Chinyerere (Migration)

[2018] AATA 5180

Chinyerere (Migration) [2018] AATA 5180 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Felix Rufaro Chinyerere

CASE NUMBER:  1616971

DIBP REFERENCE(S):  BCC2015/3170304

MEMBER:Kira Raif

DATE:16 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

Statement made on 16 August 2018 at 2:48pm

CATCHWORDS
MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – applicant deliberately provided incorrect information – applicant committed other serious breaches of the law – Decision under review affirmed

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
MIAC v Khadgi (2010) 190 FCR 248

LEGISLATION
Migration Act 1958, ss 5, 100, 101, 102, 103, 104, 105, 107, 109, 111, 140, 359A
Migration Regulations 1994, r 2.41

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 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Zimbabwe born in July 1986. He was granted the Class SN visa on 23 January 2014. On 12 August 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) 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 and his visa was cancelled on 10 October 2016. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 6 August 2018 to give evidence and present arguments.

4. The Tribunal has had regard to the information provided by the Department on 6 August 2018. The Tribunal considers that information to be non-disclosable information within the meaning of s. 5(`) of the Act and, as such, finds that s. 359A(4)(c) applies to that information.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

7. 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?

8. 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.

9. 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. 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?

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 s.101 of the Act.

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

12. The applicant made the application for the skilled visa on 8 November 2013. In response to the question ‘does the applicant have any dependent family members not travelling to Australia who are not Australian citizens or Australian permanent residents?’ the applicant stated ‘no’.

13. The primary decision record refers to the information held by the Department which indicates that the applicant is the father of two children in Zimbabwe, Taona and Felix Jr. Because these children were not included in the application, they did not complete the health checks required for all dependents.

14. In his written response to the NOICC the applicant states that he did not declare the children on the application because English was not his first language and he misunderstood the question on the application form. The applicant states that he did submit the children’s birth certificates with the application. The applicant told the Tribunal in oral evidence that he misunderstood the question because the children were staying with their mother. The applicant said that he did mention the children in another section of the application but not in response to that particular question because he misunderstood what was asked.

15. The Tribunal finds that the applicant had two minor children overseas at the time he made the application for the visa. A child under the age of 18 is considered to be a dependent child. The applicant stated on the application form that he did not have any dependent family members not traveling to Australia. That information was incorrect. The Tribunal finds that the applicant answered a question on the application form in a way that an incorrect answer was given and that the applicant did not comply with s.101(b) of the Act. While the Tribunal acknowledges the applicant’s evidence that he misunderstood the question, under s.111, the cancellation provisions apply whether the non-compliance was deliberate or inadvertent. Further, s.100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

16. 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?

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 Migration Regulations 1994. Briefly, they are:

    The correct information

19. The correct information is that the applicant had two children who were not Australian citizens or Australian permanent residents.

    The content of the genuine document (if any)

20. 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

21. Subclause 190.216(6) relevantly requires each member of the family unit to undertake health examinations for the purpose of PIC 4005. There is nothing to suggest the applicant claimed it would be unreasonable to require his children to undergo assessment in relation to that criterion. As the decision-maker was not aware of the children, they had not undergone medical examinations.

22. Further, the applicant made the application on the basis of being a partner, and a member of the family unit, of the primary visa applicant. The applicant told the Tribunal that he knew the primary visa applicant since 2008 and their relationship was ‘on and off’. When he went to study at college, he met someone else and the girl was pregnant but her parents did not want her to live with him. Later on he resumed his relationship with the primary visa applicant. The applicant said his two children were born in June 2009 and August 2011.

23. The applicant’s claim of being a member of the family unit of the primary visa applicant would have required an assessment of his relationship with his partner. The existence of a child or children from another relationship, particularly as the second child was born shortly before the applicant claims to have resumed his relationship with the primary visa applicant,  would have been highly relevant to the assessment of that relationship and may have affected that assessment. According to the primary decision record, the applicant claimed to be a de facto partner of the primary visa applicant from March 2010 however he had a child born with another partner in August 2011 from a different relationship. That is, the child was conceived after the applicant’s claimed de facto relationship with the primary visa applicant resumed and the decision-maker may have concluded that the applicant’s claimed relationship with the primary visa applicant was not to the exclusion of all others.

24. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information.

    The circumstances in which the non-compliance occurred

25. In his response to the NOICC and oral evidence to the Tribunal the applicant states that he misunderstood the question. The Tribunal notes, however, that the question on the form does not relate to complex legal concepts. The Tribunal does not accept the applicant would have had any difficulty understanding the question, particularly as the applicant displayed excellent English proficiency in the course of the hearing.

26. The delegate expressed concern that the applicant deliberately failed to disclose his children because children were conceived in a different relationship and that may have brought into question the applicant’s claimed de facto relationship with the primary visa applicant and if the applicant did not meet the definition of being a de facto spouse of the primary visa holder, he would not have been granted the visa.

27. The applicant states in his response to the NOICC that even though he did not declare the children on the application form, he did provide the children’s birth certificates. However, the delegate states in the primary decision that there was no record of the birth certificates being provided. The applicant explained to the Tribunal that his then partner completed the application and gave all the papers to the Department and by the time he received the NOICC, he could no longer speak to her and could not check whether the birth certificate had been submitted. The applicant states that he assumed that the children’s birth certificates were submitted but he did not know for sure. It is of concern to the Tribunal that the applicant had made claims to the delegate in response to the NOICC when he was unaware of their truthfulness.

    The present circumstances of the visa holder

28. The applicant states in his response to the NOICC that he is of good character and complied with visa conditions.

29. The applicant refers to his employment as a diesel fitter and he claims if his visa is cancelled, an Australian business will lose a skilled worker in a remote area with a skills shortage. The Tribunal accepts that this may be the case, however, the Tribunal is also mindful that the applicant can leave his employer at any time and in the Tribunal’s view, the employer would have made arrangements for replacement of its workforce, including the applicant, should he ever decide to leave. The applicant told the Tribunal that he has casual jobs and finds work through a recruitment agency.

30. The applicant has an Australian citizen child and claims that he wants to maintain a close relationship with his child. The applicant refers to making child support payments and claims he wants to provide for the child. However, the applicant has not provided adequate evidence that he provides financial support to his daughter in Australia. The applicant refers to the statement from his former partner which refers to his close relationship with the daughter. The Tribunal has given that evidence due regard.

31. The applicant claims that he provides financial support to the child. If the applicant makes financial payments to his daughter or the child’s mother, there should be documentary evidence of such payments, including bank records, evidence of money transfers, Centrelink records, etc. The applicant has not presented such evidence. When questioned about the financial support for his daughter, the applicant told the Tribunal that since he does not have a full-time job, the payments had been irregular. The applicant said he pays for toys and clothes and takes the child out for meals but ultimately the applicant admitted that he has not made payments to his daughter for some time. The applicant claims that this is because he does not have a stable job, but he also stated that even when he was employed full-time and made child support payments, these had been in arrears. The Tribunal is prepared to accept that the applicant may sometimes bring gifts and pay for some of the child’s expenses but the Tribunal finds on the applicant’s own evidence, that his financial support for the Australian child is minimal at best. In the absence of documentary evidence of regular transfers, and the applicant’s own evidence admitting that there is very little financial support given, the Tribunal does not accept that the applicant provides regular or meaningful financial support to his daughter in Australia.

32. The applicant states that if his visa is cancelled, he would have to return to Zimbabwe and would not be able to re-establish himself, given the high unemployment rate, poverty, corruption and lack of human rights. The applicant told the Tribunal that he is the breadwinner for the family as he is the only ‘boy’ in the family. His mother and sister and his children depend on him. His sister is ill and he pays for the children’s boarding school in Zimbabwe. The Tribunal is prepared to accept that evidence. The applicant refers to high unemployment rate in Zimbabwe and states that he could not support his family if he has to return to his country. The Tribunal considers such a broad statement unhelpful. There may be a high unemployment in Zimbabwe but that statement does not take account of the applicant’s personal circumstances, his experience and skills. The applicant’s evidence to the Tribunal is that he did have a job in the mining industry in Zimbabwe before he came to Australia. Therefore, despite the high unemployment rate, the applicant was able to maintain a job. The applicant claims that the situation has become worse and his friends cannot find work but these claims are not supported by any evidence. Importantly, the applicant told the Tribunal that he has not made any attempt to find a job in Zimbabwe. The Tribunal does not accept the applicant’s claim that he would not find a job in Zimbabwe because there is no evidence of the applicant having tried to find a job and of having been denied employment. The Tribunal is not prepared to accept the applicant’s assertions without probative evidence.

33. The Tribunal does not accept that the applicant would be unemployed if he were to return to Zimbabwe. The Tribunal does not accept that he would be unable to support his family if he was to live in Zimbabwe.  He did so before his arrival in Australia and the Tribunal is not satisfied he would be unable to do the same in the future.

34. The applicant claims that his income in the past was not sufficient to support his daughter in Australia. Even if that was the case, the Tribunal is not satisfied that the applicant is providing any meaningful financial support to his daughter. The applicant’s evidence to the Tribunal is that when he had a full-time job, his payments were in arrears and since he is working on a casual basis, he does not make regular payments but, at best, provides some financial support to his ex-partner and buys some gifts for his daughter. The Tribunal is mindful that as an Australian citizen, the applicant’s ex-partner would be entitled to financial support from the Australian government. The applicant has not satisfied the Tribunal that his former partner needs his financial support and that she would experience any financial hardship as a result of the applicant’s visa being cancelled and due to his inability to work in Australia.

35. The applicant claims to be in another relationship at present and states that his partner is expecting a child in a month. The applicant provided to the Tribunal a marriage certificate and some evidence of the relationship but the Tribunal is mindful that the applicant’s partner did not make herself available to give evidence to the Tribunal and to support the applicant’s claims about the relationship. The applicant told the Tribunal she moved to her parents’ home in a different area and would be returning to Perth in a few days. Given the significance of the visa cancellation, the Tribunal considers it odd that the applicant’s partner would not wish to provide evidence to the Tribunal and confirm the existence of an ongoing relationship between her and the applicant.

36. The applicant told the Tribunal that he wants to spend time with his daughter in Australia and be a father to her. The applicant told the Tribunal that there was a Restraining Order in relation to the child’s mother. He said they had an argument and he pushed her. She reported the matter to the police and he was given the Restraining Order for 18 months after the case was heard in court. The applicant said that he had made the application for the family dispute resolution before the expiry of the Restraining Order but the case was not resolved before the Restraining Order expired. The applicant states there is nothing preventing him from seeing his chid.

37. The Tribunal finds the applicant’s claims problematic. The applicant’s evidence to the Tribunal is that he lives in a different city about 200 km away from his ex-partner and daughter. On his own evidence, he spends a very limited amount of time with his daughter. He told the Tribunal he sees her a couple of days every fortnight and maybe more on holidays. The applicant presented to the Tribunal some evidence of his interactions with his daughter and the Tribunal accepts that the applicant occasionally spends time with his child but the amount of time the applicant spends with his daughter appears to be very limited. The applicant told the Tribunal that he is considering relocating to Perth to be closer to his daughter but he presented no evidence of having made any arrangements to do so.

38. The applicant also has two children in Zimbabwe. The applicant states that since his arrival in Australia in 2013, he visited his children in Zimbabwe once in 2016. The applicant refers to various commitments and financial hardship as the reason he could not spend more time with his children but the limited time the applicant has spent with his children in Zimbabwe since 2013 and with his daughter in Australia suggests that the applicant’s primary desire is to remain in Australia rather than to be with his children. The applicant told the Tribunal that he plans to sponsor his children to come to Australia but he also told the Tribunal that the sponsorship has not been made yet, despite the length of his residence in Australia.

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

1. 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

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

   The time that has elapsed since the non-compliance

3. The application for the visa was made in November 2013. Nearly five years have passed since the non-compliance.

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

4. The applicant told the Tribunal that he had an altercation with is former spouse, she called the police and he was issued with the Violence Restraining Order. The applicant said that on an occasion when the Restraining Order was in place, he mixed up the dates and called his partner to arrange to see the child and she called the police. The applicant said he was convicted of contravening the Restraining Order but there was no penalty because the court realised it was a genuine mistake. The Tribunal finds that there were other breaches of the law.

   Any contribution made by the holder to the community

5. The applicant refers to his employment in a skilled occupation in a remote area. The Tribunal accepts his evidence. The applicant refers to attending church and the Tribunal accepts that evidence. The applicant states that he wants to bring the African artists together and has opened a business promoting overseas artists and has brought two artists and he provided to the Tribunal evidence of his business activities. The Tribunal accepts that evidence. 

6. 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 are mandatory legal consequences

7. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation and the applicant told the Tribunal that his present partner is willing to sponsor him for a partner visa. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

8. The applicant told the Tribunal that he and his current partner decided to bring his children from Zimbabwe but they did not lodge the application before his visa was cancelled. The Tribunal accepts that if the applicant does not have a permanent visa, he cannot act as a sponsor for his children.

   Whether there would be consequential cancellations under s.140

9. There would be no consequential cancellations under s.140.

   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   

10. The applicant provided general country information concerning the situation in Zimbabwe in his written response to the NOICC. The Tribunal must consider Australia’s obligations in relation to the applicant and not general country information. The Tribunal considers such broad submissions unhelpful if these do not address the applicant’s specific circumstances.

11. The applicant told the Tribunal in oral evidence that he was known for his political activities. The applicant claims that with the current situation in Zimbabwe, political opposition is targeted and he is scared. The Tribunal finds the applicant’s claims unpersuasive.

12. Firstly, the Tribunal is mindful that the applicant made no mention of his claimed activities or affiliations in his response to the NOICC. In the Tribunal’s view, if the applicant was truthful in his claims, he would have referred to his circumstances in his written response to the NOICC to avoid the cancellation of his visa. Instead, the applicant referred to general country information and not to his personal circumstances in his evidence to the delegate. Secondly, the applicant has provided no probative or corroborative evidence in support of his claimed political affiliations. Thirdly, the Tribunal notes that the applicant had the option of seeking a protection visa before or since the cancellation of his skilled visa. His visa was cancelled in late 2016. The applicant had ample time since the cancellation, or even since the NOICC was issued and he was put on notice about the potential cancellation of his visa, that he may be required to leave Australia if his visa is cancelled. In the Tribunal’s view, if the applicant was genuinely fearful for his safety as he now claims, he would have sought alternative means of being able to remain in Australia. The applicant told the Tribunal that he did not know about protection visas. The Tribunal does not accept that evidence. The applicant is well settled in Australia and is highly proficient in English. He would have had no difficulties making inquiries or seeking professional help if he had any interest in the matter. The Tribunal has formed the view that the applicant’s claims are a recent invention.

13. Ultimately, the Tribunal notes that the applicant is able to make an application for a protection visa if he believes Australia owes him protection obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is nothing to suggest that the applicant would be prevented from validly applying for or being granted a protection visa. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations.

14. The Tribunal has considered the best interests of the children. The applicant has a child with ex-partner and the child is an Australian citizen. The applicant claims he wants to play a meaningful role in raising his daughter and is committed to making child support payments.

15. The primary decision record indicates the applicant is estranged from his family in Australia as he lives in Port Hedland and his former spouse and child live in Perth. The primary decision record indicates the applicant paid child support on a sporadic basis and is thousands of dollars behind in his payments. The primary visa holder advised the Department that their daughter had little contact with the visa holder since the permanent visa was granted and she had set up home with the child without the applicant’s assistance.

16. The applicant’s evidence to the Tribunal, as set out above, was not inconsistent with the delegate’s findings. The applicant told the Tribunal that he lives in a different city 200 km away, only sees the child a few days every fortnight, there is very little evidence of financial support for the child and while the applicant claims he wants to move closer to the child, he provided no evidence of having made any arrangements to do so. The Tribunal is also mindful that the applicant was subject to a Restraining Order until recently. The Tribunal acknowledges the applicant’s evidence that he wants to re-establish the relationship with his Australian child. He sent the Tribunal a number of videos of his daughter but these mostly depict the daughter and not the applicant’s interactions with the child. Given the very limited contact he has with the child, even after the Restraining Order expired, and lack of ongoing and regular financial support for the child, the Tribunal is not satisfied that the applicant plays a meaningful role in the child’s life.

17. The applicant told the Tribunal that he wants to stay with his daughter in Australia and act as a father to his daughter. The applicant provided to the Tribunal some photographs and other recordings of his interactions with his daughter. The Tribunal has formed the view that the applicant has spent very little time with his daughter in Australia and any financial support his provides to the child is, at best, limited. He lives away from his daughter, visits her only occasionally. The Tribunal places weight on the fact that there was a Violence Restraining Order against the applicant in relation to the child’s mother. The applicant provided to the Tribunal a copy of the Order which was issued in July 2015. If there was any violence or threat of violence perpetrated by the applicant against the child’s mother, the Tribunal is not convinced that it is in the best interests of the child to be with her father. The Tribunal has formed the view that the best interests of the child do not require the applicant’s presence in Australia.

    Other considerations

18. The applicant told the Tribunal that his present partner is pregnant and due to give birth in September 2018. As noted above, the Tribunal is concerned that the applicant’s partner was not present to give evidence and the Tribunal was unable to test the applicant’s claim concerning his relationship with his partner. While the Tribunal accepts they are validly married, there is little evidence of the parties’ ongoing relationship and mutual commitment before the Tribunal and the applicant told the Tribunal that his partner was, at present, visiting with her parents and not staying with him. On the evidence before it, the Tribunal is unable to determine the best interests of this soon to be born child.

19. The applicant has two young children overseas. Although the applicant claims he plans to bring these children to Australia, there is no evidence that he has made any arrangements to do so. The applicant claims the children live with their mother and attend a boarding school for which he pays. For the reasons stated above, the Tribunal does not accept that the applicant would be unable to find a job in Zimbabwe and provide financial support to these children.

20. The Tribunal has considered the totality of the applicant’s circumstances.

21. The Tribunal has formed the view that the applicant has completed the application form in a way that an incorrect answer was given. Although the applicant claims that he did not understand the question, the Tribunal is not satisfied that the applicant was not sufficiently proficient in English not to be able to read the form.

22. The Tribunal acknowledges that the applicant has spent many years in Australia and is settled in Australia. More than five years passed since the non-compliance. The Tribunal accepts that the applicant is employed and contributes to the community through his employment, church activities and his involvement in the arts. The Tribunal accepts the applicant has a child who is an Australian citizen and is expecting another child with his new partner. Despite little evidence of the relationship being provided, the Tribunal is prepared to accept the applicant’s claim that he is presently in a relationship. The Tribunal accepts there are reasons why the visa should not be cancelled.

23. Against these considerations, the Tribunal places significant weight that the decision to grant the visa was based, at least in part, on incorrect information. The presence of the two children in Zimbabwe would have been highly relevant to assessing the applicant’s de facto relationship with the primary visa applicant. The Tribunal places weight on the fact that the applicant appears to have been untruthful in his subsequent dealings with the Department by referring to the children’s birth certificate which he claims to have provided with the application but had not done so. The Tribunal also places significant weight on the fact that the applicant committed other serious breaches of the law, including family violence that led to the issuance of the Restraining Order and he has a conviction for the breach of that Restraining Order. The Tribunal considers these to be significant factors in favour of the cancellation.

24. The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation. The Tribunal has formed the view that the best interests of his daughter do not require the applicant’s presence in Australia because despite the applicant’s assertions that he wants to be a father to this child, the applicant spends fairly short amounts of time with his daughter and on his own evidence, the financial support he provides to the child is sporadic at best. In the circumstances where the applicant has perpetrated violence towards the child’s mother, the Tribunal does not consider that the best interests of the child would be adversely affected by the cancellation of the visa. The Tribunal is also mindful that if the visa is cancelled, the applicant would have a better opportunity to spend time with his children in Zimbabwe. The Tribunal has rejected the applicant’s evidence that he would not be able to find a job in Zimbabwe and that he could not support his family and his children if he does not remain in Australia.

25. The Tribunal also acknowledges the applicant’s evidence that if his visa is cancelled, his partner would be willing to sponsor him for a partner visa. If that is the case, it appears that there is little likelihood of the applicant having to depart Australia if he made the application onshore, or having to separate from his partner and Australian children for a lengthy period if he decides to make the application offshore.

26. 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 be cancelled.

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

    Kira Raif
    Senior Member