Alam Eddine (Migration)

Alam Eddine (Migration) [2019] AATA 4333 (23 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Toufic Hussein Alam Eddine
CASE NUMBER:  1915383
DIBP REFERENCE(S):  BCC2018/5357700 CLF2012/186658
MEMBER:Russell Matheson
DATE:23 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Statement made on 23 September 2019 at 9:07am
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – genuine relationship – incorrect information – date of divorce – errors are nominal – loss of access to child – best interest of child – preserve family relations – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 109(1)
Migration Regulations 1994 (Cth), r 2.41

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a national of Lebanon, born in May 1982. He was granted his Partner (Residence) (Class BS) Subclass 801 visa on 4 November 2014. On 1 May 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101(b) of the Act. The applicant provided a response in regard to the NOICC on 15 May 2019.
On 7 June 2019, a delegate of the Minister cancelled the applicant’s Partner (Residence) (Class BS) Subclass 801 visa under s.109(1) of the Act. The cancellation was based on the visa holder providing incorrect information in his application for the Subclass 801 visa. The applicant seeks review of the delegate’s decision.
The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act. This provision provides that a “non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided. 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 applicant appeared before the Tribunal on 7 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Departmental case files and the Tribunal’s case file and the evidence provided at the Tribunal hearing.
Section 109
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(b) of the Act. This provision provides that a ‘non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided’.
Information detailed in the NOICC, on 1 May 2019, was mirrored in the delegate’s decision record on 7 June 2019.
The visa holder proved the following information to the Tribunal in his written submission dated 31 July 2019, as follows:
·The visa holder was born in May 1982 in El Minieh, Lebanon. He is a citizen of Lebanon.
·On 15 July 2009, the visa holder married Rana Azzaz (‘Rana’) in Lebanon.
·On 23 October 2010, the visa holder and Rana arrived in Australia as the holders of Subclass 572 student visas, valid until 5 June 2013. Rana was the primary visa holder, and the visa holder was a dependent spouse.
·On 11 April 2012 the visa holder and Rana had their Student (Subclass 572) visas cancelled under s.116 (1)(b) of the Act, due to Rana’s breach of condition 8202 as a result of failing to achieve satisfactory course progress.
- On their Incoming Passenger Cards, dated 23 October 2010, the visa holder and Rana both listed their emergency contact as Sami El Azzaz (‘Sami’). Sami is Rana’s brother and Rana completed both Incoming Passenger Cards.
- On arrival in Australia, Sami and his then Australian citizen wife, Jamal El Azzaz (‘Jamal’), met the visa holder and Rana at Sydney airport, and the visa holder and Rana stayed with them.
- On 17 November 2010, Sami and Jamal separated, and Sami moved out.
- In approximately December 2010, the visa holder and Rana’s marriage broke down, and Rana moved out. In approximately January 2011, the visa holder and Jamal started a relationship.
- In January 2012, under pressure from their families in Lebanon, the visa holder and Rana tried to reconcile for about two weeks, during which time, unbeknownst to them, their daughter Ahlam Alam Eddine (‘Ahlam’) was conceived. Their reconciliation didn’t work out, and the visa holder continued his relationship with Jamal.
- On 1 February 2012, the visa holder proposed to Jamal.
- On 17 February 2012, Sami and Jamal were divorced.
- On 11 April 2012 the visa holder and Rana’s student visas were cancelled.
- On 5 July 2012, the visa holder and Rana divorced.
- On 16 July 2012, the visa holder and Jamal were married in Lidcombe, NSW.
- On 6 September 2012, the visa holder lodged an application for a Subclass 820/801 Partner visa, sponsored by Jamal.
- On 19 October 2012, unbeknownst to the visa holder, Rana gave birth to their daughter Ahlam in Auburn NSW.
- On 4 November 2014, the visa holder was granted a Subclass 801 Partner visa.
- The visa holder learnt about the birth of his daughter 2 years after she was born. On 5 February 2015, Ahlam’s birth was registered with NSW Registry of Births, Deaths, and Marriages, listing the visa holder as the father and Rana as the mother. The parties entered into a shared custody arrangement.
- In mid-2015, the visa holder and Jamal separated due to tension between Ahlam and Jamal’s three Australian citizen children from her previous marriage to Sami.
- On 21 June 2017, the visa holder lodged an application to sponsor Ahlam for a Subclass 802 Child visa.
On 1 May 2014, the Department sent the visa holder a NOICC on grounds that he had provided incorrect information in his Partner (Residence) (Class BS) Subclass 801 visa application, expressing concerns about the genuineness of his relationship with Jamal (sponsor) and specifically, that;
(a) At Form 47SP, Q23, that the visa holder stated that he and Rana were married from 15 July 2009 – 1 December 2010, but their divorce order states that they were married from 5 July 2009 – 5 July 2012;
(b) At Form 47SP, Q58, the visa holder stated that Sami and Jamal were married from 29 April 2005 – 17 November 2010, but their divorce order states that they were married from 1 March 2005 – 17 February 2012;
(c) At Form 47SP, Q66, the visa holder stated that he and Jamal first met on 23 October 2010 in Sydney, but he listed Sami, Jamal’s then husband, as his emergency contact on his incoming passenger card, which suggest that they knew each other previously;
(d) At Form 47SP, Q67, the visa holder stated that he and Jamal started a relationship three months after meeting (January 2011), but Rana conceived a child with him in January 2012, which suggests that he was not in a genuine relationship with Jamal;
(e) At Form 47SP, Q95, the visa holder stated that the information he had provided in his application was complete, correct, and up to date.
On 7 June 2019, the delegate made a decision to cancel the visa holders Subclass 801 visa under s.109 of the Act.
In response to the NOICC, the visa holder provided the following information and supporting documents:
- The visa holder concedes that incorrect information was provided in relation to the start date of Jamal’s previous marriage to Sami El Azzaz and the signed declaration. However, the visa holder maintains the rest of the information he provided on the visa application form is correct and not in breach of s.101(b).
- The visa holder submits that the incorrect information relating to the date of the visa holder’s and Jamal’s previous marriages as stated in Form 47SP and the divorce orders is relatively minor and reasonably explained.
- The visa holder’s previous marriage to Rana commenced on 15 July 2009 as stated in Form 47SP and various official documentation. Their marriage broke down on 1 December 2010 and the divorce took effect on 5 July 2012. The visa holder submits that the discrepancies in the dates are due to a clerical error by the Family Court.
- The visa holder’s answer to questions about the end date of his marriage to Rana in Form 47SP is not incorrect as the divorce order refers to the legal end date of their marriage which is different to the effective end date of their relationship.
- The visa holder concedes that his answer to the question about the start date of Jamal's marriage to Sami in Form 47SP is incorrect in that 29 April 2005 refers to the date of their wedding party, however they were officially married on 1 March 2005. This error arose due to the visa holder’s limited proficiency in English when completing the Form 47SP without the assistance of a registered migration agent.
- The visa holder’s answer to the question about the end date of Jamal and Sami's marriage is not incorrect in that it refers to the effective end of their marital relationship on 17 November 2010 when Sami and Jamal separated and Sami moved out, not the legal date of divorce on 17 February 2012.
- Details regarding the visa holder’s first meeting with Jamal are correct as the visa holder’s ex-wife, Rana and Jamal's ex-husband, Sami are siblings. Rana completed her husband’s Incoming Passenger Card, and at the airport was the first time the visa holder met Sami and Jamal.
- The date of commencement of the visa holder’s relationship with Jamal was around January 2011, as stated in Form 47SP. However, they only committed to a long-term relationship with each other on 1 February 2012. In January 2012, under pressure from their families in Lebanon, the visa holder and Rana attempted reconciliation for about two weeks, during which time Rana conceived their child. However, the attempted reconciliation was unsuccessful, and the visa holder recommenced his relationship with Jamal after this.
- The visa holder claims that he and Jamal separated in mid-2015 due to tension between his daughter, Ahlam and Jamal’s three Australian children fathered by Sami.
- No weight should be given to unsubstantiated claims in the NOICC that it doesn’t appear credible that Rana would not have told the visa holder about his child until Ahlam was two and a half years old or that the visa holder and Jamal were not in a genuine relationship due to him marrying Jamal 11 days after his divorce from Rana. These facts do not disprove that the visa holder and Jamal were not in a genuine relationship.
- The decision to grant the visa holder a Partner visa was not based on his incorrect answer regarding the start date of Jamal’s previous marriage.
- Case notes for the visa holder’s Partner visa application record that the Department was aware of the legal end date of the visa holder and Jamal’s previous marriages. The decision to grant the visa holder a Partner visa was based on the Department’s assessment that he and Jamal were in a genuine and continuing partner relationship at the time of visa grant.
- At the time of making the visa holder’s divorce order on 4 June 2012, the court was satisfied that the visa holder and Rana had been separated for at least 12 months before the date of filing the divorce application, regardless of whether they attempted reconciliation for two weeks in January 2012. Therefore, the visa holder and Rana separated well before the date that he and Jamal committed to a relationship together in February 2012.
In response to the NOICC, the visa holder provided the following supporting documents:
·Statutory declaration from the visa holder, dated 14 May 2019
·Statement from Jamal El Azzaz, dated 14 May 2019
·Statement from Rana Azzaz, dated 14 May 2019
·Statement from Sami EL Azzaz, dated 14 May 2019
·Extract of Family Civil Record for Rana and Sami EL Azzaz
·Marriage certificate for the visa holder and Rana showing date of marriage as 15 July 2009
·Form 929 for Rana dated 29 March 2012 showing her change of address
·Medical certificates for Rana Azzaz showing her address
·Original divorce order for the visa holder and Rana Azzaz
·Amended divorce order for the visa holder and Rana Azzaz
·Marriage certificate for Sami and Jamal El Azzaz
·Divorce order for Sami and Jamal, effective 17 February 2012
·Extract from the visa holder’s form 47SP dated 5 September 2012
·Extracts from the visa holder’s form 47SP and Jamal's form 40SP dated 5 September 2012
·The visa holder’s Partner visa application statement dated 5 September 2012
·Extract from case notes for the visa holder’s Partner visa application
The visa holder provided the following supporting documents to the Tribunal:
(a) Extract of question 23 of visa holder’s Form 47SP;
(b) Marriage certificate for Rana and visa holder, dated 15 July 2009;
(c) Amended divorce order, dated 5 July 2012;
(d) Divorce order for visa holder and Rana, dated 5 July 2012;
(e) Statutory declaration from visa holder dated 14 May 2019;
(f)    Statement from Rana dated 14 May 2019;
(g) Statement from Jamal dated 14 May 2019;
(h) Sami and Jamal’s marriage certificate dated 1 March 2005;
(i)    Sami and Jamal’s divorce order dated 17 February 2012;
(j)    Statement from Sami dated 14 May 2019;
(k)   Extract of question 18 of Rana’s Form 40SP;
(l)    Rana’s Extract of Family Civil Record;
(m) Sami’s Medicare card;
(n) Form 929 – Rana;
(o) Medical certificates – Rana;
(p) Visa holder’s 2011 Notice of Assessment dated 15 August 2011;
(q) Statutory declaration from Samer, Rana’s current partner, dated 5 September 2018;
(r)   Statutory declaration from Rana, dated 5 September 2018;
(s) Statements from Jamal’s children, Fawzi, Aya and Mohamad;
(t)    Statutory declaration by Jamal, dated 31 July 2019;
(u) Departmental case notes for visa holder; and
(v)   Confirmation of Rana’s citizenship application.
The Tribunal accepts that the visa holder’s answer to question 58 about the start date of Jamal’s marriage to Sami in the Form 47SP is incorrect in that it refers to the date of their wedding party and is therefore in breach of s.101(b) of the Act.
The visa holder provided a written submission and oral evidence to the Tribunal. The visa holder and his former wife Rana arrived in Australia as the holders of Subclass 572 student visas, valid until 5 June 2013. Rana was the primary visa holder, and the visa holder was a dependent spouse. The visa holder submits that his marriage to Rana broke down and she moved out of where they were living in approximately December 2010 and he started a relationship with Jamal in January 2011. However, they only committed to a long-term relationship with each other on 1 February 2012 and they were married on 16 July 2012. In January 2012, under pressure from their families in Lebanon, the visa holder and Rana attempted reconciliation for about two weeks, during which time Rana conceived a child that he did not become aware of until two years later when informed by Rana and family members. After the attempted reconciliation was unsuccessful, the visa holder recommenced his relationship with Jamal. The visa holder stated that he lives independently and no longer lives with Jamal, although they are still married. The visa holder further stated that he maintains a healthy and close relationship with Jamal and his three step-children, visiting them regularly and dropping them off and picking them up from school, socialising with them and is in daily communication with them and is regarded by the children as their primary father figure, as their biological father has remarried. The visa holder also stated that he has entered into a shared custody arrangement with Rana to look after their daughter and this arrangement has been ongoing for approximately 18 months. The visa holder and Rana have not formalised their arrangement through the courts. The visa holder stated that he collects his daughter from school from Thursday afternoon and she spends the weekends with him. The visa holder maintains that his former wife Rana is in a genuine relationship with her current husband Samer, and that he has always been in a genuine relationship with Jamal.
The visa holder’s migration agent provided evidence that in June 2017, the visa holder lodged an application to sponsor Ahlam for a Subclass 802 Child visa. He further states that his former wife Rana’s circumstances have changed and in June 2019 her visa cancellation was set aside by the Tribunal, she is now a permanent resident of Australia and has already lodged a citizenship application (confirmation is provided with his submission). If the visa holder’s visa is not reinstated, then Rana will sponsor her daughter Ahlam to become a permanent resident of Australia. If the visa holder were forced to leave Australia, this would cause significant hardship and disruption to the family unit, as the visa holder and Rana have a shared custody arrangement with Ahlam. Moving all together to Lebanon is not a reasonable option, particularly as Rana’s husband and step-children are Australian citizens. As the visa holder noted in his statutory declaration dated 14 May 2019: “[Ahlam’s] mother will never accept for her to return to Lebanon with me and I do not know how I will visit her in Australia.” He submits that this level of disruption to the family unit is disproportionate to the minor errors provided by the visa holder in his application.
The visa holder submits that cancellation of his visa would cause considerable hardship for Jamal, her children, the visa holder’s own daughter Ahlam, and Rana. The visa holders circumstances and his involvement in the lives of his daughter and step children should be given due consideration. He further submits the best interest of the children is that the family unit remains intact and that they all reside in Australia. He submits these circumstances should weigh strongly in favour of not cancelling his visa. The visa holder states that there has been a significant length of time that has elapsed, there have been no other known instances of non-compliance, and that cancellation would have a significant impact on Jamal, Rana, Jamal’s children and his daughter Ahlam and these factors weigh against cancellation of his visa.

Having considered the visa holder’s reasons for why non-compliance occurred in his oral evidence, written submission and NOICC response and by the visa holders own admission, grounds exist due to incorrect information provided in relation to the commencement of Jamal and Sami’s marriage. The Tribunal is also satisfied that grounds do exist on the information provided by the visa holder. As previously stated the visa holder concedes that his answer to the question about the start date of Jamal's marriage to Sami in Form 47SP is incorrect in that 29 April 2005 refers to the date of their wedding party, however they were officially married on 1 March 2005. This error arose due to the visa holder’s limited proficiency in English when completing the Form 47SP without the assistance of a registered migration agent. Also as explained by the visa holder his answer to the question about the end date of Jamal and Sami's marriage is not incorrect in that it refers to the effective end of their marital relationship on 17 November 2010 when Sami and Jamal separated and Sami moved out, not the legal date of divorce on 17 February 2012. The visa holder’s previous marriage to Rana commenced on 15 July 2009 as stated in Form 47SP and various official documentation. Their marriage broke down on 1 December 2010 and the divorce took effect on 5 July 2012. The visa holder submits that the discrepancies in the dates are due to a clerical error by the Family Court and provided as evidence a Divorce Order with the correct amended dates. The Tribunal accepts that there was a clerical error made by the court and the visa holder provided the correct information on the Form 47SP at question 23.
It is not in dispute that the visa holder by his own admission at the hearing and in response to the NOICC has provide incorrect information on the Form 47SP. Based on the evidence provided, the Tribunal finds that there was non-compliance with s.101(b) by the visa holder 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 are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the visa holder’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. Briefly, they are:
·     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. 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.
(a) correct information
The visa holder submits:
·He was married to Rana on 15 July 2009 and this is correctly stated on the Form 47SP and is evidenced on their marriage certificate and amended divorce order. The visa holder provided statutory declarations in regard to the breakdown of this marriage, with Rana leaving the visa holder in December 2010.
·The visa holder has provided evidence that indicates that Rana is in a genuine relationship with her current husband Samer and the visa holder is in a genuine relationship with Jamal. The visa holder submitted the following supportive information to the Tribunal:
(a) A statement from Sami dated 14 May 2019 indicating that he is no longer in a relationship with Jamal and that he has remarried and had another child;
(b) Sami’s Medicare card listing his new child, Taleen, as a dependent (and not his older children);
(c) Form 929 for Rana dated 29 March 2012 showing her address at Rawson Road, Guildford since December 2010;
(d) A divorce order for Sami and Jamal, dated 16 January 2012, which states ‘the ground for the application for a divorce order – namely, that the marriage has broken down irretrievably – is proved’;
(e) Various medical certificates and related correspondence for Rana dated October 2011 showing her Guilford address;
(f) The visa holders 2011 Notice of Assessment dated 15 August 2011 showing his address as Chamberlain Road, Guilford;
(g) A divorce order for the visa holder and Rana, dated 5 July 2012, which states “the ground for the application for a divorce order – namely, that the marriage has broken down irretrievably – is proved”; and
(h) Statements from the visa holder, Rana and Jamal dated 14 May 2019, stating that the visa holder and Rana ended their relationship in December 2010 and reconciled briefly in January 2012. The visa holder and Jamal stared a relationship in January 2011. The visa holder and Jamal briefly separated in January 2012 due to pressure from the visa holder and Rana’s families to reconcile. The visa holder proposed to Jamal in February 2012.
The visa holder also provided the following evidence to the Tribunal:
·A statutory declaration from Samer, Rana’s current husband, dated 5 September 2018;
·A statutory declaration from Rana, dated 5 September 2018;
·Statements from Jamal’s three children dated 30 July 2019, which provide support that the visa holder and Jamal are in a genuine relationship demonstrating that they view the visa holder as a father figure and that Jamal and Sami are separated; and
·A statutory declaration from Jamal dated 31 July 2019.
The visa holder submits to the Tribunal that most of his answers were correct, and the error in the start date of Jamal’s previous marriage was minor in nature and unintentional. The Tribunal accepts the visa holder’s explanations as plausible and found his evidence credible. This factor weighs against the visa cancellation and the Tribunal places significant weight in the visa holders favour.
(b) content of the genuine document
This consideration is not relevant to the visa holder’s circumstances. Therefore, the Tribunal has not given this matter any further consideration.
(c) whether the decision to grant the visa holder a visa was based on the correct information
The visa holder summits in regard to the delegates decision dated 7 June 2019, the delegate considered that if the Department had been aware that the visa holder had provided incorrect information regarding the relationship timelines, further assessment of the case would have been required and depending on the outcome of that assessment, the visa may have not have been granted, as the visa was granted on the basis that the visa holder and Jamal were in a genuine and mutually exclusive relationship at the time of the visa application and grant.
Furthermore, the delegate raises the issue that the visa holder conceived a child with his former wife Rana in January 2012 which was prior to the grant of his partner visa on 4 November 2014. As previously explained the visa holder claims that he tried to reconcile with Rana due to family pressure and the attempted reconciliation was unsuccessful. The visa holder also provided evidence that Rana kept the birth of their daughter secret from him and his family due to the fear of losing custody of the child. The visa holder submits that the fact he was not informed of the child’s birth should weigh in his favour. The Tribunal notes that the visa holder’s former wife Rana has provided a statement which is consistent with his evidence.
The visa holder submits that the decision to grant his partner visa was not based on incorrect answers regarding dates of period of marriage because the Departmental case notes indicate the Department was aware of the correct dates of his and Jamal’s previous marriages.
The visa holder submits that although the Department did not know that Ahlam had been born it is unlikely that this would have resulted in his visa being refused, because he was in a genuine relationship with Jamal at the time he applied for his visa application on 6 September 2012 and time of the decision. The visa holder claims the decision was based on his marriage to Jamal dated 16 July 2012 being a genuine and continuing spousal relationship based on meeting the criteria required for the grant of the visa. The visa holder states that his visa was ultimately based on the Department’s assessment of whether he was in a genuine and continuing spousal relationship with Jamal at the time and the evidence that was provided satisfied that criteria.
The Tribunal finds the visa holder’s explanations plausible and gives this some weight in the visa holder’s favour.
(d) the circumstances in which the non-compliance occurred
The Tribunal acknowledges in the visa holders response to the NOICC that he had misinterpreted the questions on the visa application due to his poor English skills and lack of assistance from a migration agent, also acknowledged by the delegate. Although accepting this, the Tribunal considers it is the visa holder’s responsibility to ensure they understand the visa application questions to ensure they are answered correctly.
The visa holder has also submitted evidence that the discrepancy in his and Rana’s marriage date on the divorce certificate was a clerical error and he provide an amended divorce order clarifying the situation by providing the correct date as stated on the Form 47SP.
The Tribunal gives this consideration moderate weight in the visa holder’s favour.
(e) the present circumstances of the visa holder
The Tribunal accepts the visa holder has established significant ties to Australia given the fact that his length of stay has been over eight years.
The Tribunal has considered the visa holder’s claims that it would cause considerable hardship if he was separated from his family members, including Jamal and her three children, his daughter Ahlam and his former wife Rana.
The Tribunal notes that in the decision to cancel the visa holder’s visa the delegate outlines the option of the visa holder, his daughter and former wife Rana returning to Lebanon to live together as a family unit. The Tribunal also notes that Rana also had her visa cancelled on 5 November 2018.
The visa holder submits that circumstances have changed significantly since the cancellation of his visa on 7 June 2019. The visa holder provided information that Rana’s visa cancellation decision was set aside by the Tribunal on 17 June 2019 and she is now a permanent resident of Australia. The visa holder informed the Tribunal that Rana has applied for Australian citizenship. The visa holder further submits that if his visa is not reinstated, then Rana would sponsor their daughter to become an Australian permanent resident. The visa holder claims that if he is forced to leave Australia this would cause significant hardship and disruption to the family unit as he has entered into a shared custody arrangement with Rana as previously discussed. The visa holder has provided evidence that Rana would never let their daughter return to Lebanon with him due to the fact she fears losing custody of the child. The visa holder claims that moving to Lebanon all together is not a reasonable option and he does not see how he will visit his daughter if she lives in Australia. The visa holder submits that the level of disruption this would cause to the family unit is disproportionate to the minor errors provided by him in his visa application. The Tribunal accepts that if the visa holder is required to leave Australia this would cause a significant level of hardship and disruption to the family unit.
The visa holder submits that the circumstances and his involvement in the lives of his daughter and step children should be given due consideration. He further submits that Jamal and her three children are all Australian citizens, he plays an active part in their lives, they consider him as a father figure and he is important in their lives as their own father has built a new life away from them. The visa holder provided handwritten statements from Jamal’s three the children. The Tribunal accepts that the visa holder plays an important role in the care and support of Jamal’s three children.
The Tribunal gives this consideration significant weight in the visa holder’s favour.
(f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal acknowledges on the evidence provided the visa holder provided a timely response to the NOICC and conceded that he had provided incorrect responses in relation to the relationship periods as previously discussed. The Tribunal also notes the delegate had concerns regarding his application for other incorrect information. The visa holder submits that the delegate should have considered relevant evidence such as the reasons why Rana did not tell him about the birth of their daughter for two years because she had a fear of losing custody of the child. The visa holder has provided a statement as evidence from Rana that confirms this was the case. The Tribunal finds the visa holders evidence plausible and accepts weight should be given in his favour.
The Tribunal gives this consideration some weight in the visa holder’s favour.
(g) any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance by the visa holder before the Tribunal or known to the Minister.
The Tribunal gives this consideration minimal weight in the visa holder’s favour.
(h) the time that has elapsed since the non-compliance
The non-compliance occurred when the visa holder provided incorrect information in his partner visa application, lodged in 2012. The Tribunal accepts that the visa holder would have established significant ties to Australia as he has resided in Australia for over eight years. However, the Tribunal notes the delegate considered he was able to reside in Australia for this long because of providing the incorrect information on his visa application. The visa holder submits the delegates finding is unreasonable and speculative as it is not guaranteed that his partner visa would have been refused even if he had given the correct information. The visa holder maintains that it has been seven years since the non-compliance and he has established strong ties in Australia. The Tribunal accepts that the visa holder has strong ties in Australia.
The visa holder further submits that in Rana’s case at the Tribunal, it was found that:
The Tribunal is satisfied that a considerable length of time (seven years) has passed since the non-compliance occurred and that the applicant has established himself [sic] in Australia both within the family unit and in her business. This factor weighs against cancellation.
The visa holder further submits for consistency the Tribunal should make a similar finding in his case. The Tribunal accepts that the length of time Rana and the visa holder have been in Australia is comparable, but Tribunal is not bound by the decisions of other Tribunal members.
The Tribunal gives this consideration some weight in the visa holder’s favour.
(j) any breaches of the law since non-compliance and the seriousness of those breaches
There is no information before the Tribunal to indicate there have been any breaches of the law by the visa holder since the non-compliance occurred. The visa holder claims to be a law abiding citizen who has not breached the law since the non-compliance occurred. The Tribunal expects that visa holders do not break the law and considers this a pre-requisite in regard to being granted a visa in Australia.
The Tribunal gives this consideration little weight in the visa holder’s favour.
(k) any contribution made by the holder to the community
The visa holder has not provided any information to the Tribunal or Department regarding his contribution to the community. Therefore, the Tribunal did not give this matter any further consideration.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancelation.
The Tribunal notes that the visa holder has not raised any protection claims. The visa holder in his written submission refers to the delegate and PAM3, Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR), regarding the best interests of the child and family unity.
The delegate noted that if the visa holder’s visa is cancelled, then Ahlam’s Child visa will be refused. The delegate considered that due to her young age, she would adjust to life outside Australia (where she has lived since birth), should the visa holder be required to depart. The delegate also considered that Rana’s permanent visa had been cancelled. The delegate does not consider that this would disrupt family unity, as Ahlam and Rana could depart Australia with the visa holder.
The visa holder submits that the information relied upon by the delegate is no longer relevant as Rana’s visa cancellation was set aside by the Tribunal 10 days after the decision to cancel his visa. He further submits that it would be unreasonable to expect Rana to abandon her Australian husband and stepchildren in Australia to move to Lebanon with Ahlam to live with him. The visa holder has also provided evidence that he did not know about the existence of his daughter until two years after her birth because Rana had a fear of losing custody of the child. He has provided evidence that he has done his best to fulfil his obligations and responsibilities as her father and is now sponsoring her for a child visa. The visa holder states that if his visa is cancelled Rana will sponsor Ahlam to become an Australian permanent resident as previously discussed in the context of this decision. Rana will never consent to the child returning to Lebanon with the visa holder due to the fear of losing custody. The visa holder claims this will cause significant hardship and disruption to the family unit as he has entered into a shared custody arrangement with Rana in regard to Ahlam.
The visa holder submits that CROC does not simply refer to a child’s right to “receive adequate care.” It notes that the child’s best interests are the primary consideration in all actions taken by authorities concerning children, and that the rights and duties of his or her parents should be taken into account. It further states that State parties should respect the right of the child to preserve his or her family relations without unlawful interference, and that a child should not be separated from his or her parents against their will, except if the separation is necessary for their best interests. He further submits that more weight should be given to his role as the biological father of Ahlam, and the step-father of Jamal’s children. The visa holder refers to Jamal’s statements dated 14 May 2019 and 31 July 2019, and her children’s statements dated 30 July 2019, his role as a father figure in their lives is very important. Further, the CROC states that States should assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, and that this should be given due weight in any judicial or administrative proceedings affecting the child. The Tribunal is satisfied that the visa holder maintains a close relationship with Jamal and her three children whom he is in daily contact with and they regard him as a fatherly figure. The Tribunal also accepts that Sami, Jamal’s former husband, now plays a limited role in their lives, has moved on to another relationship and there is a child to that relationship, as expressed in the children’s statements and evidence provided by the visa holder and Jamal.

The visa holder further submits that due to the changed circumstances in relation to Rana’s visa cancellation being set aside by the Tribunal, which impacts upon his ability to see his daughter and his relationship with Jamal’s children if he has to depart Australia, more weight should be given in his favour against cancelling his visa.
The Tribunal gives this consideration significant weight in the visa holder’s favour.
Whether there are mandatory legal consequences to a cancellation decision
The Tribunal accepts that if the visa is cancelled, the visa holder would become an unlawful non-citizen, and be liable for immigration detention and removal from Australia under the provisions of the Act. The Tribunal also accepts this could mitigate by voluntary departure.
The Tribunal accepts that the visa holder would be subject to s.48 of the Migration Act and would have limited options to apply for further visas in Australia, and also subject to PIC4013 which would prevent the grant of certain visas to him for a period of three years from the date of visa cancellation.
The Tribunal considers these are standard legal consequences of a visa cancellation outcome and give these considerations minimal weight in the visa holder’s favour.
Any other relevant matters
There no other relevant matters to consider.
Conclusion
The Tribunal accepts the visa holder’s explanations as being plausible and finds the errors in information provided of a minor nature on the Form 47SP at questions 23, 58, 66, 67 and 95. Based on the evidence provided, the Tribunal finds that the weight of evidence does not favour cancellation of the visa holders Partner visa.
The Tribunal considers that, based on the information provided cancellation of the visa would cause considerable hardship for Jamal, her children, the visa holder’s own daughter Ahlam and Rana. The Tribunal has considered the visa holders circumstances and his involvement in the lives of his daughter and three step-children as the primary father figure. The best interest of the children is that the family unit is intact and they reside in Australia. These circumstances weigh heavily in favour of not cancelling the visa. The Tribunal has also considered the length of time that has elapsed and the significant impact this would have upon the families. The Tribunal finds on the evidence provided the level of disruption to the family unit is disproportionate to the minor errors provided by the visa holder in his application. These circumstances also weigh strongly in favour of not cancelling the visa. For these reasons, the Tribunal finds that there was non-compliance by the visa holder in the way described in the s.107 notice.
The Tribunal has decided that there was non-compliance by the visa holder in the way described in the notice given under s.107 of the Act. The Tribunal concludes that the visa should not be cancelled pursuant to s.109.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (spouse) visa.
Russell Matheson

Member
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)     was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)     stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)     informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)     requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)     visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the 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.

[2019] AATA 4333

23 September 2019

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Immigration

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