Brar (Migration)

[2021] AATA 2154

Brar (Migration) [2021] AATA 2154 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh Brar

CASE NUMBER:  1932908

HOME AFFAIRS REFERENCE(S):          BCC2017/3657390

MEMBER:Kira Raif

DATE:30 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 30 March 2021 at 5:38pm

CATCHWORDS
MIGRATION – Cancellation – Partner (Provisional) (Class UF) visa - subclass 309 –applicant provided incorrect information – different identity – applicant was previously married to another person – an Australian citizen child – significant hardship – best interests of the applicant’s child – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994 (Cth), Schedule 2, PIC 4020(2A)

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The visa applicant is a national of India and claims to have been born in January 1989. He was granted the Class UF Partner (Provisional) via in May 2017. In October 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, the Notice) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response to the NOICC in writing and his visa was cancelled in November 2019. The applicant seeks review of the delegate’s decision.

3. The applicant provided his written submission and a large volume of documents to the Tribunal on the afternoon of 18 February 2021. As the hearing was scheduled to take place on the morning of 22 February 2021, the Tribunal considered the provision of evidence and submissions one working day prior to the hearing unhelpful and contrary to the Tribunal’s Practice Directions. The Tribunal is mindful that the applicant was represented by the same migration agent from the time the application was lodged with the Tribunal more than a year prior to the hearing.

4. The applicant appeared before the Tribunal on 22 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Ms Kaur. 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

5. 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.

6. 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.

   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. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

   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 s. 101 of the Act. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

10. The applicant made the application for the Partner (Provisional) Subclass 309 and Partner (Migrant) Subclass 100 visa on 23 June 2016. The applicant completed and signed the application form 47SP on 8 June 2016. In that form he provided the following answers:

    a.At Question 7 the applicant was asked if he holds, or held, a bridging E visa. The applicant stated ‘no’.

    b.At Question 10 the applicant gave his name as Manpreet Singh Brar

    c.At Question 14 the applicant was asked to state other names he has been known by. The applicant stated ‘Manpreet Singh’.

    d.At Question 61 the applicant was asked if he had been married to a person other than the current sponsor. The applicant stated ‘no’.

    e.At Question 72 the applicant was asked if he had ever overstayed in any country including Australia. The applicant stated ‘no’.

    f.The applicant signed a declaration at Question 89 of the form stating that the information he supplied in the application was complete, correct and up to date in every detail.

11. The applicant was granted the Partner (Provisional) visa on 8 May 2017. In July 2017 the Department of Transport and Main Roads (Qld) informed the Department that their facial verification system identified an image match between the applicant and another identity of Amanpreet Singh Brar, born on 9 December 1988. Departmental records show that Amanpreet Singh Brar arrived in Australia in March 2009 holding a Student visa, made an application for a Skilled visa which was not successful and an application for a Partner visa in January 2013 on the basis of his marriage to an Australian citizen in August 2012. That application was refused in April 2013. In October 2014 the applicant became an unlawful non-citizen and he departed Australia in December 2015 as a holder of a Bridging E visa. 

12. In his response to the NOICC the applicant concedes that he had previously been known by another name and that he was a holder of a Bridging E visa. The applicant concedes that he was married to another person and had overstayed a visa. The applicant also confirmed that information in his evidence to the Tribunal. In his written submission to the Tribunal of 18 February 2021 the applicant concedes that he had provided incorrect answers on the application form. In oral evidence the applicant also concedes that he had ‘made a mistake’. Having regard to the applicant’s own evidence, as well as the facial recognition report to which the primary decision record refers, the Tribunal finds that the applicant had previously travelled to Australia using a different identity, that he was known by another name, held a Bridging E visa and overstayed his visa in Australia. The Tribunal finds that the answers the applicant gave on the application form were incorrect in the way set out above.

13. The Tribunal finds that the applicant completed his application form in a way that incorrect answers were given. The Tribunal finds that there was non-compliance with s. 101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

14. 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).

15. 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 correct information is that the applicant had previously travelled to Australia, and made several visa applications in Australia using a different identity. The applicant was refused visas and had been a holder of a Bridging E visa. The correct information is that the applicant was previously married to another person.

    The content of the genuine document (if any)

16. 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

17. The applicant claims in his written submission to the Tribunal that the exclusion period would not have been relevant to his application for a Partner visa. The Tribunal acknowledges that this is the case. However, there are other considerations that may have been relevant if the correct information was known. Thus, a decision to grant a visa is based upon the decision-maker’s satisfaction as to the person’s identity. This is particularly relevant to public interest criterion (PIC) 4020(2A) of Schedule 2 to the Regulations and also to a number of other provisions including character and special return criteria. The general provision of information that was false or misleading would have been relevant to PIC 4020(1). These criteria would have been assessed more rigorously had the applicant’s use of a different identity and previous visit to Australia, including a period of overstay, was known to the decision-maker. The applicant’s conduct may have been relevant in assessing his character for the purpose of PIC 4001 and s.501. An assessment of the applicant’s relationship with the sponsor may have also been more rigorous had the decision-maker been aware that the applicant was previously married and sought a Partner visa in Australia on the basis of a different relationship quite a short time before the application in question. The Tribunal finds that the decision to grant the visa was based, in part on incorrect information.

    The circumstances in which the non-compliance occurred

18. In his response to the NOICC and his evidence to the Tribunal the applicant explains that he had been given the name of Manpreet Singh Brar by his biological parents at birth. He was adopted by a Canadian family when he was under 10 years of age (In his evidence to the Tribunal he states he was about 12 years of age at the time of adoption) and his adoptive parents changed his name to Amanpreet Singh Brar with a different date of birth. He had not been given adoption papers or evidence of his change of name. The applicant states that his adoptive parents were not supportive and cut off communication after he travelled to Australia and he had reconnected with his biological parents around December 2015. When he travelled to India, he changed his name and date of birth back to the original.

19. The Tribunal finds the applicant’s evidence unpersuasive. The Tribunal considers it problematic that the change of name occurred at precisely the time when the applicant returned from Australia where he lived for several years, including as an unlawful non-citizen, and he decided to seek another visa without disclosing his past residence in his new visa application. It is only and precisely at that time that the applicant was able to ‘reconnect’ with his biological parents and decided to revert to his original name and date of birth. More significantly, even if all of the applicant’s evidence was true and his change of name and date of birth was entirely unconnected with his visa processes, it does not explain why the applicant failed to disclose that information in his Partner visa application. The ground for cancellation arises not because the applicant had previously been known by another name but because the applicant failed to disclose that and other information in his Partner visa application and gave incorrect answers in relation to his previous identity and past residence in Australia.

20. The applicant told the Tribunal that second marriage is looked down upon in his culture, so he did not wish to disclose his first marriage to his wife and family as he was scared he would not be allowed to marry or that his wife would not wish to marry him. The applicant states that he was scared that if he disclosed everything in his application, his visa might be refused. The applicant states that he was under a lot of stress and some lawyers in India suggested that it may be hard for him to get the visa. The applicant stated that he told his wife about his first marriage when he applied for the license in 2017. The Tribunal acknowledges the applicant’s evidence but does not consider the applicant’s relationship with his partner and family and his fears about disclosing the previous marriage to his partner justify the provision of incorrect answers in connection with the visa application.

    The present circumstances of the visa holder

21. In his response to the NOICC and evidence to the Tribunal the applicant states that he is in a long term relationship with his Australian partner and they have a child born in 2019. The applicant states that his partner and child are wholly reliant on him for emotional, physical, social and financial support and are accustomed to such support. The applicant refers to his employment and income and states that his wife’s Centrelink payments are not sufficient to meet the family’s financial liabilities and in particular, the mortgage repayments and other expenses. The applicant states that his wife does not work but is a full-time student undertaking a Bachelor of Nursing and the family has no other source of support and he is the only one who makes money for the family’s expenses and the baby and to pay the mortgage. Ms Kaur told the Tribunal that she would complete the course in July 2022.

22. The applicant states that since the grant of the visa, he has been employed on a full-time basis, bought a house with his wife and has an Australian citizen child. The Tribunal accepts that evidence.

23. The applicant submits that if his visa is cancelled and if he is to return to India, he would be unable to secure long-term accommodation and employment quickly as he has no relations with his family and no property on his own. He may find it difficult to find employment and any job he may secure is likely to be at the low-skilled level, given his qualifications. The applicant refers to India’s poor economy due to Covid, stating that it would be difficult for him to find employment. The applicant refers to average employment income in Australia and India, stating that he would be unable to support his family in Australia and meet the immediate debts, so that his wife may be unable to repay the mortgage and may be forced to sell the family home and may wait for a long time for public housing. The Tribunal accepts that significant hardship, including financial hardship, would be caused to the applicant and his family if the visa is cancelled. However, the Tribunal is mindful that the applicant has not presented evidence as to whether he had approached the bank to explore restructuring the loan or deferring payments or making alternative arrangements for repayment.

24. The applicant told the Tribunal that he regrets what he has done but he is a different person now and he is a father.

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

25. Nothing adverse is known about the applicant’s conduct with respect to the above provisions.

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

26. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

27. The application for the visa was made in June 2016 and over four and a half years passed since the non-compliance. The applicant states that at the time he was newly married but he is a different person and has a baby and he has changed a lot.

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

28. The applicant told the Tribunal that he previously held a taxi licence in the first name. In 2017, after he returned to Australia, he applied for a driver license in the new name and the matter was referred to the police. The applicant states that he did not disclose his previous name to the Department of Transport, so he pleaded guilty and was fined $1000 with no conviction recorded.

    Any contribution made by the holder to the community.

29. The applicant claims that he and his family are regular visitors to a Sikh Temple and are active and contributing members of the Sikh community and the wider community. The applicant told the Tribunal that his family attend the Temple weekly and contribute to its activities. There is a statement from the General Secretary of a Sikh temple who refers to the applicant’s voluntary activities. The applicant refers to donations he has made to a youth association and other charitable causes. He states that he supports friends and charities via Facebook donations. The Tribunal accepts that evidence and accepts that the applicant has made a positive contribution to the community.

30. 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.

    Whether there would be consequential cancellations under s.140.

31. There are no persons whose visas would be subject to consequential cancellation.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

32. The applicant and his partner have a child born in March 2019 and that child is an Australian citizen. The applicant states that his child depends on him emotionally, physically and financially. The applicant states that he does everything for the child who has done nothing wrong. The applicant refers to his own childhood and states that he does not want his child to pay for his own mistakes.

33. In his response to the NOICC the applicant refers to the Convention on the Rights of the Child stating that his child’s interests are a primary consideration. The applicant states that  given his child’s age and dependence on his parents, there is a strong incentive not to cancel the visa. The applicant refers to various reports which emphasise the importance of the presence of a father in child’s life and formative years. The applicant also refers to ICCPR and the family’s right to stay together. The Tribunal is mindful that if the visa is cancelled, the applicant will have the right to seek another Partner visa on the basis of his relationship, although the Tribunal acknowledges that there can be no guarantee of the visa grant and also that there may be a lengthy delay before the applicant is able to return to Australia if he is granted that or any other visa. In his submission to the Tribunal the applicant states that his son is not a holder of Indian citizenship and may be unable to travel to India. In these circumstances, the Tribunal accepts, given the child’s age, that it is in the best interests of the child to remain with both parents.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

1. There is no evidence, and the applicant does not claim, that he would be subjected to any form of harm or persecution in India. The Tribunal does not consider that Australia’s non-refoulement obligations arise in this case.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

2. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas if another application was made offshore and the applicant would have limited opportunities to make visa applications onshore. The cancellation of a temporary visa would affect the applicant’s eligibility for the permanent Partner visa.

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

3. The applicant refers to providing financial, emotional and physical support to his wife and young child and the Tribunal accepts that he does so. The applicant states that his wife has no family in Australia other than one sibling who resides in a different state and there are no other family members who are able to provide support. The applicant states that his wife relies on him emotionally. The Tribunal accepts that there may be emotional dependence between the applicant and his partner. However, the Tribunal is of the view that  emotional support need not cease if the applicant is required to leave Australia because the Tribunal is of the view that the applicant will be able to communicate electronically with his partner. Nevertheless, the Tribunal acknowledges that the nature of support may be different and also that the financial support that the applicant is able to provide through his employment in Australia is likely to be significantly diminished if the applicant cannot work in Australia.

4. The applicant’s evidence to the delegate and the Tribunal is that the family purchased a property which is presently subject of a mortgage and the family have finance arrangement on a vehicle and there are other financial costs associated with daily living. The applicant claims that if he is required to return to India, he will be unable to find work quickly and his employment is likely to be at a low skilled level, given his qualifications and experience. The applicant claims that the family is likely to lose the house as his wife will be unable to make loan repayments and there will be a long waiting list for supported housing. This has been addressed above. The Tribunal notes that the applicant has not presented evidence of having approached the bank and explored options of redrawing funds, or restructuring the loan or suspending payments for a period of time it may take him to make another Partner vias application offshore. There is little documentary evidence of the family’s savings or possibility of other income, such as support from family or friends. While the Tribunal accepts that the family’s income would be diminished, the Tribunal is not satisfied on the evidence before it that the family would lose the house.

5. The applicant told the Tribunal that they want to have another baby and it would be delayed if he has to leave Australia. Ms Kaur told the Tribunal that because of her health, she can only have a child before she turns 35. The Tribunal accepts the couple’s evidence.

6. The Tribunal is also mindful that even though the family made the decision to enter significant financial commitments, the applicant has never been granted a permanent visa. He was the holder of a temporary visa only and there can be no guarantee that he would have been granted the permanent visa. It may have been premature in such circumstances for the family to enter significant financial commitments, given that there was a risk, even if insignificant one, that the applicant would not be granted a permanent visa. Nevertheless, the Tribunal accepts that  significant hardship would be caused to the applicant and his family if the visa is cancelled and if the applicant is required to leave Australia.

7. The applicant refers to his wife’s health and the treatment she is receiving, which may require surgical intervention. The applicant states that his wife requires physical and emotional support and if the diagnosis is that his wife has cancer, that may result in significant amount of time in hospital while the child will require ongoing care of the applicant as there are no other Australian relatives able to take care of the child. Ms Kaur explained to the Tribunal that she requires annual observation. She states that the doctor told her that  she has until 35 to get pregnant, otherwise her child may have health issues. The applicant refers to emotional and financial support he provides to his wife and this evidence has been addressed elsewhere. Essentially, the Tribunal accepts that the applicant provides emotional, financial, physical and other support to his family in Australia and that significant hardship would be caused if that support is withdrawn.

8. The applicant refers to having formed friendships and other bonds in Australia and he presented to the delegate and the Tribunal a number of supporting statements. The Tribunal accepts their evidence but is mindful that any friendships need not cease even if the applicant was required to leave Australia as a result of the cancellation of his visa.

9. The applicant refers to the restrictions on travel due to Covid which, he claims, will affect his wife’s ability to travel to India and his own ability to return to Australia. The Tribunal accepts that travel is likely to be restricted in the near future, although the Tribunal is mindful that exemptions may be granted in certain circumstances for the applicant to return to Australia or for his partner to travel overseas. The Tribunal is also of the view that if the applicant is unable to leave Australia due to Covid, he may seek a bridging visa or another visa to extend his stay in Australia until travel is possible. The Tribunal does not consider such restrictions will be permanent and in the Tribunal’s view, the applicant will be able to return to Australia, if he is granted another visa, in the future, even if it takes time.

10. The applicant refers to a high unemployment rate in India but the Tribunal considers such  generalised statements unhelpful. It is necessary to consider the applicant’s personal circumstances and not the generalised country information. The applicant has not presented any evidence of having sought, and being denied, employment in India. The Tribunal is not satisfied that the general information about the unemployment rate in India necessarily establishes that the applicant himself will be unable to find a job in his home country.

11. The applicant also refers to the travel advice in relation to India, stating that Covid raises concerns for his safety if he was to travel to India. The Tribunal acknowledges that there may be a risk, although the Tribunal is of the view that a risk exists in every country, even if of varying degree.

12. The applicant refers to his poor psychological health and states that he is exhibiting signs of depression. The applicant has not satisfied the Tribunal that he would not have access to adequate health care in India.

13. Ms Kaur explained to the Tribunal that she does not want her and her son to suffer because of her husband’s mistake. Ms Kaur confirmed that she would sponsor the applicant for the visa in the future but she does not want her son to be separated from her husband. She does not want to leave her studies and get a job as she may not be able to study in the future. She cannot return to India as she has been living in Australia since 2009 and she has no support in India.

14. The applicant referred the Tribunal to another Tribunal decision. The Tribunal acknowledges that decision but it is of no precedential value to the present Tribunal. The Tribunal is also mindful  that each matter must be determined on the basis of its specific circumstances. The other decision to which the applicant refers is distinguishable in the Tribunal’s view. In that case, the Tribunal found that the applicant’s spouse had significant health issues as a result of which the applicant was the primary caregiver to the couple’s four young children. There are no such findings in the present case.

15. The Tribunal has also had regard to other breaches of the law committed by the applicant. The applicant told the Tribunal that he was an unlawful non-citizen from about October 2013 until he left Australia in December 2015 he did not have a visa and stayed in Australia unlawfully. The applicant told the Tribunal that he did not know what to do and he was not in a good state and was depressed. The applicant states that his migration agent did not mention when his visa was refused and he did not realise he was unlawful. However, the applicant also told the Tribunal that the agent did not put their name on the application because they may have known that the application was out of time and they used his own address. That  suggests that the applicant was aware that the application was out of time and also that the applicant would have been notified at his address that the application was out of time. The applicant ultimately acknowledged that he was aware that he was living in Australia unlawfully. The Tribunal finds that the applicant had intentionally and knowingly breached the Australian laws by remaining in Australia unlawfully.

16. The applicant told the Tribunal that in that period he was supported by friends and he had some savings and he did some casual cash jobs. The Tribunal finds that the applicant had breached the Migration Act by working as an unlawful non-citizen.

17. The applicant told the Tribunal that he did not disclose his previous marriage when registering his present marriage in India. The Tribunal reasonably suspects that the applicant’s marriage certificate is a bogus document because it was based on incorrect information. The Tribunal finds that the applicant had given a bogus document with his Partner visa application.

18. Ms Kaur told the Tribunal that the applicant is a ‘changed man’. She states that they were going to notify the Department about the change of name but the Department of Transport informed the police and they were told it would take a few months to notify the Department and they were waiting for that. There is no evidence before the Tribunal that the applicant had informed the Department about the incorrect answers prior to his response to the NOICC.

19. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal finds that there are strong reasons why the visa should be cancelled. The Tribunal places significant weight on the fact that the applicant engaged in intentional fraud in order to obtain the visa. He was aware that the answers he gave in his Partner visa application were untrue and he gave those answers nevertheless. The applicant remained in Australia unlawfully during his first visit and worked in that period, in breach of the Australian laws. The applicant provided a bogus document with the application, being the marriage certificate. The Tribunal is mindful that while the applicant has now expressed regret about his actions, he has only done so in response to the NOICC. There is no evidence that prior to October 2019 when the NOICC was issued, the applicant had informed the Immigration Department about his circumstances. The Tribunal has formed the view that the applicant has consistently flouted the Australian immigration laws throughout his stay in Australia and the Tribunal considers the applicant’s expression of remorse to be opportunistic. The applicant’s past conduct in overstaying his previous visa, working in breach of the Migration Act and the circumstances in which the non-compliance occurred – involving an intentional provision of incorrect answers and the applicant’s failure to correct the information at any time – are strong reasons why the visa should be cancelled.

20. However, the Tribunal has decided to place greater weight on other considerations. In particular, the Tribunal notes that the applicant has a long term spouse relationship and a young child from that relationship. The applicant’s partner and child are Australian citizens. The Tribunal accepts that the applicant has a close relationship with his family and actively participates in the child’s upbringing. The Tribunal accepts that the applicant provides emotional, financial and other support to his wife and child. The Tribunal accepts that  the applicant’s partner has limited income while she is engaging in tertiary studies and that her income may not be sufficient to meet the family’s financial obligations. The Tribunal accepts that it is in the best interests of the applicant’s child to remain with his father and the Tribunal acknowledges that it is a primary consideration. The Tribunal accepts that significant hardship would be caused to the applicant’s partner if the visa is cancelled, particularly given the family’s financial obligations and the presence of a young child. The Tribunal accepts that the applicant is a source of support for his family and the cancellation of his visa may result in the applicant’s loss of employment and financial hardship to the family. The Tribunal accepts that the cancellation of the visa may have a detrimental effect on the applicant’s and the family’s emotional well-being.

21. In the Tribunal’s view the circumstances in which the non-compliance occurred, involving a wilful and intentional provision of incorrect answers, and the past non-compliance with immigration laws, would normally outweigh other considerations. Further, the Tribunal is of the view that any hardship that  the cancellation may cause to the applicant would not be sufficient to outweigh other considerations that favour the cancellation. However, in the particular circumstances of this case, the Tribunal has decided to place greater weight on the hardship that the cancellation would cause to the applicant’s partner and child, noting that the applicant’s partner had been unaware of the fraud and not involved in the provision of incorrect answers.

22. Overall, the Tribunal places greater weight on the best interests of the child and the hardship that would be caused to the applicant’s partner and the family if the visa is cancelled.

23. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Kira Raif
    Senior Member