Aoh (Migration)

Aoh (Migration) [2019] AATA 6884 (19 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Wei Li Aoh
Mr Zhe Ping Ng
CASE NUMBER:  1929332
DIBP REFERENCE(S):  BCC2019/4441240 CLF2013/49072
MEMBER:Russell Matheson
DATE:19 December 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 19 December 2019 at 9:33am

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – ground for cancellation – incorrect information in visa application – incorrect information on Incoming Passenger Card – criminal history – credit card fraud – convicted and sentenced to four years imprisonment – consideration of discretion – character test – visa grant based on incorrect information – present circumstances of the visa holder – genuine and ongoing de facto relationship with an Australian citizen sponsor – personal ties to Australia – best interest of child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 102, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

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 first named applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a national of Malaysia, born in January 1976 1982. She was granted her Partner (Residence) (Class BS) Subclass 801 visa on 19 June 2015. On 9 September 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) and s.102(b) of the Act. The applicant provided a response in regard to the NOICC on 17 September 2019.
The delegate cancelled the visa on the basis that the visa holder 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”. Additionally, the delegate cancelled the visa on the basis the visa holder did not comply with s.102(b) because a “ non-citizen must fill in his or her passenger card in such a way that no incorrect answers are given”. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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 visa holder). 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.
The visa holder appeared before the Tribunal on 10 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 visa holder’s visa should be affirmed.
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) and s.102(b) in the following respects:
Information detailed in the NOICC, on 9 September 2019, was mirrored in the delegate’s decision record on 14 October 2019.
On 6 December 2019, the visa holder provided the following documents to the Tribunal for consideration at the review hearing that include:
·Letter from visa holder’s partner’s son;
·Passport of visa holder’s daughter;
·An email request by the visa holder’s daughter for a copy of the review applicants criminal record from Singapore police;
·Recent photographs;
·Evidence of travel overseas with the sponsor;
·Drivers licence of the visa holder and sponsor indicating same address;
·Car insurance policy addressed to visa holder;
·Penalty notice address to the visa holder;
·Personal details for the visa holder’s tax return;
·Phone bill addressed to the visa holder; and
·News articles in regard to Singaporean judgements.
At the review hearing the visa holder provided additional documents that include:
·A letter from her business partner,
·An Artistry of Make Up Academy certificate;
·A Beauty Academy certificate;
·A Chinese Medication and Acupuncture Society of Australia certificate;
·A Nobel College Australia certificate;
·An Australian College of Eastern Medicine certificate
·Academic records; and
·A first aid student course completion letter.
On 9 September 2019, the Department sent the visa holder a NOICC on the grounds that she had been non-compliant with s.101(b) and s.102(b) of the Act. Specifically that the visa holder had provided incorrect answers when she lodged her partner visa application in March 2013 and on her incoming passenger cards when entering Australia on numerous occasions.
·Under s.101(b); 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; and
·Under s.101(b); a non-citizen must fill in his or her passenger card in such a way that no incorrect answers are given.
Evidence of non-compliance
On 6 March 2013 the visa holder lodged an application for a combined Partner (temporary) (Subclass 820) and Partner (Permanent) (Subclass 801) visa based on being in a de facto relationship with an Australian citizen.
In association with the application the visa holder completed Form 47SP – Application for migration to Australia by a partner and provided the following answers:
At question 10 of Form 47SP under the heading “Part C – Your details” it asked, “Main applicant’s full name” the visa holder stated:
Family name: AOH
Given names: Wei Li
At question 16 of Form 47SP, it asked “Date of birth” the visa holder stated “10-01-76”
Town/city: Pulau Pinang
Country: Malaysia
At question 17 of Form 47SP, it asked “Place of birth” the visa holder stated:
Town/city: Pulau Pinang
Country: Malaysia
At question 71 of Form 47SP under the heading “Part H – Character” it asked “Have you, or any other person included in this application, ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” the visa holder stated:
“No”
At question 86 of Form 47SP under the heading “Declaration and consent” it states “WARNING”: Giving false or misleading information is a serious offence. This declaration and consent must be signed by the main applicant and each accompanying person aged 16 years or over”
· I declare that the information I have supplied in this application is complete, correct and up-to-date in every detail.
· I understand that if I give false or misleading information, my application may be refused, or any visa granted be cancelled.
The visa holder signed and dated the Form 47SP on 28 February 2013.
In addition, the visa holder completed Form 80 – Personal particulars for character assessment and provided the following information:
At question 45 of Form 80 under the heading “Part E – Other information” it asked “Have you travelled to any country other than Australia, including any visits back to your country of citizenship during the past 10 years (including short stays)?” the visa holder stated:
April 2013 – Thailand
May 2012 – Hong Kong (China)
April 2011 – New Zealand
February 2011 – Thailand
At question 59 of Form 80 under the heading “Part I – Character details” it asked, “Have you, or any other person included in this application, ever:”
“Been convicted of a crime or offence in any country (including any convictions which is now removed from official records)?” the visa holder stated “No”
“Been charged with any offence or have proceedings against you overseas or in Australia” the visa holder stated “No”
“Been confined in a prison or psychiatric institution by order of a court made in connection with criminal proceedings overseas or in Australia?” the visa holder stated “No”
At question 62 of Form 80 under the heading “Part J – Declaration” it asked “WARNING: Giving false or misleading information is a serious offence. I declare that:
·The information I have supplied in or with this form is complete, correct and up-to-date in every detail; and
·I have read and understand the information supplied to me.
The visa holder signed and dated the Form 80 on 4 March 2014.
Based on the information provided, the visa holder was assessed as meeting all the relevant criteria, including the character requirements and was granted a Partner (temporary) (subclass 820) visa on 9 July 2014.
On 16 January 2015 the Department invited the visa holder to submit further documentation to commence the processing of the Partner (permanent) visa. Based on providing additional co-habitation documents and an Australian national police check, the visa holder was assessed as meeting all the relevant criteria, including the character requirements and was granted a Partner (permanent) (subclass 801) visa on 19 June 2015.
Application for Australian citizenship
On 1 November 2017 the visa holder lodged an application for Australian citizenship by conferral. In association with this application the visa holder completed Form Application for Australian Citizenship by Conferral – General Eligibility 1300t (Electronic lodgement).
On page 1 and 2 under the heading “Applicant” and “Applicant details” it asked, “Enter the applicant’s full name” the visa holder stated:
Family name: AOH
Given names: Wei Li
Sex: Female
Date of birth: 10 Jan 1976
On page 16 under the heading “Character declarations” it asked the following, in part:
·“Has the applicant been convicted of, or found guilty of, any offence overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?” the visa holder stated “No”
·“Has the applicant been confined in a prison or in a psychiatric institution by order of a court made in connection with criminal proceedings overseas or in Australia?” the visa holder stated “No”
On 10 April 2019 the visa holder was invited to attend a citizenship interview with an officer of the Department. The purpose of the interview was to discuss the visa holder’s citizenship application and check her original documents.
During the interview the visa holder informed the officer of the Department she had previously been charged with criminal offences relating to credit card fraud in Singapore in 2008. The visa holder advised the matter was referred to the State Courts of Singapore and she was convicted and sentenced to four years imprisonment (serving a total of two years and eight months).
The visa holder submitted documents issued by the State Courts of Singapore, including a list of criminal charges and Registrar’s Certificate relating to her criminal matters. These documents indicate the visa holder was convicted and sentenced to four years imprisonment effective from 9 May 2008.
The visa holder gave evidence at the review hearing that she provided information to the Department about her criminal conviction because she believed the issue may surface and it was better for her to raise the issue for a better outcome in regard to her citizenship application.
It, therefore, appears at the time of the visa holder’s application for a combined Partner (temporary (subclass 820) and Partner (Permanent) (Subclass 801) visa, she did not comply with section 101(b) of the Act because she provided incorrect answers regarding her criminal convictions and subsequent term of imprisonment for offences relating to credit card fraud in Singapore.
Incoming passenger cards
Departmental records indicate that the visa holder has entered Australia a total of 20 times since her initial arrival on 5 April 2011 with the last occasion being the 3 April 2019. On each occasion the visa holder completed an incoming passenger card and ticked the box “No” when asked if she had any criminal convictions.
Possible non-compliance s.101(b)
The Tribunal considers the visa holder’s answer at question 71 of Form 47SP was incorrect because she informed the Department on 10 April 2019 that she had been convicted and sentenced to four years imprisonment (serving a total of two years and eight months) for offences relating to credit card fraud in 2008. The visa holder submitted documents issued by the State Courts of Singapore, including a list of criminal charges and Registrar’s Certificate relating to her criminal matters.
The Tribunal considers the visa holder’s answer at question 45 of Form 80 was incorrect because she failed to declare that she visited Singapore in the 10 years prior to the date of her application for a combined Partner (Temporary) and (Permanent) visa. The information submitted regarding the visa holder’s criminal offences indicates she was visiting or living in Singapore in 2008. The visa holder gave evidence at review that she was aware of her criminal record in Singapore at the time of applying for her visa but found it traumatic to raise the issue.
The Tribunal considers the visa holder’s answer at question 59 of Form 80 was incorrect because she informed the Department on 10 April 2019 that she had been convicted and sentenced to four years imprisonment (serving a total of two years and eight months) for offences relating to credit card fraud in 2008. The visa holder submitted documents issued by the State Courts of Singapore, including a list of criminal charges and Registrar’s Certificate relating to her criminal matters.
Therefore, if the visa holder has not complied with section 101(b) her Partner (Permanent) (Subclass 801) visa is liable for cancellation consideration under section 109 of the Act.
Possible non-compliance s.102(b)
It appears the visa holder has provided an incorrect answer on her incoming passenger cards a total of 20 times between the dates listed above upon arrival in Australia when she declared that she does not have any criminal convictions. The correct information is that the visa holder does have criminal convictions and served a total of two years and eight months imprisonment.
The incoming passenger card is a legal document completed by a traveller to Australia in which they notify the Australian government of their circumstances to determine whether they are of good character and if the visa holder may enter and reside in Australia.
The visa holder provided a statutory declaration in response to the Notice of Intention to Consider Cancellation (the Notice) prepared by her migration agent. The visa holder provided the following information on the non-compliance:
·The visa holder confirmed she had previously been convicted and sentenced to four years imprisonment, serving a total of two years and eight months for credit card fraud in 2008;
·The visa holder states in 2008 her boyfriend gave her a credit card with her name on it so she could take her children to Singapore for a holiday. She was told the credit card was a secondary card linked to her boyfriend’s account;
·The visa holder states that she thought something was not right, but took the card because she wanted to take her children on holidays. She states she only used the card for taxis and to buy souvenirs for her children;
·The visa holder states she later returned to Singapore with friends. While there a friend wanted to buy a sim card but was required to show his passport which he had left at the hotel. The visa holder lent her passport to her friend for the purpose of purchasing the sim card;
·The visa holder states upon return to Malaysia she was arrested for engaging with others in conspiracy to do credit card fraud;
·The visa holder states she was innocent and the only reason she was charged was because she lent someone her passport, therefore linking her to the fraudulent use of a credit card;
·The visa holder states that the police and her lawyer informed her to plead guilty, in turn for a light sentence;
·The visa holder states she was sentenced harshly because the others were not caught;
·The visa holder states she did not disclose her convictions in her partner visa application because she considered herself as incorrectly convicted;
·The visa holder mentioned her convictions at her citizenship interview because she wanted to give a complete and candid answer;
·The visa holder sincerely apologises for her mistakes and the terrible inconvenience she has caused the Australian government;
·The visa holder states that she did not read each part of her incoming passenger card carefully, and therefore did not pay attention to the question regarding criminal convictions.
The Tribunal notes the visa holder failed to declare her criminal convictions in her application for a combined Partner visa application, and failed to declare her criminal convictions on her incoming passenger card on 20 occasions upon arrival in Australia. The visa holder gave evidence at review that she had trouble understanding English and that she admits her ignorance and is now aware of the question on the card and will look at it in the future. The visa holder also admitted to the Tribunal that it was her responsibility to provide the correct information.
In response to the Notice, the visa holder admits she was charged with criminal offences relating to credit card fraud in Singapore in 2008. The visa holder confirmed she was convicted and sentenced to four years imprisonment, serving a total of two years and eight months.
The visa holder further states that she did not read each part of her incoming passenger card carefully and therefore did not pay attention to the question regarding criminal convictions.

The Tribunal accepts the visa holder has voluntarily provided information regarding her criminal convictions at the time of her application for Australian citizenship, it does not mitigate the fact the visa holder provided incorrect information in association with her application for a combined Partner visa, and continued to provide incorrect information on all subsequent incoming passenger cards upon arrival in Australia.
Further, section 100 of the Act makes it clear 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. The visa holder acknowledges it is her responsibility to provide the correct information.
The visa holder claims that she gave her passport to a friend so he could purchase a mobile phone SIM card in Singapore and that she was wrongly convicted. The visa holder states the SIM card was purchased using a fraudulent credit card and therefore her passport was linked to the purchase. Open source internet searches reveal that the Singapore government requires that all SIM cards are registered at time of purchase and that the buyer’s passport must be presented. The Tribunal finds it implausible that the visa holder’s friend was able to purchase a SIM card in Singapore by showing the visa holder’s passport as evidence of his identity and for the SIM card to be registered. The Tribunal finds it more plausible that the visa holder purchased the SIM card herself and showed her own passport as proof of her identity. The information provided leads the Tribunal to question the visa holder’s credibility.
Furthermore, the visa holder when questioned by the Tribunal as to how she became involved in using the forged credit cards stated that:
·She had met some friends at a birthday party in Malaysia and decided to travel with them Singapore so she could visit her uncle; and
·She never used the credit cards herself in Singapore, her friends used them and that she was innocent.
The Tribunal informed the visa holder that it had made a cursory search of the internet and had found a news story on the asiaone.com website that was inconsistent with the story told by her.
The Tribunal put the inconsistences in her story and the asiaone.com news article to the visa holder in accordance with s.359AA. The Tribunal informed the visa holder it was going to put information to her that it would consider to be the reason or part of the reason for affirming the decision. The Tribunal explained the relevance and the consequences of the information to her and invited her to comment on or respond to the information. The visa holder was informed that she may respond to the information orally or in writing or she could seek additional time to comment on or respond to the information. The visa holder chose to respond orally at the hearing.
The Tribunal gave the visa holder a copy of the news story that indicated:
·The visa holder had pleaded guilty to using counterfeit credit cards;
·The visa holder had become involved in a fake credit card scheme after she had borrowed money from loan sharks;
·The visa holder was receiving a commission for using the credit cards to repay the loan; and
·That after the business failed she was unable to repay the loan; she was harassed and physically assaulted, resulting in an 8cm scar on her body.
The visa holder responded that it was fake news and that she had followed the instructions of her solicitor to plead guilty and concoct a story when giving evidence at court with the view to receiving a lighter sentence. She further stated that she was scared at the time and was misled by her solicitor and she regrets trusting her solicitor. The Tribunal finds the visa holder’s evidence problematic as it appears that she prepared to make false and misleading evidence to achieve a more favourable outcome and it appears that she may have done this by not declaring her criminal record when applying for her visa and when entering Australia on her incoming passenger cards.
The visa holder states she did not disclose her convictions in her partner visa application because she considered herself as incorrectly convicted and that she didn’t want to mention it because of the psychological trauma she had suffered whilst in jail. Whilst the Tribunal acknowledges the visa holder’s claims and accepts that it would have been a traumatic experience in jail, she has been convicted of criminal offences and served two years and eight months of a four year sentence which the Tribunal considers to be a significant criminal record. These matters, if known to the delegate would have formed part of the decision to grant the visa, in particular if the visa holder passes the character test of not being sentenced to 12 months imprisonment or more.
The visa holder agreed that there was a non-compliance and provided a response to the NOICC prepared by her migration agent. The visa holder provide the following information and reasons for the non-compliance:
·The visa holder confirmed she had previously been convicted and sentenced to four years imprisonment, serving a total of two years and eight months for credit card fraud in 2008;
·The visa holder states in 2008 her boyfriend gave her a credit card with her name on it so she could take her children to Singapore for a holiday. She was told the credit card was a secondary card linked to her boyfriend’s account;
·The visa holder states that she thought something was not right, but took the card because she wanted to take her children on holidays. She states she only used the card for taxis and to buy souvenirs for her children;
·The visa holder states she later returned to Singapore with friends. While there a friend wanted to buy a SIM card but was required to show his passport which he had left at the hotel. The visa holder lent her passport to her friend for the purpose of purchasing the SIM card;
·The visa holder states upon return to Malaysia she was arrested for engaging with others in conspiracy to do credit card fraud;
·The visa holder states she was innocent and the only reason she was charged was because she lent someone her passport, therefore linking her to the fraudulent use of a credit card;
·The visa holder states that the police and her lawyer informed her to plead guilty, in turn for a light sentence;
·The visa holder states she was sentenced harshly because the others were not caught;
·The visa holder states she did not disclose her convictions in her partner visa application because she considered herself as incorrectly convicted;
·The visa holder mentioned her convictions at her citizenship interview because she wanted to give a complete and candid answer;
·The visa holder sincerely apologises for her mistakes and the terrible inconvenience she has caused the Australian government;
·The visa holder states that she did not read each part of her incoming passenger card carefully, and therefore did not pay attention to the question regarding criminal convictions.
The visa holder also provided the following reasons why her visa should not be cancelled:
·The visa holder considers herself the mother of her de facto partner’s 15-year-old son, P and she is close to her partner’s family;
·The visa holder has made strong friendships in Australia and assimilated and settled into life in Australia;
·Since the non-compliance the visa holder has been a law abiding citizen and not breached the law.
The visa holder also provided a statutory declaration from her de-facto partner and four statutory declarations from her friends attesting to the genuineness of the parties’ relationship.
The Tribunal notes the visa holder failed to declare her criminal convictions in her application for a combined Partner visa application, and failed to declare her criminal convictions on her incoming passenger card on 20 occasions upon arrival in Australia.
In response to the Notice, the visa holder admits she was charged with criminal offences relating to credit card fraud in Singapore in 2008. The visa holder confirmed she was convicted and sentenced to four years imprisonment, serving a total of two years and eight months.
The visa holder further states that she did not read each part of her incoming passenger card carefully and therefore did not pay attention to the question regarding criminal convictions. She further stated at review her English was poor when completing the passenger cards and that it was a misunderstanding and she is now aware of the question and will pay more attention in the future. The visa holder also acknowledged it is her responsibility to provide the correct information when completing the card.
The Tribunal accepts that the visa holder has voluntarily provided information regarding her criminal convictions at the time of her application for Australian citizenship, it does not mitigate the fact the visa holder provided incorrect information in association with her application for a combined Partner visa, and continued to provide incorrect information on all subsequent incoming passenger cards upon arrival in Australia.
Further, section 100 of the Act makes it clear 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.
The visa holder claims that she gave her passport to a friend so he could purchase a mobile phone SIM card in Singapore. The visa holder states the SIM card was purchased using a fraudulent credit card and therefore her passport was linked to the purchase. Open source internet searches reveal that the Singapore government requires that all SIM cards are registered at time of purchase and that the buyer’s passport must be presented. The Tribunal finds it implausible that the visa holder’s friend was able to purchase a SIM card in Singapore by showing the visa holder’s passport as evidence of his identity and for the SIM card to be registered. The Tribunal finds it more plausible that the visa holder purchased the SIM card herself and showed her own passport as proof of her identity. The Tribunal consider these circumstances lead it to question the visa holder’s credibility.
The visa holder states she did not disclose her convictions in her partner visa application because she considered herself as incorrectly convicted and she was traumatised by her conviction and she did not wish to raise the issue. Whilst the Tribunal acknowledges the visa holder’s claims, she has been convicted of criminal offences and served two years and eight months of a four year sentence, which I consider to be a significant criminal record. These matters, if known to the delegate would have formed part of the decision to grant the visa, in particular if the visa holder passes the character test of not being sentenced to 12 months imprisonment or more.
It is not in dispute that the visa holder by her own admission at the review hearing and in response to the NOICC has provided incorrect information on the Form 47SP and incoming passenger cards. Based on the evidence provided, the Tribunal finds that there was non-compliance with s.101(b) and 102(b) by the visa holder in the way described in the s.107 notice.
Therefore, if the visa holder has not complied with s.102(b), her Partner (permanent) (subclass 801) visa is liable for cancellation consideration under s.109 of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) and s.102(b) of the Act 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 visa holder 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.
Assessment: r.2.41
(a) the correct information
The correct information is that the visa holder had previously been arrested and charged with criminal offences relating to credit card fraud in Singapore in 2008. The visa holder was subsequently convicted and sentenced to 4 years imprisonment (serving a total of 2 years and 8 months).
The Tribunal gives this consideration some weight in favour of cancelling the visa.
(b) the content of the genuine document (if any)
No documents have been considered as part of this process. The Tribunal is unable to give any weight for or against a decision to cancel for this consideration.
(c) 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
cl.820.223 states:
820.223
(1) The applicant:
(a) subject to subclause (2) — satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and
(b) if the applicant had turned 18 at the time of application — satisfies public interest criterion 4019.
(2) Paragraph (1)(a) does not apply to an applicant referred to in subclause 820.211(5).
Public Interest Criterion (PIC) 4001 can be found under Schedule 4 to the Regulations and states:
PIC 4001
Either:
(a) the person satisfies the Minister that the person passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.
For the purposes of a character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
If the delegate had been aware of the correct information, the visa holder may not have passed the character test because she had been sentenced to a term of imprisonment of 12 months or more in Singapore in 2008. The Tribunal acknowledges the visa holder’s claims that her criminal record was a minor conviction, but the Tribunal considers serving two years and eight months of a four year custodial sentence to be a substantial criminal record.
Furthermore, the visa holder failed to declare that she had visited Singapore in the 10 years prior to the lodgement date of her application combined Partner visa. The Tribunal considers the visa holder has attempted to conceal her criminal convictions by not declaring she had travelled to Singapore.
The Tribunal gives this consideration some weight in favour of cancelling the visa.
(d) the circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred are that the visa holder failed to declare her criminal convictions in her application for a combined Partner visa application.
The visa holder also failed to declare her criminal convictions on her incoming passenger card on numerous occasions (20) upon arrival in Australia.
The Tribunal acknowledges the visa holder’s claims for not declaring her criminal convictions, including being incorrectly convicted and that it was a traumatic experience for her in jail, the Tribunal considers there was no circumstances beyond the visa holders control which led to the non-compliance.
The Tribunal gives this consideration little weight in favour of cancelling the visa.
(e) the present circumstances of the visa holder
The visa holder first entered Australia on 5 April 2011. Despite travelling overseas on many occasions she has spent the majority of this time in Australia.
The Tribunal acknowledges the visa holder has been in a genuine and ongoing de facto relationship with her Australian citizen sponsor since her arrival in Australia and has been granted her Partner 820/801 permanent visa. The Tribunal also acknowledges the visa holder’s de facto partner has recently made a full recovery from cancer. The Tribunal accepts the evidence provided which supports the relationship.
The Tribunal acknowledges the visa holder appears to have personal ties to Australia through her partner, his family and his 15-year-old son who has provided a letter of support, and she has developed friendships in the community. The Tribunal accepts the evidence provided that supports her personal ties to Australia.
The visa holder claimed she has been running a Thai massage business for the last four years employing a number of people and she has purchased property. Whilst no documentary evidence has been provided, the Tribunal is prepared to accept the visa holder’s oral evidence that she runs her own business to financially support herself and her family in Australia.
The visa holder also provided a letter from her business partner at review stating she has no qualifications to run the business and would have to close the business if the visa holder’s visa has cancelled because she is the one with the appropriate qualifications. The visa holder provided a number of certificates in regard to her qualifications. The Tribunal accepts that she is the only one qualified to run the business.
Given the visa holder’s familial circumstances, the Tribunal gives this consideration some weight against cancelling the visa.
(f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
The visa holder provided a response to the Notice within the prescribed timeframe and confirmed that she provided incorrect information in association with her application for a combined Partner visa.
The Tribunal gives this consideration little weight against cancelling the visa.
(g) any other instances of non-compliance by the vis holder known to the minister

There are no other instances of non-compliance by the visa holder known to the Minister.
The Tribunal gives this consideration little weight against cancelling the visa.
(h) the time that has elapsed since non-compliance
The non-compliance occurred on 6 March 2013 at the time the visa holder lodged her application for a combined Partner visa. More than six years have elapsed since the non-compliance which I consider to be a significant amount of time given the visa holder has established a life for herself in Australia.
The Tribunal gives this consideration little weight against cancelling the visa.
(j) any breaches of the law since non-compliance and the seriousness of those breaches
There is no adverse information before the Tribunal regarding any breaches of the law since the non-compliance.
The Tribunal gives this consideration a little weight against cancelling the visa.
(k) any contribution made by the holder to the community
The visa holder has been operating her own Thai massage business for the last four years employing a number of people.
The visa holder states that she regularly donates to the charity Cancer Council and has sponsored three children from Indonesia, South Africa and Thailand under a charity. She further stated that she donates to the Children’s Cancer Foundation on a monthly basis and more recently made donations towards the drought relief and bushfire appeal.
The Tribunal acknowledges the visa holder is likely contributing to the Australian community through her employment and contributions to charity.
The Tribunal gives this little weight against cancelling the visa.
Whether there are persons in Australia whose visa would, or may, be cancelled consequently
The visa holder’s son born in October 1994 was granted a Partner (permanent) visa as a dependent of the visa holder. The visa holder’s son’s visa will be cancelled consequentially in the event of visa cancellation.
Departmental records show the visa holder’s son has usually resided in Australia since the grant of his Partner (temporary) (subclass 820) visa. No further information regarding the visa holder’s son was provided in response to the Notice or given at review, therefore little information about his present circumstances are known, including whether he is working or studying.
The Tribunal gives this consideration little weight against cancelling the visa.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
Australia has an obligation to ensure that in all actions concerning children, the best interests of the child are a primary consideration. According to Departmental records, the visa holder has three children (two daughters and a son). The visa holder’s two daughters attended the review hearing as observers and did not wish to give evidence. The visa holder stated that her daughters were currently living and studying in Malaysia.
The visa holder’s son was granted a Partner (permanent) visa as a dependent of the visa holder on 19 June 2015. Departmental records indicate the visa holder’s son is currently residing in Australia. The visa holder’s son is an adult and cannot be considered under this convention.
The visa holder states that she is a mother figure to her de facto partner’s 15-year-old son P. In these circumstances, the Tribunal has considered the International Covenant on Civil and Political Rights the United Nations Convention on the Rights of the Child, particularly Article 3. Article 3 states the best interests of the child must be a primary concern in making decisions that affect them.
P provided a written letter in response to the Notice supporting the visa holder and her relationship with him and his father. Patrick states the following in part “Doris has been a mother to me. If I lose her my dad and myself will be very upset and I don’t think we’ll be able to cope as a family… She has taken me to school countless times, she has made my lunch, washed my clothes and has always been happy to talk to me...”
P provided a letter to the Tribunal dated 3 December 2019 in support of the visa holder stating in part “Aunty Doris will be leaving the country because her visa has been cancelled. I am very sad about it, she takes very good care of me, and she washes my clothes, prepares delicious meals, and drops me off and picks me up from school. She even brings me shopping and gets me my favourite food from time to time...”
Whilst the Tribunal acknowledges these circumstances, the visa holder is not P’s mother or step-mother, given her and the sponsor are not married. The Tribunal accepts the visa holder has likely provided care, including financial and emotional support to P in a family environment since she entered into a relationship with his father.
Departmental records show that P has entered Australia on approximately 20 occasions since the visa holder and his father commenced a de facto relationship. Upon arrival P has completed incoming passenger cards in which he is required to provide his intended residential address in Australia. The Tribunal notes that all the intended addresses P has provided are different to the known residential addresses the visa holder has provided while living in Australia (including her own incoming passenger cards). P has also listed various other family members as his emergency contacts in Australia, including a sister, and his father. The visa holder at review stated that her English is not good and that P was worried that no one would understand her if she was contacted and his incoming passenger cards were completed by his mother. P also confirmed this in his letter dated 3 December 2019. The Tribunal found this to be a reasonable explanation by both the parties considering the circumstances.
P’s biological mother is a New Zealand citizen and his father an Australian citizen. P is considered a dual New Zealand and Australian citizen, and travels with a New Zealand passport. Departmental records indicate P has usually resided in Australia since he was five years old. Records also indicate P returns to New Zealand multiple times per year. The Tribunal accepts that P has likely completed all his schooling to date in Australia and returns to New Zealand on a regular basis to visit his mother. The Tribunal accepts the visa cancellation may cause some emotional hardship but it considers P would still have access to both biological parents and other family members regardless of the outcome of the visa cancellation.
Given the overall family circumstances, the Tribunal gives this consideration some weight against cancelling the visa.
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 voluntary departure.
The Tribunal accepts that the visa holder would be subject to s.48 of the 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 her 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 little weight against cancelling the visa.
Any other relevant matters
There no other relevant matters to consider.
Conclusion
In the Tribunal’s view, the nature of the breach and the circumstances in which the non-compliance occurred, outweigh other considerations.
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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
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.
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.
102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given.
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 6884

19 December 2019

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