2313404 (Migration)

[2023] AATA 4511

2313404 (Migration) [2023] AATA 4511 (29 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Baker Al Musawi (MARN: 0601647)

CASE NUMBER:  2313404

MEMBER:Kira Raif

DATE:29 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 29 November 2023 at 10:10am

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – incorrect information given in visa application – previous name, residence in third country, conviction, removal and bar, and previous Australian visa application not declared – discretion to cancel visa – non-compliance conceded – claims of innocence and spent conviction, that change of name was not official and that previous application was withdrawn not relevant to non-compliance – other forms of names due to transliteration – divorced with Australian citizen child – best interests of child not determinative – recent new relationship and all family in Australia – claim of fear of harm in home country – ethnicity and religion – application for protection visa made after partner visa cancelled – mandatory legal consequences – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASE
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a national of Iraq, born in [Year]. He was granted the Partner visa in Subclass 801 in December 2019. In August 2023 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant may not have complied with s 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 29 August 2023. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s uncle. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

5. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.

6. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

7. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s. 101 of the Act.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Prospective Marriage visa in February 2017 and arrived in Australia in March 2017. He made the application for the Partner visa on 11 December 2017 and completed the online application form. In the application form the applicant gave the following answers:

   a.His name was [the applicant], born on [Date 1], and he had never been known by any other name,

   b.He lived in Baghdad, Iraq between January 2004 and July 2016, in [Country 1] between July 2016 and March 2017 and in Australia since March 2017,

   c.He visited [Country 2] between January 2016 and June 2016 and [Country 1] between July 2016 and March 2017,

   d.He had never been refused an entry permit or visa to Australia,

   e.He had never been convicted of an offence in any country,

   f.He had never been removed, deported or excluded from any country, including Australia, 

   g.The applicant completed a declaration that the information on the application form and attachments was complete and correct in every detail.

9. The applicant was granted the migrant Partner visa in subclass 801 on 17 December 2019.

10. The primary decision record indicates that since the grant of the Partner visa, the following information became available:

    a.The applicant was previously known as [Alias 1], born on [Date 2].

    b.The applicant was refused a Prospective Marriage visa on 17 December 2013 under the identity of [Alias 1]. He made that application on 24 September 2013, sponsored by [Ms A].

    c.The Department completed a forensic facial comparison of the photographs submitted by [Alias 1] for the Prospective visa application made in September 2013 and by [the applicant] submitted for the Prospective visa application made in June 2016 and found these to represent the same person.

    d.The applicant was also known as [Alias 2], born on [Date 1]. Under that name, he was convicted of murder in [Country 3] in 2006 and sentenced to 10 years imprisonment. After serving about five years, the applicant was released from prison and deported from [Country 3]. He was banned from re-entering [Country 3] or [associated countries].

    e.The applicant may also have been known as [Alias 3], born [Date 1]. The applicant’s siblings are in Australia and they provided information to the Department regarding their family composition, indicating that the family surname, and the applicant’s surname is [Alias 3 surname].

11. In his response to the NOICC the applicant stated that

    a.apart from the name of [Alias 1], all other names are identical in Arabic and any differences were due to translation. He believed he had no aliases. In his submission to the Tribunal of 6 October 2023 the applicant also states that the various names are different transliterations of his true name and he provided various personal documents evidencing his and his family members’ genuine names. However, it is notable that the heading of the relevant question on the application form refers to other names / spellings so the applicant would have been required to state not only any other name he may have been known by, but a different spelling / transliteration of that name.

    b.He admits using the name of [Alias 1] (b [Date 2]) in his old Prospective marriage visa application but after learning that the documents associated with that visa application were fraudulent, he asked the sponsor to withdraw the application as he did not want to provide false information. The applicant states that he did not provide that name firstly because it is not a legal name and, secondly, because the application was withdrawn for that reason.

    The Tribunal finds the applicant’s explanation unpersuasive. The question on the application form was whether the applicant was known by any other name. Nothing in that question suggested that the applicant was only required to state a ‘legal’ name. Neither does that question refer to the use of name that resulted in the grant of the visa. That is, even if the application was withdrawn, the applicant was required to indicate that he had been known by another name.

    c.The applicant states that he was not aware that his previous Prospective Visa application was refused, believing it was withdrawn. The Tribunal is mindful that the applicant would have received correspondence from the Department advising him of the outcome of the application. The decision record suggests that the application was refused rather than withdrawn.  

    d.The applicant claims that he made a typographical error when claiming he lived in Iraq from January 2004 as it should have been from December 2007. The applicant admits that he lived in [Country 3] between 2001 and 2004 (his evidence to the Tribunal is that he had lived in [Country 3] for eight years). It is difficult to see how the complete failure to mention [Country 3] in the application, coupled with incorrect dates of residence in Iraq, could be explained by a typographical error. If the applicant did mention his residence in [Country 3] and in Iraq at the same period, it could have been explained by a typographical error but the fact that he failed to refer to his residence in [Country 3] but claimed that in the relevant time (when he lived in [Country 3]) he was in fact in Iraq suggests that the applicant had deliberately withheld information about his residence in [Country 3].

    e.With respect to his conviction, the applicant states that he did not commit the crime and was innocent and he was ‘underage’ when accused. The applicant states that he did not disclose the conviction as it was a ‘spent conviction’ that occurred more than 10 years ago. Again, the applicant finds that explanation unpersuasive. The fact that the applicant was convicted of the offence, as the primary decision record indicates, is evidence that a finding of guilt had been made. The applicant’s own belief (even if genuine) that  he did not commit the crime and was innocent is thus irrelevant. The question on the form was whether the applicant had been convicted of an offence, not whether he believed himself to be innocent. The fact of the conviction cannot be denies. As for the applicant’s claim that he did not declare the conviction as it was a spent conviction, the Tribunal notes that the question on the form was whether the applicant had ‘ever’ been convicted of an offence. In the Tribunal’s view, that makes it clear that the applicant was required to declare all of his convictions, not only those that occurred in a particular period. Given the fact that the applicant chose not to declare his residence in [Country 3] (which would have necessitated him to provide the police clearance certificate from [Country 3] as a result of which his conviction may have come to light), the Tribunal is of the view that the applicant had deliberately withheld information about his conviction (rather than genuinely believing he did not have to disclose that information) so as not to jeopardise the grant of his Partner visa.

12. The applicant presented in his response to the NOICC a letter of support by [Dr B], who states that he has known the applicant for a long time. [Dr B] refers to different transliterations of the applicant’s name (as opposed to aliases) and, in relation to the applicant’s conviction, [Dr B] states that the applicant was underage when charged with murder and has not committed the crime but was used as a vehicle to get the perpetrator released. It is difficult to see (and it is not explained in the statement) how [Dr B] would be ‘fully aware’ that the applicant had not committed a crime, particularly in light of the conviction. In the absence of any explanation as to how this conclusion was reached, the Tribunal finds [Dr B]’s statement unpersuasive and give it no weight. Further, as noted above, the Tribunal is of the view that the fact of the conviction itself is evidence that the applicant was found to have committed a crime. The applicant’s own  beliefs about his involvement , and the beliefs of others, do not alter the fact that  the applicant had been convicted of an offence. [Dr B] states that the applicant was one of the persecuted minorities, Mandaean Sabeans, who fled the country seeking asylum and would face serious harm for Convention reasons if returned to Iraq.

13. In his written submission to the Tribunal of 16 November 2023 the applicant agreed that there was non-compliance. In oral evidence the applicant gave evidence about the information he provided on the application form and explained the circumstances for the provision of the information. The applicant’s oral evidence is discussed in more detail below.

14. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided in relation to the following:

    -When claiming that he had never been known by any other name.

    The Tribunal generally accepts that most of the names noted in the delegate’s decision are different transliterations of the applicant’s name and the Tribunal takes no issue with the use of these names. However, it is not in dispute that the applicant used an entirely different name in an earlier visa application (which he was claims was fraudulent and withdrawn) and it is the applicant’s failure to mention that name that constitutes a breach of s. 101.

    -When providing information about his past countries of residence and claiming that he was living in Iraq between 2004 and 2016 (and failing to mention that he resided in [Country 3]).

    -By stating that he had not been deported, excluded or removed from any country.

    -By stating that he had never been refused an Australian visa. The Tribunal notes that even if was correct that the application for the Prospective Marriage visa was withdrawn, rather than refused, and the applicant did not provide an incorrect answer in relation to that particular aspect, the other answers noted here were incorrect and form the basis for finding that the applicant did not comply with s. 101.

    -By stating that he had not been convicted of any offence. To the extent that the applicant’s conviction in [Country 3] was a spent conviction or occurred when he was a minor and was therefore non-disclosable, the Tribunal notes that even if the applicant did not provide an incorrect answer in relation to the questions relating to the conviction, he did provide incorrect answers in relation to the other questions and thus, a ground for cancellation is made out whether or not this particular instance is relevant.

    -By stating that all the answers in the application form were correct.

15. The Tribunal finds that the applicant completed the application form in the way that incorrect answers were given or provided. The Tribunal finds that the applicant had not complied with s. 101 of the Act in the way described in the s 107 notice.

    Should the visa be cancelled?

16. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

17. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. They are:

    The correct information

18. The correct information is that the applicant had been known by another name and had previously applied for an Australian visa. The correct information is that the applicant had lived in another country that was not declared in his visa application, had been convicted of an offence and had been removed or excluded from that country.

19. The Tribunal finds that this factor weighs in favour of the cancellation.

    The content of the genuine document (if any)

20. 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

21. In his submission to the Tribunal of 16 November 2023 the applicant claims that his visa was not based on incorrect information or bogus document but on his relationship with the sponsor. However, in addition to the assessment of the applicant’s relationship with the sponsor, a visa application required an assessment of the applicant’s character. The applicant’s residence in another country would have necessitated the provision of a penal certificate from that country and the applicant’s failure to mention his residence in [Country 3] meant that this assessment could not have been done. The applicant’s exclusion from another country (particularly as a result of a conviction) would have also been relevant to the assessment of the applicant’s character. Further, the applicant’s use of a different identity in an earlier visa application may have been relevant in determining his identity.

22. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information. The Tribunal is of the view that  this factor weighs very strongly in favour of the cancellation.

    The circumstances in which the non-compliance occurred

23. In  his submission to the Tribunal of 6 October 2023 the applicant addressed the circumstances of his conviction, essentially stating that another person had killed a boy while the applicant was merely present at the scene, had later approached the police and was unjustly convicted. The applicant states that he was not legally represented, was too young and nobody listened to his witnesses. The Tribunal notes, however, that the issue here is not the applicant’s conviction but his failure to disclose it when making the application.

24. In his submission to the Tribunal of 16 November 2023 the applicant states that in his understanding and perception, he had provided correct information and had not provided false information or bogus documents in his dealings with the Department and the Tribunal.

25. In oral evidence to the Tribunal the applicant also stated that he made the application in a different name but he had ‘cancelled it’ when he discovered it was not genuine. The applicant states that at the time he was under enormous pressure and was trying to get away from the unjust situation in [Country 3] and wanted a ‘clean start’ so he went to someone in Iraq to change his name and it was an official name change. He claims that the person who arranged the change of name led him to believe it was an official change of name but he later discovered it was not the case, so he withdrew the visa application. The applicant claims he did not think he had to mention it as the name was not genuine and there was no record of the application and he believed he only had to mention the legal name. As noted above, the Tribunal does not accept that  explanation, noting that the Department did have the record of the other name and of the 2013 application being made, whatever its outcome. The Tribunal also notes that nothing in the question referred to only ‘legal’ names having to be disclosed.

26. With respect to his conviction, the applicant states that his understanding was that he did not have to mention the offence after ten years. Also, he did not commit the offence and did not consider himself guilty and wanted to move on. The Tribunal finds these explanations unpersuasive. The fact of the conviction means the offence has been proven. The obligation to disclose the conviction was not dependent on the applicant’s subjective feelings about it. Notably, the question on the application form was ‘has the applicant ever been convicted of an offence in any country (including any conviction which is now removed from the official records) [emphasis added]. In the Tribunal’s view, the fact that the question refers to the convictions that have been removed from the records, and the use of the word ‘ever’ would have made it clear that the old conviction also had to be mentioned. The Tribunal does not accept that the applicant genuinely believed that he did not have to mention the conviction after 10 years passed.

1. In oral evidence the applicant questioned if he would have been granted the visa if the information was disclosed. That suggests to the Tribunal that he had deliberately withheld information about the conviction so as not to jeopardise the grant of the visa.

2. It is also significant that the applicant failed to make any mention of his residence in [Country 3] where the conviction occurred. This strongly suggests that he deliberately failed to mention his residence in [Country 3] to ensure there were no character checks in relation to that country as a result of which the conviction would have been disclosed. The Tribunal has formed the view that the applicant had deliberately withheld information about the conviction and residence in [Country 3] and had deliberately provided false responses in his application form regarding the conviction.

3. With respect to his residence in [Country 3], the applicant told the Tribunal that he was under pressure and felt the conviction was unjust and unfair and he wanted to move on. The applicant states that he was under a lot of pressure when he was living in Iraq and he received threats. The applicant claims the provision of incorrect answers was not deliberate. The Tribunal does not accept that evidence. It is not for the applicant to decide whether to provide truthful or false information when completing the application form on the basis of how he felt about the conviction and the fact that he wanted to ‘move on’. It is also not clear how claiming on the application form that he was living in Iraq between 2003 and 2016 when he now claims he was in [Country 3] between 2002 and 2010 could have been anything other than deliberate misrepresentation. The Tribunal does not accept that the ‘unfair’ sentence and the claimed mental pressure to which the applicant now refers justify the provision of incorrect answers on the application form.

4. As noted above, the Tribunal does not accept the applicant’s claim that he did comply with s. 101 and that any breach was inadvertent and unintentional. The Tribunal has formed the view that the applicant had deliberately withheld information about his previous visa application using a different identity, his residence in [Country 3] and the conviction so as not to jeopardise the grant of the visa.

   The present circumstances of the visa holder

5. In his response to the NOICC the applicant refers to his employment and his ties with the Australian community. The applicant’s child and four siblings reside in Australia. In his submission to the Tribunal the applicant also refers to having a spouse and a child and a genuine marriage. The applicant states that he is now divorced but spends a few days caring for his son, including schooling and after school care.

6. The applicant states that he has been working and paying taxes until he sustained a work injury and stopped working. The applicant told the Tribunal that he is not able to work due to work injury and he is supported by insurance. He continues to pay child support. The applicant states that all his family members are Australian citizens or permanent residents and he has maintained his family ties. The applicant refers to his community ties. The applicant repeated that information in oral evidence to the Tribunal.

7. The applicant told the Tribunal that he has recently started another relationship which he hopes will progress if his visa issues are resolved.

8. The applicant provided a statement / character reference from [Dr B]. The applicant’s uncle [Mr C] who gave oral evidence to the Tribunal stated that the applicant is a good person who has been brought up with good religious beliefs and always supports him. [Mr C] stated that the applicant is a good person, loving and forgiving and sensitive. [Mr C] was aware of the applicant’s conviction but had little information about the reasons for the visa cancellation.

9. The applicant told the Tribunal that he has no family in Iraq. He has been living in Australia for a number of years and is a law abiding citizen. The applicant states that his father’s grave is in Australia. He provided to the Tribunal a number of personal documents for himself and his siblings and claims that he has connection to his family and all his siblings reside in Australia.  

10. The applicant refers to his relationship with his child. This is addressed more fully below.

11. The applicant refers to the danger he would face due to his religious beliefs. This is addressed more fully below.

12. The Tribunal finds that this factor weighs strongly against the revocation.

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

13. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

14. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

15. The application for the Partner visa was made in December 2017. Six years passed since the non-compliance.

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

16. There are no known breaches of the law since the non-compliance and the applicant claims he has been a law abiding citizen.

    Any contribution made by the holder to the community.

17. In his response to the NOICC and evidence to the Tribunal the applicant states that he is a Red Cross blood donor (he provided evidence of being registered as a donor, rather than evidence of having made donations) and an organ donor and contributor to a charitable organisation. The applicant refers to being a hardworking person, to his compliance with the Australian laws (he provided his Australian penal certificate, as well as certificates from [Country 1] and Iraq) and he states that he contributed by paying taxes (he provided copies of his 2021, 2022 and 2023 tax assessment notices).

18. The Tribunal accepts that the applicant has made a contribution to the community.

19. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140.

20. There are no persons whose visas would be subject to consequential cancellation.

    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.

21. The applicant has a son born in Australia in [Year]. The child is an Australian citizen. The applicant provided with his response to the NOICC evidence of making child support payments and he states that he has custody of the child three days a week. In his evidence  to the Tribunal the applicant states that he is committed to his son’s custody and to maintaining the child’s needs while the child is with his mother. The applicant provided to the Tribunal a statement from the child’s school confirming that the applicant drops him to school and picks him up. The applicant told the Tribunal that he sees the child every weekend and they spend time as father and son. He states that his son is a ‘friend’.

22. The Tribunal accepts the applicant’s evidence and accepts that it is in the best interests of the child to maintain the relationship with the applicant and for the applicant to remain in Australia. The Tribunal is mindful of the applicant’s evidence that he has another application that has not been finally determined. That means that the applicant will be able to remain in Australia until that application is determined but that process may not necessarily result in the grant of the permanent visa.

23. The Tribunal accepts that it is in the best interest of the applicant’s child that his visa is not cancelled. This weighs very strongly in favour of setting aside the cancellation, but it is not a determinative consideration.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

24. The applicant provided to the Tribunal a copy of the UNHCR document dated Auguste 2017 indicating the applicant is an asylum seeker and that his claim is being examined by UNHCR.

25. The applicant claims to be a national of Iraq and claims that he belongs it the Sabian Mandaean minority. The applicant states that he would be subjected to harm if he was to return to Iraq. The delegate noted that when deported from [Country 3], the applicant had returned to Iraq. In his submission to the Tribunal the applicant reefers to the country information and the violence towards Sabean-Mandaeans.

26. The Tribunal notes that the applicant is not the subject of a protection finding at present. Importantly, there is nothing preventing the applicant from seeking a protection visa in Australia where these claims would be more appropriately addressed. In oral evidence the applicant told the Tribunal that he had made the application for the protection visa after his Partner visa was cancelled and he is still awaiting the outcome of that process. That means that the cancellation of the Partner visa will not result in the applicant being removed from Australia while his protection visa application is being considered.

27. The Tribunal finds that the decision to cancel the Partner visa will not result in the breach of Australia’s non-refoulement obligations.

    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.

28. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant would become an unlawful non-citizen and could be detained and removed from Australia. The applicant is eligible to seek a Bridging visa in relation to his application for the protection visa and there is no suggestion of indefinite detention.

29. If the applicant’s visa is cancelled, the applicant would have limited options of making other visa applications onshore due to operation of s. 48 and would be subject to an exclusion period in relation to some future visa applications. The applicant would also lose the entitlements he had acquired as a permanent resident of Australia and would not be eligible to the Australian citizenship if his visa is cancelled.

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

30. The applicant claims that his entire family, including all his siblings, are in Australia and his father’s grave is in Australia. He claims he has no family in Iraq and would face persecution there. The Tribunal accepts that considerable hardship would be caused to the applicant if he was required to leave Australia as a result of the cancellation of his visa, although the Tribunal is also mindful that the applicant would not be required to leave Australia while he has another application that is yet to be determined but acknowledges that fi the applicant’s visa is cancelled and if he is not granted another visa, there is a real possibility that the applicant would be required to leave Australia.

31. The applicant refers to the presence of his child in Australia, stating that he does not want to be separated from his child. The applicant refers to Iraq being a dangerous place and being at risk due to his religion. These matters have been addressed above.

32. The primary decision record indicates that the applicant continued to provide incorrect information in his Australian citizenship application, concealing his conviction in [Country 3] and failing to declare another identity. The applicant confirmed that in his oral evidence to the Tribunal stating that he believed he had to be consistent with the information he had previously provided. It is of concern to the Tribunal that his preference was for consistency, rather than truthfulness. The applicant told the Tribunal that he did not want to hide the information but was scared of what would happen to him if he did provide truthful information.

33. The applicant’s uncle told the Tribunal about the family’s connection to the applicant and the effect of his removal on the rest of the family. The Tribunal is prepared to accept that evidence.

34. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had not complied with s. 101 and that there are grounds for cancelling his visa.

35. The Tribunal considers that there are factors that weigh against the cancellation. The Tribunal accepts that the applicant has been living in Australia for a number of years, has strong family, social, employment and other ties in this country. The Tribunal accepts that his siblings and extended family live in Australia and he has no connection to Iraq. The Tribunal accepts that he has a close relationship with his child. The Tribunal accepts that significant hardship may be caused to the applicant and potentially his family if he is to leave Australia (while noting that the cancellation of the visa will not result in the applicant having to leave while he has another application that is yet to be determined). The Tribunal accepts that the applicant has made a contribution to Australia and that six years passed since the non-compliance.

36. Most significantly, the Tribunal accepts that it is in the best interests of the applicant’s son that the applicant should be able to remain in Australia and maintain his connection with, and support for, his child, which includes emotional, physical and financial support. The Tribunal finds that this is a primary consideration and gives it significant weight.

37. The Tribunal has formed the view that the cancellation of the visa will not result in the breach of Australia’s non-refoulement obligations as the applicant is able to remain in Australia to have his protection claims assessed through a separate process and his evidence is that his application for the protection visa is yet to be determined. This consideration is neutral.

38. The Tribunal finds that there are strong reasons why the visa should not be cancelled.

39. However, in the circumstances of this case, the Tribunal has decided to give greater weight to other considerations. In particular, the Tribunal gives greatest weight to the circumstances in which the non-compliance occurred. The Tribunal has formed the view that, contrary to his various explanations, the applicant had deliberately provided false information and withheld truthful information when completing the application form so that his past conviction and the previous visa application were not known to the decision-maker and so as not to jeopardise the outcome of his Partner visa application. The applicant had gone to considerable lengths to ensure that information did not become available, including his failure to mention the use of a different name, his eight year residence in [Country 3] (which would have necessitated the character checks from that country) and his past conviction. The Tribunal does not consider that the applicant’s claimed ‘pressure’ in Iraq or dissatisfaction with the [Country 3] criminal system justified the provision of incorrect answers and the withholding of information.

40. The Tribunal places significant weight on the fact that the decision to grant the visa was based, in part, on incorrect information. The applicant’s own evidence to the Tribunal is that he was concerned that he might not be granted the visa if he had disclosed the correct information. Whether or not the visa would have been granted, information about past conviction for a serious offence and the use of another name would have been highly relevant to the assessment of his eligibility for the visa.

41. The Tribunal also places weight on the fact that the applicant continued to provide incorrect information recently in his Citizenship application, despite his expression of remorse over the provision of incorrect answers in the Partner visa application. In the Tribunal’s view, the applicant has shown a significant disregard for the Australian law. All these factors weigh in favour of the cancellation.

42. Having considered all of the applicant’s circumstances, the Tribunal decided to give greater weight to the factors that weigh in favour of the cancellation.

43. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

44. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

    Kira Raif
    Senior Member