After a short period of dating and travelling together, they decided to get married. [In] April 2008, the applicant and [Wife B] were married in Egypt.18 The marriage was witnessed and notarised [in Cairo]. A copy of the marriage certificate (in Arabic), with an authorised English translation, forms part of the evidence before the Tribunal.

9. Shortly after their marriage, the applicant returned to [Country 1] to live with [Wife B]. He testified that they lived together for approximately three years.

10. On 23 June 2009, the applicant applied for an offshore Combined Partner (subclass 309/subclass 100) visa (Partner visa) to Australia with [Wife B] as his sponsor. In the Partner visa application, the applicant did not declare having any children, even though he had two at that time, ([Child A] and [Child B]) with [Wife A]. Nor did the applicant disclose his previous marriage to [Wife A].

11. On 2 June 2010, the applicant was granted a Partner (subclass 309) visa to Australia. A few weeks later he entered Australia for the first time with [Wife B]. [Their child, Child E] was born in Victoria in [year]. The parties soon returned to [Country 1] where [Wife B] was still employed as an ‘expat.’  At some point, the applicant travelled alone to Western Australia seeking better paid work than what was available to him in [Country 1].

12. The applicant and [Wife B] separated sometime in 2011. Shortly thereafter [Wife B] contacted the applicant to advise him that she was moving overseas for work and was taking their child with her. In his hearing testimony the applicant stated that [Wife B] and their child had relocated to [Country 2] where she had found more ‘expat’ work.

13. Shortly thereafter [Wife B] withdrew her sponsorship of the applicant's Partner visa. When contacted by the Department in respect of the sponsorship withdrawal, the applicant mentioned the birth of their son. He told the Tribunal that he did not volunteer the fact that [Wife B] and their son were living overseas since their separation. On 9 July 2012, the applicant was granted a Partner (Permanent) (subclass 100) visa.

14. The applicant has been in full-time employment for most of his time in Australia; he sends regular remittances to [Wife A] to support her and the children in Egypt. In 2022 they formally registered their marriage in Egypt. Since arriving in Australia, he has also made several visits to Egypt to spend time with her and their children.

15. In mid-2014 the applicant met [Ms C] and began a relationship with her. He would stay with her in Perth when on a break from his ‘fly in, fly out’ (FIFO) job in regional Western Australia. Their relationship is described as being tumultuous and they have separated on several occasions. After each separation they would inevitably resume their relationship.

16. In [year], the applicant's fifth child, [Child F], was born to him and [Ms C].

17. [The next year], the applicant fathered his sixth child ([Child D]), this time with [Wife A] during a visit back to Egypt.

18. In [year], the applicant's seventh child, [Child G], was born to him and [Ms C].

    Relevant law

19. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with any of ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these provisions require that non-citizens provide correct information in their visa applications and on their in-bound passenger cards; not to provide ‘bogus documents’ and to notify the Department of any incorrect information of which they become aware; and to notify the Department of any relevant changes to their circumstances.

20. 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.

21. In the representative’s written submission, it is conceded by the applicant that the grounds for cancellation of his Resident Return visa exist and further, that he did not provide a response to the Delegate's Notice of Intention to Consider Cancellation (‘NOICC’).

22. 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 NOICC complied with the statutory requirements.

    Was there non-compliance as described in the NOICC?

23. The issue before the Tribunal is whether there was non-compliance of the type described in the NOICC, and if so, whether the visa should be cancelled. The non-compliance particularised in the NOICC was non-compliance with ss.101(b) and s.102(b) of the Act arising in the following circumstances.

    Non-compliance with s.101(b)

    ·s.98 provides that a non-citizen who does not fill out their own visa application or in-bound passenger card is still taken to have done so, if it is filled out by another person, on their behalf;

    ·s.100 of the Act provides that information is incorrect even if at the time of giving it the person did not know the information to be incorrect;

    ·s.101(b) provides that a non-citizen must fill out or complete his or her application form in such a way that no incorrect answers are given or provided;

    ·s.111 provides that cancellation provisions apply whether or not the non-compliance is deliberate or inadvertent;

    ·s.107A provides that incorrect information provided in relation to a prior visa may also afford grounds for cancellation of a person’s current visa, under s.101(b).

24. On 23 June 2009, the applicant lodged a Combined Partner (subclass 309/subclass 100) visa application and submitted an "Application for migration to Australia by a partner" (Form 47SP), with [Wife B] as his sponsor. The applicant and [Wife B] declared they were in a married relationship with each other and had married [in] April 2008 at Giza, Egypt.

25. On page 11 of the Form 47SP at question 37, the applicant answered 'NA' (Not Applicable) to the question whether he had any children.

    Spouse

26. For the purposes of the applicant's Combined Partner (subclass 309/subclass 100) visa application, 'Spouse' had the meaning given by section 5F of the Act as follows:

    Section 5F           Spouse

    (1)    For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

    (2)    For the purposes of subsection (1), persons are in a married relationship if

    (a)they are married to each other under a marriage that      is valid for the purposes of this Act; and

    (b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

    (c)    the relationship between them is genuine and continuing; and

    (d)    they:

    (i)live together; or

    (ii)do not live separately and apart on a permanent basis.

27. Section 5F aligns with reg 1.15A 'Spouse', which relevantly states:

    Reg. 1.15A             Spouse

    (1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:

    (a)in a married relationship, as described in sub-regulation (1A); or

    (b)in a de facto relationship, as described in sub-regulation (2).

(1A)Persons are in a married relationship if-

(a)     they are married to each other under a marriage that is     recognised as valid for the purposes of the Act; and

(b)the Minister is satisfied that:

(i)    they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii)   the relationship between them is genuine and continuing; and

(iii)  they:        

(A)  live together; or

(B) do not live separately and apart on a permanent basis.

(. ..)

First Resident Return visa application

1. On 12 August 2017, the applicant applied for a Resident Return visa. On page 2 of the Resident Return visa form, he answered 'No' to the question, 'Has the applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?' Based on his response in the application form and meeting the other relevant criteria, he was granted his first Resident Return visa on 14 August 2017.

   Incoming passenger cards

2. [In] September 2013, [August] 2015, [January] 2017, [September] 2017, [January] 2019 and [August] 2022, the applicant provided an incoming passenger card on his arrival to Australia, on which he answered 'No' to the question, 'If you are NOT an Australian citizen: Do you have any criminal convictions?'

3. The applicant was permitted entry into Australia [in] September 2013, [August] 2015, [January] 2017, [September] 2017, [January] 2019, and [August] 2022.

   Subsequent information received by the Department

4. [In] August 2020, the applicant applied for Australian Citizenship by Conferral, submitting electronic lodgement form 1300t to the Department.

5. On pages 6 - 11 of the Form 1300t, the applicant provided the following answers (in bold):

   Does the applicant have children including any who may be deceased? Yes

   [. . .]

   Does the applicant have any children that are not applying for citizenship including those who are deceased? Yes

6. The applicant then set forth details of his seven (7) children, including the four Egyptian citizen children that he and [Wife A] have had together. He also declared his relationship with [Wife A].

7. On page 17 of the Form 1300t, the applicant provided the following answers (in bold):

   Character declarations

   Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any 'spent' convictions)? Yes
   Give details: assult charge (sic)

8. Upon further enquiry of the Australian Criminal Intelligence Commission, the Department was informed, in April 2021, of the applicant’s criminal record, set out below:

Court	Court Date	Offence	Court Result
[Court 1]	[July] 2020	Common Assault In circumstances of aggravation or racial aggravation; Crim Code (WA) 313 (1) (a)	[Counts 1]  Comm’y-based Order: [term] concurrent from 2-Jul-20
[Court 2]	[Apr] 2020	Breach of protective bail conditions; Ball Act 1982; 51 (2a)	[Counts 1]  Fine: $500
[Court 2]	[Apr] 2020	Breach Family Violence Restraining Order Or Violence Restraining Order; Restraining Orders Act 1997; 61 (1)	[Counts 1]  Fine: $500
[Court 3]	[May] 2015	Unauthorised driving by Learner driver	[Counts 1]  Fine: $100
[Court 4]	[April] 2014	Breach Of Violence Restraining Order; Restraining Orders Act 1997; 61 (1)	[Counts 1]  Fine: $500 (global)
“	[April] 2014	Breach Of Violence Restraining Order; Restraining Orders Act 1997; 61 (1)	[Counts 1]  Fine: $500 (global)
“	[April] 2014	Breach Of Violence Restraining Order; Restraining Orders Act 1997; 61 (1)	[Counts 1]  Fine: $500 (global)
“	[April] 2014	Breach Of Violence Restraining Order; Restraining Orders Act 1997; 61 (1)	[Counts 1]  Fine: $500 (global)
[Court 2]	[Feb] 2013	Disorderly Behaviour In public; Crim Code (WA); 74A (2)(a)	[SPENT] [Counts 1]  Fine: $150

1. On 9 April 2021, the applicant was sent an 'Invitation to comment on adverse information' pertaining to his citizenship application. On 27 April 2021, he responded to that request. On 18 June 2021, his citizenship application refused on character grounds under paragraph 21(h) of the Australian Citizenship Act 2007.

   Non-compliance with s101(b)

2. The applicant does not dispute that when completing the "Application for migration to Australia by a partner" (Form 47SP), with [Wife B] as his sponsor, that he did not declare:

   ·his previous marriage to [Wife A]; and

   ·the existence of his two children (at that time) with [Wife A].

3. As noted above he answered 'NA' (Not Applicable) to the question regarding the existence of children.

4. The applicant also concedes that he did not respond to the NOICC, for which he expresses regret; however, paragraphs 30 – 31 of the representative’s written submission suggest the reasons for his non-disclosure,

   In the Combined Partner visa application, the Applicant did not declare his children at the time, [Child A] and [Child B]. Nor did the Applicant disclose his customary marriage to [Wife A].

   The Applicant did not declare [Wife A] or his children in the Partner visa application because he was concerned about how it might affect his eligibility for the visa and his future in Australia with [Wife B].

5. In his testimony before the Tribunal, the applicant agreed that he elected not to declare [Wife A] or his children in the Partner visa application because he did not wish to jeopardise the outcome of the visa application.

6. It was submitted that the applicant and [Wife A] had a customary marriage and were estranged by the time the applicant met and married [Wife B]. There is no corroborating evidence to support this claim. Even if it were to be accepted as true, the questions in Form 47SP seek, amongst other things, information of past relationships (not just legal marriages) and the declaration of any children to whom the applicant is a parent.

7. By failing to disclose in his Partner visa application that he already had a family in Egypt (comprising of at least two children), the applicant may have been granted a Partner (Provisional) (subclass 309) visa, and subsequently, a Partner (Permanent) (subclass 100) visa, to which he was not entitled. The Tribunal agrees with the delegate that the applicant’s failure to disclose his two children with [Wife A] raises concerns about whether he had a mutual commitment to a shared life with [Wife B] as a married couple to the exclusion of all others.

8. As noted above, the applicant concedes, both in written submission and in his testimony, that his non-disclosure of [Wife A] and their (at the time) two children was because he did not wish to jeopardise the successful outcome of his Partner visa application. In the Tribunal’s view, the applicant chose not to disclose this information because he understood, or at least feared, that this information might risk him being granted a Partner visa. That is, the applicant concedes that he had deliberately withheld relevant information in order to secure a Partner visa.

9. The applicant claims that he and [Wife A] had been married by custom, not legally. Consequently, they believed that their separation for a period had ended their relationship. Yet in his testimony, he told the Tribunal that he considered their marriage to be genuine regardless of the fact that it had not been legally registered at the time. More importantly, the question in the Partner visa application does not enquire only about legal marriages; it simply asks if the applicant has been married before. The applicant was (or at least had been) married to [Wife A] yet failed to disclose that in the application form.

1. The applicant submits that his past relationship with [Wife A] or having had children with her has no bearing on the genuineness of his subsequent relationship with [Wife B]. That his having a child with [Wife B] is further evidence of their genuine relationship. The Tribunal does not accept these submissions. The applicant’s relationship with [Wife A] (which may or may not have ceased at the time he met [Wife B]) and his fathering of two (at that time) children with [Wife A] go to the heart of the question whether he was in a genuine relationship with [Wife B], to the exclusion of all others.

   53.      Amongst the supporting documents submitted on behalf of the applicant is a copy of the marriage certificate between the applicant and [Wife B], in original Arabic, with accompanying English translation. The applicant agreed in the hearing that the English translation was an accurate copy of the original document. In the hearing the Tribunal quoted the following passage from the English translation,

   The two Parties asked me to tie them with bonds of legal marriage after they had declared that there were no impediments, legal or otherwise to prevent them from contract marriage to which the declaration the two witnesses attested.

   After checking up the document annexed to the contract and becoming certain of the non existence of any legal or other impediment to prevent their marriage I inquired from both spouses whether any of them had been previously married and if so with whom to this the husband replied that he had not been married before under his declaration [the Tribunal’s italics] and the wife replied that she had not been married before either.

2. When asked by the Tribunal why he had not declared his customary marriage to [Wife A] to the marriage celebrant, he replied that the speed at which his relationship with [Wife B] had developed left him confused and unsure whether to declare his past relationship with [Wife A]. The Tribunal does not accept this explanation. Regardless of whether his marriage to [Wife A] was customary, or indeed, if the relationship had ended by the time he and [Wife B] were to marry, declaring it as a previous marriage would have been no impediment to him and [Wife B] marrying. The Tribunal finds that at this other important juncture, the applicant chose not to disclose relevant information because he feared that by doing so, his marriage to [Wife B] may not have proceeded. He failed to disclose the truth of his circumstances in response to a direct question, in order to ensure a favourable outcome – in this case, to marry [Wife B].

3. The Tribunal does not accept the claim that the applicant’s non-disclosures regarding [Wife A] and their children were immaterial to his application for a Partner visa. Indeed, these facts were highly relevant information which should have formed part of the assessment of his Partner visa application.

   Resident Return visa (RRV) application

4. Furthermore, the applicant appears to have also failed to comply with s101(b) in his Resident Return visa application lodged on 12 August 2017 since on page 2 of the Resident Return visa application form, he answered 'No' to the question, 'Has the applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?'  This answer was incorrect because at the time his Resident Return visa application was lodged, the applicant had been convicted of six offences in Australia between [February] 2013 and [May] 2015. Again, the applicant elected not to provide the correct answer in response to a direct question in order not to jeopardise his RRV application, again denying the decision-maker from making a proper assessment of the application based upon a full understanding of his circumstances.

   Non-compliance with s102(b)

5. Section s.102(b) of the Act requires a non-citizen to answer questions in a passenger card correctly and avoid incorrect answers. The delegate found that the applicant may not have complied with s.102(b) because:

   [In] September 2013, [August] 2015, [January] 2017, [September] 2017, [January] 2019 and [August] 2022, the visa holder provided incoming passenger cards on which he answered 'No' to the question, 'If you are NOT an Australian citizen: Do you have any criminal conviction/s?'. I consider this answer to be incorrect because at the time the visa holder provided these passenger cards, he did have criminal convictions.

6. In his written submissions and testimony, the applicant claimed that since English is not his native language, he has difficulty with dealing with formal documents in English; he claimed that sometimes he would ask other passengers to assist him in completing the Passenger Arrival cards, however that was not always possible. He stated that he kept a copy of one of his early completed Passenger Arrival cards which he would refer to for subsequent re-entries into Australia.

7. The applicant submits that non-disclosure of his criminal convictions in his 2017 Resident Return visa application (in breach of s101(b)) and his similar non-disclosure on six incoming passenger cards between 23 June 2009 to [August] 2022 (in breach of s102(b)), were immaterial to the assessment of his Resident Return visa application and to his re-entry into Australia on those six occasions.

8. The applicant attributes these non-disclosures to his limited grasp of English and for not seeking the assistance of a native English-speaker when completing these forms and passenger cards. The Tribunal accepts that the applicant is not a native English-speaker, however it seems a remarkable coincidence that the consistent thread running through his non-disclosures – from his Partner visa application, his declarations to the celebrant when marrying [Wife B], to his Resident Return visa application and incoming passenger cards – concerned highly relevant information which ought to have been before the authorities. Whether the authorities might have reached a different assessment of the applicant, had they knowledge of the withheld information, is a moot point. What is important is that such information should have been disclosed so that the information could form part of the assessment conducted by the relevant authority or authorities.

9. The applicant claims that his offence is that he did not enlist the help of a native English-speaker when completing this official forms and arrival cards. Yet even on those occasions when he elicited the help of others, (such as when [Wife B] no doubt assisted him with the Partner visa application) it was still incumbent upon the applicant to offer the correct and truthful information to those assisting him, in order that he properly and fully responded to the questions being asked.

10. The Tribunal finds that the frequent provision of incorrect answers when applying for Australian visas and when re-entering Australia reveal a pattern of conduct by the applicant to provide incomplete or incorrect information to Australian authorities, the disclosure of which was likely to have a bearing on the possible outcome of decisions in respect of the applicant.

11. Whilst the Tribunal accepts that he might not have been prevented from entering Australia, it finds that by failing to inform the Department of his criminal convictions and by failing to disclose his criminal record in the various Passenger Arrival cards, the applicant withheld highly relevant information from both Departmental and Australian Border Force officials, which, had that information been disclosed at the relevant times, may (or may not) have resulted in a different assessment of the applicant by those officials.  What is important is that the applicant’s pattern of non-disclosures to both Departmental and Australian Border Force officials, denied those officials a more complete picture of the applicant’s history and circumstances when they were assessing his visa applications and passenger arrival cards.

12. The Tribunal finds that there was non-compliance with s.101(b) and s.102(b) in the manner set out in the NOICC.

    Should the visa be cancelled?

13. As the Tribunal has decided that there was non-compliance in the manner described in the NOICC 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).

14. 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 applicant concedes that he did not respond to the NOICC.

15. The prescribed circumstances are set out in reg 2.41 of the Regulations. They are:

    The correct information

16. The correct information is that at the time of applying for a Partner visa, the applicant had been married to [Wife A] and (at that time) had two children by her. Neither [Wife A] nor the children were disclosed in his Partner visa application. Furthermore, the correct information is that the applicant also had criminal convictions which he failed to disclose both in his Resident Return visa application and in several Passenger Arrival cards, as described above.

    The content of the genuine document (if any)

17. This is not relevant in the present case.

    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

18. The applicant’s eligibility for the Partner visa was dependent on the delegate’s satisfaction that he had a genuine, mutually committed spousal relationship with the sponsor, to the exclusion of all others. The fact of having had children with another woman would have been highly relevant to the assessment whether the applicant was the spouse of the sponsor and whether their relationship was mutually committed and to the exclusion of all others.

19. The Tribunal finds that the decision to grant the applicant his Partner visa was based, in part, on incorrect information.

20. As noted above, the applicant first applied for a Resident Return (class BB) (subclass 155) visa in August 2017. In the application he failed to disclose his convictions which at that time related to disorderly behaviour in public, breaching a Violence Restraining Order (VRO) and unauthorised driving. Implicit in his defence submission is the applicant’s claim that his failure to declare his criminal record arose not from his desire to withhold this information from the assessment of his RRV, but rather that he did not seek assistance of a native English-speaking person.

21. Whilst the Tribunal accepts that the applicant is not a native English-speaker, it finds his explanation of his wrongful conduct (that it was his failure to seek assistance of a native English-speaker, rather than his withholding of relevant information) to be self-serving and lack credibility.

22. It also finds that the decision to grant him a RRV was also based, in part, on incorrect information.

23. The Tribunal gives this consideration significant weight in favour of affirming the decision to cancel the applicant’s visa.

    The circumstances in which the non-compliance occurred

24. The applicant did not provide the Department with a response to the NOICC. In his statutory declaration dated 12 February 2024 and in testimony to the Tribunal the applicant expressed regret for not doing so. He also states,

    I admit that throughout the years I have made a number of significant mistakes that have had a harmful and long-lasting impact on my family. I admit that throughout my immigration journey I have not paid close attention to the information I have put into a number of Australian immigration forms which has led to me inadvertently make either false or incorrect declarations…

    With that being said, I have been working to rectify the mistakes that I have made. I have been working hard to be a better person to ensure that I am a great father to my children and a person of good character in the Australian community. Beyond this, I have worked hard to rectify the errors I made in my immigration journey not only so that I can bring my family from Egypt to Australia but also because I want to do the right thing.

25. As previously noted, the applicant told the Tribunal that he did not mention [Wife A] or his children in his Partner visa application because he was concerned that the information may result in his visa application being unsuccessful, which would then complicate his new relationship with [Wife B], whom he had recently married. In the Tribunal’s view, withholding highly relevant information in order not to jeopardise the granting of a visa is no justification for the withholding of that information. Similarly, the applicant’s failure to disclose to the celebrant in his marriage to [Wife B], his relationship with [Wife A] suggests to the Tribunal the possibility that, whilst he and [Wife A] might have had their “ups and downs” like any couple, they were not estranged as the applicant claims. Yet even if the applicant’s claim that he and [Wife A] considered themselves to be separated or even divorced at the time of his marriage to [Wife B], that fact does not justify the applicant not declaring his previous marriage to [Wife A] in response to a direct question.

26. The Tribunal accepts that the applicant was feeling stressed and anxious and swept up in the “holiday romance” with [Wife B]. Needless to say, his stress and anxiety only worsened as his personal life became ever more complicated. It is also evident that his complicated personal life arose entirely out of his own fateful decisions, made over many years, to withhold important information from the Department, the Australia’s Border Force, and even from the marriage celebrant who married him and [Wife B].

27. The applicant concedes that he has made some poor decisions without proper consideration of the consequences of those decisions. He states he is remorseful and he is trying hard to be a better person and a better father. However, ultimately, he is responsible for his conduct and his decisions and the consequences that flow from them.

28. The Tribunal finds that the applicant has displayed a pattern of behaviour of deliberately withholding highly relevant information from authorities in order to achieve his preferred outcome – be that marrying [Wife B], being granted a Partner visa and later, a RRV, or being readmitted into Australia at the conclusion of his many overseas visits to be with [Wife A] and their children.

29. The Tribunal gives this consideration significant weight in favour of affirming the decision to cancel the applicant’s visa.

    The present circumstances of the visa holder

30. The evidence shows that the applicant has three Australian citizen children all born in Australia: [Child E] born in [year] with his ex-wife, [Wife B]; and two children, [Child F], born in [year] and [Child G], born in [year], with his former de facto partner, [Ms C]. The applicant confirmed that since his separation from [Wife B], who departed overseas on another ‘expat assignment’ shortly afterwards, he has had no contact with their [Child E] apart from the occasional email or photograph of [Child E] sent by [Wife B]. It is therefore only his two youngest Australian citizen children with [Ms C] with whom he has an ongoing personal relationship.

31. Nevertheless, the Tribunal acknowledges that cancellation of his visa may cause the applicant and two of his Australian children ([Ms C's] children), emotional and psychological hardship, as the applicant would no longer hold a visa to remain in Australia.

32. The applicant provided to the Tribunal a number of family and personal photographs of him with his two children with [Ms C]. It seems that his visiting access to the children is no longer restricted nor requiring of supervision. The Tribunal accepts that he and [Ms C] now appear to have a civil understanding with respect to his contact with their two children. It has regard to the letter of support written by these two children. The Tribunal notes the claim made in paragraph 167 of the Representative’s written submission,

    While the Applicant has not seen [Child E] since he and [Wife B] separated. He sees [Child F] and [Child G] often and maintains a close and loving relationship with them.

33. The Tribunal notes that the applicant has attended and completed several family and parenting counselling courses, some also attended by [Ms C].

34. The Tribunal accepts all of this evidence. It also acknowledges that cancellation of his visa would prevent the applicant from lawfully working in Australia as he would have no work rights. This may alter his financial position, likely to result in financial hardship for him and his children with [Wife A] and [Ms C], to whom it seems, he continues to provide some financial support.

35. The Tribunal give this consideration some weight against cancelling the visa.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

36. The applicant remains in full-time employment. The Tribunal acknowledges the letter of support submitted by his employer.

37. Apart from the above observation, nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the Act.

38. The Tribunal notes that the applicant made full disclosure of [Wife A] and their four children, as well as of his criminal record, when applying for Australian citizenship. This appears to be consistent with his past behaviour, where his level of disclosure to authorities seems to be determined by his preferred outcome. In this case he appreciates that only full disclosure is likely to result in him being granted Australian citizenship. Furthermore, the applicant concedes that he wishes [Wife A] and their four children to join him in Australia. It seems to the Tribunal that he has reasoned that he must disclosure their existence to authorities if he is to have any hope of achieving this desired outcome.

39. The Tribunal gives this consideration some weight in favour of affirming the decision to cancel the applicant’s visa.

    Any other instances of non-compliance by the visa holder known to the Minister

40. There are no other known instances of non-compliance. The Tribunal give this consideration some small weight against cancelling the visa.

    The time that has elapsed since the non-compliance

41. The applicant’s non-compliance with s101(b) occurred on 23 June 2009, when he elected not to declare [Wife A] or their children in his Combined Partner (subclass 309/subclass 100) visa application; further non-compliance occurred on 14 August 2017, when he did not declare his criminal convictions in his Resident Return visa application that he had. A period of approximately six years has elapsed since non-compliance with s101(b) last occurred.

42. The applicant’s non-compliance with s102(b) occurred on several occasions - [September] 2013, [August] 2015, [January] 2017, [September] 2017, [January] 2019, and [August] 2022 - when he completed and submitted incoming passenger cards in which he failed to disclose his criminal convictions. A period of approximately one year elapsed since the non-compliance with s102(b) last occurred and the delegate’s decision. The delegate notes that the applicant did comply with s102(b) on his last arrival to Australia [in] May 2023, and concludes that a considerable period of time has not elapsed since non-compliance with s102(b) last occurred.  The Tribunal also finds that a considerable period of time has not elapsed since non-compliance with s102(b) last occurred.

43. The applicant has been usually resident in Australia for almost 14 years since first arriving [in] June 2010. As noted above, he has fathered three Australian citizen children who were born in Australia. He appears to have been gainfully employed for much of his time onshore and it seems that he owns his own home.  The Tribunal accepts that he is likely to have developed social connections and other ties to the community while in Australia, given his period of residence onshore.

1. The Tribunal accepts that he intends to remain in Australia permanently as he was granted a Resident Return visa on 22 March 2023. Moreover, he has declared a wish to seek to bring [Wife A] and their four children to join him in Australia.

2. The Tribunal give this consideration neutral weight in considering the decision to cancel the visa.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

3. The applicant has been convicted of offences, subsequent to the non-compliance with s101(b) which occurred on 23 June 2009 and 14 August 2017; as well as subsequent to the non­ compliance with s102(b) which occurred between [September] 2013 and [August] 2019.

4. [In] April 2020, the applicant was convicted of breaching a Family Violence Restraining Order as well as breaching protective bail conditions. [In] July 2020 he was convicted of common assault in circumstances of aggravation or racial aggravation. His April 2020 convictions resulted in monetary fines, with his July 2020 conviction leading to [a Community Correction Order].

100.   Although the Tribunal has regard to the circumstances giving rise to the offences (the applicant was seeking to have contact with [Ms C’s] children) the Tribunal nonetheless considers the offence of  breaching a Family Violence Restraining Order and the offence of common assault to be serious in nature. Further, both offences occurred within a few months of each other, in 2020. The Tribunal gives this consideration some weight in favour of cancelling the visa.

Any contribution made by the holder to the community

101.   The applicant appears to have been gainfully employed for much of his time onshore. He has worked hard enough to own his own home and to continue to provide financial support to his children with [Wife A] and [Ms C]. The Tribunal gives some positive weight to this factor in favour of the applicant.

102.   However, whilst having regard to the above observations, there is no other evidence to suggest that he has contributed positively to the community while in Australia. On the contrary, there are his criminal convictions which, as noted above, span from February 2013 to July 2020.

103.   The Tribunal gives neutral weight for this factor when considering the decision to cancel the visa.

Whether there would be consequential cancellations under s.140

104.   There are no persons whose visa would be subject to consequential cancellation. The Tribunal gives neutral weight for this factor when considering the decision to cancel the visa.

If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

105.   When considering a visa cancellation in such circumstances, a decision-maker should assess whether Australia would be in breach of its international obligations if the visa was to be cancelled. These include, among others, the obligations in relation to non-refoulement pursuant to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol (Protocol), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

106.   The applicant is a citizen of Egypt. There is no evidence or submissions before the Tribunal to suggest that his political and civil rights would be affected were his visa to be cancelled. Nor is there evidence suggesting that he has applied for a Protection visa or has made any claims in which he is seeking to engage Australia's protection obligations. Consequently, the Tribunal does not consider a decision to cancel the visa would lead to a breach of Australia's non-refoulement obligations under the Refugee Convention, or in breach of Australia's obligations under the CAT or the ICCPR.

107.   In his application for Australian citizenship and in his supporting submissions the applicant declares [Wife A] and their four children; they were all born in Egypt and are Egyptian citizens living in Egypt. According to the delegate (and not contested by the applicant) departmental records indicate these children have not travelled to Australia previously and do not hold visas for travel. The Tribunal notes that the applicant’s three younger Australian-born, Australian citizen, children have always been, and continue to be, cared for by their respective mothers as their primary caregiver. As noted above, the applicant also concedes that he has not seen or had notable contact with [Child E], his son with [Wife B], since he and [Wife B] separated sometime in 2011 and shortly thereafter [Wife B] departed Australia for another ‘expat’ job, taking [Child E] with her.

108.   Nevertheless, the Tribunal accepts that the applicant has three Australian citizen children. Consequently, their immigration status would not be affected should the visa be cancelled, as they are Australian citizens.

109.   Whilst the Tribunal accepts the logic of the delegate’s comment that a decision to cancel the visa would not, in and of itself, cause the applicant to be separated from his children in Australia, the reality of the  circumstances is that it is unlikely that [Ms C] would choose to relocate to Egypt, or allow the children, whilst young, to travel unattended, to spend time with the applicant. However, that is a decision for [Ms C]; there are no legal or visa impediments preventing her or their common children visiting the applicant should they wish to do so. Nevertheless, the Tribunal acknowledges that the best interests of [Ms C’s] children are likely to be adversely affected in some way, should his visa be cancelled.

110.   It seems that the applicant has had no personal contact with [Child E], his son with [Wife B], since the parties’ separation over 10 years ago; that situation seems unlikely to change regardless of where the applicant is living. The Tribunal does not consider that [Child E’s] best interests are affected should the applicant’s visa be cancelled.

111.   The Tribunal agrees with the delegate that a decision to cancel the visa does not necessarily equate to the applicant's removal from Australia. Any decision to detain or remove the applicant would be made under separate legislative processes, independent of a decision to cancel the visa. In these circumstances, the Tribunal does not consider that cancelling the applicant’s visa would necessarily result in a breach of Australia’s obligations under Australia's international obligations.

112.   As for the principle of family unity, the applicant’s partner and children are Australian citizens. The cancellation of the visa would not necessarily prevent the applicant from maintaining these relationships as the applicant has the option of seeking other Australian visas. Moreover, the applicant seems to have maintained good relationships with his four children with [Wife A] despite his living in Australia since 2010. Should his visa be cancelled and it eventuates that he is required to quit Australia, it may be open to him to apply to visit here to spend time with his children with [Ms C], in similar fashion to his frequent visits to Egypt to be with [Wife A] and their four children.

113.   Indeed, the Tribunal notes that two of the applicant’s four children with [Wife A] are also minors – [Child C] currently being approximately [age] years of age and [Child D] being approximately [age] years of age.

114.   According to policy, the interests of children over the age of 18 should be taken into account under the family unity principles. Article 23.1 of the ICCPR provides that:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

115.   The effect on family members, both in Australia and overseas and including non-citizens, must also be considered. Consequently, the applicant has two young children in Australia and two in Egypt whose best interests need to be considered. The Tribunal notes that the applicant wishes to bring [Wife A] and his four children onshore, however that is an entirely separate matter for Departmental consideration. Even if his visa were not to be cancelled, the applicant cannot assume that his desire to bring [Wife A] and the four children to Australia will find favour with the Department.

116.   In confining itself to the terms of this merits review, it is conceivable that should the applicant return to Egypt, that would be in the best interests of [Child C] and [Child D] and indeed for his entire family in Egypt. It seems that whatever decision is made regarding possible cancellation of the applicant’s visa, it would not be in the best interests of two of his minor children, either in Australia or in Egypt.

Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

117.   The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal acknowledges that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a 3 year exclusion period unless she meets the relevant Public Interest Criterion. Whilst these are serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation.

Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

118.   As a consequence of his rather colourful life and his fateful decisions, the applicant has seven children from three different women. He has two families in which he continues to be play an active role – one in Egypt and one in Australia. Each family has two minor children. The applicant is not the primary carer in either case; the children are in the care of their respective mothers who have always been their primary caregiver. However, the Tribunal accepts that the applicant provides financial support to both families and endeavours to make regular contact with all the children in these two families.  He has had no contact with his third family – his son, [Child E], with [Wife B] - since she ended their relationship and returned to ‘expat’ work overseas sometime in 2011.

119.   The Tribunal accepts that cancellation of the visa may cause the applicant and his two children with [Ms C] emotional hardship and possibly some financial hardship however there are no claims made, nor evidence submitted, that he is their primary financial provider or caregiver. [Ms C] is their primary caregiver and financial provider. The applicant now has unrestricted access to their common children and provides additional financial support from time to time. In other words, the applicant seems to occupy a similar role in respect of the young children in both families in Egypt and Australia. Consequently, there is insufficient information before the Tribunal to make a finding in this regard.

Conclusion

120.   The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with ss.101(b) and 102(b) of the Act and that there are grounds for cancelling his visa.

121.   The Tribunal accepts that hardship may be caused to the applicant and [Ms C's] children should his visa be cancelled. The best interests of [Ms C’s] children are factors in favour of his visa not being cancelled, which the Tribunal gives appropriate weight to.

1. The Tribunal accepts that if the applicant’s visa is cancelled, and unless he is granted another visa, he may be subject to detention, although the applicant may be eligible to apply for other visas.

123.   Having regard to the applicant’s role in his two families in Egypt and Australia (each comprised of two minor children), the Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.

124.   The applicant’s non-compliance may cause him and [Ms C's] children emotional hardship, however the Tribunal places greater weight on the fact that the applicant exhibited a pattern of behaviour of not disclosing the correct information on several occasions - to the Department, to Border Watch officials and even to the celebrant who married him and [Wife B]. The circumstances in which the several instances of non-compliance occurred were such that the decisions to grant the applicant a Partner visa and later, a Resident Return visa, were based partly on incorrect and incomplete information submitted by the applicant. The Tribunal places considerable adverse weight on this fact.

125.   The Tribunal notes that the applicant has a criminal record in Australia which forms part of his non-disclosure. Apart from maintaining employment, there is no evidence that the applicant contributes to the community. These factors also weigh in favour of the cancellation.

126.   Having considered all the circumstances of this case, the Tribunal has decided to give the greatest weight to the factors which weigh in favour of the cancellation.

127.   The Tribunal has decided that there was non-compliance by the applicant in the manner set out in the NOICC issued under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal finds that the visa should be cancelled.

DECISION

128.   The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Stephen Conwell
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

102Passenger cards to be correct

A non‑citizen must fill in his or her passenger card in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given.

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 applicant 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 applicant 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.