Auque Arevalo (Migration)

[2018] AATA 1378

Auque Arevalo (Migration) [2018] AATA 1378 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francisco Javier Auque Arevalo

CASE NUMBER:  1714395

DIBP REFERENCE(S):  BCC2016/3452463 OSF2011/019332

MEMBER:Kira Raif

DATE:9 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 101 (Child) visa.

Statement made on 09 April 2018 at 10:59am

CATCHWORD
Migration – Cancellation – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Concept of engagement – Prospective Marriage visa application – Nature of relationship – Birth of child – Withholding information – Time since non-compliance – Employment opportunities – Strong family ties in Australia – Child’s best interest
LEGISLATION
Migration Act 1958, ss 99, 101, 104, 107, 109
Migration Regulations 1994, rr 1.09A, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 101 (Child) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Colombia, born in September 1987. He was granted a Class AH Child visa in July 2013. In February 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act because the delegate formed the view that the applicant did not comply with ss.101 and 104 of the Act. The applicant provided his response and his visa was cancelled on 29 June 2017. The applicant seeks review of that decision.

3. The applicant appeared before the Tribunal on 3 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of Immigration (the Department) of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

6. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

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

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107.

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

9. 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 ss.101 and 104 of the Act.

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

    a.The applicant made an application for a child visa in March 2011 and signed the application form.

    b.In response to Question 14 of the application form 47CH the applicant stated that he was ‘never married or been in a de facto relationship’.

    c.In May 2013 the applicant was interviewed by an officer of the Department. During the interview the applicant was asked if he had a girlfriend and stated that he has had a girlfriend for the past three months but it was not serious.

    d.The applicant was granted the child visa in July 2013.

    e.In June 2015 Ms Peggy Johana Molina lodged an application for the prospective marriage visa. She was sponsored in that application by the applicant.

    f.Ms Molina submitted with her application a relationship statement signed by the applicant on 20 November 2016. In that statement the applicant stated that ‘on 13 July 2012 we began more of a formal courtship / engagement process where we introduced each other to our families and began to visit each other frequently at each other’s home’.

11. The delegate found that the applicant did not comply with s.101(b) of the Act as he provided an incorrect answer to a question at an interview with the Departmental officer on 13 May 2013.

    a.In response to Question 24 of the application form 47CH the applicant stated that he did not have any children.

    b.In an interview with the Departmental officer on 13 May 2013 the applicant was asked if he had any children. The applicant stated that he did not.

    c.Ms Molina made the application for the prospective marriage visa in June 2015 and included in that application Stephan Xavier Auque Arrieta (born in 10 June 2013) as a dependant. Ms Molina submitted the child’s birth certificate identifying the applicant as the father.

12. The delegate found that the applicant did not comply with s.104 of the Act because his personal circumstances had changed so that an answer on the application form was incorrect and he failed to inform an officer in writing about the new circumstances.

13. The applicant provided a written submission in response to the NOICC in February 2017. The applicant outlines his circumstances in Colombia, noting that he was earning a minimal wage and was financially reliant on his father. The applicant states he never had a spouse or a de facto partner and was not engaged. The applicant states that at the time of the application and also at the time of decision, he met the requirements for visa grant.

14. With respect to the information set out in the NOICC, the applicant states that he was not engaged to be married either at the time of application or at the time of decision and he and Ms Molina only became engaged relatively recently. With respect to his statement submitted with Ms Molina’s prospective marriage visa application, the applicant states that it is strongly doubted there was any formal commitment to marry. The applicant outlined the differences in the concepts of engagement for Australia and Colombia and stated that theirs was not an engagement to marry as may be understood in Australia. The applicant stated that there was nothing to indicate that the couple intended to marry and they have not done so to date. The applicant claims that he did not have a spouse and his relationship with Ms Molina could not have constituted a de facto relationship as none of the factors set out in r.1.09A of the Migration Regulations 1994 (the Regulations) were present.

15. The Tribunal considers these submissions, put forward by the applicant’s representative, to be misguided. The issue, for the purpose of s.101 is not whether the applicant would have complied with the statutory requirements for the grant of the visa. The relevant issue is a very different one – whether an incorrect answer has been given or provided. It is irrelevant, for the purpose of establishing the non-compliance, whether the applicant would have met the statutory criteria for visa grant. (This may be relevant to the exercise of discretion.) It is not sufficient, therefore, to establish that the applicant may have met the requirements for the grant of the visa, including dependence on his father. If he has given or provided an incorrect answer, s.101 is breached whether or not he also met the requirements for visa grant.

16. With respect to the information he gave at the interview with the interviewing officer in May 2013, the applicant refers to the length of time it has taken for his visa application and the short length of the interview. The applicant states that his response that  he had a girlfriend for three months and the relationship was not serious was not contradictory to the declared relationship status of ‘never married or in a de facto relationship’. The applicant states that because he had never been in a de facto relationship, his response was not incorrect. The applicant notes that his relationship with Ms Molina had ‘ups and downs’ which they had not mentioned in her prospective marriage visa application.

17. In his statement to the Tribunal and his oral evidence to the Tribunal the applicant explained that his relationship with Ms Molina was not ongoing. He claims the relationship lasted for about three months when they broke up and he was seeing other women. The applicant claims he did not have a de facto relationship with Ms Molina and their relationship was not a committed one until late 2014 or 2015. The applicant states that when he was interviewed and asked about his relationship, he referred to having a girlfriend of three months but that was in relation to a different person and not Ms Molina.

18. The Tribunal notes that there is a clear discrepancy between the applicant’s present evidence and his statement submitted with Ms Molina’s prospective marriage visa application. The applicant now claims that his relationship with Ms Molina was not a de facto one, was on and off and did not last beyond the three months. In the prospective marriage visa application the parties submit that from July 2012 they began a more formal courtship and introduced each other to their respective parents. The applicant confirmed in oral evidence to the Tribunal that he did assist Ms Molina with that visa application.

19. The applicant explains in his evidence to the Tribunal that he did not mention the full nature of his relationship with Ms Molina when he provided a statement in support of Ms Molina’s application. He told the Tribunal that they wanted to provide the best future for the child and he did not think he had to mention everything and he did not want to refer to the bad things in their relationship. The Tribunal considers that evidence problematic. Information about the nature and the duration of the relationship would have been quite central to Ms Molina’s prospective marriage visa application. It is entirely inconsistent to state, on one hand, that the parties had been in a committed relationship since 2012 and, on the other hand, to claim that initially their relationship lasted three months and it was not resumed until three years later for the sake of the child. If the applicant’s present evidence is to be accepted, it would indicate that the applicant and Ms Molina have been deliberately untruthful in the prospective marriage visa application about the circumstances and the duration of their relationship in order to maximise the chances of getting the visa for Ms Molina. The Tribunal finds that the applicant is not a person of credibility.

20. The applicant also states in his evidence to the Tribunal that he was following the instructions of his migration agent. The applicant states that after he recognised the child was his, Ms Molina applied for a student visa in January 2015 and her application was refused because she was not recognised as a genuine student. The applicant said that Ms Molina did mention him in her student visa application but did not state that they were in a relationship. That is, when the applicant made his own visa application and his subsequent interactions with the Department, the applicant stated that there was no committed relationship between him and Ms Molina and the relationship was only ‘on and off’ and that he saw other partners. In her student visa application made in January 2015 Ms Molina also sated there was no relationship between them. Yet in her prospective marriage visa application made only a few months later, Ms Molina and the applicant refer to having a relationship since 2012. The applicant told the Tribunal the translator who assisted with his statement was inaccurate and he relied on the translator but the Tribunal is of the view that it was the applicant’s statement and his responsibility to ensure the information in that statement was correct.

21. The Tribunal finds that both the applicant and Ms Molina have been untruthful in their dealings with the Department and had deliberately provided false or misleading information, and incorrect answers, in order to obtain visas.

22. Despite that, the Tribunal cannot be satisfied that the incorrect answers were provided in relation to the applicant’s child visa application, rather than Ms Molina’s prospective marriage visa application. It is plausible that the applicant’s relationship with Ms Molina was not a good one until after the birth of their child when the applicant accepted the parental responsibility and that the parties misrepresented the nature of their relationship in the prospective marriage application to expedite the visa grant and to enable the child to migrate to Australia. It is also plausible that when he was interviewed, the applicant referred to a different relationship and a different girlfriend. There is insufficient evidence to establish, in the Tribunal’s view, that the information the applicant gave in his own visa application concerning his relationship with Ms Molina was incorrect. The Tribunal is not satisfied there is enough probative evidence to find non-compliance with s.101 of the Act.

23. With respect to the information about the child, the applicant states in his written response to the NOICC that he provided clear and accurate responses to the questions throughout the application process and he continued to meet the dependence and relationship requirements and would have been entitled to the grant of the visa. The applicant notes that he was able to include the child in his child visa application. To the extent that the applicant submits that he would have met all visa requirements irrespective of the birth of the child, as noted above, that is not an issue here. The applicant gave information in his application and in an interview that he had no children. That circumstance changed once his child was born in June 2013, before the applicant was immigration cleared, and the applicant had an obligation to inform the Department about the changes in his circumstances. He failed to do so.

24. The applicant suggests that the birth of a child may not be a ‘material change’ in circumstances. Putting aside the value of that submission (the Tribunal is of the view that the birth of a child is a fairly material change of circumstances), the Tribunal is mindful that there is nothing in s.104 that limits the obligation to inform about only material changes in circumstances. It merely refers to an answer becoming incorrect in the new circumstances. The answer the applicant gave on the form and at the interview about having no children was clearly incorrect in light of the birth of his child, whether or not the applicant believed that to be material.

25. The applicant refers to the delay in the processing, noting that if the child was disclosed, it may have further delayed the processing of the visa application so that it would have become impossible for him to meet the visa requirements. That submission is of considerable concern to the Tribunal because the applicant appears to suggest that he had deliberately withheld information about the birth of the child – and deliberately breached s.104 of the Act – so as not to delay the visa grant and to ensure that he was granted the visa. It is likely, in the Tribunal’s view, that the applicant also deliberately misrepresented the nature of his relationship with Ms Molina at the interview for the same reason to avoid the delay in the finalisation of the visa application. That is, the provision of incorrect answer at the interview, and the failure to inform about the changes in circumstances, were made knowingly and intentionally.

26. The applicant claims he did not know about his obligation to notify about the birth of his son as he is a young man anxious about the outcome of his visa application. The Tribunal does not accept that evidence because the applicant was specifically asked this information in his interview with the interviewing officer. The interview was held in May 2013, merely a month before the birth of his child. The Tribunal acknowledges that, technically, at the time of the interview, the applicant did not have children and gave a correct answer but being asked that question merely four weeks before birth, the applicant would have been put on notice that his relationship with Ms Molina and the presence of any children were relevant to his visa. It would have been prudent at the time of the interview for the applicant to disclose the imminent birth of the child, given that this was obviously of interest to the interviewing officer and, given such interest, the applicant would have been aware of the need to disclose the information after the child was born.

27. The Tribunal notes that the standard visa grant letter (and there is nothing to suggest the applicant was given anything other than the standard letter) does state that the visa holder has an obligation to inform the Department about changes in circumstances, including changes to family composition such as the birth of a child. The applicant claims that letter was never given to him but, again, it is the standard practice of the Department to inform visa applicants of a visa grant, even if it is done through an agent or authorised recipient. The Tribunal acknowledges the representative’s submission that the letter is poorly drafted and may be misleading but the information is there and sufficiently comprehensible. The Tribunal does not accept the applicant was unaware that he was required to inform about the changes in circumstances.

28. The applicant also claims that he was not sure the child was his and before the child’s birth, Ms Molina told him it was not his. Later on he decided it was his child and in July 2013 when the child’s birth certificate was issued, he put his name on the birth certificate. Whether or not the applicant told the truth when he stated he did not initially believe the child to be his, the applicant’s own evidence is that the child’s birth certificate was issued within a few months of the child’s birth and by that time he accepted the paternity and put his name on the child’s birth certificate. That occurred before the applicant was immigration cleared. As the applicant accepted the child as his child before he was immigration cleared, the claimed lack of knowledge about the child’s paternity does not explain the applicant’s failure to inform the Department about the birth of that child.

29. The applicant also argues that the only question on the application form 47CH to which s.104 could apply is Question 24 and that question was not specifically about children but about dependants. The applicant claims that he had nothing to do with the child, had not supported the child and the child was not his dependent, so he did not think he had to mention the child. The applicant refers to the definition of ‘dependence’ as requiring financial reliance and claims it did not exist in the present case until 2015.

1. The Tribunal does not accept the applicant’s argument. The questions on the application form are not necessarily to be interpreted by reference to statutory definitions. There is no necessary link between Question 24 and the statutory definition of ‘dependence’ and the Tribunal does not accept that it was ever the intention for anyone completing the application form to do so with the full knowledge of the statutory definitions. Rather, the question on the form relating to visa applicant’s dependants is one that relates to the ordinary meaning of the word. The Tribunal is also mindful that the application form does not have any other space for declaring children. For example, Part D Question 28 of the form specifically relates to parents and siblings and there is no other opportunity to mention any children. The context of the form, as well as the reference to the ‘dependants’ in Question 24 does indicate, in the Tribunal’s view, that the reference is to any minor child and the applicant would have understood the reference as such.

2. Further, according to the decision record, the applicant was asked at the interview if he had any children and he stated that he did not. The applicant would not have misunderstood that question irrespective of his relationship with his child and the Tribunal notes that under s.99 that information is taken to be an answer to a question on the application form.

3. Overall, the Tribunal has formed the view that there is insufficient evidence to find that the applicant failed to comply with s.101 of the Act because there is insufficient evidence to find that the applicant was in a de facto relationship with Ms Molina before the visa grant. The Tribunal makes this determination despite the information provided in the prospective marriage visa application as the Tribunal considers it possible that the information in that application was untruthful.

4. The Tribunal finds that the birth of the applicant’s son was a change in circumstance so that an answer on the application form (Question 24 of from 47CH and the applicant’s oral evidence at the interview of 13 May 2013) became incorrect. The applicant failed to inform the Department in writing about the birth of his son and the changes in his circumstances and has not complied with s.104 of the Act.

5. The Tribunal finds that there was non-compliance with s.104 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

6. 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).

7. 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: ss.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

   The correct information

8. The correct information is that the applicant had a child born before he was immigration cleared.

   The content of the genuine document (if any)

9. This is not relevant in the present case.

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

10. The applicant provided detailed written submissions in response to the NOICC arguing that he still met the requirements for the grant of the visa irrespective of the information about his relationship and the birth of his son. If the Tribunal had formed the view that the applicant did have a de facto relationship with Ms Molina, that would have precluded him from being eligible for visa grant; however, the Tribunal cannot be fully satisfied that such a relationship existed.

11. The applicant did have a child born before he was immigration cleared. The existence of that child is likely to have resulted in a more stringent assessment of the applicant’s relationship with Ms Molina and there may have been additional requirements for visa grant in relation to child, such as health requirements, but these considerations do not arise in this case because the child was born after the visa grant and the relevant issue here is immigration clearance rather than visa grant. The Tribunal does not consider that the decision to immigration clear the visa holder was based, wholly or partly, on incorrect information.

    The circumstances in which the non-compliance occurred

12. The applicant claims he never knew he had to inform the Department about the changes in his circumstances. He said he was told at the interview that he would have to advise the Department about the changes in his employment status or dependence but not in relation to the birth of the child. The Tribunal is mindful that if the applicant failed to declare any relationships and Ms Molina’s pregnancy and imminent childbirth at the time of his interview, there was simply no reason for the interviewing officer to inform the applicant about the need to advise the Department about any childbirth. In any case, as noted above, the Tribunal notes that the applicant would have been given a standard letter by the Department at the time of visa grant which informed him of his obligations. Although the applicant claims he did not see this letter, his father told the Tribunal that he believed he did pass this letter to his children. The Tribunal is also of the view that because the applicant was specifically asked about children at his interview, he may have recognised this fact was of relevance and when his child was born only a few weeks later, the applicant was likely to have appreciated the need to inform the Department. The Tribunal does not accept the failure to inform the Department about the changes in his circumstances was due to a lack of knowledge or understanding.

    The present circumstances of the visa holder

13. The applicant provided to the Tribunal a statement from his employer indicating that he plays an instrumental role in the business and that the business would be adversely affected if the applicant was to depart. The Tribunal finds that evidence unconvincing. While the applicant may play a significant role in the business, he is under no obligation to continue to work in that business in the future. The Tribunal is of the view that any business would make arrangements for any employee wishing to leave, including the applicant, so the Tribunal does not accept that the applicant’s departure from the business would cause it undue hardship.

14. The applicant claims in his written submissions that he wants to marry Ms Molina and bring her and their son to Australia. The applicant’s father resides in Australia and supports the relationship. In oral evidence the applicant told the Tribunal that the relationship has ended and he no longer wants to sponsor Ms Molina, although he might want to sponsor his child in the future.

15. The applicant’s father provided a statement to the Tribunal explaining the close relationship he has with his son and the opportunities that his son has in Australia. The applicant told the Tribunal that his father is an alcoholic and he claims to have provided emotional support to his father while his siblings cannot cope. The Tribunal accepts that evidence and accepts that there is a close relationship between the applicant and his family in Australia although the Tribunal is of the view that the emotional support can be provided whether or not the parties reside in the same country. The Tribunal is also mindful that the applicant’s two siblings live in Australia and that his father lives independently, although close by. The Tribunal accepts that it may be easier to provide the relevant support if the parties reside nearby but the Tribunal does not consider it is not possible to provide such support if the parties live in different countries. Further, the applicant’s evidence is that his father has not been drinking since about 2015. In such circumstances, the Tribunal does not accept that the applicant’s departure from Australia, which may result from the cancellation of his visa, will adversely affect his father’s health.

16. The applicant told the Tribunal that he has two jobs and holds a position of manager in one of them. In the other job he is involved in a security company. The applicant provided to the Tribunal his employment references and the Tribunal accepts that the applicant is gainfully employed. The applicant said that he hopes to get into the police force.

17. The applicant’s evidence to the Tribunal is that he lives with his father and two siblings. The Tribunal accepts that the applicant has a close family relationship in Australia.  

18. The applicant told the Tribunal that he would be unable to find a job in Colombia. His education is as a police investigator and at his age, he could not get a job. The applicant said that he used to work for his uncle’s business but did very basic things and was paid very little. The applicant said that he could not utilise the skills he acquired in Australia. The Tribunal does not accept the applicant’s evidence. The applicant has been working in Australia for a number of years and the Tribunal does not consider that his skills, including English, are not transferrable. The applicant also told the Tribunal he has not searched for employment and has not been denied employment. The Tribunal does not accept the applicant would be unable to obtain employment in Colombia if his visa is cancelled.

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

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

20. The Tribunal is not aware of any other instances of non-compliance

    The time that has elapsed since the non-compliance

21. The applicant made the application in March 2011 and was granted the visa in July 2013. He was immigration cleared upon entry to Australia in January 2014. More than four years have passed since the non-compliance.

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

22. The Tribunal is not aware of any other breaches of the law since the non-compliance.

    Any contribution made by the holder to the community.

    The applicant spoke about his employment and the Tribunal accepts that he contributes through the payment of taxes.

    The applicant spoke about his child support and other contributions. The applicant said he helped the Salvation Army ‘a couple of times’. The Tribunal accepts that evidence.

23. 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.

    Whether there are mandatory legal consequences

24. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia and he may be subject to an exclusion period. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

25. The Tribunal acknowledges that if the applicant does not have a permanent visa, he will be unable to sponsor his fiancée and child. The applicant’s evidence to the Tribunal is that this relationship has ended and he no longer wishes to sponsor Ms Molina.

    Whether there would be consequential cancellations under s.140

26. There are no persons in Australia whose visas may be cancelled under s.140 of the Act.

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

27. With respect to Australia’s protection obligations, the applicant referred to the situation in Colombia but the Tribunal notes that the issue is the applicant’s personal circumstances and not the general situation in the country. The applicant referred to the elections later in the year. He said that if the leading party wins the elections, he is worried that they will make everyone a government employee and the income would be limited. The Tribunal is not satisfied that such matters give rise to Australia’s protection obligations. The applicant has not identified any factors that would cause him to be persecuted and the Tribunal does not accept that Australia’s international obligations would be breached as a result of the visa being cancelled. The Tribunal is also mindful that the applicant is eligible to apply for the protection visa if he believes he may be subjected to persecution. The Tribunal does not accept that Australia’s non-refoulement obligations would be breached as a result of the visa cancellation.

28. With respect to the best interests of the child, the applicant said that he has a low chance of finding a job and that would affect his child because he would be unable to pay for the child’s education and basic needs. The Tribunal does not that evidence. Firstly, as noted above, the Tribunal does not accept that the applicant will be unable to find a job in Colombia, even if his income would be diminished. Secondly, the applicant has family in Australia, including his father and two siblings, who may be able to help. The applicant told the Tribunal that his father has only a temporary job and his employment is not secure but the applicant’s evidence is that when the contract expires, his father will look for another job. The applicant also said that if he asks his siblings, they could help financially but cannot do it for the rest of their lives. The applicant said that Ms Molina does not work but relies on her parents who also have other financial responsibilities. The applicant’s father gave oral evidence to the Tribunal and stated that he did have assets and that he was willing to provide financial support to his son. The Tribunal accepts that if the visa is cancelled, the family’s income would be reduced and that would affect the child but the Tribunal does not accept that the family would not be able to get on with normal living. The Tribunal has formed the view that the applicant will be able to rely on financial support from others, including his family in Australia, and while he may be unwilling to do that, such support is available to him if there is a need for it. The Tribunal also accepts that if the applicant is not a holder of a permanent visa, he cannot sponsor his child for an Australian visa.

29. The Tribunal is also of the view that it may be in the best interests of the child to be with both parents. While the Tribunal accepts that the applicant’s relationship with Ms Molina has ended but that does not mean the applicant cannot be with his child. The Tribunal does not consider that the best interests of the child would be adversely affected as a result of the cancellation.

30. The applicant’s evidence to the Tribunal is that if he returns to Colombia and cannot pay for his son’s needs, he might end up in jail. For the reasons stated elsewhere, the Tribunal does not accept that the applicant will be unable to meet his child’s needs, even if he has to rely on others for support.

31. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s.104 of the Act by failing to inform the Department about the birth of his child before he was immigration cleared. The Tribunal does not accept that the breach was due to the applicant’s lack of understanding. The Tribunal has also found that the applicant has been deliberately misleading in his subsequent dealings with the Department in relation to Ms Molina’s prospective marriage visa application. There are no consequential cancellations and the Tribunal does not consider that Australia’s international obligations would be breached as a result of the visa cancellation. These are significant factors that justify the cancellation of the visa.

32. However, the Tribunal accepts that considerable time has passed since the non-compliance and since that time the applicant has settled in Australia. He has strong family ties in Australia and is employed and such employment enables him to provide financial support to his child, evidence of which has been submitted to the Tribunal. While the Tribunal does not the applicant’s evidence that he would be unable to find employment in Colombia, the Tribunal acknowledges that his income, and the ability to support his son, are likely to be diminished if he cannot remain in Australia.

33. There are no other breaches of the law and no other instances of non-compliance (the Tribunal is mindful that for the purpose of s.101 in relation to the prospective marriage application the duty is on the visa applicant and not the sponsor). The Tribunal places considerable weight on the fact that the birth of the child would not have affected the applicant being immigration cleared and unlikely to have affected the visa grant. While the nature of the applicant’s relationship with Ms Molina would have been highly relevant to visa grant, the Tribunal has formed the view, for the reasons stated above, that there is insufficient evidence to find a breach of s.101. That is, if the correct information was known, it is unlikely to have made any difference to the outcome. In the Tribunal’s view, that consideration outweighs other factors.

34. 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

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 101 (Child) visa.

    Kira Raif
    Senior Member