Bowdler (Migration)

[2020] AATA 1470

Bowdler (Migration) [2020] AATA 1470 (11 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adam Bowdler

CASE NUMBER:  1913565

DIBP REFERENCE(S):  BCC2018/1210822

MEMBER:Linda Holub

DATE:11 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 11 February 2020 at 10:54am

CATCHWORDS

MIGRATION – cancellation – Partner (Resident) (Class BS) visa – Subclass 801 (Spouse) – Federal Circuit Court remittal – incorrect answers on incoming passenger cards – citizenship application – criminal convictions – assumption of the Department’s previous knowledge of criminal history – immigration clearances – evidence of community contributions – commitment to obtain a commercial pilot license – United Kingdom residency rights – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant misled the Department in relation to declaring his convictions in various dealings with the Department including providing incorrect answers on his passenger card, thereby being in breach of s.102 of the Migration Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant first applied to the Tribunal for a review of the delegate’s decision in April 2018.  A differently constituted Tribunal affirmed the Department’s decision on 30 November 2018.  The matter was remitted to the Tribunal after an appeal to the Federal Circuit Court.  The previous Tribunal decision was quashed on 24 May 2019.  The Court noted that:

   “The first respondent (the Minister) concedes that the second respondent (the Tribunal) committed jurisdictional error by considering, as an instance of non-compliance for the purposes of paragraph 2.41 (g) of the Migration Regulations 1994 (Cth), whether the applicant had disclosed the entirety of his criminal history when he applied for Australian citizenship”[1].

   [1] AAT file 1913565, folio 88.

4. The applicant appeared before the Tribunal on 28 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from his partner.

5. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

6. 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

1. 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.

2. 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.

3. 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.  The Tribunal explained its view that the notice to cancel the applicant’s visa complied with the statutory requirements.  The applicant did not contest the Tribunal’s finding.

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

10) The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with was non-compliance with s.102 – incorrect information (passenger cards) of the Act, which states:

Section 102 Passenger cards to be correct

A non-citizen must fill in his or her passenger card in such a way that: all questions on it are answered; and

no incorrect answers are given.

11) The delegate’s Record of Decision which the applicant provided to the Tribunal outlines the circumstances of the non-compliance as follows.

“Evidence – Incoming passenger cards (IPCs)

Since the grant of his Combined Partner Visa on 24 April 2015 the visa holder has travelled frequently and as such, departed and re-entered astray on the number of occasions. The visa holder re-entered Australia at Sydney Kingsford Smith Airport on the following dates:

§19 July 2015;

§2 January 2016;

§2 April 2016;

§15 May 2016;

§24 October 2016.

On each of the above dates, when completing his incoming passenger cards, when asked if he had any criminal convictions the visa holder ticked the box denoting “No”.

The visa holder signed and dated the card and declared that “The information I have given is true, correct and complete”.

Evidence – application for Combined Partner visa

On 19 May 2014, the applicant lodged an application for the Partner visa.

In his record of responses under “Character Declarations” when asked: "Has any applicant ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” the applicant answered: “Yes”.

When asked to give details, the applicant answered: “Please refer to the attached statutory declarations and police clearance certificates”.

Police Clearance Certificates

In support of his combined partner visa application, as referenced under "Character Declarations", the applicant submitted the following documents:

§Australian Federal Police certificate dated 17 October 2013 which revealed the following conviction by Camden local court on 14 December 2011:

·   Drive with low range prescribed concentration of alcohol, for which the visa holder received a 6 month good behaviour bond.

§UK Police Clearance Certificate dated 17 October 2013 which revealed the following criminal history:

·   30/07/2005: Taking motor vehicle without consent, for which the visa holder received a caution.

·   10/10/2005: Theft by employee, for which the visa holder received a caution.

·   21/02/2006: Burglary and theft, for which the visa holder received a community order for 12 months, a fine of £150.00 and had to pay compensation of £572.00.

·   09/06/2006: Burglary and theft, for which the visa holder received a caution.

·   29/09/2008: Driving a motor vehicle with excess alcohol, for which the visa holder received a fine of £500.00, had to pay costs of £87.00 and was disqualified from driving for 20 months.

·   26/03/2009: Common assault, for which the visa holder had to pay £87.00 in costs and received a conditional discharge for 12 months.

·   1/05/2009:

oDriving a motor vehicle with excess alcohol, for which the visa holder received a community order for 12 months, an unpaid work requirement of 250 hours, a supervision order for a period of 12 months, the visa holder's driving licence endorsed and disqualified from driving for 3 years. The visa holder's supervision requirement was removed on 04/12/2009.

oUsing vehicle while uninsured, for which the visa holder received no separate penalty but his driving licence was endorsed.

oDriving while disqualified, for which the visa holder received a community order for 12 months, an unpaid work requirement of 250 hours and a supervision order for a period of 12 months. The supervision requirement was removed on 04/12/2009.

oUsing vehicle with no test certificate, for which the visa holder received no separate penalty.

·   11/09/2009: Breach of suspended sentence supervision order, for which the visa holder was ordered to continue his supervision order and an unpaid work requirement for an additional 20 hours.

·   4/12/2009: Fail to comply with requirements of community order, for which the visa holder was ordered to continue his community order, an unpaid work requirement for an additional 40 hours and pay costs of £50.00.

·   16/08/2012: Burglary and theft, for which the visa holder received a caution.

Evidence – application for Australian Citizenship

A check results report dated 24 October 2016 was obtained in regards to disclosable court outcomes and the following results were provided:

§14/12/2011 at Camden local court: Drive with low range PCA, for which the visa holder received a 6 months good behaviour bond under s.10 of the Crimes (Sentencing Procedure) Act 1999 and had to pay court costs of $400.00.

§28/06/2016 at Burwood local court: Driver or rider state false name or home address, for which the visa holder received a fine of $500.00.

§11/06/2016 at Downing Centre local court: Drive with low range PCA, for which the visa holder received a fine of $500.00 and disqualified from driving for 3 months.

§5/09/2016 at Burwood local court: Drive motor vehicle during disqualification period, for which the visa holder received a dismissal under s.10 of the Crimes (Sentencing Procedure) Act 1999”[2].

[2] AAT file 1812003, folios 6 and 7.

12) The delegate’s Decision Record goes on to say that answers provided by the applicant to questions in his incoming passenger cards dated from 19 July 2015 to 24 October 2016 in relation to criminal convictions are deemed to be incorrect. 

13) The Department issued a Notice of Intention to Consider Cancellation (NOICC) non 10 April 2018.  The applicant responded to the Department on 12 and 13 April 2018.

14) The Department having taken account of the applicant’s response concluded that the grounds existed for cancelling the applicant’s visa and that those grounds outweigh reasons not the cancel the visa. 

Evidence at hearing

15) At hearing the applicant confirmed that the delegate’s record outlines the facts of the non-compliance. 

16) On the basis of the written evidence and the applicant’s concession that the Department’s Decision Record accurately records the fact that on five separate occasions he incorrectly completed his Incoming Passenger cards, the Tribunal finds that there was non-compliance with s.102 by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

17) 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).

18) In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

• the correct information.

• 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.

19) The Tribunal discussed each of these prescribed circumstances with the applicant during the course of the hearing and provided him with an opportunity to elaborate on his written evidence and / or to provide any further information he wished for the Tribunal’s consideration. 

• the correct information.

oAt hearing the applicant confirmed that the delegate’s decision record outlines the facts of the non-compliance.

oThe applicant noted that the burglary and theft offence was not a break and enter but theft from the workplace. 

oOn the basis of the written evidence and the applicant’s concession that the Department’s Decision Record accurately records the fact that on the occasions specified he incorrectly completed Incoming Passenger Cards, the Tribunal finds that there was non-compliance with s.102 by the applicant in the way described in the s.107 notice.

oThis matter weighs in favour of cancellation.

• the content of the genuine document (if any) .

oThis is not a relevant matter in this particular 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.

oAt hearing, the Tribunal acknowledged that the applicant submitted the necessary police certificates in May 2014 as part of his Partner visa application and that they listed his criminal history.  It is the view of the Tribunal that the Partner visa was granted on correct information.

oThe Tribunal expressed its concern that, as outlined in the Department’s decision record, on 19 July 2015, 2 January, 2 April, 15 May and 24 October 2016 he incorrectly answered questions regarding his criminal history on Incoming Passenger Cards.  The Tribunal put to the applicant that this could have led to him being immigration cleared on the basis of incorrect information.

oThe applicant responded by stating that he had entered Australia on about 15 separate occasions and other than the occasions cited he correctly answered the questions.  Having done so and having provided his police certificates in 2014 he expected that the Department would be aware of his criminal history.

oThe Tribunal asked the applicant given he was such a frequent traveller and very familiar with completing the IPCs why he completed them incorrectly on those occasions.  He stated that after the event, it was hard for him to say.  He stated he did not deliberately plan to provide incorrect answers.  He explained that because of his then new relationship with his current partner who was living in the UK at that time, he did many trips there in a short space of time.  He said that because of his work hours and frequent travel he was constantly exhausted.  He stated that he genuinely ticked the wrong box inadvertently.  He stated that about that time, Australia started to use electronic clearance procedures.  He stated that no one sees the card anyway.  Later he clarified that he did not intend this to mean that it was not incumbent that he answer all questions correctly.  The applicant acknowledged that it was indisputable that he was immigration cleared, whether electronically or otherwise, on the basis of incorrect information on his IPCs.

oIt is the view of the Tribunal that it can reasonably be expected that all persons arriving in Australia always complete their Incoming Passenger Cards correctly on all occasions.  An effective immigration clearance regime relies in part, on fulsome and correct responses.

oThe Tribunal is prepared to accept that the applicant incorrectly assumed that having provided certain information to the Department it had some knowledge of his criminal history. However, the Tribunal does not accept the contention that the applicant consciously did not answer the questions correctly on those particular occasions on the basis that he had previously provided information about his criminal history.  Furthermore, having provided correct information on other occasions does not obviate the need for him to answer all questions correctly on each occasion.

oThe fact of the applicant completing his IPCs correctly on some occasions and providing his police records to the Department which he is required to do when lodging a Partner visa application, and the fact of the applicant being busy and exhausted during 2015 and 2016 and therefore not being attentive to the manner in which he completed his IPCs are not reasons for not cancelling the applicant’s visa.

• the circumstances in which the non-compliance occurred.

oIn the applicant’s response to the NOICC, the applicant wrote that at that time his life was a blur:  it consisted of working day and night in order to be able save money to fly to the UK as he had a long distance relationship with his current partner. He referred to the number of flights he took and his busy work schedule during that period of his life.

oIn his Statutory Declaration of 17 October 2018, the applicant stated that he had “difficulty providing a satisfactory explanation for not disclosing his criminal history in the IPCs…

In general, I believe that I simply did not realise the importance of these forms and that I did not really think when filling them out.

Added to this, during a 10 month period from December 2015 until October 2016 I made five return trips to the UK, the last four times to visit my current partner, Klaudia. This can be seen from my movement records, at pp.24-25 of the bundle. During this time I was constantly exhausted from work and travel, and I think that, by the time I got back to Australia on each occasion, I was too tired to think very clearly about filling out forms.  I will explain about this below.

Despite ticking the ‘Yes’ box twice and leaving the form blank once, I was never stopped or questioned by the immigration authorities when entering Australia.

Having now seen my IPCs, I now fully realise that these are important records retained by the Department.  I will never fill these incorrectly again”[3].

[3] AAT file 1812003, folio 92, p. 2.  

oAt hearing the applicant stated that it was an unusually high level of travel during that period which would not normally happen. 

oHe stated that he will never again complete Incoming Passenger Cards incorrectly.

oThe fact of the applicant being busy and exhausted during 2015 and 2016 and not realising the importance of correctly completing the IPCs and that he had an unusually high level of overseas travel and that in future he will not compete IPCs incorrectly are not reasons for not cancelling the applicant’s visa.

• the present circumstances of the visa holder.

oThe applicant referred to his present circumstances in his response to to the Department to the Notice of Intention to Consider Cancellation and in his submission to the previously constituted Tribunal dated 17 October 2018. In addition he provided an updated submission as part of this review which was dated 28 January 2020.

oThe 17 October 2018 Statutory Declaration refers to the business he commenced in late 2017 and his excavation contracts in relation to various infrastructure projects.  It also refers to plans he and his partner had to marry and start a family, the lease on their apartment and their possessions as well as their dog.  In it the applicant stated that he was involved in various community works including as a volunteer with St John Ambulance and contributions to RSPCA, and referred to his involvement in fun runs, walks and charity events.  He stated he loves Australia and it would be devastating financially and personally if his visa was cancelled.

oThe most recent Statutory Declaration of 28 January 2020 refers to the difficulty the applicant faced both from a mental health point of view and financially during the period when he was unable to work from the end of 2018 until approximately the middle of 2019. He provided written evidence regarding his diagnosis and treatment for anxiety and depression.

oThe Statutory Declaration also refers to his commitment and effort to obtain a pilot’s license.  His future intention is to obtain a commercial pilot license and to seek to work for Qantas. He states that he will be unable to utilise the progress he has made to date should he return to the United Kingdom.

oIn the Statutory Declaration, the applicant explains his current employment and work schedule.  He emphasised that because of his employment and his pilot training he rarely drinks alcohol.

oThe Statutory Declaration also explains the circumstances in relation to his partner including that she has taken up a new position and that because of Brexit her residency in the UK is uncertain.

oThe applicant declared that he has made a contribution to Australia through various volunteer activities.  He refers to a significant contribution made to St John Ambulance following the summer bushfires and his involvement with the Big Red Kidney Walk which will be held in February 2020.

oAt hearing the applicant stated that he had eight of the ten counselling sessions available through his Mental Health Care Plan.  He explained that the period when he was unable to work was very difficult as he was forced to rely on his savings and his partner’s income but once he was able to work again, his mental health improved.

oIn relation to his endeavours to obtain a commercial pilot license the applicant stated that he had his first lesson in 2015 and then stopped for a year while he started his business.  For the past two years he has committed himself to the task both financially and in terms of his time and reiterated that it is a lengthy and costly process.

oThe Tribunal referred the applicant to a statement he made in the Statutory Declaration dated 16 May 2014 provided to the Department in relation to his Partner visa application.  In it he wrote that it “reminded him to be sure to be mindful of what and how much I have drunk, before jumping behind the wheel”[4].  The Tribunal noted that after he had given such an assurance he was subsequently disqualified for driving with a low range prescribed content of alcohol.  The applicant stated that on appeal his license was not disqualified.  Furthermore, he stated he was deliberately conscious of how much he drank, which is why there were no further offences and his license was not disqualified.

[4] DIBP file, folio 102.

oThe Tribunal noted that while not specific about his undertaking to be mindful of what he drank before jumping behind the wheel, it was concerned that he provided false name and address to police and also drove during a disqualification period.  The Tribunal emphasised that it was not talking about his drinking and driving.  However, it was a further instance of the applicant being prepared to provide false information to authorities.  The applicant responded that as well as being remorseful he is also embarrassed.  He stated that when as he has turned 30, things have changed.  The applicant stated that he is now in a stable relationship with his partner and they are planning to have children and therefore he is looking more into the future.  He said being more mature now he has a greater understanding of the gravity of what he did.  He reiterated that on appeal he was not disqualified.

oThe Tribunal noted that his recent Statutory Declaration in which he referred to the consequences of the cancellation of his visa would have for his partner and if was he to return to UK.  As a Polish national she has no residency rights in the UK and Brexit will make it impossible for her to live and work in the UK after being away for the past few years. 

oThe Tribunal noted that his Statutory Declaration also refers to his partner recently starting a new job and that they have a dog and that he has missed various events because he has chosen not to apply for a bridging visa.  He explained that he did so because he was concerned he might not be allowed to re-enter Australia.

oThe applicant’s partner is now an Australian Permanent Resident

oThe Tribunal accepts that the applicant required mental health counselling and that he faced a difficult financial period from the end of 2018 and 2019.  The Tribunal does not consider that this is a reason not to cancel the applicant’s visa.

oThe Tribunal has considered the other evidence regarding the applicant’s current circumstances and cumulatively they weigh in favour of not cancelling the visa.

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

oThe Tribunal acknowledged that there is no evidence before it regarding his subsequent behaviour in respect of his obligations under the aforementioned parts of the Migration Act. However, the Tribunal put it to the applicant that since the Department refused his citizenship application in May 2017 he has been on notice as it were in relation to his conduct and behaviour. 

oThe applicant said that he has changed since the period when he incorrectly completed the IPCs.

oThe Tribunal accepts there have been no further issues in relation to the applicant’s compliance with the specified of the Migration Act since the applicant incorrectly completed IPC in 2015 and 2016.  However, the Tribunal expects that visa holders comply with all visa obligations and Australian laws.  Therefore this does not weigh strongly against cancellation.

• any other instances of non-compliance by the visa holder known to the Minister.

oThe Tribunal noted that there were no other more recent instances of non-compliance but noted that his criminal record was not disclosed in his original Working Holiday visa nor in the later Long Stay Temporary Business visa applications.  The Tribunal noted his previous explanations regarding those omissions: his mother submitted his application for the Working Holiday visa in 2009 and that his employer submitted the subsequent applications.

oThe applicant explained that having had several offending problems when he was young, his mother wanted him to come to Australia to join a friend.  He stated that she submitted his application.  He stated that he knew nothing about visas because previously he had only travelled to countries where a visa was not required. 

oThe Tribunal pointed out the expectation is that a visa applicant is responsible for ensuring that a visa application completed in their name is done so correctly and that the conditions of their visa are complied with.

oIn relation to the subsequent visa applications, his employer handled everything and he pointed out that the application refers to the person who handled the application.  Furthermore, nothing in the application form indicates the applicant signed or that he made a declaration in respect of the contents of those applications.  

oThe applicant’s migration representative made oral submissions that there is no evidentiary basis that the applicant was aware of what was included those other applications.

oThe Tribunal is prepared to accept that there were no other instances non-compliance by the applicant in applications made by him but considers that he is nevertheless responsible for visa applications made in his name.  However, the fact of an absence of non-compliance is not a reason not to cancel the applicant’s visa.

• the time that has elapsed since the non-compliance.

oThe last occurrence of non-compliance occurred in October 2016.  The applicant has not sought to depart Australia since that time. 

oAt hearing the Tribunal acknowledged that the applicant first came to Australia in 2010 and according to the oral and written evidence has developed personal and business and professional ties.  In addition he and his partner have a lease for their apartment and the applicant is undertaking training to obtain his pilot license.

oThe Tribunal also noted that there is no evidence before it regarding any further traffic or other offences having occurred since October 2016.  As noted elsewhere, the applicant offered to provide an updated police certificate.

oDuring the hearing the Tribunal again referred to the fact that since May 2017 when the Department refused his citizenship application he has been on notice in relation to his behaviour and conduct.  The Tribunal expressed its concern that he repeatedly failed to provide honest and compete answers prior to that.   The applicant again referred to his remorse and embarrassment.  He explained that his first conviction occurred in 2005 when he was 16.  The Tribunal drew attention to the fact that in 2016 he was not 16 but he nevertheless incorrectly completed IPCs on several occasions.  The applicant responded that when you get to this age and you have a long term partner you look at things differently.  The applicant also referred to the fact that he is seeking to obtain his Pilot Instructors rating in September 2020 and it is vitally important that he is in the right frame of mind to take responsibility for teaching people to fly.  He stated that his previous attitude would no longer serve him well. 

oThe fact that the last instance of non-compliance occurred over three years ago is not a reason not to cancel the visa.  In making this finding, the Tribunal has had regard to the fact that the applicant has not attempted to depart Australia since that time.

• any breaches of the law since the non-compliance and the seriousness of those breaches.

oThe Tribunal referred to the fact that there was no evidence before it of any further breaches of the law.  The applicant stated that there have not been any further instances and that he has applied for an updated police certificate.  He stated that he would provide it to the Tribunal upon receipt.  The Tribunal provided until 4 February 2020 for him to do so.  On 5 February 2020, the applicant was granted an extension of time until 10 February 2020 to provide the certificate.

oOn 10 February 2020 the applicant provided a National Police Certificate from the AFP which is dated 30 January 2020.  It confirms that there have been no further disclosable court outcomes.

oThe Tribunal accepts there have been no further breaches of the law since the applicant incorrectly completed IPCs in 2015 and 2016.  However, the Tribunal expects that visa holders do not break the law.  Therefore this factor does not weigh strongly against cancellation.

• any contribution made by the holder to the community.

oIn the applicant’s response to the Department and his submissions to the two Tribunal reviews, the applicant has stated and provided some evidence of his contributions to RSPCA, his involvement in the Million Paws and Big Red Kidney Walks and charity events and with St John’s Ambulance.  More recently he made a significant contribution to the bushfire relief.

oThe Tribunal asked the applicant about his claims made to the Department in response to the NOICC that he started a business and invested money into it including with the purchase of a $142,000 excavator.  The applicant responded that he sub-contracts to another company as a sole trader.  He did not purchase heavy machinery and he does not employ anyone.  He stated that if he is very busy another person can come be included within his contract. 

oAt hearing the applicant referred to helping elderly people in his local area walk their dogs and that he has set up a Whatsapp group to connect the local community.  Through this he actively assists people in the group with pet minding/feeding and looking after apartments when they are away.

oThe Tribunal accepts the applicant is activity engaged in a number of charity and community events and activities and finds this weighs against cancellation.

oThe Tribunal notes that the applicant operates as a sole trader and works on significant infrastructure projects.  The applicant has not investment in machinery nor does he employ staff. The Tribunal finds his role as a sole trader does not weigh against cancellation.

20) 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.

21) The Tribunal explained that in addition to the mandatory factors that must be considered, other matters can also be taken into consideration and discussed the following with him.

• whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

oThe Tribunal explained this factor and acknowledged that should the applicant be required to depart Australia, it would take some time for him to make the necessary arrangements given his previous evidence in respect of his business, the consequences for his partner, their lease and the dog.  The applicant responded that the ramifications for them would be huge.  He also stated that he has nothing to go back to.  He referred to the fact that his parents have split up since he first came to Australia.  The applicant stated that he would have to try to find an apartment and a new job which he described as a massive task, especially without his partner.

oThe Tribunal accepts that there would be considerable disruption for the applicant and his partner if he were to return to the UK.  However this is not relevant in the consideration of whether there are any mandatory consequences resulting from the cancellation. 

oThe Tribunal has given weight to the applicant’s submissions regarding the impact cancellation would have on the applicant and his partner elsewhere in its decision. 

oIf there any consequences such as the applicant becoming unlawful as a result of the cancellation, it is the Tribunal’s view that he should be actively managing them.  Therefore this factor does not weigh strongly against cancellation.

• whether there would be consequential cancellations under s.140.

oThe Tribunal explained to the applicant that it is not aware there would be any consequential cancellations.  He concurred with the Tribunal’s view.

oThis factor does not weigh strongly against cancellation.

• 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.   

oThe Tribunal indicted that there is no information before it that any international obligations would be breached by the cancellation of the applicant’s visa.  

oThe applicant agreed there are none but stated that he would have to apply again for a Partner visa and that the current wait time is now 26 months now.  He stated that it would be very difficult to wait that long. 

oThe Tribunal acknowledges that there could be a wait time of some months for a new Partner visa application to be considered and that this could be difficult for the applicant.  The Tribunal has given this factor some weight in the light of the applicant’s partners’ relocation to Australia to be with him.

• any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

oThe applicant reiterated previous written evidence regarding the significant repercussions for him and his partner.  They included the fact that his partner has moved to Australia and changed her life to be with him. She is now an Australian Permanent Resident.  She has recently been appointed to a new role.  The Tribunal heard that it would be difficult for her to return to the UK and pick up where she left off because she has been in Australia for a few years and her professional networks in the UK are no longer current.  Her situation is particularly complex because she is Polish national and there is considerable uncertainty as to her status following the UK’s withdrawal from the EU.  She has not live in Poland for many years and it would be difficult for her to establish herself there professionally.

oIf the applicant returned to the UK and his partner did not, it would be difficult for their relationship.  They experienced this previously when r

oThe Tribunal was told that the applicant also has business connections and they would be fractured if the applicant was to leave Australia for several years and would impact on him financially.

oThe Tribunal also heard about the difficulties for the applicant and his partner in relation to their pet dog which is very dear to them and like a family member.

oThe applicant would have to forego the lease on their apartment which would require his partner to move.

oThe Tribunal also heard that they have many friends who would be affected as well as people in their community who the applicant supports including through dog minding/walking. 

oThe Tribunal accepts that there would be a degree of hardship for the applicant and his partner should the applicant’s visa be cancelled.  The Tribunal has had regard to the fact that the applicant has resided in Australia since 2010 and has a result has substantial professional and personal connections in Australia.  The Tribunal put positive weight on the fact the applicant’s partner came to Australia to join the applicant.  She is now a permanent resident and her professional networks in the UK are no longer intact.  The Tribunal finds that the degree of hardship weighs positively against cancelling the applicant’s visa.

• Information submitted by the applicant in his citizenship application.

  oThe Tribunal referred to the applicant’s 17 October 2018 Statutory Declaration in which he wrote that:

  “When I completed this application form – by myself – in August 2016 I answered the question about my previous offences (at p. 45 of the bundle) by providing my criminal offence from 2011 for drink driving but not my other criminal offences in Australia, which at that time also included the force name in June 2016 and the second drink-driving offence in July 2016 (the driving while disqualified did not come up until September 2016). I think that I was careless in answering this question because I believe that I didn’t need to disclose what the Department already knew”[5].

  [5] AAT file 1812003, folio 91.

  oThe Tribunal asked the applicant if he wished to make any further response as to why he did not disclose his full history.  The applicant stated that he has already provided the Department with his police certificates which had disclosed his full criminal history.  He stated that the online form only has a small box.  The Tribunal asked the applicant why he did not write a sentence indicating that he had ‘x’ number of convictions and refer to the police certificates he had provided in relation to his Partner visa application.  

  oThe Tribunal put it to him that it appears that he has the view that having provided certain information previously it absolves him of having to provide a full and complete answer on each occasion.  He repeated that he thought that having provided the information in relation to his visa application he would not have to do so again. 

  oThe applicant’s migration representative referred to the applicant’s Statutory Declaration which refers to paragraphs 87 and 89 of the AAT’s decision of 2 March 2018 which reviewed the Department’s refusal of his citizen application.  He wrote that:

  “The Tribunal at paragraph 87 accepted that I was genuinely remorseful for my driving offenses and acknowledged my assertion that I am a good person, but said I was not a good driver.  The Tribunal did not make much reference to my failure to fill in the citizenship application correctly, although it was mentioned at paragraph 89”[6].

  [6] AAT file 1812003, folio 91.

  oAt hearing the Tribunal was provided a copy of that decision so that it could read paragraphs 87 and 89 in context.  The Tribunal noted that it did refer to his honesty is a factor:

  “89. However, to make a finding which overturns the Minister’s decision, it would be necessary for me to find, that as of today, Mr Bowdler is of “good character” based on both the definitions laid down by the courts and in policy and on the basis of the evidence now before me. It must encompass considerations of both honesty in dealing with the supply of information to the Department and the Police and the willingness to observe the road rules.

  90. For the reasons outlined above I cannot so find and a decision of the Minister is affirmed.”[7]

  [7] AAT file 1913565, folio 81.

  oThe Tribunal expressed its concern that the applicant had not provided a full account his criminal history to the Department in his citizenship application that the information he provided on five occasions on IPCs was incorrect that he provided the police with a false name and address and asked the applicant if he had any further comment to make.  He did not. 

  oThe Tribunal accepted oral submissions from the applicant’s registered migration agent.  He stated that he was concerned that the Tribunal was making a point that the applicant’s honesty and referred to paragraph 89.  He stated that it does not make a finding of dishonesty and this Tribunal should not undermine the decision of the previous Tribunal two years after that finding. 

  oThe applicant’s migration representative made oral submissions in respect of the differently constituted AAT’s decision of 2 March 2018 on the applicant’s citizenship application.  The representative stated that it was concerned that prior to the adjournment this Tribunal referring to the 2 March 2018 seized onto something that it claimed went to the applicant’s honesty.  He referred to paragraphs 4a, 4b and 10 setting out the questions and paragraph 11 which sets out the answers and it makes the point that one is required to complete the application honestly.  Paragraph 14 deals with an issue about the timing of 2016 offence in relation to the timing of the lodgement of the application.  He stated that paragraph 17 makes no finding regarding the first question as to whether the applicant sought to deliberately mislead the Department and referred to the text of that paragraph.   He stated that paragraph 89 that decision does not refer to the citizenship application form being filled out incorrectly and stated that it cannot be said that a finding about dishonesty was not made in the previous AAT decision.  He stated that this hearing should not undermine the decision of the Tribunal in decision to affirm the Department’s decision to refuse the application for Australian citizenship.

Oral evidence of witness

22) The applicant’s partner gave evidence that if the applicant’s visa was cancelled, it would cause them significant financial hardship. She has been a Permanent Resident of Australia that since March of last year.  She stated that she would to remain in Australia.

23) The witness stated that she was initially very angry with the applicant when the issue arose.  She stated that she had changed her life to be with him.  She made a choice to stay with him because he is not the same person.  She referred to them being a family together with their dog. She stated that he is an asset to the community referring to claims that he always puts others first and said the ‘stupid boy is no longer here’.  She stated that the applicant is active in the Waterloo dog community and that people know him for what he does.  She gave the example of the applicant providing assistance to a neighbour who required hospitalisation.  She also stated that he is big on volunteering and they donated actual goods to the bushfire relief efforts.  She stated that he is super focussed on his efforts to obtain his commercial pilot’s license on weekends.  She stated that he does not go out to drink very often because of his work and keenness to obtain his commercial pilot’s license.  She concluded her remarks about the applicant by explaining that she has remained with him because he’s not the same person that he used to be.

24) In relation to the UK departure from the EU the witness stated that as far as she knows the details of what will happen to people like her is not yet settled.  She commented that due to the uncertainty, her brother has left and returned to Poland.

Oral submissions by the applicant’s migration representative

25) The applicant’s migration agent stated that at paragraph 15 in the applicant’s October 2018 Statutory Declaration he gave examples of where he ticked yes on the Incoming Passenger Cards.  The applicant wrote that having reviewed copies of his IPCs he “could see that while most of the time he ticked ‘No’ when asked about his criminal convictions, sometimes he did tick the ‘Yes’ box (see arrivals on 05/04/2014 and 13/09/2012), and once [he] just left it blank (see arrival on 28/06/2016)”[8].

[8] AAT file 1812003, folio 92, reverse side.

26) The applicant’s migration agent also referred to the applicant’s comments at paragraph 18 in which he wrote that “Despite ticking the ‘Yes’ box twice and leaving the form blank once, [he] was never stopped or questioned by the immigration authorities when entering Australia”[9].  He stated that even when the applicant indicated on his IPC that he had criminal convictions, he was still allowed to enter Australia.

[9] AAT file 1812003, folio 92, reverse side.

27) In relation to the circumstances of non-compliance the applicant’s migration representative categorised the incorrect completion of the IPCs, as reckless, combined with ignorance of the proper purpose and solemnity of the cards.  

28) In relation to the concerns the Tribunal expressed regarding the commitment the applicant had given in a 2014 Statutory Declaration to be mindful of his conduct and behaviour, the applicant’s migration representative stated that the commitment had largely been kept because the applicant blew 0.5 right on the lowest limit. He stated that this shows misjudgement rather than being a breach of commitment and there were no aggravating factors.

29) The applicant’s migration agent also made oral submissions regarding the length of time that has elapsed since the non-compliance. He referred to the Tribunal’s earlier comment which was made twice that the applicant has been on notice since May 2017 regarding the applicant’s behaviour. He stated rather than working against the applicant, it actually strengths his case. He stated that if one of the reasons of cancellation is deterrence it has had the desired effect.  He also stated that it has put the applicant on notice to ensure he accurately completes his forms and to that extent, also had the desired purpose of changing behaviour.

30) The migration representative stated that this situation was not like other character concerns - this has changed the applicant and he has shown he is conscious of importance of these obligations.

Overall findings

31) The Tribunal has carefully considered the evidence before it and weighed up all the relevant factors in this case.  The Tribunal recognises that the applicant has acknowledged that he did not correctly complete Incoming Passenger Cards on several occasions.  However, the Tribunal also recognises that the applicant did complete them correctly on other occasions and that he was immigration cleared on those occasions.  He also provided police certificates outlining his criminal convictions in relation to his Partner visa application.  The Tribunal accepts that the applicant is remorseful for incorrectly completing his IPCs and that he has stated that he recognises the significance of those documents and he will not in future complete them incorrectly.  However, the Tribunal is of the view that these are not reasons not to cancel the applicant’s visa. 

32) Weighing up the evidence overall, the Tribunal accepts that cancellation would cause considerable hardship for the applicant and his partner.  As outlined above, the applicant has lived in Australia since 2010 and is well established in Australia both professionally and personally.  The Tribunal has given significant weight to the fact that his partner, who is now a permanent resident of Australia has uprooted her life in the UK to be with the applicant and the repercussions for her if his visa is cancelled would be significant.  In considering her situation, the Tribunal has taken into account of the fact that she had lived in the UK for some time but does have residency rights there and there is uncertainty about her status should she return to the UK.  Furthermore, the Tribunal has regard to the fact that her professional networks in the UK are no longer intact having resided in Australia for some years. These factors weigh against cancellation.

33) Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

CONCLUSIONS

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 801 (Spouse) visa.

Linda Holub
Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Passenger 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.

7. Notice 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.

8. Decision 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.

9. Cancellation 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.