Ashraf (Migration)

[2023] AATA 1226

Ashraf (Migration) [2023] AATA 1226 (2 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rana Farhan Ashraf
Mrs Barira Khalil
Ms Fatima Farhan
Master Muhammad Mustafa Farhan

REPRESENTATIVE:  Mr Harsh Yadav (MARN: 2117646)

CASE NUMBER:  2214973

HOME AFFAIRS REFERENCE(S):          BCC2021/1790779

MEMBER:R. Skaros

DATE:2 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

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

Statement made on 02 May 2023 at 6:47pm

CATCHWORDS

MIGRATION – cancellation – Skilled Work Regional (Provisional) visa – Subclass 491 Skilled Work Regional (Provisional) – incorrect answers in the previous visa application – travel and residence refusals in other countries not declared – allegations against a migration agent – lengthy stay in Australia – family medical issues – impact on employer in regional Australia – best interests of the children – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 48, 97 – 105, 107-109, 140
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4001; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had failed to comply with s 101(b) of the Act in connection with a previous visa application.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were 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 applicants.

5. The applicants appeared before the Tribunal on 28 March 2023. The Tribunal received oral evidence from the applicant and his spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages, though the applicant and his spouse preferred to give their evidence in English.

6. The applicants were represented in relation to the review. The representative attended the hearing.

7. The Department’s file includes a certificate and notification issued under s 376 of the Act in respect of various documents. Under s 376 the Tribunal has a discretion to disclose information contained in the subject documents. The certificate provides that disclosure of the stated documents may disclose a confidential source of information and disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law, which would or would be likely to prejudice the effectiveness of those methods.

8. Prior to the hearing, the Tribunal wrote to the applicant and informed him of the existence of the s 376 certificate, a copy of which was also provided. At the hearing, the Tribunal discussed with the applicant the nature of the information covered by the certificate, and explained that the information, to the extent it was relevant to the issues in the review, had been disclosed to him in the Notice of Intention to Consider Cancellation (the s 107 notice), which was also set out in the delegate’s decision record.

9. In commenting on the validity of the certificate, the representative said that if the material information has been disclosed to the applicant, then they did not object to the validity of the certificate. The Tribunal noted that the relevant information relates to the applicant’s previous travel, stay and immigration history in the UK, which the Tribunal was satisfied had been disclosed to the applicant.

10. The Tribunal formed the view that the certificate, which was signed by an authorised delegate of the Minister, was valid as it provides a valid reason for maintaining the confidentiality of the source of information and methods of investigations. In any case, the Tribunal is satisfied that the essential information in those documents, being the applicant’s UK travel and immigration history, has been disclosed to the applicant in the s 107 notice and the applicant had an opportunity to respond to the information. Furthermore, the information was set out in the delegate’s decision record which was provided to the Tribunal with the application review.

11. 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

12. 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.

13. 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.

14. Section 107A of the Act provides that non-compliance in connection with a previous visa may be grounds for cancellation of a current visa. The delegate considered that the applicant had provided incorrect information in his application for a previously held Student (Subclass 573) visa.

15. 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?

16. 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) in the following respects:

17. On 20 July 2015 the applicant lodged an application for a student visa, which included a completed Form 157A ‘Application for a student visa’. The applicant, who is a citizen of Pakistan, indicated on Form 157A that he had not travelled outside of his country of citizenship. He also indicated that, in the preceding 5 years, he had not visited or lived outside his country of passport for more than 3 consecutive months. Also provided with the student visa application was a completed Form 80 ‘Personal Particulars for assessment including character assessment’, in which the applicant declared that he had never been refused a visa into any country. The applicant declared that the information supplied on the form and any attachments was complete, correct and up-to-date in every detail.

18. On 6 March 2018 the applicant lodged an application for a Temporary Graduate (Subclass 485) visa, which was granted on 11 April 2018. In that application, he declared that in the preceding 5 years he had not visited, or lived, outside his country of passport for more than 3 consecutive months.

19. On 28 August 2020, the applicant lodged the application for a provisional Skilled Work Regional (Subclass 491) visa, the subject of this review, which was granted on 9 July 2021. In that application, he provided his residential address history, which indicated that he had resided in Pakistan from 3 September 1984 to 10 September 2015. He also provided his travel history which indicated that he had not visited any country outside of Pakistan prior to 10 September 2015.

    Information subsequently received by the Department

20. Information subsequently received by the Department indicated that the applicant had previously visited and resided in the United Kingdom (UK), and had a visa refused. Including the following: on 1 July 2010, the applicant was granted a Tier 4 (General) Student Leave to enter visa, which was valid to 15 October 2012; on 11 January 2011, the applicant was granted a Tier 4 (General) Student Leave to remain visa, which was valid to 15 October 2012; and on 12 October 2012 he applied for an EEA – Zambrano Residence Card (Non-EEA Family Member) visa, which was refused on 11 October 2013.

    Response to the s 107 notice

21. The applicant responded to the s 107 notice by way of written submissions from his former representative. It was submitted that the applicant had engaged an agent (Mr Nasir) to assist him with the initial student visa application and that the agent omitted certain elements of the applicant’s travel history from the application and the applicant only became aware of the omitted details after the student visa was granted. It was submitted that the applicant was allegedly told by Mr Nasir that details of temporary visas did not need to be put in a student visa application.

22. It was further submitted that the applicant realised the error of concealing his immigration history and felt trapped by the omission in that he feared the consequences of revealing the true history in subsequent skilled visa applications. It was submitted that the applicant now realises the seriousness of the omission and wished to “come clean” with the Department. It was conceded that the applicant’s UK immigration history, as set out in the s 107 notice, was correct.

23. Also provided was additional information relating to the applicant’s Canadian immigration history, being the refusal of a student visa in 2014, and his spouse’s travel to Saudi Arabia, from 9 April 2012 to 5 May 2012, which had not previously been declared to the Department.

24. At the hearing, the applicant confirmed that the information set out in the s 107 notice regarding his travel, stay and immigration history in the UK was true and correct. He gave evidence that after completing his Economics degree in Pakistan, in 2009, he was unsuccessful in finding employment, so decided to apply for a student visa to the UK. His father had been living in the UK since 1991. The applicant travelled to the UK in 2010 as the holder of a student visa, which was extended for further stay in 2011. In 2012 he applied for a residence visa to care for his father (the Zambrano visa) which was refused in October 2013. He appealed the refusal decision but was unsuccessful. He departed the UK voluntarily in May 2014 and returned to Pakistan. He was again unsuccessful in finding employment in Pakistan, so decided to apply for a visa to Canada. He gave evidence that he applied for the student visa to Canada without the assistance of an agent, and that he declared his UK travel and immigration history to the Canadian authorities. He said the Canadian student visa application was refused. When asked about the reasons for refusal, the applicant said they (the Canadian authorities) did not believe that he would return to Pakistan.

25. In response to questions about his student visa application for Australia, the applicant said he did not feel confident to lodge the application by himself following refusal of the Canadian visa, so he decided to engage an agent in Pakistan. The applicant said he gave the agent his personal and education documents, IELTS, police checks and evidence of funds, which were held in his account in British pounds. He told the agent everything about his immigration history and travel to the UK. The Tribunal asked the applicant whether he provided the agent in Pakistan any employment records, such as references, payslips and other information, which was included with the student visa application form, indicating he had been employed in Pakistan between 2010 and 2015. The applicant indicated he had not and said the agent had only given him the signature pages of the form to sign. The applicant denied having any knowledge of the information provided in the student visa application form or of any employment documents provided. He said he had left everything up to the agent. When asked when he became aware that incorrect information had been provided in the student visa application, the applicant said when he received the s 107 notice.

26. The Tribunal put to the applicant that it was difficult to believe he only became aware of the incorrect information after receiving the s 107 notice, given the incorrect information (including the failure to disclose his travel, stay and immigration history in the UK) was not subsequently declared in the Subclass 485 or 491 visa applications, thereby suggesting that the information continued to be deliberately omitted. In responding to the Tribunal’s concerns, the applicant said in subsequent applications, which he completed with the assistance of a friend, he indicated “no” to his previous travel history because he thought the information had already been provided. When asked when he thought information about his UK travel and immigration history had been provided, the applicant said in the student visa application.

27. The Tribunal put to the applicant that it did not consider it logical that because he thought correct information about his UK immigration history had been provided in the student visa application that this somehow explains the reasons for providing incorrect information about his travel, stay and immigration history to the UK in his subsequent skilled visa applications. The applicant said he had no intention to withhold the information about his immigration history and that he declared this in his Subclass 491 visa applications. When asked to clarify, the applicant said he declared the refusal of the visitor visa application to the UK and Ireland. The Tribunal observed that according to his current representative’s submissions, the visitor visa applications he is referring to were those lodged after he had travelled to Australia. The applicant confirmed this was correct. The Tribunal put to the applicant that he therefore had not declared his UK immigration history between 2010 and 2015 in any of his visa applications. The applicant reiterated his evidence that he thought the information had been provided.

28. The Tribunal has considered the applicant’s responses further below in its considerations of the circumstances in which the non-compliance occurred. As to whether there was non-compliance as described in the s 107 notice, the Tribunal makes the following findings:

29. On the evidence before it, the Tribunal finds that the applicant previously travelled to (and resided in) the UK on the basis of visas granted to him in July 2010 and January 2011. The evidence before the Tribunal also confirms that the applicant was refused a residence visa (EEA – Zambrano) by UK authorities in October 2013. The Tribunal accordingly finds that incorrect answers were provided in the Subclass 573 visa application in response to questions regarding the applicant’s previous travel and residence outside his country of citizenship, and about previous visa applications which had been refused. The Tribunal further finds that incorrect answers regarding the applicant’s previous travel, residence and immigration history, as set out in the s 107 notice, continued to be provided in subsequent applications for the Subclass 485 and 491 visas.

30. The Tribunal is prepared to accept, as claimed by the applicant, that he engaged the services of an agent in Pakistan to assist him with the student visa application for Australia. However, s 98 of the Act provides that a non-citizen who does not fill in his or her application form 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. In addition, s 100 of the Act provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. In the circumstances, the effect of s 98 and s 100 of the Act is that the applicant is taken to have filled in the application form and he is ultimately responsible for any incorrect information that has been provided in relation to the application.

31. For the above reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

32. 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).

33. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations and have been considered by the Tribunal as follows:

    The correct information

34. By reference to the information set out in the s 107 notice, the Tribunal finds that the correct information is that the applicant had previously travelled outside his country of citizenship, including for a period of more than 3 consecutive months in the 5 years preceding the Subclass 573 visa application, and that the applicant had been refused a visa to the UK.

35. In relation to the Subclass 485 and 491 visas, the correct information is that the applicant had visited or lived outside his country of passport for more than 3 consecutive months, and that he had not continuously resided in Pakistan between September 1984 and September 2015 as claimed.

36. On his own admissions, the applicant also identified further incorrect information relating to his previous immigration history, including that he had been refused a visa for Canada and that his spouse had previously travelled to Saudi Arabia. The Tribunal notes, however, that this information was not particularised in the s 107 notice.

37. The Tribunal considers the failure to provide correct information about his previous travel, stay and immigration history in the UK to be significant because it deprived the Department from undertaking a full assessment of all the applicable requirements, some of which are discussed further below, for grant of the visas sought. The Tribunal gives weight to this consideration in favour of cancelling the applicant’s Subclass 491 visa.

    The content of the genuine document (if any)

38. As the s 107 notice does not identify any suspected non-genuine (bogus) documents, this consideration is not relevant in this case.

    Whether the decision to grant a visa was based, wholly or partly, on incorrect information

39. The Tribunal considers that the decision to grant visas to the applicant was based, at least in part, on incorrect information about his previous travel and immigration history.

40. In relation to the Subclass 573 visa application, an applicant’s immigration history is relevant to the assessment of whether the Minister is satisfied that the applicant is a genuine applicant for entry and stay in Australia as a student, including whether they intend genuinely to stay in Australia temporarily, having regard to, among other things, the applicant’s immigration history: cl 573.223(1)(a).

41. In a recent submission to the Tribunal, the current representative referred to Direction 53, extracts of which were provided, which he said was used by decision makers (at the relevant time) to assess the temporary entrant criterion. The factors in the Direction that had to be considered by decision makers relevantly included the following: previous visa applications for Australia or other countries, including any previous refusals and the circumstances that led to the refusal, previous travel to countries other than Australia and whether applicants complied with the immigration laws of that country. It was submitted that the applicant, while in the UK, had never contravened any laws and complied with the conditions of his visa, and that it was of no benefit to intentionally hide his immigration history as the Direction does not specifically prohibit the grant of a Subclass 573 visa if the applicant has travelled to another country or been refused a visa.

1. The Tribunal is not disputing that the applicant may have still been granted the Subclass 573 student visa had he declared the correct information about his travel history and previous visa refusal. However, the failure to disclose the correct information about his previous visa application to the UK, including previous refusals, and travel to the UK deprived the decision maker from undertaking a complete assessment of the applicant’s immigration history, compliance with immigration laws and reasons for previous visa refusals, all of which were relevant to the assessment of the requirements in cl 573.223(1)(a). For these reasons, the Tribunal considers that the decision to grant the applicant the student visa was based, in part, on incorrect information about his immigration and travel history.

2. The applicant’s immigration and travel history were also relevant to the assessment of the character requirements in Public Interest Criterion (PIC) 4001, which include, upon request from the delegate, the provision of a penal clearance certificate from the appropriate authority in which the applicant resides or has resided: reg 2.03AA. The relevant application forms for the Subclass 485 and 491 visas note (in relation to character questions) that applicants are required to provide penal certificates from all countries in which they spent a total period of 12 months or more (since turning 16) in the preceding 10 years. Applicants are also asked to provide details of all the countries they have lived in outside their usual country of residence (or country of passport). For some of those questions applicants are required to account for every year and to provide details of any countries they have lived in for more than 3 consecutive months. In response to those questions, the applicant provided incorrect information about his previous travel history and failed to disclose his periods of residence in the UK. The failure to disclose this information deprived the delegate from making a full assessment of the character requirements, including the opportunity to request penal clearance certificates, before granting the Subclass 485 and 491 visas. For these reasons, the Tribunal considers that the decision to grant the applicant the skilled visas was also based, in part, on incorrect information about his immigration and travel history.

3. The Tribunal has had regard to the submission that the applicant has not contravened any laws in UK and has no disclosable convictions and would have qualified for the skilled visas. While the Tribunal is not disputing that the applicant may have still been granted the skilled visas if he disclosed his previous travel and immigration history, the consideration in reg 2.41(c) requires the Tribunal to consider whether the decision to grant the visa was based, wholly or partly, on incorrect information and not whether the applicant would have still been granted the visa if the correct information had been known.

4. As considered above, the applicant’s previous travel, stay and immigration history in the UK was relevant to the assessment of several requirements for the grant of the student visa and the skilled visas, and the decision to grant those visas was therefore based partly on incorrect information. The Tribunal gives weight to this consideration in favour of cancelling the applicant’s Subclass 491 visa.

   The circumstances in which the non-compliance occurred

5. The non-compliance, being the provision of incorrect information, including failure to disclose details, about the applicant’s previous travel, stay and immigration history in the UK, occurred on 3 occasions: in the student (Subclass 573) visa application lodged on 20 July 2015 and in the temporary/provisional skilled visa applications, Subclass 485 and 491, which were lodged on 6 March 2018 and 28 August 2020 respectively.

6. The Tribunal has formed the view, for reasons that follow, that the applicant’s evidence pertaining to the circumstances of the non-compliance was inconsistent and lacking in credibility.

7. In submissions made by the applicant’s former representative, it was stated that the applicant had provided all the required information to his agent in Pakistan (Mr Nasir), who omitted details about his travel history. It was submitted that the applicant did not become aware of the omissions until the student visa was granted and he was told by Mr Nasir that details of temporary visas did not need to be put in the student visa application. It was submitted that the applicant felt trapped by the omissions and feared the consequences of disclosing the information in his subsequent skilled visa applications.

8. At the hearing, however, the applicant claimed that he did not become aware that incorrect information had been provided until he received the s 107 notice. When the Tribunal expressed its concern about the change in his evidence, the applicant claimed that his former representative did not discuss the submissions with him and had not met with him in person. He said the consultation was over the phone and he was unaware of what had been submitted on his behalf. The Tribunal considered the explanation provided by the previous representative to be more plausible than the applicant’s later evidence that he had no knowledge of the incorrect information until receipt of the s 107 notice. When this was discussed with the applicant, he insisted that he had no knowledge of the incorrect information. When asked if he wanted the Tribunal to disregard the submissions made by the former representative, the applicant confirmed that he did. In view of this, the Tribunal has assessed the evidence provided to it, as set out in the recent submissions of the current representative, and the applicant’s oral evidence at the hearing.

9. While the Tribunal accepts that Mr Nasir (the former agent in Pakistan) was likely responsible for not providing the details of the applicant’s UK immigration history on the visa application form, the Tribunal formed the view that this was done intentionally to give the applicant the best chance of success in securing a student visa for Australia. On his own evidence, the applicant had (in the months prior) been refused a student visa to Canada on the basis that the Canadian authorities were not satisfied that he would return to Pakistan. The applicant confirmed in his oral evidence that he had disclosed his UK travel and immigration history in that application. The Tribunal considers it likely that Mr Nasir, who was aware of the refusal, considered it more advantageous to withhold the information about the applicant’s previous travel on his visa applications. There is insufficient evidence before the Tribunal as to when the applicant became aware of the incorrect information (including omissions) in his student visa application, and whether it was before or after the student visa had been granted. However, the Tribunal does not accept, for reasons that follow, that the applicant became aware of the incorrect information only after receiving the s 107 notice.

10. In relation to the non-compliance pertaining to the student visa application, it may well be, and the Tribunal is prepared to accept, that the applicant was not aware of the incorrect information provided on his behalf by Mr Nasir at the time the student visa application was lodged.

11. In relation to the circumstances of the non-compliance at the time the Subclass 485 and 491 visa applications were lodged, the Tribunal considers that the applicant deliberately and intentionally provided incorrect information on those applications to maintain consistency with the information previously provided on the student visa application, and not raise any suspicion, as this would risk refusal of the skilled visa applications. When this concern was discussed with the applicant at the hearing, he claimed the reason he indicated he had not travelled outside his country of citizenship and did not disclose his previous travel, stay and immigration history to the UK, was because he thought the information had already been provided to Immigration in the student visa application. The Tribunal finds the applicant’s explanation to be lacking in credibility. As expressed to the applicant at the hearing, the Tribunal considers it entirely illogical that he would provide incorrect information about his travel and immigration history in his skilled visa applications because he believed that the correct information had already been provided in the earlier (student) visa application. The Tribunal considers the reason the applicant continued to provide incorrect information in his skilled visa applications was because he did not want to expose the previous non-compliance in the student visa application, which could have resulted in the refusal of his subsequent skilled visa applications.

12. The Tribunal has also considered the submissions (and claim at the hearing) that the applicant had no intention to withhold the correct information about his immigration history to the UK as he had provided details (on the Form 80 for the Subclass 485 and 491 visas) of his previous visitor visa refusals. The Tribunal does not accept this explanation because, as ascertained from the evidence given at the hearing, the applicant was referring to applications for UK visitor visas he had made whilst he was in Australia. The Tribunal is not satisfied that the disclosure of the UK visitor visa application refusals demonstrates that the applicant did not intentionally provide incorrect information on his skilled visa applications. On the contrary, the applicant’s conduct, in being selective about which information pertaining to his immigration history to disclose in his skilled visa applications, strongly suggests that he intentionally (and knowingly) chose to provide incorrect information about his travel, stay and UK immigration history prior to his arrival in Australia.

13. The Tribunal considers that the applicant has not provided truthful evidence about the circumstances in which the non-compliance occurred. The Tribunal considers that the applicant has, at least in relation to the temporary/provisional skilled, Subclass 485 and 491 visa applications, intentionally provided incorrect information pertaining to his travel, stay and UK immigration history. For these reasons, the Tribunal gives weight to this consideration in favour of cancelling the applicant’s Subclass 491 visa.

    The present circumstances of the visa holder

14. The Tribunal is satisfied on the evidence before it that the applicant has been residing in Australia for a period of almost 8 years, since 2015 when he arrived as the holder of a student visa. The applicant completed a Master of Professional Accounting degree in Australia, after which he applied for (and was granted) a Temporary Graduate (post study work) Subclass 485 visa. The applicant subsequently applied for, and was granted, the Skilled Work Regional (Provisional) Subclass 491 visa, which is the subject of this review.

15. The Tribunal accepts that the applicant, his spouse and their two children reside in the regional suburb of Boolaroo, Greater Newcastle, NSW. Their daughter, who is 4 years of age, has commenced school. Their son, who is 2 years of age, has recently undergone an operation at the John Hunter Children’s Hospital and the Tribunal is satisfied based on the recent medical evidence provided from the Paediatric Surgeon and GP, that the applicant’s son will require regular medical check-ups and has an upcoming appointment with the specialist in August 2023.

16. The Tribunal also accepts on the evidence before it that the applicant currently works as a Senior Accountant for Oracle Accounting, where he has worked since 2021, and that he is highly valued by his employer. The Tribunal has had regard to the letter of support from the applicant’s Manager, Peter Durbin, attesting to the importance of the applicant’s role with the business. He states that if the applicant is unable to remain in Australia, Oracle would face great difficulties in replacing him. The Tribunal accepts that the applicant is employed in a skilled occupation in regional Australia for an Australian business. It also accepts that the Australian business values the work undertaken by the applicant in the role of Accountant and that they would experience difficulties if they had to find a replacement.

17. The Tribunal accepts, based on the applicant’s oral evidence, that he and his family are well settled in regional Australia. In her evidence to the Tribunal, the applicant’s spouse said she and the children are settled in Boolaroo and that they intend to remain there as a family. She has completed Bachelor of Science and Master of Education qualifications and hopes to work in teaching in future. She currently has caring responsibilities for their young children. She said the situation in Pakistan was not good and she was concerned that their son will not get the medical treatment required if any complications develop in future due to his medical condition.

18. Having accepted the evidence regarding the present circumstances of the applicant and the difficulties the applicant, his employer and family would all experience if the applicant’s visa was cancelled, the Tribunal gives weight to this consideration against visa cancellation.

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

19. The delegate noted that the applicant had responded to the s 107 notice within the prescribed timeframe. It was also noted that the applicant had provided additional information about a previous visa application to Canada and his spouse’s travel to Saudi Arabia which was not set out in the s 107 notice.

20. The Tribunal considers that the applicant has not complied with his obligation in s 105 to notify the Department in writing of the incorrect information provided in the various visa application forms. The applicant claims he did not become aware of the incorrect information until he received the s 107 notice, however, for reasons discussed above, the Tribunal has not accepted that explanation. The Tribunal considers that the applicant became aware of the incorrect information on his student visa application some time prior to the lodgement of the Subclass 485 visa application in March 2018, given he continued to provide incorrect information pertaining to his previous travel history in that application. The Tribunal considers that the applicant has been in breach of his obligation under s 105 to notify the Department of the incorrect information given in his visa applications since some time prior to March 2018.

21. The Tribunal gives weight to this consideration in favour of cancelling the applicant’s Subclass 491 visa.

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

22. There is no information before the Tribunal which suggests that there are any other instances of non-compliance known to the Department. The Tribunal considers this factor to be neutral.

    The time that has elapsed since the non-compliance

23. The non-compliance associated with the student visa application occurred in July 2015, which was almost 8 years ago. The non-compliance associated with the Subclass 485 visa application occurred in March 2018, which was over 5 years ago. The non-compliance with the Subclass 491 visa application occurred in August 2020, which was less than 3 years ago. While the time that has elapsed since the initial non-compliance can be considered a long period, the most recent non-compliance occurred less than 3 years ago, which the Tribunal does not consider to be a long period. The Tribunal gives limited weight to this factor against cancelling the visa.

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

24. There is no evidence before the Tribunal which suggests that there have been any breaches of the law since the non-compliance. The Tribunal considers this factor to be neutral.

    Any contribution made by the visa holder to the community

25. The Tribunal accepts on the evidence before it that the applicant has contributed to the community through his employment. It also accepts that the applicant and his family are settled in the regional area of Boolaroo. It accepts that the applicant and his spouse have contributed through recent donations to various charities, as evidenced by the receipts provided. It was also submitted on their behalf that the applicant and his wife are blood donors and have registered to be organ donors. The Tribunal gives some weight to this factor against cancelling the visa.

26. 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 Procedures 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.

27. The Tribunal accepts that if the applicant’s visa is cancelled, his spouse and children’s visas will be consequentially cancelled under s 140. The Tribunal gives weight to this circumstance against cancelling the visa.

28. In relation to the best interest of the children, the Tribunal is mindful that this is a primary consideration. The Tribunal considers that the best interest of the children is that they remain with their parents who care for and love them. The Tribunal is of the view that the children, given their relatively young ages, would be able to adjust to life in Pakistan if they had to live there with their parents. The Tribunal has had regard to the applicant and his spouse’s expressed fears about their son, who recently underwent a medical procedure, and accepts that the family would like to remain in Australia to ensure their son receives the best possible medical care, which they claim would not be available in Pakistan. There is limited evidence before the Tribunal about the healthcare system in Pakistan, however, the Tribunal is prepared to accept that, at the time of this decision, it is in the son’s best interest to remain in Australia so he can attend the upcoming appointment with his specialist and continue his medical treatment.

29. Given it is in the best interest of the applicant’s son that he remains in Australia at the present time and, given it is in the best interest of the children that the family unit remain intact, the Tribunal finds that it is in the best interest of the applicant’s children that the visa is not cancelled. Accordingly, the Tribunal gives considerable weight to this circumstance against cancelling the visa.

30. There is no evidence before the Tribunal which suggests that the cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement or family unity obligations.

31. The Tribunal has considered the mandatory legal consequences of cancellation and accepts that the applicant will be affected by the bar in s 48 of the Act and will have limited options for applying for a further visa in Australia. The applicant may also be affected by PIC 4013, which restricts the grant of certain temporary visas applied for within 3 years of cancellation unless specified circumstances, as provided for in PIC 4013(1)(b), apply. If the visa is cancelled the applicant will only become unlawful and liable for detention or removal if he is not granted another visa, such as a Bridging E visa, or does not depart Australia voluntarily. The Tribunal considers the mandatory consequences of cancellation to be the intended effect of the legislation and gives this factor limited weight against cancelling the visa.

32. In considering other relevant matters, the Tribunal has had regard to the hardship that the applicant and his spouse said they would experience if the visa was cancelled, and they had to return to Pakistan. The applicant gave evidence that the political and economic circumstances in Pakistan are not good and that he would struggle to support his family. Similarly, the applicant’s spouse expressed her concern for the future of the children and said they would have a better quality of life and more opportunities in Australia. The Tribunal accepts that the applicant and his spouse would likely experience financial, emotional and personal hardship if the visa is cancelled, and gives this factor some weight to these circumstances against cancelling the visa.

    Conclusion

1. The Tribunal has carefully considered all the evidence before it and weighed up the factors in favour of cancellation and those against cancellation. Of particular concern in this case are the circumstances in which the non-compliance occurred, which indicate that the applicant deliberately and intentionally provided incorrect information in relation to at least two of the visa applications, including that which is the subject of this review. The correct information was pertinent to the complete and proper assessment of the requirements for the grant of the visas, and by failing to provide the correct information, the Department was prevented from undertaking a full assessment and conducting the required checks before deciding whether to grant the visas.

2. Against the above, however, are other factors which at the present time weigh against cancellation. This includes the present circumstances of the applicant and his family, including the applicant’s employment as a Senior Accountant for an Australian business that values his work and contribution, the hardship that may be experienced by the applicant and his family members if the visa was cancelled and the best interest of the applicant’s children. As found above, it is in the best interest of the applicant’s children that the visa is not cancelled at this time, particularly given the need for the applicant’s son to remain in Australia to attend upcoming specialist appointments following his medical procedure late last year. The Tribunal acknowledges that the best interest of the children is a primary consideration and has given this factor the appropriate weight in the exercise of its discretion.

3. In weighing up all the relevant factors, the Tribunal considers that the circumstances in favour of cancellation are slightly outweighed by the circumstances against cancellation. For these reasons, the Tribunal considers that the preferable decision is not to cancel the visa.

4. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

6. The Tribunal has no jurisdiction with respect to the other applicants.

   R. Skaros
   Senior 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.