Carrera Pena (Migration) - [2025] ARTA 308

CARRERA PENA (MIGRATION) [2025] ARTA 308 (20 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Aaron Carrera Pena
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2441285

Tribunal:Kira Raif
Place:Sydney
Date:20 March 2025
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 20 March 2025 at 12:53pm
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect information provided in previous student visa applications and current partner visa application – convictions, visa overstay and removal from another country not declared – fines, community service and probation – ground for cancellation conceded – discretion to cancel visa – entered other country as minor with parents – circumstances of entry and overstay and understanding that traffic offences not criminal convictions not relevant – question not limited to serious offences – other incorrect information provided in this and other applications, including citizenship application – relationship and care for partner and her children and father – partner’s physical and mental health, and applicant’s mental health – best interests of children – non-refoulement and possibility of applying for protection visa or another partner visa – mandatory legal consequences – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF REASONS
Application for review

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 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Mexico, born in July 1980. He was previously granted Student visas and a Partner visa. On 6 August 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant may not have complied with s.101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 20 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from his spouse Ms Daber. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s. 101 of the Act.
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in July 2014 the applicant made the application for a Student visa. On the application form, the applicant stated ‘no’ in response to questions whether
-he had been convicted of a crime or offence in any country,
-he had been removed or deported from any country, including Australia,
-he had overstayed a visa in any country.
The applicant was granted the Student visa on 7 August 2014.
In November 2016 the applicant made an application for another Student visa. On the application form, the applicant stated ‘no’ in response to questions whether
-     he had been convicted of a crime or offence in any country,
-     he had been removed or deported from any country, including Australia,
-     he had overstayed a visa in any country.
The applicant was granted the second Student visa on 22 November 2016.
On 23 August 2019 the applicant made the application for the Partner visa. On the application form, the applicant stated ‘no’ in response to questions whether
-he has been convicted of an offence in any country’
-he had been removed or deported or excluded from any country, including Australia,
-he had overstayed a visa in any country.
The applicant was granted the temporary and permanent Partner visas on 23 November 2021.
The primary decision record indicates that in June 2024 the Department received information that the applicant had been convicted of offences between 2011 and 2013 and that he had been removed from the USA on or about 30 October 2013 as he no longer held a valid visa to remain in the USA.
In his declaration sworn on 16 May 2024 in response to the NOICC the applicant conceded that he had been residing in the US unlawfully for a number of years, that his immigration application was not granted and that he was removed from the US. The applicant also submits that in the US he had been convicted in 2011 of driving with an expired drivers’ license and was sentenced to community service and a 12 months’ probation, which he had completed. In his submission of 13 March 2025 the applicant also appears to concede that he did not disclose his traffic offences and removal from the USA in his visa applications. The applicant appears to concede that he had not complied with s. 101(b) of the Act and that he had provided incorrect information in relation to the Student visa applications and the Partner visa application. The applicant accepts in his response to the NOICC that there was non-compliance with s. 101(b).
The Tribunal finds, having regard to the applicant’s own evidence, that the applicant had been convicted of an offence in the US. The Tribunal also finds that the applicant had overstayed a visa in the US and had been removed or deported from the US. The Tribunal finds that when stating ‘no’ in response to the questions on the application forms concerning his convictions, removal and overstay, the applicant’s answers were incorrect. The Tribunal finds that when applying for the two Student visas in July 2014 and November 2016 respectively, and when applying for the Partner visa in August 2019 the applicant completed the application forms in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with 101(b) of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. They are:
The correct information
The correct information is that the applicant had been convicted of an offence in the US. The correct information is that he had overstayed his US visa and removed from the US.
In his submission to the Tribunal of 13 March 2025 the applicant confirms that he had been convicted of traffic offences, categorised as Class C offence (misdemeanour) as he was unable to renew his licence in the US due to his unlawful status. The applicant also concedes that he had been deported or removed from the US and that is the correct information.
In his declaration in May 2024 the applicant states that it was his parents’ decision to travel to the US on a temporary visitor visa as he was a minor, and he had been living in the US for 17 years. In oral evidence the applicant also referred to his overstay in the US and stated he was a minor and it was his parents’ decision to remain in the US. Whatever the applicant’s own involvement in the overstay of his visa in the US, the issue here is not the applicant’s conduct in the US but his failure to mention the overstay, removal and convictions in the various visa applications he had made in Australia.
The content of the genuine document (if any)
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
In his response to the NOICC the applicant states that the primary criteria for the grant of the Student visa before 2016 was in relation to English proficiency and financial capacity which was determined by reference to his passport and the applicant provided evidence to meet the criteria. The applicant also states that to be granted the Partner visa, the primary criteria was predominantly his relationship with the sponsor. The applicant concedes, however, that being of good character was part of the assessment.
In his submission to the Tribunal of 13 March 2025 the applicant states that the inaccurate information was not substantial enough to impact the decision to grant him the visas because the traffic offences were not serious in nature and there was no patten of offending and he would have been assessed as meeting the character requirements. The applicant agrees that disclosure of removal from the US may have affected his Student visa but, he claims, not the grant of the Partner visa.
The Tribunal considers the applicant’s submission misguided because the relevant issue here is not whether the incorrect answers related to the ‘primary’ criteria, nor whether the visa would have been granted anyway. The incorrect information did not have to be determinative or even significant to the grant of the visa. It must have been merely relevant to the decision to grant the visa.
The applicant’s criminal conviction would have been relevant to the assessment of his character, for the purpose of PIC 4001. The applicant’s immigration history in other countries may have also been relevant to the assessment of his character. It is not for this Tribunal to determine whether the applicant would have been granted the visa, if the correct information was known. The Tribunal finds that the decisions to grant the Student visas and the Partner visas were based, in part, on incorrect information.
The circumstances in which the non-compliance occurred
In his response to the NOICC the applicant states that in his mind, the questions on the application form referred to whether he had spent any time in prison. The applicant states that he considered his misdemeanours in the US to be minor offences while he believed the questions referred to serious convictions, nor driving offences. In his written submission to the Tribunal the applicant also claims that there was ambiguity in the visa questions as he believed his traffic offences were not criminal convictions and merely involved a fine. The applicant states he was not familiar with the US laws and had no other issues with the authorities.
The Tribunal does not accept that explanation. It is difficult to see how being detained and held by the authorities and being required to pay fines (as the applicant claims happened to him repeatedly in the US), being sentenced to community service and probation could be considered anything other than a criminal matter. The Tribunal is of the view that the applicant was aware that he had criminal convictions in the US. The Tribunal also notes that there is nothing on the application form that limits – or could reasonably be interpreted as limiting – information that only related to serious offences. No distinction is made on the form between serious and minor offending and the Tribunal does not accept that the applicant genuinely believed that the form would have required such a subjective assessment by a visa applicant to determine whether offending in question was serious or minor and what disclosure was required.
The Tribunal considers it significant that, in relation to the Partner visa application, the applicant relied on a migration agent. The Tribunal is of the view that the migration agent would have been well aware of the information sought on the application form and that there was no distinction between serious offences and minor offences. At least in relation to the Partner visa, the Tribunal is of the view that the applicant would not have had any misunderstanding of the question asked in relation to the criminal convictions and that he had deliberately withheld information about his conviction in the US when completing the application form (and likely from the migration agent).
The Tribunal also notes that other questions related to overstay and removal from another country. The applicant was well aware that he had overstayed in the US and that he had been removed from the US. He would have been aware that his answers in response to those questions were incorrect.
The Tribunal is also mindful of the written evidence of Ms Daber, who in her declaration sworn on 16 May 2024 states that after speaking with the applicant, she believes the only reason for not answering the questions truthfully was out of fear of being refused entry to Australia. That supports the Tribunal’s view that the applicant did not misunderstand the questions asked of him but, rather, made a deliberate decision to provide false information in his three applications so as to ensure he would be granted the visas.
In relation to his failure to declare the fact that he was removed or deported from the US, the applicant states in his submission to the delegate that he was ‘traumatised’ by his experience of being deported from the US, he did not answer these questions correctly in his first application and he was afraid. In oral evidence to the Tribunal the applicant also spoke about the traumatic events surrounding his removal from the US. The Tribunal considers that explanation problematic. It was not for the applicant to decide whether to answer questions truthfully or to provide false information based on how he felt. The Tribunal also notes that the applicant continued to provide the same untruthful answers in the subsequent two applications and the Tribunal does not accept the applicant’s explanation that he withheld information in the first Student visa application because he was traumatised, given the repeated withholding of the information in the subsequent applications.
In his written evidence to the Tribunal the applicant states that he was brought to the US at the age of 14 and his parents chose to remain there unlawfully. The applicant states that unlawful residence was beyond his control and in his statement to the Tribunal the applicant describes his life in the US, living without a visa. The applicant also refers to the circumstances in which he committed driving offences, stating that he was unable to renew his driving license. In his response to the NOICC the applicant and his mother provided a declaration outlining the circumstances of their residence and overstay in the US. However, as noted elsewhere, the issue here is not the reasons why the applicant was removed or deported from the US, nor why he overstayed his visa in that country. The issue is the applicant’s failure to mention these matters when applying for three Australian visas. For the reasons set out above, the Tribunal does not accept the applicant’s explanation that he misunderstood the scope of the questions, noting that the questions regarding overstay and removal from another country are not in any way ambiguous or complex.
The applicant provided to the Tribunal a psychological report which refers to the applicant being fearful of his undocumented status in the US, the circumstances of his removal and the effect of his deportation. It is stated that the applicant did not disclose the deportation and related issues as he tried to ‘suppress that part of his life’ and he attributed his avoidance of discussing these events to the intense psychological toll the situation took on him. The Tribunal notes that many of the issues raised in that report are based on the applicant’s self-reporting (noting that the applicant’s engagement with the psychologist occurred many years after the events in question) and, to that extent, the applicant’s self-reported evidence about the effect of the circumstances in the US may be self-serving. More significantly, however, as noted above, the Tribunal does not consider that compliance with Australian immigration requirements is voluntary or optional depending on one’s mental state or how the applicant felt about disclosure. The applicant was required to disclose the relevant information – which he failed to do on multiple occasions and as late as in August 2019 when he applied for a Partner visa, many years after the events in the US – whether the applicant felt anxious or depressed or in any other way about disclosure.
The Tribunal finds that the applicant had deliberately withheld information about being removed or deported from the US and about his overstay in the US. The Tribunal also does not accept that the applicant misunderstood the question about convictions, overstay and removal in each of his three applications. The Tribunal finds that the breach was deliberate.
The present circumstances of the visa holder
In his response to the NOICC the applicant outlined his past employment from September 2014 and the Tribunal accepts that the applicant has been gainfully employed. The applicant states that he has established a carer in Fire Safety and his employer refers to the applicant as being dedicated and reliable. In oral evidence the applicant referred to his employment as a type of community service, stating that he keeps others safe.
The applicant refers to his relationship with Ms Daber which commenced in March 2019, stating that he lives with his partner, her two minor children and her elderly father. In his submission to the Tribunal of 27 November 2024 the applicant provided a number of documents evidencing his relationship. The applicant states that he has established a life in Australia and has plans for the future. The Tribunal accepts that evidence. In oral evidence the applicant also referred to the close relationship, the support he and his partner provide to each other and the family plans.
The applicant claims in his submission of 13 March 2025 that he has been part of the children’s lives since they were young and the applicant described the daily care arrangements in respect of the two children. In oral evidence the applicant spoke about being a father figure for the children and the daily support he provides to the family. The Tribunal accepts that evidence. The applicant also describes the support he provides to his father in law, who is unwell, and the Tribunal accepts that evidence.

The applicant states that he is the primary caregiver for his partner, who has a number of conditions including a major depressive disorder and anxiety, chronic lower back pain, insulin resistance and hypertension. The applicant presented a statement from his partner’s daughter who supports the applicant remaining in Australia, stating that his departure from Australia would detrimentally affect Ms Daber’s health. In oral evidence the applicant spoke about the family responsibilities and the support he provides to his partner and children and father in law. The Tribunal accepts the applicant’s evidence.
The applicant refers to the health condition of his father in law, who currently resides with the family and the applicant states that he and his partner are the only carers available to his father in law. The applicant states that his partner cannot care for her father without his help.
The applicant refers to the financial reliance that he and his partner have on each other. He states that he contributes to daily household expenses which could not be met without his support. The applicant states that if his visa is cancelled, his partner might not be able to afford a sponsorship on a new visa application.
The applicant refers to his own diagnosis of depression and anxiety. He refers to his employment as a fire technician and states that his employer would be significantly impacted if he cannot continue his work as the company is facing significant challenges due to the shortage of skilled workers. The Tribunal does not accept that evidence, noting that irrespective of his visa, the applicant is free to leave his employer at any time and any company would have some planning in place to respond to staff flow.
The applicant provided several statements in support of his application, including statements form his partner, his employer, members of the community, relatives and others.
Ms Daber in her oral evidence spoke about the support the applicant provides to her, her father and her children. She spoke about the parental role the applicant has in relation to the two children. Ms Daber spoke about her own health issues and states that she would not be able to manage daily activities without the applicant’s support. Ms Daber spoke about lack of other support and her reliance on the sponsor for many aspects of her life. She also spoke about her children’s reliance on the applicant in the absence of appropriate support from their biological father. Ms Daber told the Tribunal that she would not have the financial means to support another visa application.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant told the Tribunal that when applying for the Student visas, he claimed he was living in the US until 2000 (when he completed high school) but he left the US in 2013. The Tribunal finds that the applicant provided incorrect answers concerning his place of residence in the Student visa applications. Similarly, in the Partner visa application the applicant stated that he lived in Mexico between from 1980 to 2014. That information was incorrect as the applicant has lived in the US until 2013.
The applicant told the Tribunal that he has a child, who was a minor when he made the application for the Partner visa. The applicant did not refer to his minor son as a non-migrating member of the family unit in the Partner visa application. That is another instance of non-compliance with s. 101 of the Act.
The applicant stated on the Partner visa application form that he had no past relationships. The applicant told the Tribunal, however, that he had a three year relationship and had a child from that relationship. The Tribunal finds that the applicant gave an incorrect answer on the application form in his Partner visa application when claiming he had no past relationships.
The Tribunal finds that there had been multiple other instances of non-compliance. The Tribunal has formed the view that the applicant showed a persistent disregard for the Australian immigration law.
The time that has elapsed since the non-compliance
The first application for the Student visa was made in 2014. The application for the Partner visa was made in August 2019. Over ten years passed since the first instance of non-compliance and over five years since the most recent instance of non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant claims he has not breached any laws in Australia and he provided in his submissions to the delegate and to the Tribunal copies of the police certificates from the US and Australia.
Any contribution made by the holder to the community.
The applicant refers to his voluntary activities and provided some statements that outline his community involvement, coaching and mentoring activities. The applicant also presented evidence of having provided support, including financial support, to a family overseas. In oral evidence the applicant spoke about supporting people with fitness and training, coaching and mentoring. The applicant also spoke about his employment and contributing to community safety. The Tribunal accepts that the applicant has made a contribution to the community through such activities.
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.
There are no consequential cancellations under s. 140.
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.
The applicant’s evidence is that he presently resides in Australia with his partner and her two minor children. In oral evidence he spoke about his parental responsibilities and the support he provides to the children. There are multiple statements before the Tribunal, including the statements from the applicant’s partner and other family members, that refer to that relationship and the support the applicant provides to the children. The applicant’s partner, Ms Daber in her declaration and oral evidence refers to the parental guidance the applicant provides to her children (as well as support for her father). The applicant refers to his presence in the children’s lives since their young age and describes the support he has provided, and continues to provide to the children, noting that the children’s father is absent and disinterested.
The Tribunal is prepared to accept that it would be in the best interests of the children to maintain the relationship with the applicant. The Tribunal is mindful that the applicant is able to seek a Partner visa in the future, so that any separation from the children that may result from the present cancellation is unlikely to be permanent. (The applicant’s evidence is that a new application would cause a significant financial burden on the family as they have no spare funds.) Nevertheless, the Tribunal accepts that it may be in the best interests of the children if the visa is not cancelled. That is a primary, but not a determinative, consideration.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The applicant refers to the ‘chaos’ and the circumstances in Mexico including mobs and cartels and drugs, violence and overcrowding. The Tribunal found the applicant’s claims to be vague and the Tribunal is not satisfied that these claims give rise to Australia’s protection obligations. The Tribunal is also mindful that the applicant is able to seek a protection visa in the future.
As for the family unity obligations, the Tribunal is mindful that the applicant will be able to seek another Partner visa in the future (although he cannot make such an application onshore) which would enable the applicant to live with his partner and step-children.
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.
If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore due to the operation of s.48. The applicant may also be subject to an exclusion period in relation to future applications made offshore. If the visa is cancelled, the applicant will lose the entitlements he may have acquired as a permanent resident. The Tribunal accepts that PIC 4020 considerations may arise in relation to future visa applications (although that is not a consequence of the cancellation). The Tribunal acknowledges that the mandatory legal consequences may result in hardship to the applicant.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The primary decision record indicates that in June 2022 the applicant made an application for Australian citizenship and in that application he also failed to declare his criminal convictions and removal from the US.
In his submission to the delegate the applicant states that the non-disclosure was not deliberate but an inadvertent error and he has demonstrated a willingness to rectify the mistake and comply with legal requirements. The Tribunal does not accept that claim, noting that the applicant provided incorrect answers in not less than three separate visa application that spanned five years. Even if the applicant had somehow misinterpreted the question about his convictions – which the Tribunal does not accept – the Tribunal does not consider that the applicant had misunderstood the questions about overstaying in another country or being removed or deported from another country. Yet he had consistently claimed that this had not occurred. The fact that in his applications the applicant consistently claimed to have been living in Mexico until 2014, and thus deliberately excluding any reference to his residence in the US, supports the Tribunal’s view, that the provision of incorrect answers was deliberate and done knowingly. In the Tribunal’s view, that is not an action of someone who has demonstrated a willingness to rectify his mistake and comply with legal requirements. Rather, it is the action of someone who was persistent in trying to withhold adverse information so as not to jeopardise the grant of the visa. He continued to offer the same falsehoods in his citizenship application as recently as in June 2022. In the Tribunal’s view, if the applicant was genuinely remorseful about his actions, as he now claims to be, he would not have consistently provided false information in his multiple dealings with Immigration over the years.
The applicant states in his submission to the delegate that the deportation incident occurred 10 years ago and since then he had maintained a “clean record” and shown commitment to lawful behaviour. Again, the issue here is not the applicant’s criminal record or the reasons he was removed from the US. The issue is not the applicant’s past criminal conviction or his good character. The issue is his provision of incorrect answers when completing multiple visa application forms. The applicant did so in the course of three visa application and in support of his citizenship application and his consistency in providing incorrect answers and withholding relevant information does not support, in the Tribunal’s view, the applicant’s claim that he has shown commitment to lawful behaviour.
Ms Daber in her declaration refers to the applicant providing support in looking after her elderly father, stating that without the applicant’s help, she would be in a ‘precarious situation’. The applicant submits that if he was to leave Australia, this would cause upheaval in Ms Daber’s family and stress and financial hardship. The applicant also refers to the effect the separation would have on the children, noting his long-term parental responsibilities towards the two children.
As noted above, there are a number of character references and other supporting statements that had been provided in response to the NOICC and the applicant provided several character references and letters of support to the Tribunal in his submissions of 27 November 2024 and 13 March 2025. These include statements from members of the community, the applicant’s partner, his employer and others. It is not apparent from those statements that the writers were necessarily aware of the applicant’s overseas conviction or of the visa issues that led to the present cancellation. Nevertheless, the Tribunal accepts that those who provided statements believe the applicant to be of good character and support his stay in Australia.
The applicant claims that he is remorseful about what he has done. The Tribunal does not accept that evidence, noting that the applicant provided false information in the two visitor visa applications, the Partner visa application and, recently, in the citizenship application. The applicant told the Tribunal that he did not recognise the consequences of his actions. The applicant seems to submit that he decided to provide truthful information because he became aware of the consequences and the fact that his visa could be cancelled, not because he was genuinely remorseful for his actions. In the Tribunal’s view, if the applicant was genuinely remorseful, he would not persistently provide false information in his application. The Tribunal is of the view that the applicant’s expression of remorse is entirely opportunistic.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has determined that the applicant did not comply with s. 101 of the Act and that there are grounds for cancelling his visa.
The Tribunal considers that there are very strong reasons why the visa should be cancelled. The applicant has consistently provided incorrect answers in his three visa applications and the citizenship application. The extent of his non-compliance has been extensive. Not only had the applicant given incorrect answers about his previous overstay and removal from the US and his past convictions, but he also consistently and deliberately withheld information about his residence in the US (claiming he has been residing in Mexico from birth until 2014). He also provided incorrect answers in the Partner application concerning his previous relationship and the existence of a child overseas. The Tribunal is of the view that the non-compliance has been deliberate, extensive and designed to mislead in order to avoid presenting the US police clearance certificate which may have affected the visa grants. These matters weigh very heavily in favour of the cancellation.
The Tribunal has also formed the view that the decision to grant the visa was based, in part, on incorrect information. Information about the US overstay, removal and convictions would have been relevant to the applicant’s character assessment. The information about his past relationship would have been relevant to the assessment of his relationship with the sponsor. This also weighs heavily in favour of the cancellation.
The Tribunal accepts that the applicant is presently in a relationship with his Australian partner. The Tribunal is mindful that he can be sponsored for a Partner visa on the basis of such a relationship. While acknowledging that there may be some delay before the visa may be granted, and high costs associated with such an application, in the Tribunal’s view there is a significant benefit in the applicant seeking, and being granted, a visa on the basis of truthful information where the full assessment of all relevant facts can take place.
The Tribunal accepts that significant hardship may be caused to the applicant, his partner and family in Australia if the visa is cancelled. This is because the applicant is a primary caregiver to his partner (who has a number of medical conditions), supports his father-in-law (who has a significant illness) and he has parental responsibilities in relation to his two minor step-children. The Tribunal has formed the view that it is in the best interests of the children that the applicant’s visa is not cancelled.
The Tribunal has formed the view that the cancellation would not be in breach of Australia’s non-refoulement obligations and will not be contrary to the principles of family unity.
Having carefully considered all the circumstances of this case, the Tribunal has decided to give greatest weight to the significant hardship that would be caused to the applicant and his Australian family if the visa is cancelled and if the applicant was required to leave Australia. This is because of the special circumstances of this family, including health concerns and special needs of the family members and the applicant’s role as a father to two minor children and a caregiver to his wife and father in law, as well as the provider of financial and emotional support to his family. These matters weigh against the cancellation and, in the particular circumstances of this case, the Tribunal has formed the view that they outweigh other considerations.
Conclusion
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Date(s) of hearing 20 March 2025
Representative for the Applicant: Mrs Anne Frances O'Donoghue