Aidoo (Migration)

[2019] AATA 4526

Aidoo (Migration) [2019] AATA 4526 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Theophilus Aidoo
Miss Augustina Aidoo

CASE NUMBER:  1833931

DIBP REFERENCE(S):  BCC2017/2046032

MEMBER:Kira Raif

DATE:23 July 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 23 July 2019 at 2:52pm

CATCHWORDS

MIGRATION – cancellation – Partner (Resident) (Class BS) visa – Subclass 801 (Spouse) – incorrect information in the visa application set aside – conflicting details concerning applicant’s previous spouses – financial and emotional support to student daughter – validity of marriage certificate – established links with Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 107, 109, 140
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

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 first named applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Ghana, born in November 1957. He first entered Australia in April 1998 holding a Visitor visa and he made several applications in Australia. The applicant was granted the Class BS Subclass 801 Partner visa in December 2014. On 2 August 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 a written response to the NOICC and his visa was cancelled on 14 November 2018. The applicant seeks review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant. On 23 May 2019 the second named applicant informed the Tribunal that she had been granted the Australian citizenship and that she wished to withdraw her application for review. The Tribunal finds that there is no longer before it an application for review in relation to the daughter.

4. The applicant appeared before the Tribunal on 1 July 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their 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

5. 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.

6. 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.

7. 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.

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

8. 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.

9. 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. 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?

10. 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 the following respects:

    a.In September 1998 the applicant made an application on Form 866. In that application:

    i.In response to Question 11 relating to his marital status, the applicant did not record an answer.

    ii.In response to Question 28 of the form, the applicant stated that he lived in Germany between 1992 and 1998 and the purpose was “marriage to German lady”.

    iii.At Question 57 the applicant signed a declaration that the information he supplied in the form was complete, correct and up to date in every detail.

    b.The applicant included with that application a copy of the marriage certificate which shows that he was married to Ms Johanna Betz nee Kirschner on 3 January 1994.

    c.The applicant is recorded to have stated in his oral evidence to the previous Tribunal, in relation to that application, that he was married to a German citizen but the relationship broke down. He commenced divorce proceedings in Germany but the divorce was finalised in Australia.

    d.In August 2005 the applicant made an application for a Provisional Spouse (subclass 309) visa and listed Olivia Sonpon Lewis Aidoo as his sponsor. The applicant completed form 47SP in which he provided the following information.

    i.In response to Question 21, the applicant stated that he was married on 12 February 2005.

    ii.In response to Question 22, the applicant stated that he was married before, ‘but not official’ between February 1979 and April 1983 and the name of his previous spouse was Augustina Boateng. (The applicant told the Tribunal that she passed away.)

    iii.In response to Question 23, the applicant stated that he was in a de facto spouse relationship to Agnes Amanful between October 1995 and December 1998.

    e.The applicant included with that application a Marriage certificate dated 3 March 2005 which stated that he was never previously validly married and confirming his marriage to Ms Sonpon Lewis on 12 February 2005.

    f.In April 2008 the applicant applied for a Long Stay Temporary Business (subclass 457) visa. In that application the applicant stated that he was married. He subsequently provided to the Department a copy of his divorce document showing that his marriage to Agnes Amanfo was dissolved in April 2011. The delegate determined that Agnes Amanful and Agnes Amanfo are the same person and found that the applicant was in a relationship with her from October 1995 until April 2011.

    g.In May 2012 the applicant made the application for a Partner visa in Subclasses 820 and 801. In that application the applicant listed Gladys Boatemaa Acheampong as his sponsor. The applicant completed Form 47 in which he provided the following information.

    i.In response to Question 7, the applicant stated that he has not held, and did not currently hold, a Bridging E visa

    ii.In response to Question 23, the applicant stated that he was previously married to Agnes Amanful between October 1995 and April 2011. The applicant did not provide additional information about his previous marriages.

    iii.In response to Question 24, the applicant stated that he has not been in a same sex or opposite sex de facto relationship before.

11. The NOICC indicates that the applicant provided incorrect answers to the following questions:

    a.The applicant stated in response to Question 7 that he did not hold, and was not currently a holder of a Bridging E visa. The Departmental records show that the applicant was granted a Bridging E visa on 10 October 2000, which the applicant acknowledged in his application for the Subclass 457 visa made in April 2008.

    b.The applicant stated in response to Question 23 that he was married to Agnes Amanful. That answer was incomplete because he was also married to Ms Johanna Betz from January 1994 for approximately four years and to Ms Olivia Sonpon Lewis from February 2005.

    c.The applicant stated in response to Question 24 that he had never been in a same sex or opposite sex de facto relationship before despite his relationship with Augustina Boateng from February 1979 to April 1983.

12. In his written response to the NOICC the applicant stated that he failed to understand the questions and was unfamiliar with terms and definitions he faced in the application form. The applicant notes that his education is at best at an elementary level and he struggled with situations such as those presented in the application. The applicant acknowledged that he incorrectly responded to the questions and apologised for not being more attentive answering questions.

13. In his statutory declaration sworn on 17 September 2018 the applicant stated that he was aware of having been granted a Subclass 457 visa but omitted acknowledging the Bridging E visa. The applicant stated that in his understanding, it was irrelevant to acknowledge it because he held the Subclass 457 visa and he was not aware of the importance of mentioning the bridging visa and did not understand the consequences of not answering this question because he was aware that the Department had the information on file. The Tribunal finds that explanation unconvincing. It was not up to the applicant to determine what was or was not relevant and what answers he should have provided and which he could ignore. Having been asked if he was ever a holder of a Bridging E visa, the applicant was required to complete the form in a way that no incorrect answers were given, even if the applicant did not recognise the relevance of the question and did not see the significance of that information. Neither is it appropriate to state that the information was already before the Department. It may be that much of the information contained in the application form was already before the Department, given the number of other applications made by the applicant previously. That did not (and should not have) precluded the applicant from providing that information.

14. With respect to past relationships, the applicant states in his declaration that he did not write Olivia’s and Johanna’s names because he thought the question was asking about his current divorce with Agnes. The Tribunal does not accept that explanation because Question 23 of Form 47SP expressly refers to the applicant being married before. The question also states that if more space is needed, further information can be provided on another page. There is nothing in the question or these instructions that limits the request for information to the current marriage or the most recent divorce. The invitation to provide additional information at Part J indicates that information may be given about more than one marriage.

15. The applicant also states that he did not mention Olivia’s name because she withdrew her support and he believed her name was irrelevant. Again, there is nothing in the question that limited the information to ongoing relationships or relationships that ended amicably. It simply required the applicant to specify previous marriages. Whether or not the support was withdrawn, the applicant was married to Olivia Sonpon Lewis and he failed to mention that marriage. The fact that the applicant believed her name to be irrelevant does not justify his failure to provide correct answers.

16. With respect to question 24, the applicant explains that he did not understand the term ‘de facto’ and he responded with a ‘no’ answer. The applicant states that English is his second language, he struggles to understand verbal and written words as he only attended elementary school and has struggled all his life with language related matter. The applicant states that his non-compliance was not deliberate but was due to his struggle to understand the wording and meaning of some terms and the incorrect answers were given unintentionally. The Tribunal does not accept that explanation as the Tribunal is mindful that the applicant appears to have had no difficulty providing many answers, in response to multiple applications he made in Australia, including several successful visa applications. The Tribunal does not accept that the applicant did not understand the meaning of the term ‘de facto’. By the time this application was completed, the applicant had been living in Australia, in an English speaking environment, for a period exceeding 13 years. He has been employed in Australia for a number of years. The Tribunal does not accept that the applicant’s English was so poor that he was incapable of understanding the meaning of the term ‘de facto’. Neither does the Tribunal consider that the understanding of the form, including of the term ‘de facto’ depends on one’s level of education, so the Tribunal does not accept that the applicant’s claimed lack of education caused him to provide incorrect answers on the form.

17. In oral evidence to the Tribunal the applicant also said that, in relation to Olivia, he went to Ghana and he was expecting her to sponsor him but he later learned that she married someone else in Australia and he could not list her as his spouse. The applicant said that two of his former partners have passed away. The Tribunal is mindful that the question on the application form required the applicant to list previous marriages, not only the marriages that were still ongoing. The applicant states that he did not understand the question and his English was poor. He thought the question was whether he was married before, rather than requiring him to list all of his past marriages. The applicant also said that he did not understand the question because in his culture, once the person has left him, he did not have to mention it. The applicant’s claims have been addressed elsewhere.

18. In relation to the Bridging E visa, the applicant said that his employer helped him with the forms and he did not know there were different types of visas until he saw his current agent. He did not know anything about visas. The applicant said that the agent who was helping him with the application did not explain anything to him and he did not seek other help because he did not know that the agent was not giving him the full information. The Tribunal finds that explanation unconvincing because it is standard practice of the Department to inform visa applicants about visa grants and the applicant would have been notified of the grant of the Bridging E visa. It is not sufficient for the applicant to state that he did not know anything about visas and that his agent failed to explain. As noted elsewhere, the Tribunal is of the view that the applicant had the responsibility of familiarising himself with the immigration rules and of taking steps to ensure the information he supplied was correct.

19. Even if the Tribunal were to accept the applicant’s evidence that he did not fully understand the questions and had no understanding of the visa system, the Tribunal is of the view that it was imperative for the applicant to seek advice, or otherwise acquaint himself with what was required, to ensure that no incorrect answers were given. The applicant may have had access to other people who could have helped him with the application, such as professional advisors and possibly his partner and daughter. He could have also made contact with the Department to seek advice in completing the forms. Indeed, the primary decision record indicates that the applicant was represented by a migration agent in his application. The applicant explained to the Tribunal that the agent had not explained the form to him but in the Tribunal’s view, if the applicant paid the fees to the agent, he could have expected, and demanded, an explanation of what was required.

20. The Tribunal does not accept that the applicant misunderstood what was required of him on the forms. The Tribunal does not accept that the applicant was incapable of acquiring the information about what was asked of him, if he had any desire to do so. The Tribunal does not accept that the applicant’s provision of incorrect answers was due to a misunderstanding. In the Tribunal’s view, the applicant either withheld that information intentionally or he failed to take adequate and reasonable steps to ensure his understanding of the form and that no incorrect answers were given.

21. The Tribunal is also mindful that the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s.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.

22. The Tribunal finds that the applicant filled in or completed his application form in a way that incorrect answers were given or provided in a way set out at paragraph 11 above. The Tribunal finds that the applicant did not comply with s.101 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?

23. 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).

24. 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 Regulations. Briefly, they are:

    The correct information

25. Information provided by the applicant to the Department in previous visa applications indicates that the applicant had a number of relationships prior to the marriage he declared in his Partner visa application. The applicant was previously married to Ms Betz from January 1994 and to Ms Olivia Sonpon Lewis from February 2005. The applicant also had a previous de facto relationship with Ms Boateng from 1979 to 1983. The applicant also previously held two Bridging E visas.

    The content of the genuine document (if any)

26. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

27. An application for a Partner visa includes an assessment of whether the applicant is a spouse, including a de facto, spouse of the sponsor. That requires an assessment of whether the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The applicant’s previous relationships, the nature and duration of such relationships and the break-down of such relationships is relevant to that assessment. In the Tribunal’s view, if the existence of the earlier relationships was known, the applicant’s relationship with the sponsor may have been scrutinised more closely. It was also necessary for the decision-maker to assess whether the applicant was validly married to the sponsor, and the existence of previous marriages was central to that assessment. The Tribunal finds that information about past relationships was very significant to the assessment of the applicant’s eligibility for the visa.

1. Whether or not the applicant had previously held a Bridging E visa would have also been relevant to assessing any exclusion periods or Schedule 3 requirements.

2. It is not necessary for the Tribunal to determine whether the visa would have been granted, if the correct information was known. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information.

   The circumstances in which the non-compliance occurred

3. The circumstances in which the non-compliance occurred are set out above. Essentially, the applicant claims that his English was not sufficient to understand the questions on the forms and that he did not believe some of the questions to be relevant. The applicant claims that the incorrect answers were not given deliberately but due to his misunderstanding and lack of guidance. For the reasons set out above, the Tribunal does not accept the applicant’s explanations. The Tribunal does not accept that the applicant’s English and level of education was so poor that he was incapable of understanding the form, given the length of time he had spent in Australia by the time the forms were completed, his employment and settlement in an English-speaking environment in Australia and his ability to complete other parts of the forms, either by himself or with the assistance of others, without any difficulties.

   The present circumstances of the visa holder

4. The applicant has not presented any evidence about his circumstances prior to the hearing.

5. The applicant told the Tribunal that he supports his daughter, whose mother is not in Australia. He said that his daughter needs his support and guidance. She was attending university and he has been supporting her financially but she suspended her study when the visa issue came up. She intends to resume the course in July 2019 now that she has been granted citizenship. The applicant stated that his daughter has been emotional and is considering seeing a psychologist. The applicant stated that he provides parental and religious guidance to his daughter and he stated that if it was not for him, she would not have the same religious beliefs.

6. The applicant’s daughter has not attended the hearing and has not provided evidence to support these claims prior to the hearing. Following the hearing, the Tribunal received a statement from the applicant, as well as his daughter Miss Augustina Aidoo and the applicant’s spouse. Miss Aidoo states that her father has been supporting her throughout her life in Australia and is the only family member she has in Australia. Miss Aidoo states that her father supports her financially and provides her with shelter and she claims she will become homeless without him. Miss Aidoo states that his permanent removal would have ‘immense negative’ repercussions on her as she is psychologically affected by her mother’s removal. Miss Aidoo states that her father is of good character and is a kind person. She refers to the financial dependence on him of the family in Ghana.

7. Miss Aidoo provided to the Tribunal evidence relating to her student fees, however, there is no evidence that such fees have been met by the applicant. Indeed, there is little documentary evidence before the Tribunal to support the claims that the applicant provides financial support either to his family in Australia or to his family overseas. The Tribunal does not consider that evidence of financial needs is helpful to support the applicant’s claims if it is not accompanied by evidence of how such needs are being met. For example, if the applicant is paying for his daughter’s tuition fees or accommodation expenses or other expenses, such evidence should be readily available in the form of bank statements, credit card statements, money transfers, etc. Such evidence has not been presented and, on the evidence before it, the Tribunal is not satisfied that it is the applicant who is meeting his family’s financial needs, including his family overseas. The Tribunal does not accept Miss Aidoo’s claim that she would become homeless if the applicant’s visa is cancelled because the Tribunal is not satisfied that she would be unable to support herself financially, including payment for accommodation, even without her father’s support.

8. The Tribunal is prepared to accept that the applicant provides guidance and emotional support to his daughter, although the Tribunal finds her claim that his removal would have ‘immense negative repercussions’ on her to be unsupported by any probative evidence. The Tribunal does not consider that emotional support and guidance can only be provided when there is physical proximity between the applicant and his daughter, even if that is their preference. The applicant’s evidence is that his daughter communicates with her mother (even though he claims his daughter has more respect for him than for her mother). The applicant also claims that he continues to provide guidance to his son, despite living in a different country. That evidence suggests that it is possible to provide parental guidance and support without living in the same country. The applicant told the Tribunal that there is more peer pressure in Australia compared to Ghana and he needs to continue to look after his daughter and he wants to be part of her decision to marry. The Tribunal notes that the applicant’s daughter is an adult and there is no evidence to suggest that she is not capable of independent living. The Tribunal is not satisfied that the support and guidance that the applicant provides to her cannot be provided if the applicant were to live elsewhere. The Tribunal does not accept that there will be ‘immense negative repercussions’ on the applicant’s daughter if the applicant was to leave Australia.

9. The applicant also referred to providing financial support for his daughter’s study. He told the Tribunal that his daughter took a break from her studies but would resume the course shortly. The applicant said that before she became an Australian citizen, he was paying for her tuition fees but now that she is a citizen, she may qualify for a government loan. The applicant said that despite that, she needs financial support. The applicant told the Tribunal that he continues to work and support his daughter. As noted above, the applicant presented no documentary evidence to show that he has been providing financial support to his daughter and, more importantly, that such support was needed. The Tribunal is of the view that as an adult, the applicant’s daughter would be able to obtain a job and support herself financially. There is no evidence before the Tribunal as to whether she may have other sources of income, whether from Centrelink, a bank loan or help from friends. The Tribunal is not satisfied that the absence of financial support from the applicant, if that was the result of the visa being cancelled, would cause financial hardship to the applicant’s daughter.

10. The applicant refers to his marriage to an Australian citizen and he told the Tribunal that his wife is a cancer patient and has had surgery three times. The applicant said that he supports his wife by driving her around and also providing emotional support and help with other tasks such as shopping. The applicant said that due to tension between his daughter and his wife, he is living with his daughter but sees his wife daily. The Tribunal has had regard to the statement from Ms Acheampong, as well as the medical evidence, presented with the submission of 18 July 2019. The Tribunal accepts the evidence of the medical diagnosis and is prepared to accept that the applicant provides emotional support to his wife, although as noted above, there is no evidence of him providing financial support. Ms Acheampong states that if the applicant was to leave the country, there will be no one to take care of her. As Ms Acheampong did not attend the Tribunal hearing, the Tribunal has not had the opportunity to question her and to test her evidence. Despite Ms Acheampong’s assertion that the applicant is the only person caring for her, there is no evidence before the Tribunal about her family arrangements and whether support may be available from other family members or organisations. It is insufficient to state that no other support is available when the applicant has not presented adequate evidence of what is or may be available, or how Ms Acheampong’s needs were met during the couple’s separation. For example, there is no probative evidence before the Tribunal about the availability (or otherwise) of other relatives, friends, hospital or community organisations, etc. The Tribunal is prepared to accept that the applicant provides some support to his partner but on the limited evidence before it, the Tribunal cannot determine the nature or the level of such support and the Tribunal is not satisfied that requisite support cannot be obtained from other sources.

11. The applicant told the Tribunal that he is a member of a religious group and they go to different homes to spread the “word of God”. He goes to people’s homes and had a good relationship with his daughter and wants to be part of his daughter’s life. the Tribunal accepts that evidence and accepts that if the applicant was required to leave Australia, he may not be able to pursue these activities.

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

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

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

13. The primary decision record indicates that the applicant presented with his previous application a marriage certificate dated 25 February 2005 which relates to his marriage to Ms Olivia Sonpon Lewis. However, the applicant’s evidence is that he was previously married to Ms Betz in January 1994 and subsequently divorced her. The Tribunal finds that the marriage certificate which refers to the applicant being “never validly married” was issued on the basis of false or misleading statement and is therefore a bogus document. The Tribunal finds that the applicant gave a bogus document in support of his previous visa application. The applicant was in breach of s.103 of the Act.

    The time that has elapsed since the non-compliance

14. The application for the Partner visa was made in May 2012. More than seven years have passed since the non-compliance and the Tribunal acknowledges it is a lengthy period.

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

15. There are no known breaches of the law.

    Any contribution made by the holder to the community.

16. The applicant states that his major contribution to the community is his church activities and he refers to being an active member of the church. There is little evidence of the applicant’s activities before the Tribunal. The applicant also referred to his employment. The Tribunal is prepared to accept the applicant’s evidence and accepts that the applicant has made some contribution to the community.

17. 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 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

18. In his submission to the delegate the applicant expressed concern that the cancellation of his visa could affect his daughter, who was a dependent applicant. The applicant provided to the Tribunal evidence that his daughter was approved for the conferral of the Australian citizenship but that approval was subsequently cancelled because the daughter was no longer a permanent resident of Australia. The applicant subsequently provided evidence to the Tribunal that his daughter had been granted the Australian citizenship in May 2019.

19. There are other legal consequences to the visa being cancelled. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The applicant may also be subject to an exclusion period in relation to future applications made offshore. The applicant may also lose some of the entitlements he may have acquired as a permanent resident if he is no longer a holder of a permanent visa.  The Tribunal acknowledges that the mandatory legal consequences may result in some hardship to the applicant. 

    Whether there would be consequential cancellations under s.140

20. The applicant’s daughter was granted a visa as a dependent child and a member of the family unit of the applicant. Her visa may have been subject to the consequential cancellation but the applicant’s evidence to the Tribunal is that the daughter has been granted Australian citizenship and the Tribunal finds that she is no longer subject to consequential cancellation 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 told the Tribunal that there are no children affected by the cancellation. The Tribunal is mindful that both of the applicant’s children are over the age of 18.

22. The applicant told the Tribunal that he would not be subjected to any form of harm or persecution in his home country. He stated that whatever issues he had before, which led to his earlier visa application, were no longer in existence. 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

23. The applicant refers to looking after his partner, who is a cancer patient. This issue has been addressed above. Essentially, while the Tribunal accepts that the applicant may provide some level of support to his partner, the Tribunal is not satisfied on the limited evidence before it that support cannot be obtained from other sources, such removing or at least reducing the degree of hardship that would be caused by the cancellation.

24. The applicant states that if he cannot access his superannuation, he would have financial hardship if he were to leave the country but not if he can access his superannuation. The applicant confirmed that if he can access his superannuation, he would not have financial hardship. The applicant told the Tribunal that due to his age, he could not get a job overseas and the said that he sometimes supports his son financially. The applicant presented no evidence to support that claim – for example, evidence of having explored the job market, made application and have been refused employment - and the Tribunal is not prepared to accept that claim without probative evidence. The applicant said that he did not know whether he can get access to his superannuation money if he leaves the country permanently. The applicant’s representative suggested that if the applicant were to leave Australia permanently, he may be eligible to withdraw his superannuation and if that is the case, the applicant would have access to some funds which may assist him and his family in the future.

25. The applicant referred to the support he provides to his partner and his daughter. The Tribunal is prepared to accept that some hardship would be caused to them if the applicant’s visa is cancelled and if the applicant was to leave Australia, although as noted above, the Tribunal has formed the view that the applicant’s daughter is of an age when she is capable of independent living.

26. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant completed the form in a way that incorrect answers were given. The applicant claims that he should not be penalised for the breach that was inadvertent. However, the Tribunal has rejected the applicant’s evidence about the circumstances in which the non-compliance occurred because the Tribunal does not accept his explanation that the applicant misunderstood the form due to lack of English or lack of education, for cultural or for any other reasons. The Tribunal has formed the view that the breach was most likely deliberate or at least reckless as the applicant had not taken adequate steps to ensure the information he gave was correct.

27. The Tribunal acknowledges that the applicant has been living in Australia for a long time and that he has established links with Australia. His partner and daughter live in this country and the applicant has been gainfully employed. Over seven years have passed since the non-compliance. The Tribunal accepts that hardship would be caused to the applicant, his partner and his daughter if the visa is cancelled. The Tribunal places significant weight on the support the applicant claims to provide to his partner, given her medical condition, and that such support may be withdrawn if the applicant was to leave the country. The Tribunal also acknowledges the applicant’s evidence about the financial and emotional support he provides to others. The Tribunal acknowledges there are strong reasons why the visa should not be cancelled.

28. Against these considerations, the Tribunal has considered the breach to be significant. Information about the applicant’s relationships was significant, if not central, to the assessment of his eligibility for the Partner visa and the decision to grant the visa was based on incorrect answers. The Tribunal is mindful that there was another instance of non-compliance as the applicant’s marriage certificate appears to be a bogus document. It is of some concern to the Tribunal that the applicant appears to have been untruthful with the Registry of Births, Deaths and Marriages when registering his marriage, and not only with the Immigration authorities. Although the applicant claims his migration agent prepared the paperwork, the Tribunal is of the view that it was the applicant’s responsibility to ensure the correct nature of the information that was provided on his behalf.

29. The cancellation of the visa would not be in breach of Australia’s international obligations. There are no consequential cancellations. The applicant’s daughter is not subject to a consequential cancellation.

30. The Tribunal places greater weight on the circumstances in which the cancellation occurred and the significance of the incorrect information to the decision to grant the visa to the applicant. In the Tribunal’s view, such factors outweigh other considerations.

31. 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

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

2. The Tribunal has no jurisdiction with respect to the other applicant.

   Kira Raif
   Senior Member