DHIR (Migration)

[2022] AATA 4175

DHIR (Migration) [2022] AATA 4175 (27 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MUKESH DHIR
Mrs SHILPI RAO

REPRESENTATIVE:  Mr ROHIT KARWAL (MARN: 1805570)

CASE NUMBER:  2204509

HOME AFFAIRS REFERENCE(S):          BCC2021/1984873

MEMBER:Kira Raif

DATE:27 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 189 -  Skilled - Independent visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 27 September 2022 at 2:01pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Subclass 189) visa – had given incorrect answers in the application – failure to mention his child – an Australian citizen child – best interests of the Australian citizen child to remain in Australia –hardship – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107,109
Migration Regulations 1994, r 1.12, Schedule 2

CASES
MIAC v Khadgi (2010) 190 FCR 248

statement of decision and reasons

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (‘the applicant’) is a national of India born in August 1983. He was granted the Skilled visa in February 2020. In February 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that he did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on 27 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicants were represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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

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

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

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

8. 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.

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information. He made the application for the Skilled visa on 21 March 2019 and the application included his spouse Ms Rao as his dependent. The applicant stated on the form that he did not have any members of his family unit not travelling to Australia who were not Australian citizens or permanent residents. The applicant completed a declaration that the information on the form was complete and correct in every detail. The applicant also submitted Form 80 as part of the application and in response to Question 43 on that form he stated that he did not have any children. On that form the applicant also signed a declaration that the information on the form was complete and correct.

10. The applicant and Ms Rao were granted the Skilled visas on 10 February 2020 and entered Australia in September 2020. The primary decision record indicates that subsequent to visa grant, information became available to the Department that the applicant has a biological child, Shresta, born in March 2011 in a previous relationship. The delegate states that the applicant had been issued with a Court order in July 2018 in relation to maintenance payments for Shresta and the last maintenance payment was made in February 2020. It is stated that a warrant for the applicant’s arrest was issued in February 2021 for failure to make the court ordered payments. The delegate noted that this child – who was a minor at the time of the application, would have been considered a member of the applicant’s family unit. The delegate concluded that the applicant provided incorrect answers on the application form when he claimed he did not have any family members not migrating to Australia and on form 80 when he stated he had no children.

11. In his response to the NOICC the applicant refers to his marriage to Ms Verma in February 2010 stating that she left him and did not inform him of the birth of their child and he found out later from a third party. The applicant refers to Ms Verma making complaints against him and affecting his work and claims she had harassed him and his family. The applicant provided to the delegate a number of documents concerning his past interactions with his former spouse, evidence of complaints and formal proceedings and also evidence of having made maintenance payments. The applicant provided to the Tribunal copies of what appear to be court documents referring to the payments being made and other court documents concerning his dispute with his former partner.

12. The Tribunal acknowledges and accepts the applicant’s evidence but none of this explains his failure to mention his child when making the visa application. Whatever was the nature of the applicant’s relationship with his former partner, there is no dispute that the applicant has a child from that relationship. Thus, by stating ‘no’ in response to the question on Form 80 about children, the applicant gave an answer that was incorrect. Similarly, the application form asked the applicant if he had any family members not migrating. The child, who was a minor child, is considered to be a member of the applicant’s family unit under r. 1.12. By failing to mention the child in response to that question, the applicant gave an answer that was incorrect.

13. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. For these reasons, the Tribunal finds that there was non-compliance with s. 101 of the Act in the way described in the s 107 notice.

    Should the visa be cancelled?

14. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

15. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. They are:

    The correct information

16. The correct information is that the applicant had a son, who was a minor and a member of his family unit.

    The content of the genuine document (if any)

17. This is not relevant in the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

18. As the child was a minor child at the time the application was made, the son would have been considered as a member of the applicant’s family unit in accordance with r. 1.12. The child would have been required to complete medical examinations. The applicant told the Tribunal that he would not have been able to arrange the medicals for the child because the child was not living with him and his ex-wife may not have allowed it.

    The circumstances in which the non-compliance occurred

19. The applicant stated in his response to the NOICC that he has not had any contact with his former spouse and child for many years, did not have custody of the child and had not understood that he had to mention the child on the form with whom he has not had any contact. In oral evidence to the Tribunal the applicant also stated that his state of mind was such that he did not understand the ‘intensity of the question’ and thought he only had to declare family members who had been living with him but his son has not been living with him for eight years.

20. The Tribunal finds the applicant’s explanation problematic. Firstly, there is nothing before the Tribunal to indicate that the applicant’s state of mind was such that he was incapable of understanding a simple question about having children, when he seems to have been capable of understanding and answering every other question on the form. Secondly, the question on Form 80 was not ambiguous or difficult, the question was whether he had any children. It did not refer to the applicant’s relationship with the child, it did not refer to him having custody of the child or the child living in the same household. It referred only to the existence of the child, irrespective of the applicant’s relationship with that child. There is nothing in that question that would give the application the impression that he only had to children with whom he had contact or a good relationship or in relation to whom he had parental responsibilities or who were in his custody. Thus, the Tribunal does not accept that the applicant had misunderstood the nature of the question and that he made a mistake when failing to mention his son. Rather, the Tribunal considers it more likely that the applicant had deliberately failed to refer to the son on the application form, perhaps in the hope that in doing so he would avoid further interactions with his former spouse.

21. In his evidence to the Tribunal the applicant refers to the ‘false allegations’ and cases against him and his mental state. The applicant states that he was ‘completely broken’ and made the application for the visa. The applicant states that his ex-wife sent emails to his workplace and clients, came to his workplace and tried to disrupt his work, harassed him and caused embarrassment. This has been happening from 2011 and on multiple occasions. The applicant refers to an incident when his ex-wife came to his house and there was a violent incident, after which he lodged a complaint with the police. The applicant states that she lodged domestic violence cases against him and made other complaints. The applicant states that as a result, his mother was paralysed and his father cares for her. Even after all of that, the applicant states that his ex-wife’s attitude to him is the same and she still sends him emails and he has issues at work. The applicant states that his parents had to sell their home to pay the ex-wife. The applicant states that he wanted to start a new life and completed the application for the Australian visa. The Tribunal acknowledges that evidence but is mindful that the reason the ground for cancellation arises is because the applicant completed the application form in a way that incorrect answers were given, as he had failed to mention his son, and not because of the conduct of his ex-wife. While the Tribunal accepts that the applicant made the decision to leave India, that does not explain his failure to mention his child when completing the application form.

    The present circumstances of the visa holder

22. In his response to the NOICC the applicant refers to the mental and economic hardship he had experienced as a result of litigation and complains made by his former partner and the effect these had had on his mother’s health. The applicant states that his employer found out about the dispute in India and that affected his employment in Australia. He refers to the litigation and the fact that his parents had to sell the house to meet their demands for money. The applicant states that the cases against him are still going on in India and his passport was impounded because of the child support. He has appealed that decision and has made payments.  

23. The applicant states his wife had to undergo treatment  recently and would require an ultrasound in the future. She will also require an ultrasound and blood tests for another condition. The applicant refers to his own skin infection. The Tribunal accepts the applicant’s evidence but notes that the applicant’s and his wife’s conditions do not appear to be serious or requiring significant treatment.

24. The applicant refers to the cost of the litigation in India. He states that he lost his job due to Covid when he was in India, which affected his responsibility to support his ex-wife and son and he decided to travel to Australia to seek better opportunities and had various expenses in the new country.

25. The applicant refers to his employment in the IT industry in Australia. He states that his wife has not worked in Australia. The applicant states that he is the single earning member of the family and regularly supports his parents in India. The applicant refers to his mother’s health expenses. The applicant states that his mother was hospitalised in September 2020 and he has been paying her medical expenses since that time. The Tribunal accepts that evidence.

26. The applicant refers to the birth of his child in August 2021, noting that the child is an Australian citizen. The Tribunal accepts that evidence. The applicant refers to his employment in IT, stating that he has been of good behaviour and has received appreciation at work. The Tribunal accepts that evidence.

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

27. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

29. The application was made in March 2019. About three and a half years passed since the non-compliance. The Tribunal does not consider this to be a significant period.

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

30. There are no known breaches of the law.

    Any contribution made by the holder to the community.

31. The applicant refers to his employment in the IT industry for NSW Health and his past employment during Covid. The applicant states that he enrolled to be a volunteer and if there is an emergency, he may be called up. The applicant refers to feeing birds in his home. The Tribunal is prepared to accept that the applicant has made some contribution to the community.

32. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140.

33. The visa held by the applicant’s spouse may be subject to the consequential cancellation. Their child is an Australian citizen and while the applicant claims in his submission to the delegate that the daughter’s citizenship may be revoked, the basis of that statement is not clear, nor is there anything before the Tribunal to suggest that  there is any intention to revoke the child’s citizenship, even if there was a basis for it. 

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

34. The applicant has a child born in Australia in 2021 who is an Australian citizen. While the Tribunal acknowledges that the child is an Australia citizen, in the Tribunal’s view, that does not necessarily mean that the child’s best interests can only be met if the child was to live in Australia. Given the child’s age, it is in the best interests of the child to be in the care of both parents but in the Tribunal’s view, that can happen in any country. Whether the applicant and his partner remain in Australia or leave the country as a result of the visas being cancelled, the Tribunal considers that they will be able to continue to provide the care and support to the child.

35. The applicant told the Tribunal that India does not recognise dual citizenship and his daughter is an Australian citizens. The applicant states that because his child is an Australian citizen, they would have to pay a lot for her education and there would be different rules with immunisation, etc. The applicant states that the quality of life and education is better in Australia than in India. The Tribunal finds some of the applicant’s evidence quite vague (for example, that Australia has a better quality of life) but the Tribunal does accept that the child may not be able to hold the Indian citizenship while holding the Australian citizenship because India does not recognise dual citizenship and that it may, in practice, affect the child’s access to education and various services. The Tribunal has formed the view that for that reason, it is in the best interests of the Australian citizen child to remain in Australia and that means that it is in her best interests that the applicant’s visa is not cancelled.

36. The applicant claims he has no custody of his son (but pays maintenance). As the applicant does not appear to have a meaningful relationship with his son, and claims to have no contact with him, the Tribunal does not consider that the best interests of his son would be in any way affected by the cancellation of his visa.

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

37. The applicant states that he is afraid he is not safe as his ex-wife’s family is targeting him. The applicant told the Tribunal that his ex-wife will continue what she is doing, and it is easy for her to file complaints against him. The applicant states that his wife’s family are powerful people. He claims the authorities will only ‘come in at a latest stage’ and he also needs to be in the country to file, for example, a defamation case.

38. The Tribunal is mindful that the applicant is able to seek a protection visa in Australia, if he believes he or his family may be targeted in India. The Tribunal does not consider that the applicant’s claims give rise to any harm that falls outside the non-refoulement claims. In these circumstances, the Tribunal does not consider that Australia’s non-refoulement obligations would be breached if the applicant’s visa was cancelled.

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

1. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant will become an unlawful non-citizen, subject to detention and removal from Australia. The applicant will have limited options of seeking other visas in Australia due to the operation of s. 48 and may be subject to an exclusion period if he was to apply offshore. The applicant will lose the entitlements he held as a permanent resident of Australia and would not be entitled to the Australian citizenship.

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

2. In his submission to the delegate the applicant states that if his visa is cancelled, it would ‘derail him’ on a personal and professional front and he would have to start again as he had to struggle while coming to Australia. He claims would again face financial hardship. In the Tribunal’s view, these claims are somewhat exaggerated, given the fairly short time the applicant has spent in Australia and away from his home country but the Tribunal generally accepts that the applicant would need to look for employment in India and ‘start afresh’ if he was to return to India because the applicant’s intention, when coming to Australia, was to live here permanently. The Tribunal accepts that there may be financial hardship if the applicant was to return to India and accepts that he has spent funds to relocate to Australia. The Tribunal accepts that the applicant has financial responsibilities for care of his wife, children and parents.

3. The applicant states that because of his ex-wife’s allegations, it would be difficult for him to get a job in a big company in India, as any company would ask about court cases and would use it against him. He states that smaller companies do not hire experienced staff. The Tribunal is mindful that, at least in part, the court cases arise because the applicant failed to pay child support but generally, the Tribunal is prepared to accept that the applicant has a court record and that may affect his employment opportunities. That does not mean (and the applicant does not seem to claim) that he would be unable to find a job but simply that it may be more difficult for him to find employment. The Tribunal is prepared to accept that evidence.

4. Ms Rao told the Tribunal that they are not criminals and have never had any complaints from anyone. They want to have a second child. The Tribunal accepts her evidence.

5. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant completed the application form in a way that incorrect answers were given or provided and that there are grounds for cancelling the visa due to the breach of s. 101 of the Act.

6. The Tribunal has formed the view that the cancellation of the visa could cause hardship to the applicant and his family, including loss of employment and income in Australia, which would affect the applicant’s ability to support his family and parents overseas. The Tribunal accepts that despite the relatively short period of time the applicant has spent in Australia, the applicant has settled here, has been employed in an occupation in demand and has contributed to the community. He would also have to re-establish himself in India, should he be required to return there. The Tribunal accepts that financial and other hardship could be caused by the cancellation and these factors weigh against the cancellation. The Tribunal has formed the view that the best interests of the applicant’s Australian citizen daughter would be best served if she is to remain in Australia and, therefore, if the visa is not cancelled. This is a primary consideration and the Tribunal gives it considerable weight.

7. The Tribunal has formed the view that the decision to grant the visa was based, in part, on the incorrect answer but the Tribunal considers it significant that the applicant may have been entitled to the grant of the visa even if the incorrect information was known. While a member of the family unit (such as a dependent child) would have been required to undertake medical examinations, there is a provision to waive that requirement if it was not practicable for the child to undertake the medical examinations, as appears to have been the case here. It is not for this Tribunal to determine what the outcome of the application could have been if the applicant did declare the child but it is important, in the Tribunal’s view, that the provision of correct answer would not have necessarily (and would have been unlikely to have) precluded the grant of the visa.

8. Overall, the Tribunal has decided to give greater weight to the best interest of the child, the hardship that would be caused to the family by the cancellation and the fact that the disclosure of the correct information may not have affected the outcome of the visa application. These factors weigh against the cancellation.

9. 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 not be cancelled.

   decision

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 189 -  Skilled - Independent visa.

11. The Tribunal has no jurisdiction with respect to the other applicant.

    Kira Raif
    Senior Member