2443709 (Migration)
[2025] ARTA 1921
•25 July 2025
2443709 (MIGRATION) [2025] ARTA 1921 (25 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2443709
Tribunal:General Member J Owen
Place:Sydney
Date: 25 July 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.
I, General Member J Owen certify that this is the
Tribunal's statement of decision and reasons
Statement made on 25 July 2025 at 10.33am
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect information in the visa application – applicant overstayed in another country for several years – identity details – medical conditions of the sponsor – contribution to the community – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 70
Migration Act 1958 (Cth), ss 5(1), 48, 97-105, 107-109, 140, 189, 198, 359
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4020; r 2.41CASES
CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor [2020] FCCA 1083
Feng Guo v Minister for Immigration and Border Protection [2018] FCCA 1173
MIAC v Khadgi (2010) 190 FCR 248
Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old female [Country 1] national who was born in [Country 1 region]. The applicant is the previous holder of two Working Holiday (subclass 417) visas before lodging an application for a combined Partner (subclass 820/801) visa on 29 September 2017 on the basis of her spousal relationship with [Partner A]. The visa was granted on 7 May 2020. On 1 October 2024 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 previously complied with s. 101 of the Act in relation to the previous Working Holiday (subclass 417) visas she had applied for on 10 September 2015, and 15 September 2016. The applicant provided her response to the NOICC, and her visa was cancelled. The applicant seeks review of the delegate’s decision. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The delegate placed a s375A certificate dated 20 November 2024 on the Department’s file pertaining to a number of folios that the delegate considered could not be disclosed to the applicant as it would be contrary to the public interest. The Tribunal wrote to the applicant through her representative inviting comments or submissions on the validity of the certificate on 14 January 2025. The applicant responded through her representative. The Tribunal considers the certificate to be valid.
The applicant appeared before the Tribunal on 26 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from her current partner [Mr A] and her brother [Brother A].
The applicant was represented in relation to the review. The representative attended the Tribunal hearing remotely.
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 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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?
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.
The delegate’s decision record indicates that the applicant on 10 September 2015 the applicant made an application for a Working Holiday (subclass 417) visa. On the application for, the applicant stated ‘no’ in response to questions whether
-she had been removed, deported or excluded from any country (including Australia),
-she had ever overstayed a visa in any country (including Australia),
The applicant also answered ‘yes’ to the question whether the information provided in her application form was complete, correct, and up to date.
The applicant was subsequently granted a Working Holiday (subclass 417) visa.
On 15 September 2016, the applicant made an application for a further Working Holiday (subclass 417) visa. On the application for, the applicant stated ‘no’ in response to questions whether
-she had been removed, deported or excluded from any country (including Australia),
-she had ever overstayed a visa in any country (including Australia),
The applicant also answered ‘yes’ to the question whether the information provided in her application form was complete, correct, and up to date.
On 29 September 2017, the applicant made the application for a Partner visa. On the application form, the applicant stated ‘no’ in response to questions whether
-she had been removed, deported or excluded from any country (including Australia),
-she had ever overstayed a visa in any country (including Australia),
The applicant also answered ‘yes’ to the question whether the information provided in her application form was complete, correct, and up to date.
The applicant was granted her Partner visa, based on her relationship with her sponsor [Partner A], on 7 May 2020.
The primary decision record indicates that information became available to the delegate that indicated the applicant had previously entered [Country 2] in 2013 on a [Country 1] passport. Whilst resident in [Country 2], the applicant requested an extension of stay. The request was refused as it had been determined the applicant had already overstayed in [Country 2], and she was instructed to depart [Country 2] immediately.
The Tribunal discussed these events at its hearing with the applicant. The applicant agreed there was non-compliance. The applicant stated that she had attempted to comply with the law whilst in [Country 2] and had the honest belief that she had neither been removed, deported or excluded, and had not overstayed given she subsequently departed [Country 2]. She claimed she only became aware that of what had happened with the [Country 2] authorities – and her immigration status – after her Partner visa was cancelled.
The Tribunal finds – and confirmed by the applicant in her oral testimony – that the applicant has overstayed a visa in [Country 2], and she was removed, deported or excluded from [Country 2]. The Tribunal finds that when stating ‘no’ in response to the questions on the application forms concerning removal/deportation/exclusion and overstay, the applicant’s answers were incorrect. The Tribunal finds that when applying for the two Working Holiday (subclass 417) visas in September 2015 and September 2016, and the combined Partner (subclass 820/801) visa in September 2017, the applicant completed the application forms in a way that incorrect answers were given or provided. The Tribunal subsequently finds the applicant did not comply with s 101(b) of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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 is no mandatory cancellation circumstances prescribed under s 109(2).
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 Migration Regulations 1994 (Cth) as follows:
· the correct information
· the content of the genuine document (if any)
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
· the circumstances in which the non-compliance occurred
· the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
· any other instances of non-compliance by the visa holder known to the Minister
· the time that has elapsed since the non-compliance
· any breaches of the law since the non-compliance and the seriousness of those breaches
· any contribution made by the holder to the community.
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. This is set out in the Department’s policy guidelines (‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The correct information is that the applicant had been removed, deported or excluded from [Country 2]. The correct information is that the applicant had overstayed a visa in [Country 2] and had an application for an extension of her stay in [Country 2] refused. The correct answer was no to the question whether the applicant’s application form was complete, correct, and up to date.
In the applicant’s response of 1 October 2024 to the NOICC, the applicant expressed remorse “for not declaring her period of unlawfulness in [Country 2], subsequent deportation, and 12month exclusion period”. The applicant in her submission’s states that the dire consequences of her actions in relation to her family are now clear, and “she would not be deceitful with the declarations in her visa applications.”
At the Tribunal’s hearing the applicant stated that by the time she lodged her first subclass 417 visa the 12 month exclusion period imposed as a result of her behaviour in [Country 2] had already expired, and she may still have been granted the visa even if the delegate was aware of her [Country 2] visa history. The applicant stated there was no reason for her to provide incorrect information, and she suggested it may have been as a result of her then undiagnosed ADHD. The Tribunal notes the diagnosis the applicant has provided to the Tribunal is very recent.
The applicant has also stated she was young, naïve and unaware of the consequences of her actions. The Tribunal notes the applicant was [age] years of age at the time she first provided incorrect information to the delegate in 2015. The applicant signed a declaration in each application attesting to the genuineness of the information contained in her application. The Tribunal does not accept any claim the applicant was unaware the information she was providing was either false or an error. The Tribunal has taken into account the applicant’s claim at the hearing that she only became aware her responses in her applications were in fact incorrect after her Partner visa was cancelled. The Tribunal does not accept the veracity of such a claim.
The Tribunal has taken the applicant’s submissions into account. Whatever the reasoning for the overstay and exclusion, the issue before the Tribunal is the failure of the applicant on multiple occasions to mention her overstay and exclusion from [Country 2]. The evidence before the Tribunal is conclusive that the applicant has failed to do so in several separate visa applications. The Tribunal weighs this consideration in favour of the cancellation of the applicant’s visa.
The content of the genuine document (if any)
There is no evidence before the Tribunal of non-compliance by the applicant with s 103 of the Act. The Tribunal gives this consideration no weight.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal notes the applicant’s written submissions, and oral testimony that if she had actually provided the correct information in her application form that she ultimately would still have been granted her Partner visa in 2017. The applicant points out that the 12-month exclusion period imposed by the [Country 2] authorities as a result of the 2013 overstay in [Country 2] would have concluded by the time she lodged her Working Holiday visa applications in 2015 and 2016, let alone the lodgement of the Partner visa in 2017.
The Tribunal notes from Feng Guo v Minister for Immigration and Border Protection [2018] FCCA 1173 that when applying reg 2.41(c) of the Regulations and considering whether to cancel a visa under s 109 of the Act, the Tribunal is required not to ‘speculate’ on what might be the delegate’s decision if they had been aware of the correct information, but instead to make an assessment of ‘whether the incorrect information or bogus document was the basis, or part of the basis, for the decision to grant the visa or immigration clear the person.’ What is required by the Tribunal is ‘consideration of the actual decision to grant the visa or immigration clear the person whose visa has been cancelled rather than to engage in speculation of what might have happened if there were correct information.’ The Tribunal has approached this consideration on this basis.
The Tribunal has considered the applicant’s submissions but considers them to be avoiding the issue at hand. The issue is not whether the applicant’s responses related to the specific criteria for the grant of a Partner visa, nor is it relevant to whether the applicant would have been granted her visa anyway. The incorrect information in the applications did not have to be determinative to the grant of the visa. The information only needs to have been merely relevant to the actual decision to grant a visa.
Information pertaining to the applicant’s previous visa transgressions would have been relevant to the assessment of Public Interest Criterion 4020 that requires there is no evidence before the Minister that the applicant has given, or caused to be given, information that is false or misleading in a material particular to the visa application (the Partner visa); or a visa the applicant held in the period 12 months prior to the lodgement of the application (the Working Holiday visa). The requirement to meet PIC 4020 – that there is no evidence of information that is false or misleading in a material particular in relation to the Partner visa application or a visa held in the 12 months previous (the Working Holiday visa) – remains a relevant and entirely pertinent consideration.
The applicant’s potential failure to meet the requirements of PIC 4020(1) would have been relevant to the delegate’s assessment of the applicant’s Partner visa application. The evidence suggests the delegate granted the applicant the Partner visa on the basis she met the requirements of PIC 4020. It is reasonable to deduce the application would have faced further scrutiny and interrogation should the applicant had disclosed she had supplied false or misleading information not only in the Partner visa before the delegate, but her previous two Working Holiday visa applications.
The Tribunal weighs this consideration heavily in favour of cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
The non-compliance of the applicant occurred when the applicant provided incorrect information in her Working Holiday visa applications of September 2015 and September 2016, as well as in her Partner visa application of September 2017, pertaining to questions in the relevant application forms as to whether she had been removed, deported or excluded from any country; and had she had ever overstayed a visa in any country.
In the applicant’s original response to the NOICC, she claimed extenuating circumstances and her errors in the three applications were a genuine mistake. She stated that she did not realise she was not applying correctly, and she was young, naïve and inexperienced at the time.
At the Tribunal’s hearing the applicant stated that she thought any incorrect information contained in her application would have been “flagged” by the Department at the time of her first application, and she would then have become aware of her errors. The applicant stated she did not become aware until 2024 and receiving the NOICC in relation to her Partner visa that she had supplied information that was in fact false. The applicant stated that administrative tasks were not her strong point. She also suggested undiagnosed ADHD at the time may have impacted her actions.
The Tribunal has considered the applicant’s submissions but does not accept the veracity of her claims.
In relation to the claim of undiagnosed ADHD, the Tribunal notes the diagnosis of ADHD presented to the Tribunal is very recent. Whilst undiagnosed ADHD can occur for significant periods of time, the Tribunal is not satisfied that this is an adequate explanation for the provision of clearly false information in response to questions on the various visa application forms across three years that it considers basic and straightforward. The diagnosis does not, in the Tribunal’s view, suggest that the applicant’s past psychological health precluded the applicant from providing reliable responses to straight-forward questions. The Tribunal has taken the recent diagnosis but gives the explanation limited weight as justification for the applicant’s non-compliance.
In relation to applicant’s claim she had an expectation that the Department would have informed her on the first occasion in 2015 that her visa application contained false information, the Tribunal does not accept this claim. The individual lodging the application is responsible for the claims made and information contained in their own application, not the Department. It is not the role of the Department to act as a fact-checker for applicants. In this case, the applicant on three separate occasions has signed declarations that the information contained in her application was correct.
The applicant’s claims that her youth and inexperience are an explanation for the provision of false information is similarly rejected by the Tribunal. The applicant was [age] at the time of the lodgement of her first Working Holiday visa application in September 2015. The applicant supplied the same false information a year later, and again the following year. The applicant did not inform the Department that she had supplied information that was false at any time the following nine years. The Tribunal does not accept the applicant was unaware she had provided false information to the Department in her applications over this period. The applicant was an adult, had experienced living offshore in [Country 2], and was at the very least had some level of familiarity with the visa application process. Furthermore, as the applicant’s own written submission to the delegate stated, ‘if she had her time over again, she would not be deceitful with the declarations in her visa application.’ Deceitful is defined by the Cambridge Dictionary as: dishonest or hiding the truth. The Tribunal, quite simply, does not accept the applicant was wholly unaware that she had provided false information to the delegate in her two Working Holiday visa applications as well as the Partner visa application currently before the Tribunal. The Tribunal would furthermore note that in the Partner visa application, the applicant had the benefit of a registered migration agent in assisting prepare the application.
The Tribunal notes that on three separate occasions the applicant has signed a declaration – a lawful promise – that the information contained in each of the visa applications was true and correct, that they have read and understood the information contained in their application, and the information they have provided is correct in each detail. The applicant’s first language is English. She was an adult when she signed each of the separate applications. The Tribunal concludes, on all the evidence before it, that the provision of false information was not an error or the result of naivety but a deliberate attempt to deceive the delegate and the Department. The fact that this has occurred across three separate applications in three years – and never subsequently rectified in the years following – is evidence of deliberately deceptive conduct on the part of the applicant.
The Tribunal finds that the applicant has supplied deliberately false information to the Department on multiple occasions across multiple years. The Tribunal finds the applicant signed declarations in the three applications knowing that her applications contained information that was false. The Tribunal would furthermore note that the applicant was aware of the potential consequences of providing false information in her application when she signed applications that clearly stated that if information was found to be incorrect after the grant of the visa, the visa may subsequently be cancelled. As has occurred in this situation.
The Tribunal weighs this consideration heavily in favour of cancelling the applicant’s visa.
The present circumstances of the visa holder
The Tribunal has considered the present circumstances of the applicant. The applicant explained that she is caring for her two Australian-born children, her son [Son A] ([specified] age) and her daughter [Daughter A] ([specified] age). Their father is her husband, [Mr A] who very recently acquired Australian citizenship. The applicant claims as a family unit they are thoroughly integrated into Australian life. he applicant explained her own parents and [sister] reside in [Country 3], though they did come to attend her wedding to [Mr A].
In relation to the hardships, she would face should the applicant’s visa be cancelled, the applicant stated that there would be significant disruption with a superior education system in Australia; her community network and friends were now overwhelmingly in Australia; and it would be very difficult to relocate her family. In relation to the hardships her own immediate family would face, the applicant stated that her son would not receive the same level of NDIS support he requires should he leave Australia with his mother, the applicant. The applicant also made submissions as to the hardship her husband would face in regard to his own safety, with submissions made as to the applicant’s husband witnessing a killing in [Country 3], and the impending release of the individual convicted of the crime meaning the applicant’s husband [Mr A] would be “looking over his shoulder.”
The applicant provided medical evidence concerning her son. The applicant explained at the Tribunal’s hearing that her son receives funding through the National Disability Insurance Scheme. A wide range of health conditions have been submitted including [conditions specified]. The applicant has also submitted that her son has been diagnosed with chronic asthma whilst he has a development delay.
The applicant submitted that she is establishing a career in [occupation 1] and has applied to undertake a 4-year course. Evidence was submitted to this effect.
The applicant explained to the Tribunal that her husband [Mr A] is [an occupation 2] and a long-term resident of Australia whose own family reside in [Country 3]. The applicant provided post-hearing documentation that [Mr A] acquired Australian citizenship post-hearing.
The Tribunal has considered the evidence before it pertaining to the applicant’s current circumstances. The Tribunal accepts the applicant resides with her husband [Mr A] and their two children. The Tribunal accepts that cancellation of the applicant’s visa would cause considerable disruption to the family on a wide range of levels.
The Tribunal has carefully considered the claims of hardship in relation to the applicant’s two Australian-born children.
In relation to her [son], the Tribunal accepts the applicant’s son is being treated for a range of medical conditions by local medical specialists. The Tribunal accepts he needs considerable support and care from his parents. The Tribunal has taken into account the documentation presented by [Son A’s] treating medical specialists that was submitted to the Department initially as well as to the Tribunal.
At its hearing, the Tribunal enquired about the availability of similar support for [Son A] either in [Country 1] (ie [Country 1 region]) or in [Country 3]. The Tribunal notes the applicant as a [Country 1] citizen born in [Country 1 region] has rights to [Country 3] citizenship, as do her two children (after the applicant registers her own claim in [Country 3]). Whilst the applicant’s husband is now an Australian citizen, the Tribunal notes that [Country 3] permits dual citizenship, and there is no evidence or claim [Mr A] no longer holds his [Country 3] nationality. [Mr A] as [a Country 3] citizen can live in [Country 1] without a visa or permit under the [formal] arrangement between [Country 1] and [Country 3].
The applicant claimed there was a three to five year wait list to obtain [condition 1] services in [Country 3]. The applicant claimed that her son was already integrated into receiving the specialised services he requires in Australia.
The Tribunal accepts there would be a degree of disruption to the applicant’s son should her visa be cancelled, and he relocate with his mother to either [Country 1] or [Country 3]. Nevertheless, the Tribunal is of the firm opinion the disruption is limited.
Both [Country 1] (through the [named agency]) and [Country 3] are recognised globally for strong, universally accessible health care systems that includes treatment for childhood [condition 1]. Whilst there is no direct equivalent in either country to Australia’s NDIS, both health care systems are broadly comparable to Australia. The Tribunal is satisfied the applicant’s son will be able to avail himself with broadly equivalent medical specialist treatment and support in either jurisdiction. The Tribunal does not accept that the applicant’s son [Son A] will be disadvantaged in relation to his health care should the applicant’s visa be cancelled, and [Son A] relocate to either [Country 1] or [Country 3].
In relation to the applicant’s daughter [Daughter A], the Tribunal notes she has not commenced her school education in Australia. There is no evidence to suggest [Daughter A] would face any particular disadvantage relocating to either [Country 1] or [Country 3], neither country presenting any particular language or cultural barriers to their integration. She also has family in [Country 3].
The Tribunal accepts the applicant’s children have a positive relationship with their cousins, the children of the applicant’s brother, [Brother A]. Whilst there may be a degree of hardship should the children relocate with the applicant, the Tribunal notes that the parties are able to remain in regular and consistent communication remotely.
In relation to the applicant’s husband [Mr A], the Tribunal accepts he has established his life in Australia over a decade and enjoys a good career as [an occupation 2]. He is now an Australian citizen. Whilst the Tribunal notes he has skills that are portable to another country like [Country 1] and [Country 3], and whilst is again familiar with the language and customs of both nations, the Tribunal does accept that cancellation of the applicant’s visa will constitute a significant hardship to [Mr A] on a range of levels including emotionally (given his ties in Australia) and from an economic and employment perspective. The Tribunal has taken this impact into account.
In relation to the applicant’s own personal circumstances, the Tribunal accepts she is largely integrated into the Australian community, having lived in Australia since September 2014 and worked in the community. The Tribunal gives this some weight in her favour, particularly given she now has an Australian citizen husband and two Australian born children.
The applicant spoke in some detail about her desire to undertake [occupation 1] studies in Australia and has provided written documentation about these studies and the superiority of Australian studies over what is available in [Country 3]. Whilst the Tribunal accepts her interest is genuine, and it is prepared to accept that [Country 3] may not offer the equivalent studies as available in Australia, the Tribunal notes that there a [specified occupation 1] course is nevertheless available, and other career and study options are also available if the applicant was to return to either [Country 1] or [Country 3]. The Tribunal gives the claim limited positive weight. The applicant has also discussed her creation of an [application]. The Tribunal notes that an app is a universal tool, and any development could potentially be undertaken in either [Country 3] or [Country 1]. The Tribunal gives this claim limited positive weight.
The applicant has raised the issue of severe financial hardship to her family if her visa was cancelled. She submits that her husband is the sole income provider, and they don’t have the means to either travel [back], secure accommodation or even basic living essentials, and sustain themselves in the absence of government support or employment opportunities. This will subsequently impact upon their two children.
The Tribunal rejects this claim. As [Country 1] and [Country 3] citizens the applicant and her husband have the right to seek the support of the respective welfare and income support of each nation. The applicant’s husband has portable employment skills in [occupation 2] that he can avail himself of in [Country 1] or [Country 3]. The applicant’s own past employment skills in [occupation 3] are also portable to a jurisdiction such as [Country 1] or [Country 3]. The Tribunal places limited weight on the claims of the applicant that she and her family will face severe financial hardship should her visa be cancelled.
The applicant has submitted that her recent diagnosis of ADHD is a circumstance that weighs heavily against the cancellation of her visa. She submits that she needs to be assessed for eligibility to receive a NDIS plan and needs to be in Australia for this to occur. The Tribunal notes the diagnosis and would note that whilst the equivalent to direct NDIS funding is not currently available in either country with a personalised, self-directed plan, both [Country 3] and [Country 1] have strong, universally accessible health care systems broadly similar to Australia. Treatment is available for adult ADHD in both jurisdictions through their universal health systems. The Tribunal places limited weight on the applicant’s claim.
The Tribunal also has placed limited weight on the claim in the applicant’s post-hearing submission that “any credibility issues which exist with her evidence can be attributed to her recent diagnosed medical condition and should be dismissed as being consistent with the medical condition.” The Tribunal has significant concerns with a wide amount of the evidence before it pertaining to the applicant’s past relationship with her sponsor, when the relationship concluded, and when the relationship with her husband [Mr A] commenced. The Tribunal does not accept that a recent diagnosis of ADHD in any significant way is an adequate explanation for what the Tribunal has concluded, as outlined later in this decision record, has been deliberately contrived evidence by multiple parties as to the true status of the applicant’s relationship with the sponsor of her Partner visa, and her husband [Mr A]. Any suggestion the Tribunal should now, due to the recent diagnosis, place no weight on evidence that is unfavourable to the applicant over the last decade is self-serving and dismissed.
At the Tribunal’s hearing the applicant and [Mr A] raised a claim concerning the safety of [Mr A] (and the family) if the applicant were to return to [Country 3]. The matter involves [Mr A’s] previous role as a key witness in a murder conviction from some years ago involving an individual with a significant criminal history. The applicant submits that her husband’s cooperation with the [Country 3] authorities has placed the family at risk of retaliation, with the individual concerned released from incarceration. The claim is they cannot be protected if they return to [Country 3] and is a breach of human rights obligations.
The Tribunal rejects this claim. There is no compulsion on [Mr A] to return to [Country 3]. He is an Australian citizen. The parties can choose to reside anywhere in [Country 1] if they see fit. The evidence of the danger [Mr A] (and indirectly the family) faces as a result of the trial appears to be speculation rather than based on empirical evidence. The Tribunal notes that there is no evidence or claim before it of [Mr A] ever lodging a protection visa application in Australia during his many years onshore on the basis he feared genuine harm should he return to [Country 3]. If the applicant believes she faces a genuine risk of harm if she departs Australia, then she can lodge an application for a protection visa. If the parties believe they are in genuine fear in [Country 3], they can seek the protection of the [Country 3] authorities. The Tribunal has taken the applicant’s and [Mr A’s] assertions into account but gives them limited weight in the applicant’s favour.
The Tribunal accepts there is a considerable degree of personal hardship the applicant will face if she departs Australia. Her brother, [Brother A] provided oral testimony at the hearing, and the Tribunal accepts she has a close relationship with [Brother A], who has [his own] children that are close acquaintances of the applicant’s two children. [Brother A] provided supportive oral evidence to this effect at the Tribunal’s hearing. The Tribunal has taken such relationships into account, though the Tribunal would again also note the applicant’s parents, and her sister reside in [Country 3], meaning immediate family support is also available should her visa be cancelled, and she departs Australia.
The Tribunal discussed with the applicant some significant concerns that were outlined in the delegate’s decision record concerning the history of the applicant’s relationship with the sponsor of her visa, [Partner A], and the date of the commencement of her relationship with her husband [Mr A]. The delegate wrote to the applicant initially about these concerns in the NOICC. In summary, the applicant was granted a Partner visa on the basis of being in a spousal relationship with [Partner A] on 7 May 2020. The applicant’s son however was born [in] 2020: the father of this child is the applicant’s husband [Mr A]. The applicant and [Mr A] also have a daughter together, [Daughter A] born on [date]. The applicant and [Mr A] however claim that their relationship together did not commence until April 2024.
The Tribunal finds the claim that the applicant and [Mr A] had two children together – and were living together under the same roof – between 2020 and April 2024 without being in a genuine partner relationship quite frankly unfathomable based upon all the evidence before it. The applicant claims they were simply “co-parenting” but the evidence the applicant provided does not support this claim. The applicant provided a statutory declaration dated 1 October 2024 that states “it was over a year after [Son A’s] arrival that I new [the applicant] and [Mr A] had begun a relationship’, whilst [Declarant A] similarly writes the relationship “commenced a year or so after [Son A’s] birth”. The applicant and [Mr A’s] son was born in [specified month], almost 4 years before the applicant claims to have commenced a partner relationship with [Mr A]. The Tribunal put this contradiction to the applicant at its hearing, who gave no coherent explanation beyond these claims being the personal views of the parties. The Tribunal notes the evidence presented from friends the applicant’s claimed relationship timeframe, but the Tribunal gives these assertions limited weight given the more concerning evidence before it that contradicts these claims.
The applicant claims that her relationship with her sponsor [Partner A] ended on 20 May 2020 – just two weeks after she was granted her Partner visa based upon her relationship with [Partner A]. Her claim is both of her children with [Mr A] are the result of ‘one-night stands’ with her now husband, and they were simply living together under the one roof co-parenting until April 2024.
The Tribunal does not accept the claim of the applicant and [Mr A] that their relationship only began in 2024. The Tribunal considers the more likely scenario is that the parties were in a relationship in 2019 when their son was conceived, and the applicant was still being sponsored by [Partner A]. The Tribunal considers the evidence more likely suggests the applicant’s spousal relationship with [Partner A] ended significantly earlier than 20 May 2020 she claimed, and critically, before the actual grant of her Partner via on 7 May 2020.
The applicant’s brother, [Brother A], gave evidence at the Tribunal’s hearing that was consistent with the claims of the applicant pertaining to the commencement of her relationship with [Mr A].
The Tribunal put to the applicant evidence before it under s359AA. These folios were covered by a valid s375A certificate. Whilst the Tribunal was unable to release the folios to the applicant given the certificate, the Tribunal nevertheless provided the gist of the information to the applicant. This information speaks to the genuineness of the claims of the applicant as to when she was actually in a partner relationship with [Mr A], and when her relationship with [Partner A] ended.
The Tribunal noted that there was information before the Department that the applicant’s brother, [Brother A], in his own visa application of May 2021 mentioned he had a sister – the applicant – and a partner, [Mr A] who visited him in Christmas 2020 with their young son.
The Tribunal furthermore noted that there was evidence of the applicant’s social media postings, including [in] 2020 where she stated, “[Mr A] and I are overjoyed to welcome our gorgeous son to the world”, together with pictures of [Mr A] and their son. The applicant’s Facebook profile picture [in] 2020 is also of the applicant together with [Mr A].
The Tribunal also noted that [in] July 2019, the applicant declared [Mr A] as her emergency contact on her incoming passenger card, as well as providing a different residential address to the one in her visa application form. On [dates in] September 2022 and [April] 2023, she again declared her residential address as the same as [Mr A’s] on incoming passenger cards.
The Tribunal notes that [Mr A], [Brother A], and the applicant at the Tribunal’s hearing all provided testimony that the partner relationship between the applicant and [Mr A] did not commence until April 2024, and the parties were simply cohabitating and co-parenting their two children, both conceived in one-night stands, until this time. In post-hearing submissions the applicant has written through her representative about the confusion surrounding the relationship timeline and stated that the applicant’s son was conceived in [specified month] rather than [earlier]. No satisfactory explanation has been provided, however in the Tribunal’s opinion to the stark and obvious discrepancies in the evidence before the Tribunal, as put to the applicant under the relevant provisions, and the claims of the applicant.
Quite simply, the Tribunal does not accept the claims of the applicant (and her brother and husband) that her partner relationship with [Mr A] commenced in April 2024. The Tribunal considers the claim has been concocted to support her claim to have met the criteria for the grant of a Partner visa. The Tribunal finds that the more plausible explanation – as supported by the evidence the Tribunal put to the applicant – is that the applicant and [Mr A] have been in a partner relationship together since at least 2019 (when their son was conceived) and have cohabitated over these years as partners in a genuine relationship.
The Tribunal places greater weight on the applicant’s own social media posts from 2020 – and her brother’s own statements in his own visa application of 2021 – than the claims the relationship commenced in 2024, and the applicant and [Mr A] spent years cohabitating and co-parenting but not in a relationship. The Tribunal considers the explanations of the applicant implausible and not supported by the evidence before the Tribunal.
The Tribunal considers, as it stated at the hearing, that these significant contradictions speak to the credibility of the applicant’s evidence before the Tribunal.
The Tribunal finds that the applicant’s relationship with her sponsor [Partner A] ended prior to the grant of the Partner visa to the applicant on 7 May 2020. The Tribunal furthermore finds that applicant’s partner relationship with [Mr A] commenced in 2019 and potentially earlier. The Tribunal finds that the applicant has contrived the date her relationship with her sponsor [Partner A] ended, and her relationship with [Mr A] commenced, for the purposes of meeting the time of decision criteria for her Partner visa in May 2020.
The Tribunal subsequently finds the applicant was not in a genuine spousal or de facto relationship with her sponsor at the time of decision on 7 May 2020. The Tribunal has placed significant weight on this finding. The Tribunal furthermore has significant concerns as to the credibility of the evidence of the applicant, as well as [Mr A] and [Brother A] whose evidence to the Tribunal reflected the claims – which the Tribunal rejects. The Tribunal notes [Partner A] has previously provided evidence to the Department that his partner relationship was still genuine at the time of decision, and he was aware the applicant was pregnant with a child to [Mr A]. The Tribunal rejects this claim given the evidence that was put to the applicant under s359AA.
The Tribunal’s consideration of the present circumstances of the applicant is a challenging task. Weighing in favour of the applicant is the fact that, quite simply, she is living in a settled family unit with her husband [Mr A] and their Australian-born two children. The Tribunal considers the applicant and [Mr A] have been in a genuine, long-term partner relationship that goes back till at least 2019. They have two young, Australian-born children together. [Mr A] recently acquired Australian citizenship, is in gainful employment and has concerns about returning to [Country 3]. Furthermore, the applicant and [Mr A’s] son has a number of medical issues that require support and assistance from the public health system. The applicant has also provided evidence of her own recent ADHD diagnosis.
Weighing against all of this is the fundamental fact that the applicant was not, in the Tribunal’s firm belief, in a genuine spousal or de facto relationship with her sponsor [Partner A] at the time she was granted a subclass 801 Partner visa on 7 May 2020. An applicant remaining in a genuine partner relationship with their sponsor at the time of the delegate’s decision is a requirement that stands at the core of a permanent Partner visa. The Tribunal is not satisfied the applicant was in such a relationship – the evidence before the Tribunal clearly suggests she was in a relationship with [Mr A]. Furthermore, the Tribunal considers the applicant has obfuscated and contrived evidence in support of her claim.
The Tribunal has placed significant weight on its findings concerning what it considers has been contrived evidence as to when the applicant’s partner relationship with her sponsor ended, and when her relationship with [Mr A] commenced. The Tribunal considers this attempt to mislead and deceive the delegate – and the Tribunal – is reflective of her three visa applications in 2015, 2016 and her Partner visa application of 2017 where the applicant clearly provided false and incorrect information to the Department. The Tribunal does not consider the applicant a credible witness.
The Tribunal nevertheless accepts there will be hardship to the applicant, her spouse [Mr A] and their children should the applicant’s visa be cancelled. The Tribunal weighs this consideration against cancelling the applicant’s 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
In the applicant’s response of 1 October 2024 to the NOICC, the applicant expressed remorse “for not declaring her period of unlawfulness in [Country 2], subsequent deportation, and 12-month exclusion period”. In her submission it was stated that that the dire consequences of her actions in relation to her family are now clear, and “she would not be deceitful with the declarations in her visa applications.”
In the applicant’s original response to the NOICC, she also claimed extenuating circumstances and her errors in the three applications were a genuine mistake. She stated that she did not realise she was not applying correctly, and she was young, naïve and inexperienced at the time. The Tribunal notes the applicant has now provided the correct information.
At the Tribunal’s hearing, the applicant did ultimately concede that she had provided incorrect information in her three visa applications. The applicant did however attempt to obfuscate on this issue, attributing blame to her naivety, and stating she did not become aware until 2024 and receiving the NOICC in relation to her Partner visa that she had supplied information that was in fact false. The Tribunal does not accept the applicant only became aware she had provided incorrect information in her applications after the cancellation of her Partner visa.
The applicant also suggested undiagnosed ADHD at the time may have impacted her actions in providing false information in her applications, a claim the Tribunal also rejects.
The Tribunal furthermore notes that the applicant in her evidence to the Tribunal has provided evidence which the Tribunal does not accept as genuine in relation to when her partner relationship with her husband [Mr A] commenced, and when her relationship with the sponsor of her Partner visa [Partner A] concluded. The Tribunal does not consider the applicant a credible witness.
The Tribunal weighs this consideration slightly in favour of cancelling the applicant’s visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence or information of any other instances of non-compliance by the applicant. Given this, the Tribunal weighs this consideration slightly against cancelling the applicant’s visa.
The time that has elapsed since the non-compliance
The applicant’s non-compliance with s 101 of the Act occurred on 29 September 2017 when she provided incorrect information in her Partner visa application concerning whether she had been removed, deported or excluded from any country, and whether she had ever overstayed a visa in any country.
Nearly eight years has now elapsed since the non-compliance. The Tribunal notes the same non-compliance occurred with the applicant’s Working Holiday visa applications in 2016 and 2015 respectively which suggests the applicant has a propensity to provide false information to support her visa applications. The Tribunal further notes the applicant’s ongoing attempts (despite taking responsibility for her actions in her written response to the NOICC) to justify her past actions that led to the non-compliance.
The Tribunal nevertheless notes it is now almost eight years since the non-compliance grounding the cancellation of the applicant’s visa. The Tribunal weighs this consideration slightly against cancelling the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant has submitted that she has not been in breach of the law since the non-compliance. There is no evidence before the Tribunal to the contrary. Given this, the Tribunal weighs this consideration slightly against cancelling the applicant’s visa.
Any contribution made by the holder to the community
The applicant has submitted that she is a positive contributor to the Australian community since her arrival, initially through her role in the workforce where she operated in [occupation 3] specialising in [specified jobs], before becoming a mother in 2020. The applicant submits her role was important in supporting Australia’s [related] sector, an area vital to the broader economy.
100. The applicant states that since 2020, she has played an important role as a full-time wife and parent, supporting her husband [Mr A] and caring for their children, including their son with his complex medical needs.
101. It has been submitted that the applicant is also making a contribution through her interest in [occupation 1], where she is developing an application. The applicant submits that her desire to gain qualifications in [occupation 1], and work as a qualified [occupation 1] will allow her to make a positive contribution in the area of [deleted].
102. At the Tribunal’s hearing the applicant also discussed work she had previously undertaken supporting the homeless in [Suburb 1].
103. The Tribunal accepts the applicant has played, and continues to play, a key role supporting her husband and family in Australia. The Tribunal accepts the applicant has a genuine interest in a future career in [occupation 1]. The Tribunal accepts she has previously been a productive employee in the workforce supporting the [specified] sector.
104. The Tribunal has weighed these matters in the applicant’s favour and gives weighs this consideration slightly against cancelling the applicant’s visa.
Other matters
105. 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
106. The applicant confirmed at the hearing there are no dependent visa holders as part of her visa. The Tribunal therefore finds that there will be no consequential cancellations under s 140 if the visa is cancelled. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
107. The Tribunal notes the applicant’s claims that her husband [Mr A] has concerns for his safety if they were to relocate to [Country 3] due to [Mr A’s] past involvement as a witness in a murder trial. The applicant claims [Mr A’s] “safety cannot be guaranteed.” The Tribunal notes [Mr A] is an Australian citizen with no obligation to return to [Country 3]. He, like the applicant, can choose to reside in either [Country 3] or anywhere in [Country 1].
108. The applicant may of course lodge a Protection visa application if she holds such concerns in regard to her own safety, noting her claim that the applicant has claimed any harm to her husband could extend to herself and their family. No application has been made.
109. There is no evidence of any particular threat being made against the applicant, [Mr A] or their family. The Tribunal is not satisfied there is a substantial risk to the applicant – or for that matter her family – of persecution, torture or other serious harm should the applicant’s visa be cancelled. The Tribunal finds that cancellation of the applicant’s visa will not be in breach of any of Australia’s obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) or the International Covenant on Civil and Political Rights (ICCPR). Cancellation of the applicant’s visa will not lead to the applicant being removed from Australia in breach of Australia’s non-refoulment obligations. The Tribunal notes that both [Country 1] and [Country 3] are both signatories to the CAT and the ICCPR.
110. The Tribunal gives the claims that cancellation of her visa would cause harm to her husband – and herself and their family – and be in breach of Australia’s international obligations very limited weight.
111. The Tribunal notes the applicant has two Australian-born children from her relationship with [Mr A].
112. In 1990, Australia ratified the United Nations Convention on the Rights of the Child (CRC). The Convention came into force the following year. Relevantly, Article 3 and the preamble respectively states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
and
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can assume its responsibilities within the community.
113. The Tribunal notes in CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor [2020] FCCA 1083 at [25] the statement of Riethmuller J:
The distinctions in reasoning process may seem subtle until one considers the purpose and effect of the Convention. By adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider with and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make a primary consideration the best interests of the child “in all actions concerning children.” The Convention does not make the best interests of the child the only primary consideration but ensures that it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighted.
114. The Tribunal notes the Courts have found generally it is in the best interests of the child to remain with their family and has therefore taken the CRC into account. The Tribunal has noted in Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 at [54] where his Honour held that the deprivation of Australian citizen children of the benefits of their Australian citizenship, the social and linguistic disruption of their childhood and the loss of various educational opportunities in Australia were all matters to be considered.
115. In the applicant’s submissions she has asserted it will be contrary to the CRC if her visa was to be cancelled. The applicant submits that her son has specific developmental needs, and he faces unnecessary psychological and developmental harm if her visa was to be cancelled. The applicant submits that the presence of herself and the family is in the children’s interests “emotionally, developmentally, educationally, and in terms of overall wellbeing and safety.”
116. The Tribunal accepts that the applicant’s children were born in Australia, are acquainted with the Australian way of life, and unfamiliar with either [Country 1] or [Country 3]. The Tribunal notes however that the children are young: [ages] respectively and would be moving to countries that share the same language, culture, and in the case of [Country 3], offer the support of family members through the applicant’s parents and her sister. The Tribunal subsequently considers the children would be able to integrate themselves into life in either [Country 1] or [Country 3], including into the school education system, with limited challenges or concerns.
117. The applicant has asserted that moving from Australia to either [Country 1] or [Country 3] is worse for her son given his medical and health issues, and the fact he receives NDIS funding in Australia for his care that is unavailable in either [Country 1] or [Country 3]. The Tribunal notes that whilst neither country offer an individual insurance style scheme like Australia’s NDIS (and the applicant has provided various opinion pieces and articles criticising the health systems of [Country 3] and [Country 3]), both provide access to universal support services through their public health systems that are superior to most of the world. The Tribunal is not satisfied the applicant’s children, and especially her son, will be unable to receive the relevant treatment he requires from the [Country 1] or the [Country 3] public health systems. The Tribunal nevertheless has given this matter some weight in the applicant’s favour.
118. The Tribunal notes the applicant has submitted that cancellation of her visa would be a breach of the Convention on the Rights of the Child (CRC) in relation to her children to which Australia is a party. Various obligations under the CRC have been raised that derive from a range of Articles in the CRC (ie Article 24 and the rights of a child in relation to health and the treatment of illnesses). The Tribunal notes that [Country 1] and [Country 3] are also both signatories to the CRC. Should the applicant and her children relocate to either country as a result of the cancellation of the applicant’s visa, both countries will have the same obligations to the applicant and her children given both of the children are entitled to dual [Country 3] and [Country 1] citizenship as a result of the applicant and her husband [Mr A’s] citizenship and nationality. The Tribunal subsequently gives this claim little weight in its determination.
119. In considering the best interests of the child as a primary consideration, the Tribunal has taken into account the likelihood that cancellation of the applicant’s visa will not necessarily lead to the separation of the applicant from her children and her husband.
120. The applicant’s husband [Mr A] is now an Australian citizen who retains his [Country 3] nationality. His [Country 3] nationality permits him to reside in [Country 1], notwithstanding his marriage to the applicant. The applicant is a [Country 1] citizen with the right to [Country 3] dual citizenship. The applicant and [Mr A’s] two Australian born children are subsequently, as a result of their parents’ status, entitled to dual [Country 1] and [Country 3] citizenship.
121. The end result of this is that the existing family unit can choose to live together in either [Country 1] or [Country 3] should the applicant’s visa be cancelled. The Tribunal recognises the claimed hardships of doing so (including [Mr A’s] claimed fears of returning specifically to [Country 3]) – but would note this does not mean the parties are unable to do so. The Tribunal would note that both [Country 1] and [Country 3] are nations culturally compatible to Australia with the same language and similar customs. Both are first world nations with universal public health systems and amongst the highest standards of living in the world. Whilst the family may wish, including the children, to remain in Australia, the Tribunal considers the impact on the children of the cancellation of the applicant’s visa, and their relocation to either [Country 1] or [Country 3] to be be limited.
122. The Tribunal would note that there is no suggestion in this case that any individual would be permanently excluded from Australia as a result of the visa cancellation.
123. The Tribunal accepts that the applicant’s children were born in Australia and have lived in Australia their entire lives. The Tribunal notes their relatively young age, notes that both [Country 1] and [Country 3] share the same language and broadly the same culture, and they will be able to avail themselves of education and healthcare support that is largely similar, notwithstanding the lack of a direct NDIS system in either [Country 1] or [Country 3] jurisdictions. The Tribunal accepts that the applicant’s children are fond of their uncle and their cousins and may prefer to remain in Australia. The Tribunal is also mindful that cancellation of the applicant’s visa does not equate to the children being compelled to depart Australia (they can remain in Australia with their father, an Australian citizen, if the family prefers), nor does it necessarily mean the children would have to depart Australia. The Tribunal has taken into account the potential impact in such circumstances of any separation of the applicant from her children, and notes that separation of a parent from a child can have enduring consequences for the child in terms of their social, emotional and psychological development.
124. The Tribunal finds that the best interests of the applicant’s children are a primary consideration, but not a determinative one in its deliberations. The Tribunal has nevertheless ultimately given this consideration considerable weight in the applicant’s favour and, weighed this consideration against cancelling the visa.
125. On the evidence before it in relation to international obligations and specifically, the best interests of the child, the Tribunal weighs this factor against cancelling the applicant’s visa.
Whether there are mandatory legal consequences to a cancellation decision
126. The Tribunal finds that the applicant will become an unlawful non-citizen if her visa is cancelled and may be liable for detention under s 189 and removal under s 198 of the Act if she does not voluntarily depart Australia. The Tribunal notes that indefinite detention is a theoretical possibility if the applicant’s visa was to be cancelled. The applicant will however have the opportunity to apply for a Bridging visa E so that she may remain in Australia and in the community lawfully whilst making arrangements to leave. The Tribunal furthermore notes the s 48 bar and its potential impact on the applicant should her visa be cancelled. Section 48 of the Act imposes limitations upon applicants whose visa has been refused or cancelled while in Australia and essentially prevents applicants from applying for another visa or repeatedly applying for a visa while in Australia. Depending on the visa applied for, the Tribunal notes that the applicant will be subject to Public Interest Criteria 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances.
127. The Tribunal acknowledges the challenges these present to the applicant but notes that these are the intended consequences of the legislation.
128. On the evidence before it, the Tribunal weighs this consideration slightly against cancelling the applicant’s visa.
Any other relevant matters
129. The applicant’s claims are addressed above.
130. The Tribunal has considered the totality of the applicant’s evidence. The Tribunal found that there are clear grounds for cancelling the applicant’s visa.
131. The Tribunal considers there are some significant reasons as to why the visa should not be cancelled. The most obvious is the best interests of her two young Australian-born children, and the hardship that they (together with her husband, who has just been granted Australian citizenship) may face should the applicant’s visa be cancelled. The Tribunal accepts that the applicant has significant ties to Australia after residing for a decade which include her friends, a husband and children, previous employment and community connections. The Tribunal has taken into account the applicant’s own health and wellbeing, including her very recent ADHD diagnosis. The Tribunal also has taken into account the needs of her children, and especially her son, who has clear medical needs that are being addressed through the NDIS. The Tribunal accepts that it may be in the best interests of her children to remain in Australia. Whilst the Tribunal has given the claims limited weight, the Tribunal has also taken into account the interests of her husband [Mr A], including his employment in Australia as well as his articulated fear of returning to [Country 3].
132. The Tribunal has formed the view that the cancellation would neither breach Australia’s non-refoulment obligations. The Tribunal has formed the view that cancellation – and the potential relocation of the applicant to [Country 1] or [Country 3] - is not contrary to Australia’s obligations under the CAT and the ICCPR. The Tribunal has also concluded that the applicant together with her family will be able to relocate together in either [Country 1] or [Country 3] given their respective nationalities, and the rights attached to those citizenships. There is little chance of any enforced family separation as a result of the visa cancellation. The Tribunal also considers the medical treatment the applicant and her son require can be procured through the [Country 1] and [Country 3] public health systems with very limited disadvantages.
133. The Tribunal has decided however, having taken all of the evidence before it into account, to give greatest weight to considerations that weigh in favour of cancellation. The Tribunal does not accept the applicant was unaware that she was providing false and misleading information in her visa applications on multiple occasions, and only became aware when she received an NOICC from the Department. The Tribunal considers the continual repeating of the same incorrect information in multiple applications over multiple years is reflective of a desire to deceive the Department for migration purposes. The Tribunal considers the applicant still demonstrates a genuine reticence to take full responsibility for attempting to mislead and deceive the Department.
134. Significantly in this case, the Tribunal places weight on the fact that the applicant has not been truthful in her dealings with the Department, especially in relation to when her relationship with the sponsor of her Partner visa [Partner A] ended, and her relationship with her now husband [Mr A] commenced. The evidence before the Tribunal squarely points to the applicant’s relationship with her sponsor [Partner A] having concluded prior to the grant of her Partner visa on 7 May 2020. The Tribunal put adverse information from her own social media accounts – and her brother’s own evidence in his own visa application – to the applicant at the hearing which demonstrates she was in a partner relationship with [Mr A] by 2019. The claims by the applicant – and her witnesses – that she and [Mr A] were only cohabitating friends engaged in “co-parenting” all the way until April 2024 are, the Tribunal respectfully considers, fanciful and have been contrived for migration purposes. Quite frankly, actions as demonstrated by the applicant in relation to her Partner visa, undermine the integrity of Australia’s migration system. The Tribunal considers the applicant to be an unreliable witness. The Tribunal similarly places limited weight on the testimony of [Mr A] and the applicant’s brother [Brother A] at the hearing given their claims were almost identical to those of the applicant which the Tribunal rejects.
135. The Tribunal, on the basis of all the evidence before it, has formed the view that these considerations outweigh others. Considering the circumstances as a whole, the Tribunal considers the visa should be cancelled.
136. 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
137. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.
Dates of hearing(s): 26 May 2025
Representative for the Applicant: Mr John Anthony Hourigan (MARN: 000377)
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 ART, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a [written]# notice:
# This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)
(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.
[(1C)The notice under subsection (1) must be given in the prescribed way. ]#
# This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
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