Daleha (Migration)

[2018] AATA 4707

Daleha (Migration) [2018] AATA 4707 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jovan Daleha

CASE NUMBER:  1730924

DIBP REFERENCE(S):  BCC2015/1901082

MEMBER:Kira Raif

DATE:10 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 10 October 2018 at 4:48pm

CATCHWORDS
MIGRATION – Cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers – applicant’s identity – passport information – previous visits of different identity – unlawful status – facial imaging comparison – children’s health – conditions in home country – availability of future visas – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41, Schedule 2 PIC4020

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Indonesia and claims to be born in February 1976. He was granted a Class VB Skilled visa in July 2010 and a Resident Return Visa (RRV) in July 2015. In September 2017 the applicant was issued with a 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 in relation to his Skilled visa. The applicant provided his response to the NOICC and his visa was cancelled on 5 December 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal by teleconference on 10 October 2018 to give evidence and present arguments. 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 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. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

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

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

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act.

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

    a.The applicant arrived in Australia as a holder of a Student Dependent visa on 11 August 2007.

    b.On 27 April 2010 the applicant’s spouse made the application for the Class VB Skilled visa. The applicant was included as a member of the family unit. The application included the General Skilled Migration application form:

    i.In response to the question ‘is your spouse / de facto partner currently, or has your spouse / de facto partner ever been, known by any other names’ the applicant’s partner answered ‘no’.

    ii.In response to the question ‘have you or any person in this application ever left the country to avoid being removed or deported’ the applicant’s partner answered ‘no’.

    iii.In response to the question ‘have you or any person included in this application previously been to Australia, held or currently hold a visa for travel to Australia’ the applicant’s partner answered ‘no’.

    c.The applicant included with that application Form 80:

    i.In response to Question 3 of Form 80 ‘other names you are, or have been, known by’ the applicant did not provide an answer.

    ii.In response to Question 13 of Form 80 ‘details of all passports ever issued to you’ the visa applicant referred to his Indonesian passport and provided a passport number.

    iii.In response to Question 21 of Form 80 ‘previous addresses of the places where you have lived during the last 10 years (including Australia)’ the applicant referred to an address in Indonesia where he lived from January 1999 to July 2007 and addresses in Australia from August 2007.

    iv.In response to Question 25 of Form 80 ‘give details of all your previous visits to Australia’ the applicant did not provide an answer.

    v.The applicant signed a declaration on Form 80 indicating that the information he supplied in that form was correct in every detail.

    d.The applicant was granted the Skilled Independent Class VB visa on 29 July 2010.

    e.The Department was advised by NSW Roads and Maritime Services (RMS) that a comparison of the facial images taken of Effendi Bong and Jovan Daleha appeared to be of the same person. On questioning, Jovan Daleha admitted they are both facial images of himself.

    f.On 22 August 2013 the Department’s Facial Image Comparison unit completed a facial recognition comparison comparing the facial images of Effendi Bong (taken from his Departmental record) and Jovan Daleha (also taken from the Departmental record). The opinion of the Facial Image Comparison Specialist was that images of Effendi Bong and Jovan Daleha represent the same person.

    g.In his written response to the NOICC the applicant admits that he was also known by the name of Effendi Bong and had previously travelled to Australia.

    h.Departmental records indicate that Effendi Bong:

    i.Arrived in Australia on 15 December 1997 as a holder of a visitor visa and made an application for a substantive visa in Australia. That application was refused in February 1998 and affirmed by the Tribunal in February 1999.

    ii.Made two requests for Ministerial intervention which were unsuccessful. The first was made in March 1999 and the second in August 1999.

    iii.Was included in a class action from October 1999 which was subsequently withdrawn on 20 June 2003.

    iv.Did not apply for any other visa and became an unlawful non-citizen until his departure from Australia on 5 December 2004.

11. Having regard to the information supplied by RMS, the report of the Department’s Facial Imaging Comparison unit and the applicant’s own evidence in response to the NOICC and to the Tribunal, the Tribunal finds that Jovan Daleha and Effendi Bong are the same persons.

12. The Tribunal finds that the applicant filled in the application Form 80 in a way that incorrect answers were given by:

    a.Providing details of only one Indonesian passport number

    b.By stating that between 1999 and 2007 he lived in Indonesia

    c.Signing a declaration that the information he supplied on the form was correct in every detail.

13. The Tribunal finds that the applicant did not comply with s.101(b) of the Act.

14. The Tribunal further finds that the applicant did not fill in the form in a way that all questions were answered by:

    a.Not providing an answer to a question whether he had been known by any other name

    b.Not providing an answer to a question about his previous visits to Australia.

15. The Tribunal finds that the applicant did not comply with s.101(a) of the Act. 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?

16. 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).

17. 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 as follows.

    The correct information

18. The correct information is that the applicant was known by a different name and had travelled to, and lived in, Australia using a different identity. He did make other visa applications in Australia and became an unlawful non-citizen before departing Australia. As an unlawful non-citizen the applicant may have been subject to removal from Australia and may have departed to avoid being removed.

    The content of the genuine document (if any)

19. 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

20. A decision to grant a visa is based upon the decision-maker’s satisfaction as to the person’s identity. This is particularly relevant to public interest criterion (PIC) 4020(2A) of Schedule 2 to the Regulations and also to a number of other provisions including character and special return criteria. The general provision of information that was false or misleading would have been relevant to PIC 4020(1). These criteria would have been assessed more rigorously had the applicant’s use of a different identity and previous visit to Australia, including a period of overstay, was known to the decision-maker. The applicant’s conduct may have been relevant in assessing the applicant’s character for the purpose of PIC 4001 and s.501. The applicant would have also been required to meet PIC 4004 as the applicant may have incurred a debt to the Commonwealth through his previous visa application and Tribunal review, as well as his involvement in a High Court class action. There is no evidence that the debt to the Commonwealth has been repaid. The applicant’s evidence to the Tribunal is that he was unaware whether his fees had been paid as he relied on his agent. Again, the Tribunal finds that the assessment in relation to PIC 4004 would have been more thorough if the applicant’s immigration history was known. The Tribunal finds that the decision to grant the visa was based, in part on incorrect information.

    The circumstances in which the non-compliance occurred

21. In his written response to the NOICC the applicant states that he made a ‘thoughtless mistake’. The applicant states that when he lived in Australia as Effendi Bong, he was younger and did not have knowledge of the immigration law and was not aware of his visa status as he just followed misleading information from friends and there was no communication from his agent. The applicant repeated these claims in his oral evidence to the Tribunal. The Tribunal finds these explanations utterly unconvincing. Firstly, the Tribunal does not consider that ‘being younger’ justifies significant breaches of the law. The applicant claimed that Effendi Bong’s date of birth was 1973 and he was about 25 years of age when he first entered Australia. The applicant was not so young at the age of 25 as to be incapable of appreciating the need to abide by the law. Secondly, the applicant claims he did not understand the law but the Tribunal is of the view that no special knowledge is required to appreciate the fact that the use of a false identity is an offence. It is not permitted in any country, including the applicant’s own home country, and the applicant would have been well aware of it, whether or not he had any familiarity with the law. The Tribunal does not accept the applicant failed to recognise that fact. Thirdly the applicant claims he followed bad advice from friends but he also refers to having a migration agent. The applicant could have easily acquired information about his obligations through the migration agent and he had the option of not following bad advice from his friends or his agent.

22. Ultimately, the issue here is not the applicant’s use of a different identity in his previous visit to Australia. The issue is the applicant’s failure to mention that identity in his Skilled visa application and the provision of incorrect answers in that application. Thus even if the applicant claims he was too young and incapable of making his own decisions during his first period of residence in Australia, the applicant would have recognised the need to provide truthful information by the time his Skilled visa application was made. He has not done so.

23. The applicant repeatedly told the Tribunal in oral evidence that he simply relied on the agent and had no appreciation of the law. It is of concern to the Tribunal that the applicant appears to have been content to rely on the advice of others, even when he claims he did not get adequate advice or information, and not take any meaningful steps to acquire the information to ensure his compliance with the law.

24. The applicant claims in his response to the NOICC that after he returned to Indonesia, he tried to start his own business because he did not have any qualifications, but he found it hard to run a business. He then met his wife who wanted to study in Australia. He decided to return to Australia and made a mistake because he did not know immigration law and did not understand the consequences. He made the decision based on emotion because he did not wish to be separated from his wife. As noted above, the Tribunal does not accept that the applicant did not understand the legal requirements or the fact that he was required to provide truthful information in his application, declare his previous visit to Australia and another identity in his Skilled visa application. The fact that the applicant may not have appreciated the consequences of his actions does not mean he did not understand what was required of him.

25. The applicant states that while living under the identity of Jovan Daleha, he felt insecure and guilty and he wished he could ‘undo’ things but he did not know where to start. The applicant claims he is thankful about what happened. He told the Tribunal that he wanted to tell about the use of the different identity for a long time. The Tribunal finds these submissions unpersuasive. If the applicant felt remorseful about what he has done, he could have easily contacted the Department and notified of the incorrect answers. The Tribunal does not accept that the applicant “did not know where to start”. Contacting the Department would have been an obvious option, as was contacting a migration agent to help him with the process. Although the applicant told the Tribunal that he had informed Immigration about the use of a different identity, there is no evidence before the Tribunal that he has done that during the years of his residence in Australia and before facing the cancellation of the visa.

    The present circumstances of the visa holder

26. The applicant claims in his written response to the NOICC that he is settled in Australia and has family in Australia. The applicant states that in 2012 he returned to Indonesia for a year and did a Bible course. The applicant refers to his employment for Australia Post and the payment of taxes. The Tribunal accepts that evidence. The applicant states that he owns a house in Melbourne where he lives with his wife and children. The applicant states that his two children are Australian citizens. He claims he provides for his family and supports the family financially and he cannot live without his children. The Tribunal accepts that evidence.

27. The applicant referred to his wife’s medical condition, stating she has been investigated for a heart condition. The Tribunal accepts that evidence although the Tribunal is of the view that whatever medical treatment the applicant’s partner requires, she would receive such treatment irrespective of the applicant’s visa status.

28. At the time of the Tribunal hearing, the applicant left Australia and has returned to Indonesia with his family. He explained that he had no right to work in Australia and could not repay the mortgage. Because of the difficult financial situation, they made the decision to return to Indonesia. The applicant told the Tribunal that his elder child attends kindergarten. The applicant does not work but is looking for business opportunities. His wife does not work and looks after the children. The family sold the house in Melbourne and they live off the proceeds of the sale.

29. The applicant said that both of his children were sick for a few weeks after they returned to Indonesia but they are fine now. There is no medical or otherwise probative evidence before the Tribunal to indicate that the children have any health issues or that such health issues are exacerbated by their residence in Indonesia.

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

30. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations.

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

31. There are no other known instances of non-compliance by the visa holder. The applicant states that in his true identity, he never breached the law and he lived an honest life.

    The time that has elapsed since the non-compliance

32. The application for the visa was made in April 2010. Eight and a half years passed since the non-compliance.

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

33. The applicant states in his response to the NOICC that he is not a harmful, nor a bad person and has never committed any criminal offences. The Tribunal is mindful that the use of a false identity or a false passport may well suggest that the applicant breached the law but that was not a breach that occurred since the non-compliance. There is no evidence of the applicant being charged with, or convicted of any offences. There is no evidence of any breaches of the law since the non-compliance.

    Any contribution made by the holder to the community.

34. The applicant claims in response to the NOICC that he works as a postal delivery officer with Australia Post and pays taxes. The Tribunal accepts that he did so while in Australia. The applicant has now left Australia.

35. 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 Procedures 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

1. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. As the applicant has left Australia, these considerations no longer apply to him. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas. The cancellation of a permanent visa would result in the applicant losing some benefits that he may have been entitled to as a permanent resident of Australia.

   Whether there would be consequential cancellations under s.140

2. There are no consequential cancellations under s.140. The applicant’s evidence to the Tribunal is that his wife continues to hold an Australian visa and his children are Australian citizens.

   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

3. In his written submission to the delegate the applicant refers to racism, especially against Christians and the Chinese and he states he does not want his children to be discriminated against. The applicant states that if his visa is cancelled, the entire family would return to Indonesia. In oral evidence the applicant referred to bombs and the unsafe situation and states that they are a minority and their lives are affected.

4. The Tribunal notes that at the time of this decision, the applicant and his family have left Australia. In such circumstances, Australia’s protection obligations are not engaged and it is not necessary for the Tribunal to consider the above claims.

5. The applicant has two young children who are Australian citizens. The applicant’s evidence to the delegate is that he is the main provider for the children and that he is very attached to the children. The applicant claims that his children would face hardship if they were required to relocate to Indonesia. In oral evidence, the applicant referred to his children’s health, although he claims their health issues have now been resolved. The applicant refers to a generally unsafe situation in Indonesia. He states that he would prefer for his children to grow up in Australia.

6. The Tribunal is mindful that despite his claimed concerns, the applicant made the decision to return to Indonesia with his family when there was no need for them to do that. The applicant could have remained in Australia with his family during the processing of this review and his wife and children have the right to remain in Australia permanently. While the Tribunal acknowledges the applicant’s claims that he did not have permission to work and could not support the family in Australia, in the Tribunal’s view, if there was any risk for the applicant’s children in Indonesia, the family would not have made the decision to return to Indonesia, irrespective of any financial hardship. The fact that the family made the decision to return to Indonesia suggests that the stated risks are not as significant as the applicant now suggests.

7. The Tribunal also notes that there is very little probative evidence before the Tribunal about the risks to which the applicant refers and the Tribunal does not have to accept the applicant’s claims unquestioningly.  There is no probative evidence that the children’s safety is at risk and there is no probative evidence that the children face discrimination. On the evidence before it, the Tribunal does not accept that there is a risk to the children’s safety and well-being in Indonesia. The Tribunal does not accept that the children’s best interests are adversely affected as a result of their residence in Indonesia.

8. The applicant’s children are aged 4 years and 18 months. The Tribunal has formed the view that given their young ages, it is in the best interests of the children to stay with their parents. Thy can do that in Australia or in Indonesia or in any other country. The applicant’s evidence is that the children have presently relocated to Indonesia, one attends kindergarten and the other is at home. They are cared for by their mother. There is nothing to suggest that their interests are not met. The Tribunal finds that the best interests of the children are best met through the children living with their parents irrespective of their country of residence. As they live together as a family unit, the Tribunal finds that the best interests of the children are presented through their residence with their parents.

9. Imporantly, the applicant told the Tribunal that his wife continues to hold an Australian permanent visa. Should the family decide to return to Australia, it may be that the applicant’s partner can sponsor him for a Partner visa, which would enable the entire family to live in Australia. While the Tribunal acknowledges that there can be no guarantee of the visa being granted, there is at least a possibility that the family will be able to return to, and live in Australia.

10. The Tribunal finds that the best interests of the children are not adversely affected as a result of the applicant’s visa being cancelled.

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

11. In his written evidence to the delegate, the applicant refers to his life in Australia and his settlement in Australia with his family. His two children are young and rely on him. The Tribunal accepts that the applicant had been residing in Australia for a lengthy period before his departure and that he was settled in Australia. The applicant states that if his visa is cancelled, he would have to return to Indonesia and the whole family will return too. The Tribunal is mindful that the family has made the decision to do so and have now re-established their residence in Indonesia.

12. The applicant states that he moved to Melbourne because he wants his children to have a proper place to live and grow up and if he returns to Indonesia, he does not know where the children will live as he does not have a house there. That issue appears to have been resolved, as the applicant tod the Tribunal that his family are living off the proceeds of the sale of their house. The Tribunal is also mindful that the applicant may have other options in terms of future visa applications.

13. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave incorrect answers in his application and that he had not complied with s.101 of the Act. The Tribunal has found that there are grounds for cancelling his visa.

14. The Tribunal acknowledges that there have been no other instances of non-compliance and no known breaches of the law since the non-compliance. The Tribunal places significant weight on the fact that the applicant’s spouse and children have the right to remain in Australia and while at present the family made the decision to live in Indonesia, should they choose to return to Australia, that may lead to the separation of the family members and the applicant’s separation from his children, although the applicant may be eligible to seek other visas in Australia. The Tribunal accepts that before his departure from Australia, the applicant has spent many years in Australia and has settled in this country and contributed to the community through employment. Over eight years passed since the non-compliance. The Tribunal acknowledges that there are reasons why the visa should not be cancelled.

15. The Tribunal has found that the cancellation of the visa would not adversely affect the best interests of the children because such interests require the children to live with their parents but not necessarily in Australia. The Tribunal has found that Australia’s protection obligations do not arise in this case because the applicant is no longer in Australia.

16. The Tribunal places significant weight on the circumstances in which the non-compliance occurred. The applicant took deliberate steps to acquire a false identity and has lived in Australia using that false identity for seven years. He then deliberately withheld information about the use of the false identity and his previous stay in Australia in his Skilled visa application because it better suited his needs. The Tribunal finds that the applicant has shown a significant disregard for the Australian law. Since he was granted the permanent visa in 2010, the applicant has not taken adequate steps to rectify the situation.

17. While the Tribunal accepts that certain hardship will be caused to the applicant and his family if the visa is cancelled, the Tribunal has formed the view that the circumstances in which the non-compliance occurred outweigh other considerations.

18. 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

19. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Kira Raif
    Senior Member