Chou (Migration)

[2018] AATA 326

Chou (Migration) [2018] AATA 326 (8 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chandy Chou

CASE NUMBER:  1716764

DIBP REFERENCE(S):  BCC2016/602889

MEMBER:Kira Raif

DATE:8 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 08 February 2018 at 11:15am

CATCHWORDS

Migration – Cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Contradictory information in visa applications – Genuine and continuing partner relationship – Sponsorship of a different partner – Claimed child with a different partner – Genuine, mutually committed and exclusive relationship – Failure to inform Department – Child’s best interests – Credibility issues

LEGISLATION

Births, Deaths and Marriages Registration Act 1996, s 53

Migration Act 1958, ss 99-101, 104, 107, 109, 140, 359AA

Migration Regulations 1994, r 1.09, 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The visa holder is a national of Cambodia, born in December 1981. She was granted a temporary partner visa in June 2012 and a permanent one in September 2014. In May 2017 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 and s.104 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 28 July 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 18 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from several witnesses nominated by the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

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

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

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

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

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues, and also that the delegate had reached the necessary state of mind to engage s.107. 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 and s.104 of the Act.

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

    a.The applicant made the application for the Partner Class UK / BS visas on 15 June 2012.

    b.The application included Forms 47SP and 40SP. In response to Question 77 of Form 47SP, the applicant stated that her relationship had not ceased. In response to Question 13 of Form 40SP the applicant stated that her relationship with the partner commenced on 26 May 2012 in Cabramatta.

    c.The applicant was granted the temporary Class UK visa on 21 June 2012.

    d.On 28 May 2014 the applicant provided additional evidence to show that her relationship with the sponsoring partner was ongoing and continuing. This included a statutory declaration dated 26 May 2014 in which the applicant relevantly stated that she had a mutual commitment to a shared life as husband and wife, to the exclusion of all others, with Luis Alberto Munoz Benavides, that their relationship was genuine and continuing, that it began in 2012 and she was five months pregnant and they were preparing for the birth of their baby.

    e.The applicant was granted the permanent Class BS Partner visa on 9 September 2014.

    f.On 21 January 2016 the applicant submitted Form 1022 Notification of Change of Circumstances requesting that her son Sebastian, born on 29 August 2014, be granted a visa. The applicant submitted the child’s birth certificate indicating the child’s father is Phoumearith Ben.

    g.On 21 June 2016 the applicant and Mr Phoumearith Ben lodged an application for a Partner (Class UF / BC) visa. Mr Ben stated in response to Question 47SP that he and the visa holder were committed to a shared life together to the exclusion of all others on 14 December 2013.

    h.Mr Ben submitted a statement in which he stated that the applicant travelled to Cambodia in 2013, and they met up again and went to a club one night and got drunk, and later found out that the applicant was pregnant with his baby. This began their real romantic relationship even though she was still married to her husband in Australia.

    i.The applicant submitted a Statutory Declaration as part of Mr Ben’s visa application, dated 8 June 2016. In that declaration she states that she met up with Phoumearith Ben again, as they used to work together, and went out with workmates a few times during her trip to Cambodia. One night she got drunk and ended up sleeping with Phoumearith, but she did not intend to continue a relationship with him. She did not want to break up with her husband. When she found out she was pregnant, she knew it was not her husband’s child because they had not been sleeping together for a long time. After she told her husband, they had a fight and he moved out.  

11. The applicant submits in her written response to the NOICC and her submissions to the Tribunal that the child was conceived after a drunken one night stand with Mr Ben, and that she did not intend to have a relationship with Mr Ben, and there was no mutual commitment at the time. The applicant claims that after she realised she was pregnant, she wanted to keep the marriage but did not want to have an abortion, so she decided not to tell anyone and hoped that the sponsor would raise the child as his. (The Tribunal considers that evidence unconvincing, given the applicant’s earlier statement that she knew straight away the sponsor was not the father of the child because they did not have sexual relations. That should have been equally obvious to the sponsor.) The applicant states she told the sponsor when the child was two or three months old. She separated from the sponsor in December 2014 and they were divorced in April 2016.

12. The Tribunal finds that explanation utterly unconvincing. Firstly, the Tribunal is mindful that Mr Ben’s description of events is entirely inconsistent with the information the applicant presents in her response to the NOICC and in evidence to the Tribunal. The primary decision record indicates that Mr Ben stated in his partner visa application that he and the applicant began a committed relationship in 2013. He claims that after they found out about the applicant’s pregnancy, they began a romantic relationship despite the applicant’s ongoing marriage in Australia. The applicant claims that evidence was mistaken due to Mr Ben’s lack of English proficiency. The applicant explains in her declaration to the delegate that she only travelled to Cambodia in December 2013, that having a ‘one night stand’ did not imply a relationship and she did not meet Mr Ben again during the trip and had not had contact with him until 2015, when they gradually formed a committed relationship. The Tribunal does not accept that Mr Ben’s initial information provided with his visa application was entirely incorrect. The information submitted by Mr Ben was given in ‘free text’ format as well as in response to a specific question, and there is little chance that Mr Ben could have misunderstood both. While the applicant refers to Mr Ben’s lack of English, her evidence to the Tribunal is that they found an agent who could communicate with them in Khmer, so Mr Ben’s lack of English is irrelevant. The applicant’s suggestion that the response on Mr Ben’s form was entirely made up by the migration agent – who happened to refer to the date when the applicant visited Cambodia in 2013 – and without the involvement of someone familiar with the couple’s circumstances makes no sense. The Tribunal does not accept that Mr Ben misunderstood the question or had no involvement in providing information on the application form, or that the information was made up by the agent.

13. Mr Ben also gave oral evidence to the Tribunal concerning the information on his application form, which was the subject of the s.359AA process. In his oral evidence to the Tribunal, Mr Ben stated that after the meeting in 2013, he only had very limited contact with the applicant on Facebook and it was not until 2015 that his relationship with the applicant started. The Tribunal again notes that this is entirely inconsistent with the information he gave in his partner visa application. In response to two questions on the application form, Mr Ben stated that his romantic or committed relationship with the applicant started in 2013. Mr Ben’s explanation the Tribunal is that his present evidence is truthful but the earlier information is not truthful and similarly, in the response to the NOICC Mr Ben states in his statement that the information on the application form was incorrect, but there is no reason why the Tribunal should give preference to the present evidence and not his earlier evidence. The applicant suggests in her submission to the Tribunal of 2 February 2018 that the information was given by Mr Ben to his migration agent and may have been inaccurately translated from Khmer to English when written down but the Tribunal considers it implausible that the incorrect answer and the erroneous translation would coincide precisely with the time of the applicant’s travel to Cambodia and the child’s conception. Rather, it appears that having realised that the earlier evidence may result in the applicant’s visa being cancelled, the parties decided to provide a different, and more useful, version of events. Mr Ben also told the Tribunal that he relied on his migration agent and trusted his agent too much, but the Tribunal is mindful that the migration agent would not have any information about the circumstances or the timing of the applicant’s relationship with the sponsor unless that information was supplied to the agent. The application form refers to the relationship starting in 2013, which is the time when the sponsor visited Cambodia, so the information was not completely random and entirely made up by the agent but instead would have been supplied to the agent by the applicant or Mr Ben. Mr Ben also told the Tribunal he only signed the form but, having acquired a Khmer -speaking migration agent, he had every opportunity, and the responsibility, to read the form before signing and the Tribunal does not accept that he was so indifferent about the content of his application as to not read the form or ask the agent to explain. The applicant and Mr Ben also had ample time since the form was submitted to offer a correction, if they believed the information on the application form was incorrectly recorded. There is no suggestion they have done so other than in response to the visa cancellation proceedings.

14. The Tribunal has formed the view that both the applicant and Mr Ben were untruthful in their evidence to the Tribunal concerning Mr Ben’s visa application. The Tribunal does not accept that the reference to the romantic and committed relationship starting in 2013 in Mr Ben’s application was erroneous, baseless or otherwise incorrect. Rather, it appears that having realised that their earlier version of events may be harmful to the applicant’s visa, the parties decided to change the earlier version of events to something they considered more suitable. The Tribunal has formed the view that Mr Ben and the applicant were entirely untruthful in their explanations to the Tribunal about the circumstances in which Mr Ben’s application form was completed. The Tribunal finds that they are not credible witnesses.

15. The applicant claims in her submissions to the delegate and the Tribunal that her relationship with the sponsor did not end before she was granted the permanent visa. That contradicts the information submitted by Mr Ben in his own visa application when he stated that he commenced a committed relationship with the applicant in December 2013. The Tribunal prefers that evidence to the applicant’s subsequent explanations in relation to the cancellation of her visa. It appears that the applicant and Mr Ben submitted truthful information when claiming their relationship started in 2013 but the applicant, having realised that this information may result in the cancellation of her visa, decided to submit a different, and untruthful, version of events to assist with the visa process.

16. The Tribunal is also not convinced that the applicant had no involvement in preparing Mr Ben’s visa application. The applicant told the Tribunal that she found a Khmer-speaking migration agent in Australia to help with her husband’s visa application. She would have been required to complete and sign the sponsorship form at least and, according to the primary decision record, she also submitted a statement with the application. That is, the applicant had some involvement with Mr Ben’s visa application. The applicant told the Tribunal that she signed the papers but did not read the paperwork. The applicant’s evidence is that she found an agent who spoke Khmer and it makes little sense for the applicant to find an agent with whom she could communicate, but then make no effort to communicate with that agent about the content of the documents, and to take no interest in the content of the forms. The applicant told the Tribunal that she ‘skimmed’ her part of the application but had not read the whole form carefully, but the Tribunal finds it unconvincing that, having gone to the trouble of finding an agent in Australia with whom she could communicate, the applicant would then show no interest in the application. The applicant had the opportunity to check the paperwork and, in the Tribunal’s view, would have done so. If the information Mr Ben submitted in his application concerning the commencement of his relationship with the applicant was wrong, as she now claims, the applicant would have corrected that information. Her failure to do so suggests that the applicant’s relationship with Mr Ben did start in 2013 during the applicant’s visit to Cambodia, when their child was conceived and that the applicant and Mr Ben did commence a ‘romantic relationship’ well before the applicant’s separation from the sponsor.

17. Secondly, the applicant’s own statement, as quoted in the primary decision, suggests that the applicant knew from the time she realised she was pregnant that the child was not her husband’s. Yet, in her dealings with the Department, the applicant stated that she was five months pregnant and she and the sponsor were expecting their child. The applicant subsequently explained to the Tribunal that she did not mean to imply that the sponsor was the father of the child, but in the Tribunal’s view, a statement that an applicant and a sponsor in a partner visa application are expecting ‘their child’ implies that both are biological parents of that child. The applicant, on her own evidence, would have been well aware of the untruthfulness of that information but despite that, made the deliberate attempt to mislead the Department by suggesting the child was the sponsor’s and by failing to disclose the fact that the father was another person. For that reason also, the Tribunal finds that the applicant is not a person of credibility and that she is willing to provide untruthful information to assist her with the visa. The applicant’s lack of credit brings into question her present claims concerning her relationship with the sponsor and the time when that relationship ceased.

18. Thirdly, the Tribunal has formed the view that the applicant is not a person of credibility. As shown throughout these reasons, the applicant’s evidence changed and shifted depending on what the applicant perceived would be beneficial to her case. For example, the applicant’s evidence to the Tribunal is that she did not love Mr Ben and was only sponsoring him as an obligation to her son, and she also told her psychologist, Dr Kwok, that there was ‘little feeling’ between them throughout their relationship, but the applicant provided a declaration in support of Mr Ben’s visa application in which she refers to being very happy in that relationship, and their happy relationship being recognised by family members and others and making plans to have more children and buy a house together. (This information was put to the applicant pursuant to s.359AA.) The applicant’s description of her relationship with Mr Ben submitted with his visa application is entirely different to the applicant’s description of that relation given in relation to her visa cancellation process and the Tribunal has formed the view that the applicant has not been truthful in her evidence. The applicant’s explanation in her submission to the Tribunal of 2 February 2018 is that Dr Kwok’s assessment is affected by her own feelings, by the time of the consultation, that the relationship with Mr Ben was not a loving one. The applicant claims that her relationship with Mr Ben deteriorated after the initial declaration was prepared, but the Tribunal is mindful that Dr Kwok’s report refers to a lack of love or affection in that relationship at all times and not as a recent phenomenon, and that is also the impression the applicant sought to create in her own oral evidence to the Tribunal. There is a clear implication, both in Dr Kwok’s report (that is, in the applicant’s evidence to Dr Kwok) and the applicant’s oral evidence to the Tribunal that there was never a committed or a loving relationship between her and Mr Ben and that the marriage and the visa sponsorship were arranged purely out of a sense of obligation (rather than the claim that the relationship deteriorated with time) and that is not consistent, in the Tribunal’s view, with the information the applicant supplied in her declaration in support of Mr Ben’s visa application. It appears that when the applicant decided it was more useful to her visa process to establish that she did not have a loving relationship with Mr Ben, she decided to change her evidence and offered a description of the relationship that was not consistent with her earlier claims.

1. The applicant told the Tribunal that when she was in Cambodia for a month, Mr Ben took care of the child but after she returned from Cambodia towards the end of 2016, Mr Ben stopped caring about her and the child and was no longer asking her about their circumstances. However, Mr Ben’s evidence to the Tribunal was substantially different. He said that he did care about the child, that he rang that applicant on occasions and spoke to his son when he could (although the child was often asleep) and while he admitted that he did not send birthday presents to his son, Mr Ben said it was due to long distance and his lack of ability, rather than indifference. (These matters were discussed with the applicant in accordance with s.359AA of the Act.) Thus, while the applicant sought to portray Mr Ben’s relationship with the child as that of indifference, Mr Ben’s evidence indicates it is a normal relationship that may be expected given their geographical separation. The applicant’s explanation offered in her submission to the Tribunal of 2 February 2018 is that she has a more insightful view of the relationship than Mr Ben, and their different accounts of the relationship simply reflect the difference in perceptions. The Tribunal finds that explanation unconvincing, given the applicant’s strong claim that Mr Ben has little or no interest in the relationship or the child. That was clearly not the evidence of Mr Ben and while the Tribunal accepts that the parties may have different perceptions of some matters, the Tribunal is not convinced that the applicant and Mr Ben would have such different views about whether Mr Ben wishes to maintain a good relationship with the child or is entirely indifferent about this son. The Tribunal has formed the view that the applicant has been untruthful in her evidence to the Tribunal and to Dr Kwok when claiming lack of support from Mr Ben and the absence of a committed relationship, because she formed the view that it would be more beneficial to her visa process.

2. Further, if the applicant’s evidence concerning her relationship with Mr Ben was true, the applicant told the Tribunal that she never informed the Department about these changes in the relationship while sponsoring Mr Ben for the partner visa. Such an application implies the existence of a mutually committed relationship and the applicant suggests that neither she nor Mr Ben have any commitment to each other. That would be highly relevant to the processing of Mr Ben’s visa. The applicant said that she hoped he would change his relationship but she also claims that did not happen before his visa was refused in July 2017. That is, the applicant now claims her relationship with Mr Ben deteriorated by the end of 2016 yet she failed to inform the Department about the changes in the circumstances and continued to rely on the existence of a genuine and mutually committed relationship with Mr Ben in order to obtain the visa for him. Now when dealing with the cancellation of her own visa, and when the applicant determined that having no relationship with Mr Ben was of benefit to her, the applicant revealed for the first time that the relationship deteriorated in 2016. When the Tribunal questioned the veracity of the applicant’s evidence, she said that their relationship did not end, but her own evidence is that by the end of 2016 her relationship with Mr Ben was no longer of the nature she previously described to the Department. The Tribunal finds that on the applicant’s own evidence, she was willing to provide false or misleading information to the Department, and not inform the Department about significant changes in the circumstances, when she believed it better suited her circumstances.

3. When the Tribunal discussed these concerns with the applicant, she said that she did have a closer relationship with Mr Ben earlier but she is not sure anymore because she is under too much pressure. This appears to be a third version of events. Either the applicant and Mr Ben had a happy and a loving relationship (which could also be implied through the fact that the applicant did sponsor him for a partner visa and continued to sponsor him until July 2017 and would have appealed the refusal if she knew about the option), or they never had feelings for each other and never had a close relationship, and she sponsored him out of a sense of duty, or they did have a good relationship initially but she later decided she was not sure. These significant shifts in the applicant’s evidence indicate, in the Tribunal’s view, the applicant’s lack of candour.  

4. The applicant also told the Tribunal that she obtained the first birth certificate for her child around September 2014 when her son was one month old, and that birth certificate identified the sponsor as the father of the child. That is, even the applicant knew that the sponsor was not the father of the child, she gave false or misleading information to register the child as the biological child of her and the sponsor. The applicant said that she wanted to maintain the family and could not disclose the parentage to the sponsor, but the Tribunal does not consider that the applicant’s claimed desire to maintain family peace justifies the provision of false information to the Registry of Births, Deaths and Marriages. The applicant’s willingness to provide false information to the Registry supports the Tribunal’s view that the applicant is not a person of credibility and that she is willing to provide untruthful information when she considers it more useful to her case.

5. Fourthly, the Tribunal considers the timing of the various events problematic. In her response to the NOICC and evidence to the Tribunal, the applicant claims she told the sponsor about the child’s paternity when the child was two or three months old and the relationship ended in December 2014 because they had an argument about it. The applicant’s evidence is that she knew from the start that the child was not the sponsor’s but she did not tell the sponsor because she did not want to break up the family and did not want to upset him. The applicant waited until she was granted the permanent visa in September 2014, but less than three months of being granted the permanent visa, the applicant told the sponsor about the child’s paternity. The applicant explained to the Tribunal that she no longer wanted to lie to him but the Tribunal considers it problematic that the applicant had no hesitation of doing that for the nine months of her pregnancy, continued to be untruthful with her then husband when obtaining the child’s birth certificate and the only time the applicant decided to disclose the truth was shortly after being granted the permanent visa. The applicant told the Tribunal that the sponsor was good to her and the child after his birth and she felt guilty but her evidence is that the sponsor had been good to her throughout the pregnancy and the Tribunal is not convinced that the applicant only started to feel guilty after being granted the permanent visa but not throughout the pregnancy. The applicant’s suggestion that she kept that information secret for precisely as long as it took her to obtain the permanent visa and was willing to provide that information to the sponsor knowing that it would end the relationship as soon as she was granted a permanent visa, offers a strong indication that the applicant ceased to have a genuine and committed relationship with the sponsor and had little interest in maintaining a relationship with him beyond the visa grant.

6. The Tribunal acknowledges various statements from third parties and other evidence of the relationship that the applicant presented with her application and in response to the NOICC. The Tribunal is generally of the view that documentary evidence – including, for example, social photographs – can be readily available irrespective of the nature of the couple’s relationship. It does not establish that the couple maintained a genuine, exclusive and mutually committed relationship. The Tribunal also acknowledges statements from third parties, submitted in response to the NOICC, which refer to the breakdown of the relationship and the applicant being upset by it, including the medical evidence indicating the applicant sought professional help at the time.  While the Tribunal accepts that those who provided statements may genuinely believe the information they supplied, such evidence does not address the applicant’s motivations and commitments.

7. The applicant provided a further written submission to the Tribunal on 16 January 2018, a day before the scheduled hearing and over five months since her application for review was lodged. No explanation was offered by the applicant’s representative for the late submission of the documents, and the Tribunal is mindful that the applicant was represented by the same firm since the application for review was lodged and for a period of time when the matter was before the delegate.

8. In her submission to the Tribunal dated 16 January 2018 the applicant outlined her immigration history and the history of her relationship with the sponsor and with Mr Ben. With respect to her relationship with the sponsor, the applicant claims that her relationship with the sponsor lasted for a number of years and was the only romantic and committed relationship, and that the relationship was a genuine and loving one. The Tribunal has considerable concerns about these claims, given the haste with which the applicant’s relationship with the sponsor ended soon after the applicant was granted the permanent visa, noting also that almost immediately after the applicant and the sponsor formally separated, they arranged the divorce as soon as they legally could, and the applicant then sponsored Mr Ben for the partner visa. The Tribunal is equally concerned by the applicant’s evidence that the sponsor had a child from a different relationship while they were dating or forming a committed relationship and that the applicant herself had a child from another relationship while she claims to have been in a committed and an exclusive relationship with the sponsor. In the Tribunal’s view, these actions do not reflect the existence of a genuine and committed relationship, but rather, the existence of a relationship for the sole purpose of obtaining the visa.

9. The Tribunal acknowledges, and accepts, the applicant’s claim that sexual infidelity in itself does not necessarily negate nor cease the mutual commitment to a shared life to the exclusion of all others, although in the Tribunal’s view, it may be a strong indication of that. However, in this case, the issue is not merely sexual infidelity. There are other factors that are problematic, including, as noted above, Mr Ben’s evidence in his own partner visa application about the nature and the timing of his relationship with the applicant, the timing of the applicant’s separation with the sponsor and the Tribunal’s observations about the parties’ lack of credit. It is the combination of all these factors, as well as the birth of the child from a different relationship, that strongly suggests, in the Tribunal’s view, that the applicant’s relationship with the sponsor ceased to be a genuine, mutually committed and exclusive one before she was granted the visa.

10. The applicant’s evidence to the Tribunal is that her relationship with Mr Ben was never a mutually committed one and that it was only after Mr Ben heard about the breakdown of the applicant’s relationship with the sponsor that he wanted to become involved with the upbringing of his child. For the reasons stated above, the Tribunal does not accept that evidence. The Tribunal is mindful that such claims contradict entirely the information Mr Ben gave in his visa application and the Tribunal is of the view that the present evidence is simply  a more convenient representation of the circumstances that the applicant believes would be of benefit to her visa process.

11. The Tribunal has considered the psychological report by Dr Kwok presented by the applicant. The Tribunal is mindful that the evidence in that report reflects the applicant’s representation of events and that such representations were made at the time when the applicant was going through the visa cancellation process. The report is dated January 2018 and indicates the applicant was referred by her migration agent. There is no evidence that Dr Kwok saw the applicant at any time prior to November 2017 (the applicant’s evidence is that she saw a different counsellor) and her sessions with the doctor appear to have been arranged for the purpose of preparing the report. It is at least possible, in such circumstances, that the applicant’s evidence to the psychologist was given with the aim of enhancing her chances of retaining the visa. The Tribunal notes that the circumstances of the applicant’s relationship with the sponsor and with Mr Ben, as set out in the psychologist’s report, are largely based on the applicant’s own self-reported evidence. The psychometric test findings are also based on self-administered questionnaires. The Tribunal considers these representations to be self-serving and does not consider that these necessarily reflect the true circumstances of the applicant’s relationships. The Tribunal also notes the discrepancies in the information the applicant supplied to Dr Kwok and in Mr Ben’s sponsorship application, when she claimed on one hand that there was never a close and loving relationship between her and Mr Ben, and on the other, that they were in a happy and loving relationship. The Tribunal does not consider the information in Dr Kwok’s report reliable insofar as it sets out the circumstances of the applicant’s relationship with Mr Ben.

12. The applicant claims that she never had any feelings for Mr Ben but in the Cambodian culture, believed she had to marry him because they had a child together. The Tribunal is mindful that the applicant not only married him but sponsored him for the partner visa, the criteria for which require the existence of a mutually committed spousal relationship. Whether or not the applicant had any feelings for Mr Ben or was in love with him or had a romantic relationship with him is not at issue. Nor are these factors relevant considerations for visa grant. Having sponsored Mr Ben for the partner visa, the applicant relied on the existence of the same spousal relationship as she claims had existed between her and the sponsor. It is not sufficient then to state that the applicant’s relationship with Mr Ben was without love or romanticism. The fact that the applicant sponsored Mr Ben for the partner visa, and Mr Ben’s indication in his visa application that the relationship started several years earlier, supports a finding that the applicant’s genuine and mutually committed relationship with the sponsor ended before she was granted the permanent visa.

13. The Tribunal finds the applicant’s claim that her relationship with Mr Ben did not meet the statutory requirements of a de facto relationship unhelpful. In her written submission to the Tribunal of 16 January 2018 the applicant refers to different aspects of her relationship with Mr Ben and the application of the relevant statutory definition in r. 1.09A of the Migration Regulations 1994 (the Regulations). As noted elsewhere, it is not necessary for the Tribunal to determine when the applicant’s spousal or de facto relationship with Mr Ben started. The issue is when her relationship with the sponsor changed or ended. It is entirely possible, in the Tribunal’s view, that the applicant ceased to be in a genuine, exclusive and mutually committed relationship with the sponsor even if her relationship with Mr Ben was not one that could meet the statutory definition of a spousal or de facto relationship.

14. The Tribunal finds that since December 2013 the applicant’s relationship with the sponsor was no longer to the exclusion of all others because the applicant had commenced a relationship with Mr Ben. The Tribunal prefers the evidence provided in Mr Ben’s visa application and the Tribunal has formed the view that the applicant’s subsequent evidence is nothing more than an attempt to retain her visa. The Tribunal finds that the applicant and Mr Ben had formed committed relationship from December 2013, they had a ‘romantic’ relationship and a sexual one, resulting in the birth of their child in August 2014. The Tribunal finds that by December 2013 the applicant was no longer in a genuine, mutually committed and exclusive relationship with the sponsor. The applicant’s circumstances changed so that an answer on the application form became incorrect and the applicant failed to inform the Department about these changes in circumstances. She has breached s.104 of the Act.

15. The applicant submitted evidence of her relationship with the sponsor in May 2014 claiming their relationship was mutually committed and to the exclusion of all others. Information that the applicant provided is taken to be an answer to a question under s.99 and for the purpose of s.101 of the Act. The Tribunal finds that by May 2014 the applicant was no longer in a genuine spousal relationship to the exclusion of all others with the sponsor and the information she provided was incorrect. The applicant did not comply with s.101(b) of the Act.

16. Further, the applicant provided a declaration to the delegate in May 2014 in which she referred to having a baby with the sponsor, implying the sponsor was the father of the child. There is no suggestion in that declaration that anyone other than the sponsor was the father of the child and a reasonable reading of the statement evidences the applicant’s intention to identify the sponsor as the father of the unborn child. That information was incorrect and the applicant concedes that in her response to the NOICC. In her submissions to the Tribunal of 16 January 2018 and 2 February 2018 the applicant argues that the information was not incorrect but reflected her intention to raise the child with the sponsor. The applicant refers to the ordinary use of the word ‘our’ as ‘belonging to or associated with the speaker and one or more other people mentioned or easily identified’. She claims the reference to ‘our baby boy’ can be interpreted in many ways and may refer to non-biological children. The Tribunal acknowledges that this may be so but in the circumstances of this case, the Tribunal is of the view that the meaning of the word ‘our’ which the applicant intended in her declaration and which any reasonable person reading that declaration would apply, is that the child was the child of the applicant and the sponsor. This is because the declaration was provided in the context of a partner visa application. It was a requirement for that application that the applicant and the sponsor have a mutually committed relationship that is to the exclusion of all others. The applicant and the sponsor had been residing together and there is no suggestion that the applicant made any mention in her dealings with the Department of having a relationship, including a sexual relationship, with any other person, so the presumption of paternity would be in favour of the sponsor. A clear implication of the applicant’s statement is that the child is the child of the applicant and the sponsor. In many other circumstances the reference to ‘our baby’ could have been a reference to a non-biological child but in the circumstances of seeking a partner visa on the basis of an exclusive relationship with no mention of any other relationship or sexual contact, the most obvious implication of the applicant’s statement is that the child was the child of the applicant and the sponsor. Thus, the Tribunal does not accept that the applicant referred to ‘our baby’ because she intended to raise the child with the sponsor. The Tribunal is of the view that the applicant referred to having ‘our baby’ with the biological father of the child.

1. The applicant’s evidence is that she knew from the start that the child was not the sponsor’s, so the information was intentionally misleading, but in any case, s.100 provides that an answer is incorrect even if the applicant was unaware that it was incorrect. Again, the information the applicant gave about the paternity of the child is taken to be an answer under s.99 of the Act and that answer is incorrect. That in itself is sufficient to give rise to grounds for cancelling the visa because the applicant did not comply with s.101(b) of the Act.

2. For all the reasons outlined above, the Tribunal has formed the view that the applicant ceased to be in a spousal relationship with the sponsor before she was granted the permanent visa. The Tribunal finds that before she was granted the permanent visa, the applicant was no longer the spouse of the sponsor and her relationship with the sponsor ceased to be genuine, mutually committed and to the exclusion of all others. The Tribunal finds that the applicant failed to inform the Department about these changes in her circumstances. The Tribunal finds that the applicant did not comply with s.104 of the Act.

3. The Tribunal further finds that the applicant’s spousal relationship with the sponsor ended by the time the applicant provided her declaration in May 2014. The Tribunal finds that the applicant claimed to be in a spousal relationship with the sponsor when completing the declaration and the information she gave in that declaration was incorrect. The Tribunal finds the applicant gave incorrect answers in her application form and had not complied with s.101 of the Act. The Tribunal further finds that by referring to ‘our child’, the applicant did indicate that the child was the child of her relationship with the sponsor and for that reason also, the Tribunal finds that the applicant gave incorrect answers and did not comply with s.101 of the Act. The Tribunal finds that there was non-compliance with s.101 and s.104 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

4. 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).

5. 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

6. In her submission to the delegate and to the Tribunal the applicant claims that her relationship with the sponsor continued until the separation and that she did not have a relationship with Mr Ben despite the single sexual encounter. For the reasons stated above, the Tribunal does not accept that evidence. The Tribunal prefers Mr Ben’s evidence in his own partner visa application when he refers to the existence of a committed and romantic relationship with the applicant from 2013. As noted above, in reaching this finding, the Tribunal relies not only on Mr Ben’s evidence in his visa application, but also on the timing of the applicant’s break-up with the sponsor, her overall lack of candour and various deficiencies in her evidence as set out above. The Tribunal has formed the view that the applicant’s present evidence concerning her relationship with the sponsor and Mr Ben is merely an attempt to retain her visa and the Tribunal prefers the earlier evidence in Mr Ben’s visa application. The correct information, therefore, is that the applicant’s circumstances had changed and that she was no longer the spouse of the sponsor by the time her permanent visa was granted.  Further, the correct information is that the sponsor was not the father of the applicant’s child.

7. The Tribunal has formed the view that the applicant’s evidence to the Department about the child’s paternity was deliberately misleading. The applicant claims that Mr Ben was not aware of his paternity until the DNA test but the issue here is whether the applicant was aware of the child’s paternity. Her evidence in response to the NOICC is that she knew from the start that the sponsor was not the father of the child.

   The content of the genuine document (if any)

8. This is not relevant in this 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

9. The applicant claims in her evidence to the Tribunal that her pregnancy with another man’s child does not in and of itself determine that she could not have been granted the partner visa. That is true; however, it is a requirement for the grant of the visa that the applicant and the sponsoring spouse have a mutually committed genuine relationship to the exclusion of all others. Having a child outside of that relationship is significant and highly relevant, even if not determinative, in ascertaining whether the applicant’s relationship with the sponsoring spouse was genuine, committed and exclusive. The Tribunal has formed the view that before the applicant’s permanent visa was granted, such a relationship ceased to exist and the Tribunal reached that conclusion due to factors additional to the birth of the child with Mr Ben. It is not necessary to establish that the visa would not have been granted if the correct information was known, merely that the decision to grant the visa was based, wholly or partly, on incorrect information.

10. The applicant argues that if she did not inform the sponsor about her interactions with Mr Ben, they could have raised the child as their own, and since they met the other requirements for the visa grant, the visa would have been granted. The Tribunal is mindful, however, that the applicant claims in her response to the NOICC that she knew from the start that the child was not the sponsor’s because of their sexual relations and the timing of the pregnancy and, as noted above, if that information was obvious to the applicant, it would have been equally obvious to the sponsor. Thus, the Tribunal does not accept that if the applicant did not disclose the information to the sponsor, he would have accepted and raised the child as his own and the relationship would have continued without any problems because the applicant claims that knowledge led to their separation and divorce.

11. The applicant also claims in her submission to the Tribunal that she could have confessed the truth to the sponsor and the sponsor could have maintained the relationship. That is a possibility, but it is equally possible that the sponsor would not have accepted the child and would have ceased the relationship – which is what the applicant claims ultimately happened in this case. Given the applicant’s evidence that the relationship broke down once she told the sponsor about the child’s paternity, it is unclear on what basis the applicant claims the sponsor could have accepted the child and maintained the relationship, resulting in the visa grant. However, as noted above, it is not necessary for the Tribunal to consider such hypotheticals. The issue here is not whether the relationship between the applicant and the sponsor could have continued and whether the visa could have been granted if the correct information was known to the sponsor.

12. The Tribunal is of the view that if the correct information about the child’s paternity was known, it is at least possible, and in the Tribunal’s view highly likely, that the decision to grant the visa would have been affected. The Tribunal further finds that if the correct information about the cessation of a genuine, mutually committed and exclusive relationship between the applicant and the sponsor was known, the applicant would not have been granted the visa. The Tribunal is satisfied that the decision to grant the visa was based, at least partly, on incorrect information.

    The circumstances in which the non-compliance occurred

13. The applicant’s evidence is that she wanted to conceal the truth from her then husband because she did not want to break up their relationship. In her submission to the Tribunal the applicant also claims that her relationship with the sponsor was the only genuine one and she did not wish to harm that relationship by disclosing her contact with Mr Ben. The applicant refers to cultural norms and states that the preservation of marriage was her primary concern. Given the timing of the applicant’s actions – her initial reluctance to tell the sponsor about the child’s paternity and her change of mind within a very short time after her permanent visa was granted – the Tribunal does not find the applicant’s explanations convincing. It is equally (or more) likely, in the Tribunal’s view, that the applicant was motivated in her actions by the processing of her visa application and not by her reluctance to upset the sponsor. That is, the fact that the applicant chose to disclose the child’s paternity to the sponsor once she was granted the permanent visa and not at any time throughout the nine months of pregnancy suggests that the applicant waited to ensure she held the permanent visa, and it was the safety of that visa that motivated the applicant’s actions rather than her unwillingness to upset the sponsor.

14. The applicant submits in her response to the NOICC that she voluntarily submitted the child’s birth certificate to the Department in January 2016, which indicates that her actions were aimed at saving the marriage rather than deceiving the Department. The Tribunal does not consider that to be the case. By January 2016 the applicant and Mr Ben made the decision to form a relationship and for the applicant to sponsor Mr Ben for a visa. Provision of the child’s birth certificate was highly relevant to that visa application. That is, the submission of the child’s birth certificate by the applicant to Department was done to assist Mr Ben with his visa application and not as an act of goodwill by the applicant or out of her desire to be truthful with the Department. There is no suggestion, for example, that the applicant submitted the child’s birth certificate at any time before Mr Ben decided to make the visa application, which she could have done if her motivation was to be truthful in her dealings with the Department.

15. The applicant told the Tribunal that she had no English and no understanding of the law and she had no intention to mislead, but she did not know what she had to do. The Tribunal does not consider that the applicant’s English is as poor as she claims, given that she has been living and studying and working in Australia for a number of years. The applicant also provided evidence of her involvement in various community activities and she could have sought help from any member of the community, as well as her sister in Australia. As such, the Tribunal does not consider that the applicant’s claimed lack of English justifies or excuses the non-compliance.

16. The applicant also told the Tribunal that she was in a difficult mental state after her relationship with the sponsor broke down and she saw a counsellor. The Tribunal is mindful that the non-compliance occurred before the applicant was granted the permanent visa when she claims to have been in a good and committed relationship with the sponsor. The Tribunal does not accept that the applicant’s claimed poor mental state affected her ability to comply with the legislative requirements.

    The present circumstances of the visa holder

17. The applicant submits in her response to the NOICC that she has been living in Australia for over five years and wants to become an Australian citizen. She claims to be a ‘valued member’ of her friendship group and of her local community and the applicant provided a number of supporting statements. The Tribunal accepts that the applicant has been living in Australia for a number of years and is settled in Australia. The Tribunal accepts she has formed friendships and close relationships. The Tribunal accepts that her sister is an Australian citizen. The Tribunal acknowledges the applicant’s evidence that her son was born in Australia and has a close relationship with his aunt, who has no children of her own, although the Tribunal is of the view that at that age, the child will have no difficulties adapting to any other country, including Cambodia, where he can live with both parents.

18. The applicant presented evidence of having completed study in Australia and expressed hope of obtaining employment in Australia. In her evidence the Tribunal the applicant refers to completing studies in Australia in the area of childcare and early childhood education with the view of entering employment in that field and she said she volunteers at an early learning centre. The applicant told the Tribunal she is undertaking study towards a Diploma of Childcare. The Tribunal accepts that evidence. The applicant told the Tribunal that she has not informed her education provider that she is no longer a holder of a permanent visa.

19. The applicant refers to her baptism and regular church attendance. The Tribunal accepts that evidence and acknowledges the letter of support from the community, as well as the oral evidence to the Tribunal from the church pastor.

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

20. The applicant notes in her written submission to the Tribunal that she has provided the child’s birth certificate, which was obtained in 2015, in support of her child’s visa application but not in relation to her own visa application. To the extent that the applicant’s claim is that she has not provided a bogus document in relation to her visa application, the Tribunal acknowledges that this is so. The applicant claims she provided truthful information in response to the NOICC and in relation to Mr Ben’s visa application. The Tribunal is not aware of any adverse information in relation to the applicant’s behaviour under the above provisions.

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

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

    The time that has elapsed since the non-compliance

22. The applicant’s declaration in which she refers to having a child with the sponsor was prepared in May 2014.The applicant was granted the permanent visa in September 2014. Three and a half years have elapsed since the non-compliance.

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

23. The applicant told the Tribunal that she obtained the initial birth certificate for the child which identified the sponsor as the father of that child. She knew that information was incorrect. The Tribunal finds that the applicant has given false or misleading information to the Registry of Births, Deaths and Marriages. It is an offence under s.53 of the Births, Deaths and Marriages Registration Act 1996. The applicant explained to the Tribunal that she could not disclose the paternity information to her husband but the Tribunal does not consider that the applicant’s marital concerns justify the breach of the law.

    Any contribution made by the holder to the community.

24. The applicant refers to having made the application for the Australian citizenship and claims to have a commitment to living in Australia and raising her son as an Australian citizen. It is not clear to the Tribunal how the applicant’s commitment to be an Australian citizen, or her desire to become one, constitutes any contribution made to the community.

25. The applicant refers to having an Australian citizen sister and brother-in-law but, again, that is not necessarily a contribution to the community made by the applicant. The applicant refers to regular church attendance and her voluntary contribution at the church and at an early learning centre. The applicant provided a number of statements in support of her application, including evidence from her sister and several statements from members of the church and the community outlining the applicant’s involvement in various activities. In oral evidence the applicant spoke about providing palliative care and support for people in the community. The Tribunal accepts that the applicant contributes to the community through these activities.

26. 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

27. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant may 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 but may be subject to an exclusion period. There is no suggestion that the applicant will be indefinitely detained.

    Whether there would be consequential cancellations under s.140

28. The visa held by the applicant’s son has been cancelled under s.140. In her submission to the Tribunal the applicant argues that the delegate incorrectly identified the basis for the grant of the visa to the child but that does not seem to affect the application of s.140 to the child.

    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.   

29. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant refers in her submission to the Tribunal to the Cambodian law of monogamy (although in the context of social expectations and not in the context of Australia’s non-refoulement obligations). The applicant presented no evidence of the application of this law and the incidence of prosecution for adultery, or whether it applies to those residing overseas or people in circumstances such as the applicant’s, and the Tribunal is not satisfied on the evidence before it that there is a real chance of the applicant being prosecuted under this law or that such prosecution gives rise to Australia’s protection obligations. The Tribunal is not satisfied on the evidence before it that the applicant would be subjected to any form of harm or persecution to give rise to Australia’s protection obligations. The Tribunal is also mindful that the applicant is eligible to apply for a protection visa if she believes Australia owes her protection obligations. As such, the Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

30. The applicant claims that if she is to leave Australia, her son will travel with her and this would cause a huge upheaval in his life. The Tribunal acknowledges that the child was born in Australia and has not lived in any other country. However, the child is aged three and a half and, at that age, he would have little difficulty adapting to a new environment or learning a new language (if there is a need for it). The Tribunal is also mindful that the child’s father resides in Cambodia and if the child is to leave Australia with his mother, he will have the benefit of both parents, which he does not presently have in Australia, and that may be of benefit to the child’s development. The Tribunal is of the view that the child’s best interests would be best served by having both parents.

1. Dr Kwok states in her report submitted to the Tribunal that in this case, the child’s move to Cambodia may affect the child’s access to education, healthcare and economic opportunities but there is little probative evidence to satisfy the Tribunal that such opportunities would not be available to the child in Cambodia and no reference in Dr Kwok’s report to any probative evidence on which her observations are based. The Tribunal is not satisfied on the evidence before it that the child will not have access to adequate education and healthcare in Cambodia. The report also suggests that there is a culture in Cambodia where sexual infidelity by women is criticised. Even if that is the case, it is unclear to the Tribunal how the community in Cambodia would be aware of the applicant’s infidelity, given that the applicant would return to Cambodia with the child of her relationship with Mr Ben and will have the opportunity to live with the father of her child. The Tribunal is not satisfied that the community in Cambodia would be familiar with the applicant’s visa issues or experiences in Australia unless the applicant chooses to disclose that information.

2. Dr Kwok notes that the child is being raised in a safe environment in Australia while if the applicant returns to Cambodia, the applicant may suffer from depression and mood disturbance and that would affect the child’s growth. As noted above, the Tribunal considers the applicant’s evidence to be self-serving and the Tribunal is not satisfied that the applicant’s ability to care for the child will be adversely affected if she is to leave Australia. Further, the Tribunal does not accept on the evidence before it that the applicant will be unable to access relevant help from health professionals in Cambodia. The applicant told the Tribunal in oral evidence that women in Cambodia cannot access healthcare and that mental health is not covered by the health system in Cambodia, but the applicant presented no probative evidence to support these claims and the Tribunal is not required to accept these uncritically. The applicant claims healthcare in Cambodia is not the same as it is in Australia particularly in relation to mental health, but the issue before the Tribunal is not whether healthcare in Cambodia is comparable to Australia but whether it is adequate, and the applicant has not satisfied the Tribunal that she would not have access to adequate healthcare in Cambodia. Thus, the Tribunal does not accept that the applicant will be unable to access requisite health care in Cambodia and the Tribunal does not accept the child’s well-being would be adversely affected as a result.

3. The Tribunal also notes the applicant’s evidence that she saw a counsellor around 2015 when her relationship with the sponsor ended and Dr Kwok in December 2017, and has not accessed mental health professionals between these consultations although she said she consulted a GP. That is, the applicant had not relied, and did not feel the need to rely on, specialist mental health care in that period, and her reliance on the services of a GP met her needs. The only time the applicant consulted Dr Kwok was shortly before the Tribunal hearing and it appears that she saw Dr Kwok for the purpose of obtaining the report, rather than treatment. The Tribunal is of the view that if reliance on the services of the GP was sufficient to meet the applicant’s medical needs, including for her mental health, the same service would be equally available to the applicant in Cambodia. The applicant told the Tribunal that the medical practice in Cambodia is different, but that does not mean it is inadequate. Overall, the Tribunal is not satisfied the applicant would not have adequate mental health support, or other adequate health care, in Cambodia. The Tribunal is not satisfied that the applicant’s health, including mental health, would be adversely affected by the cancellation of her visa and the Tribunal does not accept that the child’s interests would be affected as a result of the applicant’s health.

4. Dr Kwok states in her report that Mr Ben’s level of support and involvement in the child’s life is questionable given his current lack of interest. The basis for such an observation is unclear (and to the extent that the information is supplied by the applicant, the Tribunal does not consider the applicant’s evidence probative for the reasons stated elsewhere). The Tribunal is mindful that on the applicant’s evidence, Mr Ben sought the partner visa on the basis that he wanted to take care of the child. The applicant and Mr Ben had gone to considerable trouble and expense to enable Mr Ben’s migration to Australia, including substantial application fees, legal fees and DNA testing. The psychological report refers to regular contact between Mr Ben and the child. On the applicant’s own evidence, Mr Ben’s visa application was on foot until as late as 31 July 2017, and the applicant told the Tribunal she would have continued with the sponsorship if she knew about appeal options, which would suggest that both the applicant and Mr Ben intended for Mr Ben to travel to Australia to be with his child. The Tribunal considers that in such circumstances, the assertion that Mr Ben does not plan to provide any support or have any involvement in the child’s life and has no interest in the child to be baseless. The Tribunal is mindful that the applicant provided the same oral evidence to the Tribunal but when the Tribunal questioned her about her sponsorship and the information supplied in that sponsorship, the applicant’s evidence became evasive. The applicant was unable to explain to the satisfaction of the Tribunal why she initially sponsored Mr Ben for the visa claiming to be in a committed and a loving relationship and to be very happy with that relationship, have continued to sponsor him and why now when it became more useful for her visa to claim no support from Mr Ben, her evidence has become entirely different. The Tribunal is not satisfied the applicant told the truth about her relationship with Mr Ben, including claimed lack of support, and Mr Ben’s relationship with the child. 

5. The applicant told the Tribunal that the child is used to living in Australia and would find it difficult to adapt to life in Cambodia, but the Tribunal is of the view that at the age of three and a half, the child should be able to adapt to the new environment.

6. The Tribunal does not accept that the child will be denied various opportunities by relocating to Cambodia. The Tribunal does not accept that the applicant would be denied access to adequate healthcare if she does have any condition that would affect her ability to care for the child, and the Tribunal does not accept that any claimed medical condition would prevent the applicant from providing care to the child. The Tribunal does not accept that the child’s father has no interest in the child and will not care for, and support, the child. The Tribunal acknowledges that the child now lives in a safe environment and may have a close relationship with the applicant’s sister and brother-in-law, but the Tribunal is mindful that if the child was to live in Cambodia, the child will have access to both parents, which might be of benefit to the child.

7. The Tribunal acknowledges and accepts  the evidence of the applicant’s sister that they treat the child as their own but the Tribunal does not consider that this relationship need to cease even if the child was to leave Australia. There will be opportunities for visits and electronic communication. There is also no guarantee that the applicant will continue to live with her sister in the future, so that the sister may not necessarily have a chance to have such a close relationship with the child in the future. As for the child being ‘devastated’ by his separation from his aunt, as the applicant suggests, the Tribunal is not satisfied on the evidence before it that the child will be so adversely affected at the age of three. The Tribunal has formed the view that the best interests of the child do not require his presence in Australia and would not be adversely affected by the cancellation of the visa.

8. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s.101 and s.104 of the Act and that there are grounds for cancelling her visa.

9. The Tribunal acknowledges that several years have passed since the non-compliance. In that time the applicant has settled in Australia, has completed some study and volunteers through community activities. The Tribunal acknowledges that the applicant is raising her son, with the help of her sister, and that her son was born in Australia and has not lived in any other country. The Tribunal accepts that there are no other known instances of non-compliance although the Tribunal has formed the view that the applicant breached the law by providing false information in relation to the child’s birth certificate. The Tribunal accepts that hardship may be caused to the applicant, and her sister, if the visa is cancelled and if the applicant and her son are required to leave Australia. The son’s visa would also be cancelled and any future visa applications may be affected. There are factors that suggest that the visa should not be cancelled.

10. However, the Tribunal has also formed the view that the applicant had been deliberately untruthful in her dealings with the Department. The Tribunal has found that the applicant’s relationship with the sponsor ended before she was granted the permanent visa and the applicant failed to inform the Department about these changes. Instead, she continued to rely on the existence of the relationship in order to obtain the visa. She also deliberately misled the Department by suggesting she had a child with the sponsor when she knew the child was not the child from that relationship. The Tribunal has formed the view that the applicant sought to mislead in order to obtain the visa and that is a significant factor in favour of the cancellation. The Tribunal has formed the view that the applicant has not been truthful in her dealings with the Department and the Tribunal, and that she changed her evidence to better suit her circumstances.

11. The Tribunal rejects the applicant’s argument that her child would be adversely affected if the visa is cancelled. The Tribunal does not accept that the applicant and her son will not have access to adequate healthcare, education and other needs if they were to relocate to Cambodia (whether or not of the same standard as in Australia) and, contrary to the applicant’s submission, the Tribunal does not accept that the child’s father is indifferent to the child. Everything that he and the applicant had done in recent years was to enable Mr Ben to travel to Australia and for him to be reunited with the child (particularly as the applicant now claims she has no affection for Mr Ben), so the applicant herself believes it would benefit the child to have the presence of both parents, which could be achieved the family were to move to Cambodia. The Tribunal does not consider that the cancellation of the visa would adversely affect the best interests of the child.

12. The Tribunal acknowledges that there are a number of factors that are against the cancellation of the visa, as well as those that may justify the cancellation. The Tribunal has formed the view that the applicant’s mutually committed and exclusive relationship with the sponsor ended before she was granted the visa and if that information was known, the applicant would not have been granted the visa. Information about the child’s paternity was also relevant to the decision to grant the visa, even if it was not determinative. The applicant’s decision to withhold that information from the decision-maker was, in the Tribunal’s view, a significant instance of fraud. In the Tribunal’s view, such matters outweigh other considerations.

13. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

14. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

    Kira Raif
    Senior Member