Abutarha (Migration)

[2019] AATA 1917

Abutarha (Migration) [2019] AATA 1917 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saqr Ibrahim Khaleel Abutarha

CASE NUMBER:  1827184

DIBP REFERENCE(S):  BCC2018/145282

MEMBER:Kira Raif

DATE:28 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 28 March 2019 at 5:09pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – ground for cancellation – incorrect information in visa application – character declaration – past criminal conviction – consideration of discretion – character test – relevant to assessment of eligibility – grant of visa based partly on incorrect information – English abilities – responsibility to ensure accuracy of application – circumstances leading to conviction – stated expression of remorse – breach of other visa conditions – lived in Australia for a relative short period of time – relationship with sister-in-law’s family and children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 104, 107, 109, 111
Migration Regulations 1994 (Cth), r 2.41

CASES
COT15 v MIBP (No.1) [2015] FCAFC 190
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Le [2016] FCFAC 120

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 Immigration to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Jordan born in March 1981. He was granted the Provisional Spouse visa on 14 April 2016. On 29 June 2018, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 12 September 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother-in-law. 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 by his registered migration agent. 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.

   Did the notice comply with the requirements in s.107? 

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

8. 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. (In his written submission to the Tribunal the applicant erroneously refers to the cancellation power arising under r. 2.43(1)(oa). That is not correct.)

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

   a.The applicant made the application for the Partner visa on 30 December 2015. He was granted the temporary visa on 14 April 2016 and entered Australia on 25 June 2016.

   b.On the application form, the applicant completed a character declaration. In response to a question “has any applicant ever been convicted of any offence in any country (including any conviction which is now removed from official records)?” the applicant stated ‘no’.

   c.The applicant signed a declaration stating that the information he provided in the form in any attachment was correct in every detail.

   d.The applicant completed Form 80 which he signed on 14 January 2016. In response to Question 36 “have you or any person included in this application ever been convicted of an offence in any country” the applicant stated ‘no’.

   e.After the grant of the visa, the Department had undertaken integrity checks and the Jordanian authorities confirmed that the applicant was previously convicted of an offence ‘possession of drug substance (heroin) with intention to abuse’ in December 2007. He was sentenced to three months’ imprisonment for the offence.

   f.The applicant submitted a Jordanian police certificate. The authorities in Jordan confirmed that since the issues relating to the conviction were considered solved, the clear police certificate was genuinely issued.

10. In his written response to the NOICC and his evidence to the Tribunal, the applicant admitted to providing incorrect information about his criminal conviction and expressed remorse for his actions.

11. The applicant argues that his wife was responsible for preparing the application and completing the application forms as he did not have the English language skills and had no choice but to rely on the advice of his partner. He told the Tribunal that his wife knew that he did not have any English. She did not want to rely on any service and wanted to fill in the forms herself. His wife asked him some questions but not about his criminal matters. The applicant states that his wife knew about the conviction and he had no reason to hide it, as it was well known.

12. However, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate or done knowingly. Thus, s. 98 of the Act states that if the applicant did not fill in his application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. Section 100 provides that 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. Further, s. 111 states that sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers or whether he relied entirely on the advice of his spouse.

13. The Tribunal finds, having regard to the information set out above and the applicant’s evidence in response to the NOICC and his evidence to the Tribunal, that the applicant has been convicted of an offence in Jordan. The Tribunal finds that by stating ‘no’ in the application form and Form 80 in response to questions about charges or convictions, the applicant gave an answer that was incorrect. The Tribunal finds that the applicant did not comply with s. 101 of the Act.

14. 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?

15. 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).

16. 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 r.2.41 of the Migration Regulations 1994 (the Regulations). Briefly, they are:

    The correct information

17. The correct information is that the applicant has been convicted of an offence in Jordan. The applicant states that the information he gave correlated with the police certificate, which showed he had a ‘clean record’. The Tribunal does not accept that submission because the applicant did have a conviction and he was well aware of it. The question on the form relates to any past convictions, finalised or otherwise dismissed. The Tribunal does not accept that the applicant genuinely believed he was not required to mention the conviction because of his ‘clean’ police clearance certificate.

18. The applicant also told the Tribunal that he does not have a criminal conviction because he was only being investigated. The applicant states that he was tortured in prison and the conviction was not valid. The Tribunal does not accept that evidence as the Departmental inquiries, set out in the primary decision record, indicate that the applicant had been convicted. The Tribunal prefers the evidence set out in the primary decision record. Further, it is not for this Tribunal to determine the validity of the applicant’s conviction in Jordan. The Tribunal finds that the applicant has been convicted, whether or not he accepts that conviction. The conviction should have been mentioned on the application form and that would have been the correct information.

    The content of the genuine document (if any)

19. This is not relevant in the present case. The applicant states that he has been issued with a ‘clear’ police certificate which is a genuine document. There is nothing before the Tribunal to indicate that the police certificate is a bogus document, even if the information in that certificate may be considered to be somewhat misleading. 

    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

20. To be granted the Partner visa, the applicant would have been required to meet the character test in public interest criterion (PIC) 4001 in schedule 4 of the Regulations and s. 501 of the Act. The applicant’s conviction was relevant to determining whether the applicant met the character test. The applicant submits that a visa may be granted even if a person has a substantial criminal record so the ‘incomplete’ information on the visa application should not be viewed as being causative of the decision to immigration clear him. However, it is not necessary for the Tribunal to determine whether the applicant would have been granted the visa, or immigration cleared, if the correct information was known. At the very least, consideration of the applicant’s character would have been different if the information about his conviction was known so that the decision to grant the visa was based, in part, on incorrect information.

21. The applicant states in his submission to the Tribunal that the delegate did not question him about his convictions throughout the one and a half hour interview. To the extent that the applicant suggests it was the Department’s responsibility to ascertain the correct information, rather than his responsibility to provide it, the Tribunal does not consider that to be the case.  Whether or not the applicant’s conviction was brought up at the interview, it was clearly relevant to the assessment of the applicant’s eligibility for the visa.

22. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information.

    The circumstances in which the non-compliance occurred

23. The applicant states that due to his limited English, he relied on his partner to complete his application forms. He was never asked about his convictions and he was not asked during the Departmental interview, otherwise he would have declared the information. In his submission to the Tribunal the applicant states that due to his complete lack of English, he had total reliance upon his wife and if he was aware of his wife’s failure to communicate the correct facts, he would have rectified the misinformation. The applicant suggests that his wife knew about his conviction and did not provide that information in order to threaten him and use it against him if he did not comply with her wishes. In his post-hearing written submission to the Tribunal the applicant also states that he was a vulnerable individual with no knowledge of Australian laws and migration rules and he trusted his wife and partner.

24. The Tribunal finds the applicant’s claims unpersuasive. The Tribunal is prepared to accept that the applicant relied on his partner to complete his visa application forms. However, the Tribunal is of the view that the applicant had both the responsibility and ample opportunities to learn what information was provided on the forms on his behalf. The applicant could have easily asked his partner to translate the form for him to ensure the information was correct and accurate. The applicant confirmed in his oral evidence to the Tribunal that Form 80 was in hard copy and required his signature but he stated that his wife did not read to him the question about the criminal conviction. The Tribunal is not satisfied the applicant had taken adequate steps to ensure the answers on the application form were correct and accurate.

25. In his submission to the Tribunal, the applicant also states that he was assessed as having suffered family violence and he was ‘threatened’ with the information about the conviction as his wife threatened to deport him and he felt he had no choice but to remain silent. That evidence suggests that the applicant was aware that the information was relevant to his visa matters. Again, the applicant does not appear to have taken any steps to engage with the Department and to inform the Department about his conviction and the provision of incorrect answers on the application form. It is not possible for the Tribunal to determine the motivations for the applicant or his wife when completing the application form. As noted above, the applicant did give incorrect answers on the form and he was responsible for these answers whether or not he or somebody else filled in the form.

26. The applicant states in his submission to the Tribunal that his mindset was adversely affected and influenced by the depressed and suicidal mental state of his wife. The Tribunal notes that there is little or no probative evidence to support that contention and the Tribunal is not required to accept the applicant’s claims unquestioningly. The Tribunal notes that the failure to provide correct answers occurred at the time the application was made. There is little support for the applicant’s claim that at that time, his mindset was adversely affected by anything or that any such adverse effect, even if it existed, was of such severity as to render the applicant incapable of providing truthful information on the application form. He clearly did provide other information on the forms without any apparent difficulty and the Tribunal does not accept that the applicant’s mind was adversely affected only in relation to the information about his criminal conviction.

27. With respect to the conviction, the applicant states that his brother was a heroin addict and he felt obliged to take the blame for his brother who had young children. The applicant states that the criminal process was corrupt and proper evidence was not presented to the court. In his submission to the Tribunal the applicant reiterates that he is innocent of the crime. The Tribunal is mindful, however, that the non-compliance arises because of the applicant’s failure to mention the criminal conviction and the incorrect answer he gave in the application. It does not arise because of the applicant’s conviction itself. It is also not for this Tribunal to determine whether the applicant was validly convicted or to review the nature of the conviction.

28. In his submission to the Tribunal the applicant states that the delegate failed to exercise reasonable discretion by treating him as all drug offenders in Australia. The applicant provided extensive information about the circumstances leading to the conviction and the criminal process that resulted in the conviction. The applicant claims he was tortured in prison and he provided a number of country reports relating to conditions in his country. The applicant states that the circumstances of the offending must be taken into account. Again, the Tribunal considers such claims misunderstand the circumstances of non-compliance, which arises from the provision of incorrect answers on the application form and not from the conviction itself. There is no evidence that the conviction has been overturned or determined to be invalid. Having been convicted of an offence, the applicant was obliged to correctly answer the question on the form concerning his previous conviction.

29. The applicant states that his remorse should be given considerable weight. The Tribunal has concerns about the applicant’s motivation for his expression of remorse, as it was only expressed in response to the NOICC more than two years after his entry to Australia and not at any time prior. The Tribunal is concerned that the expression of remorse may be self-serving to assist the applicant with the visa cancellation process. The applicant refers in his post-hearing submission to his evidence that if he was aware that incorrect information was supplied, he would have made an effort to rectify it with the Department. However, the Tribunal is mindful that the applicant had not taken any steps to acquire such awareness, nor to engage with the Department to correct the incorrect information. The Tribunal does not consider that favourable weight should be given to the stated expression of remorse.

30. The applicant also submits that he was incapable of understanding the significance of the question about the conviction. The Tribunal does not accept that argument. Firstly, the Tribunal does not accept that any person who has been convicted of an offence of such seriousness as to result in a term of imprisonment, would fail to appreciate its significance. Secondly, the requirement to provide correct answers is not dependent on the applicant’s appreciation of the significance or relevance of such answers. The fact that the applicant may have failed to appreciate the significance of the correct information, even if that was the case, does not affect his obligation to provide truthful answers on the form. The applicant also claims that he was not familiar with the Australian laws and migration regulations. However, the Tribunal does not consider that knowledge of laws and regulations, or indeed, formal legal representation, are necessary to recognise the importance of providing truthful answers on a visa application form. The Tribunal does not accept that the applicant did not appreciate the importance of providing truthful information due to his claimed lack of familiarity with the Australian laws.

    The present circumstances of the visa holder

1. In his response to the NOICC the applicant states that he suffered abuse and family violence at the hands of his wife and suffers psychologically as a result and has received counselling. The Tribunal acknowledges that evidence.

2. The applicant submits that he has established a life in Australia, is working and has nothing to return to in Jordan as he has finalised all his affairs in his home country. The applicant told the Tribunal about his links in Australia and the enjoyment he has from living in Australia. He states that his relationship with his family had been severed because his wife did not allow him to speak to them but he has a support network in Australia. The applicant presented very limited probative evidence to support his claims that he has severed all links with Jordan, including accommodation, business, family connections, etc. There is no evidence that he has sold or otherwise disposed of his previous accommodation or business interests. There is no evidence of any interactions between the applicant and his family overseas that may indicate that his family decided to ‘disown’ him. The applicant states that his family has ‘excommunicated’ him because of his connection with his wife but the Tribunal is mindful that he has not had a relationship with his wife for some time and the applicant has not presented evidence as to whether he had made any effort to re-establish his connection with the family and whether this could occur.

3. The applicant states that his wife has been threatening him and is pursuing him for a large financial debt although he is not sure why he would owe her that money. The Tribunal acknowledges that evidence. The applicant states that he has no desire to return to Jordan. The Tribunal accepts that this is so.

4. The applicant has not satisfied the Tribunal that he would be unable to re-establish himself in Jordan, even if he did give everything up to come to Australia.

5. The Tribunal is also mindful that the applicant has never been granted a permanent visa. The visa in question is a temporary visa only. While the applicant may have assumed that his relationship with his partner would be successful and that he would be granted the right to remain in Australia, the Tribunal is of the view that no such assumptions can be made until a permanent visa is granted. Until such time, there was always the possibility that the applicant would be required to leave Australia.

6. The applicant states that he established a close relationship with his sister-in-law Ms Barakat and her husband. In his evidence to the Tribunal the applicant outlined the nature of his relationship with that family, including the children. Ms Barakat’s family provided declarations to the delegate and the Tribunal stating that they would experience emotional hardship if the applicant’s visa is cancelled because he provides them with emotional support and care for their children. They claim their children are reliant and emotionally linked to the applicant. The applicant provided to the Tribunal evidence of his interactions with the family and the children. The Tribunal also acknowledges the oral evidence of Mr Alnadi, the applicant’s brother-in-law, who spoke about the applicant’s involvement with the family and being part of the family and his relationship with the children. The Tribunal is prepared to accept that, despite the fairly brief period of time the applicant has lived in Australia, he has established close links to the family of his sister-in-law. The Tribunal is prepared to accept that there is a close connection with the family and the children, who are reliant on the applicant.

7. The applicant claims he suffers from depression, decline in self-worth and battered partner syndrome as a result of the family violence and is receiving professional assistance in relation to his mental health issues. The Tribunal has had regard to the psychosocial report presented by the applicant to the delegate. The report outlines the instances of family violence. The Tribunal notes that the report was prepared at the request of the applicant’s migration agent and specifically for the purpose of the visa proceedings. It is not apparent that Mr Watson-Munro is the applicant’s treating psychologist. Much of the information in the report is based on the applicant self-reporting. The Tribunal considers the applicant’s evidence, in the circumstances, self-serving and for the purpose of this proceedings, the Tribunal does not accept the report as evidence that the applicant had suffered family violence during his relationship. Nevertheless, the Tribunal accepts the medical opinion about the applicant’s mental health.

8. The Tribunal has also had regard to the report from Ms Elkadi, the social worker. Ms Elkadi states that her involvement with the applicant began in June 2018 when he sought emotional support and counselling as a victim of family violence. Again, the timing is of considerable concern to the Tribunal as the applicant sought such support at the time he was issued with the NOICC and when his ability to remain in Australia was at risk. This is particularly so as the applicant reported that the family violence commenced after the marriage in November 2015.  Again, the Tribunal is concerned that the self-reporting by the applicant was done for the benefit of his migration matter. Despite these concerns, the Tribunal accepts Ms Elkadi’s professional opinion set out in the report.

9. The applicant refers to the existence of compassionate and compelling circumstances and states that the cancellation of the visa would be unnecessarily punitive and adversely affect his mental health. In the Tribunal’s view, that assertion is not supported by probative evidence. The Tribunal also notes that the decision whether to cancel the visa is not designed as a punitive measure but a consideration of the totality of the applicant’s circumstances. It is up to the decision-maker to determine the weight to be given to each of the considerations.

10. The applicant told the Tribunal that he has been working in rendering and decorating and he started working as soon as he arrived in Australia. The applicant said that he works for different companies and looks for jobs with the help of his sister-in-law and brother-in-law.

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

11. Nothing adverse is known about the applicant’s subsequent behaviour with respect to the above obligations. The applicant appears to have been cooperative with the Department and provided his response to NOICC in a timely manner.

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

12. The applicant’s evidence to the Tribunal is that his relationship with the sponsor ended in March 2017. The applicant told the Tribunal that he told the Department about the breakdown of the relationship around June or July 2018, which would have been after the issuance of the NOICC. He said that he was still hoping to reconcile, which contradicts his evidence to the Tribunal (and apparently to the psychologist) that the relationship broke down in March 2017. The Tribunal discussed with the applicant in the course of the hearing, the requirements of s. 104 of the Act. Under that provision, the applicant was required to inform of the changes in his circumstances ‘as soon as practicable’. The applicant referred to living in fear and despair because of the threats from his wife. Even if that was the case after the relationship broke down in March 2017 (a claim the Tribunal does not necessarily accept), the Tribunal does not consider that the applicant’s circumstances justify the breach of s. 104.

13. The Tribunal is of the view that the applicant’s failure to inform Immigration in writing about the breakdown of the relationship as soon as practicable after his circumstances changed constitutes a breach of s. 104 of the Act.

14. The Tribunal considers that breach to be significant because the applicant was seeking a Partner visa and the basis of that application was his ongoing relationship with the sponsor. That relationship ceased to exist. This fact was central to the assessment of the applicant’s eligibility for the visa he was seeking.

    The time that has elapsed since the non-compliance

15. The application for the visa was made in December 2015. Less than three and a half 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 other known breaches of the law.

    Any contribution made by the visa holder to the community.

17. The applicant claims to have contributed to the community through financial contributions and his connections with Australian citizens. The applicant refers to his business and he told the Tribunal that he could contribute a lot more through his employment. The Tribunal is prepared to accept that the applicant may have contributed through the payment of taxes. The applicant also refers to having a close relationship with Australian citizens, including his sister-in-law and brother-in-law and their children, and to being a helpful and supportive member of the society. The Tribunal accepts that evidence. The applicant refers to attending school and other functions for his sister-in-law’s family and participating in various activities. The Tribunal accepts that evidence. The applicant refers to having formed close friendships in Australia and to being supportive to others. The Tribunal is prepared to accept that evidence.

18. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual 3 (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 are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

19. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that he would be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may be subject to an exclusion period in relation to certain future visa applications.

    Whether there would be consequential cancellations under s.140

20. There are no consequential cancellations under s.140.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

21. The applicant has no family in Australia although he claims to be close to his sister-in-law and her family and is considered to be part of their family. Given the nature of the relationship, the Tribunal is not satisfied such a relationship meets the family unity principles.

22. The applicant does not have any children. However the applicant claims to have a close relationship with the children of his sister-in-law and claims that the cancellation of his visa would affect the children. The applicant states that his departure from Australia would have a detrimental effect on the mental and physical wellbeing of the Australian citizens, including the children of his sister-in-law. The applicant described the various activities he performs with the children, taking them to school and sport and parks, etc and the Tribunal accepts that evidence. The Tribunal is mindful, though, that the applicant has been living with the family, and engaged in such activities, for a relatively short period of time.

23. Even if the Tribunal were to accept the entirety of that evidence, and the claim that the applicant has a close relationship with these children, the Tribunal is mindful that the children have both parents living in Australia and caring for them. There is nothing to suggest that the parents are unable or unwilling to care for the children and while the applicant may assist with various activities, the Tribunal is not satisfied that the children’s interests would not be adequately met by their parents, as they would have been prior to the applicant’s entry to Australia. Further, there is no obligation for the applicant to continue that relationship with the children, nor to maintain close proximity with the children. He may choose to do so or he may not. The Tribunal is also mindful that there is no guarantee that the applicant would be granted the permanent visa and would be permitted to remain in Australia. The applicant told the Tribunal that if he cannot stay in Australia, the children would be cared for by their parents. Thus, while the Tribunal accepts that the children may prefer to maintain a connection with the applicant, and presently benefit from their relationship with the applicant, the Tribunal does not consider that the best interests of the children would be adversely affected if the applicant’s visa is cancelled. The Tribunal does not consider that the best interests of the children require the applicant’s presence in Australia.

24. In terms of family unity principles, the applicant’s evidence to the Tribunal is that in Australia he lives with his brother-in-law and sister-in-law and their children. He has no other family in Australia. The applicant told the Tribunal that his mother and five siblings live in Jordan but he has no contact with them.

25. The applicant provided with his response to the NOICC, information about the judicial system in Jordan and the general situation in Jordan. The applicant told the Tribunal that he still suffers from the torture he experienced in prison. However, there is no reason why the applicant would be imprisoned in Jordan in the future and the Tribunal does not consider that any problems with the judicial system, or torture of prisoners, would be relevant to the applicant. The applicant states that his brother is a drug addict but the Tribunal does not consider this would lead to the applicant’s imprisonment. The applicant also states that he would have no job and no place to stay and he would be left homeless and he would also be threatened by his wife. The Tribunal finds these claims vague and unsupported by any evidence and the Tribunal does not accept these claims as credible for the reasons stated elsewhere in these reasons. The Tribunal also notes that the applicant is eligible to make an application for a protection visa where such claims could be assessed.

26. The applicant told the Tribunal that his wife or her lawyer would harm him if he were to return to Jordan. However, the applicant’s evidence to the Tribunal is that he has not heard or had any contact with his wife since 2017. Even if she did threaten the applicant in the past, there is nothing to suggest that she continues to have any interest in the applicant, or any intention of harming him, given the lack of contact for close to two years.  In the Tribunal’s view, the applicant’s claim that his wife or her lawyer would harm him, or that he fears harm from his wife and he lawyer, are entirely untrue and have no probative basis. The Tribunal does not accept there is any chance of the applicant being threated, or harmed, by his former wife.

27. The applicant suggested in his oral evidence to the Tribunal that he is concerned by what may happen upon his return to Jordan as his wife may pursue him and also his brother is a drug addict. As noted above, the applicant’s evidence is that he has had no contact either with his wife or with his brother (and the rest of the family) for a long time. It is not apparent why they would wish to pursue him and there is no evidence that they had taken any interest in the applicant in the past few years. There is no evidence that the brother’s drug habits, if they continue, would affect the applicant in the future and, in particular, that they would lead to the applicant being detained or otherwise harmed in the future. There is no evidence that the applicant is of any interest to the authorities or to anyone else in Jordan. The Tribunal does not accept the applicant’s claims.

28. The Tribunal is also mindful that the applicant has the option of seeking another visa in Australia, such as a protection visa. In COT15 v MIBP (No.1) [2015] FCAFC 190 the Full Federal Court upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a protection visa. The Full Court noted that the Act contemplates that those obligations will be considered in the context of a protection visa application. In MIBP v Le [2016] FCFAC 120 the Full Federal Court, agreeing with COT15 v MIBP (No. 1), held that an assessment of Australia’s non-refoulement obligations is not a mandatory consideration where it is open for the visa holder to apply in Australia for a protection visa. Accordingly, the Tribunal finds that if the applicant believes he is entitled to Australia’s protection, he can engage Australia’s protection obligations through a different visa process.

29. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

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

30. The applicant refers to his settlement in Australia, his successful business and his desire to remain in Australia. The psychological report, which the applicant presented to the Delegate, states that the applicant has no desire to return to Jordan. As noted above, however, the applicant has never been granted a permanent visa. The applicant’s desire to live in Australia is not in itself sufficient to enable him to do so. The applicant may meet the requirements for the grant of a permanent visa or he may not, that is not the issue for the present Tribunal, but the Tribunal considers it significant that the visa in question does not permit the applicant to live in Australia.

31. The applicant refers to the family violence he claims to have suffered in his relationship. The Tribunal acknowledges that evidence but makes no findings whether the claims of family violence meet the statutory definition.

32. The applicant refers to the hardship that he would suffer if he was to return to Jordan. As noted above, the applicant has not presented adequate evidence to satisfy the Tribunal that he would be unable to re-establish himself if he did have to return to his home country.

33. The applicant states that he is remorseful for his actions. The Tribunal is mindful, however, that the expression of remorse was only made after the applicant was issued with the NOICC. There is no indication that the applicant had taken any steps to inform the Department about his conviction prior to the NOICC and in the Tribunal’s view, if the applicant was genuinely remorseful for his actions, he could have taken steps to rectify the situation.

34. The applicant states that he would experience hardship upon return to Jordan because he has no family links, no business and no place to live and he would also be subjected to threats from his wife. The Tribunal does not accept that evidence. As noted above, the Tribunal is not satisfied that the applicant – who is an independent adult and who has spent the vast majority of his life in Jordan and only a limited time in Australia – would be unable to re-establish himself in his home country. The applicant has not satisfied the Tribunal that he would be unable to find employment or rent a place to stay, whether or not he has the support of his family. The Tribunal is not satisfied these matters would cause hardship to the applicant.

1. The applicant submits that the delegate failed to exercise discretion in a reasonable manner or exercised discretion in a discriminatory manner. The applicant outlined his concerns with the delegate’s findings. The Tribunal considers such submissions unhelpful. Firstly, the Tribunal conducts a review de novo and it is of little benefit to state that the delegate could have exercised the discretion differently. Secondly as the applicant concedes, it is for the decision-maker to determine how much weight to give to each consideration, whether or on the applicant agrees with that assessment. 

2. The applicant argues that he has already served his sentence and would be punished twice if his visa is cancelled as a result of the same offence. As noted above, the applicant’s reliance on r. 2.43(1)(oa) is erroneous and in this case, the ground for cancellation arises not because of the conviction but because of the provision of incorrect answers on the application form. The Tribunal does not consider that the applicant would be punished twice for the same offence as a result of the cancellation of his visa on this basis. The applicant argues that if the discretion is exercised to cancel his visa, the decision will be unnecessarily punitive and will adversely affect his mental health and personal circumstances. With respect, it is up to the Tribunal to determine how the discretion is to be exercised and what weight to give to each of the relevant considerations.

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave an incorrect answer on the application form and had not complied with s. 101 of the Act. The Tribunal finds that there are grounds for cancelling his visa.

4. The Tribunal accepts that considerable hardship may be caused to the applicant and those he has established connections with in Australia if the visa is cancelled. The Tribunal acknowledges, but does not necessarily accept, the applicant’s evidence that he has given up everything in Jordan and has nothing to go back to. The applicant has not satisfied the Tribunal that he would not be able to re-establish himself in Jordan, even if he may experience some difficulty doing so. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations and while the Tribunal accepts that the applicant has established connections with his sister-in-law and her children, the Tribunal has formed the view that the best interests of these children would not be adversely affected as a result of the cancellation.

5. The applicant states that the cancellation of the visa would have an adverse effect on his mental health. The applicant has not satisfied the Tribunal that he would be unable to obtain adequate health care outside of Australia, if he was required to leave the country as a result of his visa being cancelled. While the Tribunal accepts the medical evidence presented by the applicant, the applicant has not presented evidence of having sought access to appropriate health services outside of Australia and of having been unable to access such services. He has not provided documentary evidence of what services are generally available in the country and the eligibility requirements to access such services. On the evidence before it, the Tribunal is not satisfied that the applicant would be unable to receive the support he may need in the future, whether or not his visa is cancelled. The Tribunal does not accept that the cancellation of the visa would adversely affect the applicant’s mental health.

6. The applicant states that others believe him to be a person of good character and he provided a number of statements in support of this claim. The Tribunal accepts that those who provided statements believe the applicant to be of good character.

7. The Tribunal does not accept the applicant’s claim that he has nothing to return to in Jordan. In particular, the Tribunal does not accept that the applicant would be unable to find a job or a place to stay and that he would be harmed by his family or his wife. The Tribunal has formed the view that here is no basis for such claims.

8. The applicant states that if his visa is cancelled, his business may have to close and his employees would be affected. Even if that is the case, the applicant has not satisfied the Tribunal that his employees would find it difficult to obtain alternative employment and the Tribunal is mindful that it is not uncommon for people to have to look for alternative jobs for a variety of reasons irrespective of the applicant’s visa. The Tribunal does not accept that the employees would experience hardship as a result of the cancellation of the applicant’s visa

9. There are no other known instances of non-compliance and no known breaches of the law. There are no known breaches of visa conditions. However, it is of considerable concern to the Tribunal that on his own evidence, the applicant’s relationship with the sponsor ended in March 2017, yet the applicant failed to advise the Department about the changes in his circumstances as soon as practicable and did not do so until he was responding to the NOICC. The ongoing existence of the relationship, or the applicant’s ability to meet one of the exceptions, was central to his eligibility to be granted the permanent visa. The applicant had not informed the Department about the breakdown of the relationship and had not made claims against the family violence provisions until he was dealing with the cancellation of his visa. The Tribunal finds that the applicant was dishonest in his dealings with the Department.

10. The Tribunal also places weight on the circumstances in which the ground for cancellation arose. The applicant claims that his English was so poor that he had to rely on his wife to complete the forms, however, it is not apparent that the applicant checked the information on the forms or that he had taken any steps to ensure that the information was correct, for example by taking the simple step of asking his wife to read the forms. The Tribunal has rejected the applicant’s claim that at the time the forms were submitted, his mental health was affected or rendered him incapable of providing truthful information about the conviction. Contrary to the applicant’s claim that no weight should be placed on the breach because it was not deliberate, the Tribunal formed the view that the applicant either deliberately withheld the information about his criminal conviction because he thought it may adversely affect his application or that he was indifferent about the provision of incorrect information in his application form and had not taken adequate steps to ensure the correctness of the information. In the Tribunal’s view, the applicant was complicit in the fraud and that also shows his disregard for the Australian law.

11. The Tribunal acknowledges the applicant’s evidence that he has settled in Australia and does not want to return to Jordan but the Tribunal is mindful that the applicant has been living in Australia for a fairly short time since his entry in June 2016 and has spent the majority of his life in his home country. The Tribunal does not accept his claim that he would be unable to resettle in Jordan. Even though the applicant has given up his job and claims to have no contact with his family, the applicant has not satisfied the Tribunal that he would not be able to find a new job and a place to live and support himself, even if he has no family support.

12. The Tribunal places significant weight on the fact that the applicant has never held a permanent visa. Whatever hopes and aspirations the applicant may have had in relation to his life in Australia and whatever links the applicant has established in Australia, he cannot assume he would be granted a permanent visa and the right to remain in Australia until he has gone through the visa assessment process. The applicant cannot have an expectation that he would be permitted to remain in Australia because he does not have, and has never held, a permanent visa.

13. The Tribunal acknowledges there are strong reasons why the visa should not be cancelled. Most significantly, the Tribunal places weight on the applicant’s relationship with his sister-in-law’s family and children and the effect the cancellation of the visa may have on that family and on the children. The Tribunal also accepts that hardship would be caused to the applicant by the cancellation as the applicant hopes to remain in Australia and has settled in Australia. These circumstances offer strong reasons why the visa should not be cancelled. However, the Tribunal places greater weight on the circumstances in which the non-compliance occurred, the fact that the decision to grant the visa was based on incorrect information, the limited time the applicant has spent in Australia and his disregard for the law.

14. 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

15. The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Kira Raif
    Senior Member