EL-NAHAS (Migration)

[2017] AATA 1079

EL-NAHAS (Migration) [2017] AATA 1079 (19 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Abdel-Monem EL-NAHAS

CASE NUMBER:  1702751

DIBP REFERENCE(S):  BCC2015/1255662

MEMBER:Kira Raif

DATE:19 June 2017

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 19 June 2017 at 7:12am

CATCHWORDS

Migration – Cancellation – Five Year Resident Return visa – Subclass 155 – Incorrect information in spouse visa application – Previous marriage not declared – Australian citizen children – No remorse for actions

LEGISLATION

Migration Act 1958, ss.100, 101, 105, 107, 109, 140

Migration Regulations 1994, Schedule 2, r 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 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 Egypt, born in September 1969. He made the application for the Partner visa in February 2009 on the basis of his marriage to Ms Harb. The applicant was granted the Partner visa in May 2009 and the Resident Return visa (RRV) in May 2014.

3. In November 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of the RRV because the delegate formed the view that the applicant provided incorrect answers in his application in breach of s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in February 2017. The applicant seeks review of that decision.

4. The applicant appeared before the Tribunal on 5 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his 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

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.

7. Section 107A provides that possible non-compliances 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?

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

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

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

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

    a.On 3 February 2009 the applicant made the application for the Class UF Spouse visa. That application was made on the basis of the applicant’s marriage to Ms Hoda Mahmod Harb. In response to Question 23 on the application form 47SP ‘have you been married before’ the applicant stated ‘no’.

    b.On 31 January 2009 the applicant signed a declaration at Question 97 of the application form confirming the information he supplied in the application was complete, correct and up to date.

    c.On 11 March 2009 the applicant was interviewed in Cairo. During the interview the applicant was asked if he had married before and, if so, when. The applicant stated ‘no’.

    d.The applicant was granted the Class BC Partner visa on 31 March 2009.

    e.The Department received documentary evidence that on 25 May 2006 the applicant married Ms Naglaa Mohamed Helmi Abdou. He divorced Ms Abdou on 30 June 2014.

12. In his response to the NOICC the applicant provided evidence of his marriage to Ms Helmi in 2006 and subsequent divorce in 2014. The applicant provided to the Tribunal a Certificate of Divorce issued in 2007. The Tribunal acknowledges that the parties have divorced but that does not detract from the fact that they were married in 2006 and the applicant admits the existence of that marriage.

13. Having regard to the marriage certificate which the applicant presented to the delegate, confirming his marriage to Ms Helmi Abdou in 2006, the Tribunal finds that at the time the applicant made the application for the Partner visa, he had been previously married. The Tribunal finds that the applicant gave an incorrect answer to Question 23 of the application form 47SP when he stated he was not married before. The Tribunal finds that the applicant gave an incorrect answer in response to Question 97 when he stated that the information he supplied in the application was correct. The Tribunal finds that the applicant gave an incorrect answer in his interview held on 11 March 2009 when he stated he was not married and in accordance with s. 99 of the Act such information is taken to be an answer on the application form for the purpose of s. 101(b) of the Act.

14. The Tribunal finds that the applicant did not comply with s. 101 of the Act. The Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice. The Tribunal finds that there are grounds for cancelling the visa in accordance with s. 107A of the Act.

    Should the visa be cancelled?

15. 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).

16. 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

17. The correct information is that the applicant was previously married to a person other than the person who sponsored him for the Partner visa. The applicant repeatedly told the Tribunal in oral evidence that he divorced this partner in 2007 and the papers were issued in 2014. He said in 2007 they had an ‘oral’ divorce, which was witnessed by the sheikh and that divorce could still be revoked. The applicant said that the final, irrevocable divorce occurred in 2014. In the Tribunal’s view, the applicant’s claim that the divorce occurred in 2007 contradicts the information in the divorce certificate which was issued by the marriage celebrant in 2014, which the applicant submitted to the delegate, and the applicant’s own evidence in response to the NOICC where he states the formal divorce was decided by the courts in 2014 and not in 2007. The applicant has not provided any explanation to the Tribunal why the two divorce certificates, one referring to 2007 divorce and one to 2014 divorce, appear to provide contradictory evidence.

18. Ultimately, it is irrelevant when the applicant divorced because what is at issue here is that he had been married previously and that is the correct information.

    The content of the genuine document (if any)

19. 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

20. The applicant made the application for the Spouse visa in February 2009. At the time he was married to the sponsor and from 2006 he was also married to another person.

21. In his response to the NOICC the applicant refers to PAMs and argues that despite the polygamous marriage, his marriage to the sponsor was valid for the purpose of the Spouse visa application. Whether or not this is the case, the validity of the applicant’s marriage to the sponsor was not the only consideration relevant for the purpose of visa grant. An assessment of the Partner visa application requires consideration of whether the applicant’s relationship with the sponsor is to the exclusion of all others. The applicant was previously married to a person other than the sponsor at there is at least some evidence to indicate the valid marriage continued after the applicant married the sponsor.

22. When making the application, the applicant claimed to have been in an exclusive relationship with the sponsor and his previous marriage was highly relevant to the assessment of the nature of his relationship with the sponsor, even if his relationship with the other partner ended before the visa application was made.

23. The applicant told the Tribunal that his relationship with the second wife had ended after seven or eight months and by 2007 they had a religious divorce. The Tribunal finds it of considerable concern that this claim was made for the first time in the applicant’s oral evidence to the Tribunal. In response to the NOICC the applicant gave to the delegate a divorce certificate showing he divorced in 2014. In his statutory declaration sworn on 20 November 2016 the applicant stated that the relationship ended after 7-8 months but refers to the formal divorce being finalised by the courts in 2014. He makes no mention of the religious divorce in 2007. The written submission which accompanied his response to the NOICC also refers to the formal divorce in 2014 and there is no mention of a religious or a formal divorce in 2007. The applicant told the Tribunal that he had recently ‘found’ the document showing the divorce took place in 2007 and he provided a copy of that divorce certificate in his post-hearing submission to the Tribunal. The Tribunal does not consider it plausible that the applicant would make no mention of the divorce in 2007 in any of his interactions with the delegate and that he would mention it for the first time in oral evidence to the Tribunal, and locate the documentary evidence of such divorce immediately prior to the hearing. The Tribunal does not consider that information truthful. The Tribunal prefers the applicant’s evidence in response to the NOICC, which is supported by the divorce certificate the applicant presented to the Department, which shows that the formal divorce took place in 2014.

24. The Tribunal finds that in 2009 when the application was made and when the applicant was interviewed, he continued to be formally married to his second wife. That marriage was highly relevant to the assessment of his application. The applicant argues that his second marriage would not have made a difference to the outcome because the applicant was no longer in a relationship with the second wife at the time of the visa grant. The Tribunal rejects that argument because the Tribunal has formed the view that the applicant continued to be formally married to his second wife until 2014 and it is the formal divorce and not the religious divorce that may have been relevant for the purpose of his visa application. More importantly, it is sufficient that the decision to grant the visa was based at least partly on the incorrect information. It is not necessary for the Tribunal to determine whether the visa would have been granted if the correct information was known.

    The circumstances in which the non-compliance occurred

25. In his declaration provided in response to the NOICC the applicant stated that he was married to Mr Harb in 2000 and they continue to be in a genuine relationship and have three children from that relationship. The applicant claims he married Ms Abdou in 2006 because he needed someone to look after his daughters. He entered that marriage with the knowledge of his wife and of the court in Egypt but that relationship was not good and did not last long. The applicant claims he misunderstood the question on the application form as asking whether he was married to someone before he married the sponsor and the same applied to his interview. He stated he was not married before because he did not marry anyone else before he married the sponsor and the sponsor told him the question was about the marriages before their marriage. The applicant claims he did not speak English and had no legal understanding of the questions and relied on the sponsor to fill in the forms.

26. The Tribunal finds these explanations unconvincing. The Tribunal notes that the questions were not about the nature or the quality of the applicant’s relationship with Ms Helmi. Whether or not the applicant’s relationship with her was good or bad, there was a valid marriage and the applicant was well aware of its existence. That marriage had to be disclosed irrespective of how the applicant felt about the marriage or its duration or his partner.

27. The applicant claims he misunderstood the question and believed it referred to marriages before his marriage to the sponsor. The Tribunal notes that there is absolutely nothing in the question that would give rise to that construction. The question is whether the applicant had been married before. The term ‘before’ refers to the time when the answer to the question is given. There is nothing in that question that qualifies it to the marriages before the present marriage. There is no time limit.  It simply refers to marriages before the time the answer is given, which in this case was February 2009 when the applicant applied for the Partner visa. There is no reason for the applicant to assume it only referred to certain marriages but not to others.

28. The applicant also told the Tribunal that he was not familiar with the Australian laws and had completed the forms in Egypt before he came to Australia. The applicant claims that he has not breached the Australian laws because he completed the forms before he came to Australia. The Tribunal notes that the place where the applicant completed the forms is irrelevant. He completed the forms for the purpose of applying for the Australian visa and was required to comply with the Migration Act, which includes the provision of correct answers.

29. The applicant claims he did not speak English and relied on his wife. Putting aside the fact that the applicant would have been interviewed in Arabic and not in English and he continued to provide the same incorrect answer, the Tribunal notes that the obligation to provide correct information is on the visa holder. That obligation does not diminish based on one’s English proficiency or legal training. If the applicant did not understand the questions on the form, it may have been his obligation to make inquiries and obtain an explanation before filling in the form.

30. The Tribunal has formed the view that at the time the applicant made the Partner visa application, he was still legally married to Ms Helmi. He claims their relationship broke down in 2007 but the Tribunal has formed the view that the valid divorce did not occur until 2014 and the applicant’s oral evidence to the Tribunal is that some form of religious divorce occurred in 2007 but the final and formal divorce occurred in 2014, so the formal marriage continued for a number of years.

31. In his post-hearing submission to the Tribunal the applicant presented a Divorce certificate dated 23 February 2007 showing that he divorced Ms Helmi Abdo. If that document is presented as evidence of the applicant’s formal divorce in 2007, the Tribunal notes that it contradicts the applicant’s oral evidence to the Tribunal that the formal divorce did not occur until 2014, and his earlier evidence to the delegate which also indicates his marriage to Ms Helmi continued until 2014. The Tribunal does not accept that divorce certificate as probative evidence that the formal divorce occurred in 2007.

32. As the applicant was applying for the Partner visa, he and the sponsor must have recognised that the applicant’s ongoing marriage to another person was relevant to his application. The applicant would have been well aware of the requirements for the grant of the Partner visa, which included the requirement for the relationship to be to the exclusion of all others. The applicant must have appreciated the significance of his second marriage to the assessment of his claims. In the Tribunal’s view, the applicant’s failure to disclose that information was deliberate and intentional.

33. The Tribunal is also mindful of s. 100 of the Act, which provides that an answer to a question is incorrect even though the person who gave or provided the answer did not know that it was incorrect. Thus, even if the applicant’s explanations were accepted (and they are not), the fact that the applicant did not understand the question does not affect the existence of the breach, nor diminish the applicant’s responsibility for the provision of incorrect answer.

    The present circumstances of the visa holder

34. In his response to the NOICC the applicant claims that his relationship with the sponsor is genuine and continuing and that they have three children together. The Tribunal accepts that the applicant continues to be married to the sponsor and that they have children. However the applicant’s evidence in response to the NOICC is that the family has been living in Egypt, even though the applicant claims he plans to relocate the family to Australia for the children to attend Australian education. The primary decision record indicates that after being granted the permanent Spouse visa, the applicant lived overseas at least between November 2010 and February 2014.

35. The applicant told the Tribunal in oral evidence that he first came to Australia in 2009 and spent about a year in Australia. He travelled to Australia in the subsequent years and spent about three months in Australia and he returned to Australia around 2015. He has not returned to Egypt since that time. The applicant said that his wife and children are in Egypt. The children last lived in Australia for about a year in 2010. The applicant said his son lived in Australia in 2006 for about six months and for about 14 months in 2009 -2010. His daughters spent about a year in Australia in 2009 – 2010. Thus, while the Tribunal acknowledges that the sponsor and the children are Australian citizens, in the circumstances of this case it is not apparent that the family’s preference is to reside in Australia, at least at present. The applicant’s evidence to the Tribunal is that he wants his children to complete the primary schooling in Egypt and then the family will relocate to Australia in a year or two. It appears that the cancellation of the visa will not affect the family’s plans concerning their residential arrangements.

1. The applicant referred to the unsafe situation in Egypt. However, the Tribunal is mindful that the family has made the decision for the wife and children to remain in Egypt. In the Tribunal’s view, if the family felt threatened by the situation in Egypt, they would have made the decision to live in Australia, as they are entitled to do. The applicant then said that he is not concerned about safety and security but about the economic situation. The applicant told the Tribunal that he works to provide financial support to the family until the time he can bring the children to Australia. He said he used to own a shop in the past but the situation has been changing and he has no means of supporting the family if he is to live in Egypt. The applicant has not satisfied the Tribunal that he would be unable to operate a business or find a job or earn a living in Egypt. There is no evidence that the applicant has applied for any jobs or explored business opportunities or any other options to earn a living and support his family. There is also little evidence as to whether financial support can be provided by family members or whether the family can obtain a bank loan to meet their financial needs. The applicant referred to working hard in Australia and earning money and there is little evidence whether the applicant or his wife have savings from his Australian employment which the family could rely upon or which the applicant could use to open a business in the future. There is little information on whether the family could borrow funds from others.

2. The Tribunal is also mindful that the applicant’s wife and children are Australian citizens and can return to Australia at any time. As Australian citizens, the family may be entitled to government support such as Centrelink and it may also be possible for the sponsor and the eldest child to seek employment.

3. The applicant told the Tribunal that he also provides financial support to his mother and his brothers cannot support her. There is no documentary evidence before the Tribunal to support these contentions. The applicant provided to the Tribunal in his submission of 13 June 2017 evidence of money deposits but these appear to have been made for the benefit of the applicant’s spouse and not other family members. The Tribunal is prepared to accept that the applicant provides financial support to his mother, however, the Tribunal is not satisfied that alternative arrangements cannot be made for the financial support of the family in Egypt.

4. The Tribunal is not satisfied on the evidence before it that financial hardship would be caused to the family if the visa is cancelled and if the applicant is required to leave Australia. The Tribunal is also mindful that if the applicant continues to be in a genuine spousal relationship with the sponsor, he may be eligible to seek a Partner visa and if he is granted one, his absence from Australia is likely to be temporary. The Tribunal is not satisfied that the family will be unable to meet its financial needs without the applicant’s employment in Australia if the applicant was required to leave Australia on a temporary basis.

5. The applicant told the Tribunal that if his visa is cancelled, it would be a ‘life and death’ situation for his family in Egypt. The applicant said a new Partner visa applicant would take a long time. The Tribunal is mindful that the applicant’s wife and children are eligible to come to Australia at any time and for the reasons stated above, the Tribunal has formed the view that they will be able to meet their financial obligations even if the applicant cannot work in Australia. The Tribunal accepts that the family prefers for the applicant to work and support them financially rather than rely on any other source of support, including Centrelink, but that is not a “life and death situation” to which the applicant refers but a matter of choice for the family.

6. The applicant’s representative submits to the Tribunal that if the applicant’s visa is cancelled, the applicant would be separated from his family members potentially for a long time and this would cause emotional hardship. The Tribunal does not accept that evidence because the family made the decision to live separately, to enable the applicant to work in Australia and provide financial support to the family that prefers to live in Egypt. If the visa is cancelled, the applicant may be able to make another visa application onshore or he may be required to leave Australia and return to Egypt and be reunited with his family, rather than be separated from it. The Tribunal does not accept the representative’s submission that in such circumstances, hardship or emotional distress would be caused to the family as a result of the cancellation of the applicant’s visa and the separation. Any separation in circumstances where the applicant’s visa is cancelled – even if it may take some time for the applicant to be granted another visa - would be no different to the separation that occurs when the applicant chose to live in Australia, away from his family as the holder of the permanent Australian visa while his family remains in Egypt.

7. The applicant told the Tribunal that he has been working in the construction industry in Australia. He said that he is used to life in Australia and sending him to Egypt is like a death sentence. The Tribunal is mindful that the applicant has spent little time in Australia, even since he has been granted the permanent visa. On his own evidence, he has spent less than three years in Australia and has voluntarily decided to spend the majority of his life in Egypt. The Tribunal does not consider that the applicant would experience any significant hardship if he was required to return to Egypt as a result of the cancellation of his visa. 

8. The applicant told the Tribunal that he works hard and pays taxes. 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

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

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

10. In his response to the NOICC the applicant claims there is no evidence of non-compliance. The Tribunal is mindful that s. 105 of the Act required the applicant to give notice once he became aware of incorrect answers. There is no evidence that the applicant has done so.

    The time that has elapsed since the non-compliance

11. The applicant completed the application form, and attended the interview, in 2009. Over seven years have passed since the non-compliance.

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

12. There is no evidence of any other breaches of the law. The applicant told the Tribunal he has never breached the Australian laws.

    Any contribution made by the holder to the community.

13. The applicant refers to his full-time employment in a construction company. The Tribunal accepts that the applicant is employed although the Tribunal is not convinced that one’s employment necessarily establishes a benefit to the community. The Tribunal accepts that the applicant pays taxes through his employment and is self-reliant.

14. Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

    Whether the visa cancellation may result in Australia breaching its international obligations.

15. The applicant does not claim that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant claims that if he has to leave the country, his children and mother and brother will be affected because he cannot support them financially. The Tribunal does not consider such concerns give rise to Australia’s protection obligations.

16. The Tribunal has considered the best interests of the applicant’s three children. The applicant’s evidence is that his son has spent around two years in Australia and his daughters spent a little over a year in Australia. The applicant’s evidence to the Tribunal is that he wanted the children to finish primary schooling in Egypt and once they start higher education, they will come to Australia. He plans for the children to come to Australia in 2018 or 2019. The applicant’s evidence is that the children are Australian citizens and can enter Australia at any time. They can do that irrespective of the applicant’s visa status. If the applicant’s visa is cancelled and he is required to return to Egypt, the family will be reunited and will be able to live together until the children decide to return to Australia.

17. For the reasons stated elsewhere, the Tribunal is not satisfied the family would experience financial hardship if the applicant’s visa is cancelled. Essentially, the Tribunal is not satisfied that the family cannot find the alternative means of financial support, including through employment of the sponsor, Centrelink payments, savings, a bank loan or support from other sources.

18. The Tribunal does not consider that it is in the best interests of the children that the visa not be cancelled.

    Whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act

19. There are no persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act.

    Whether there are mandatory legal consequences

20. If the applicant’s visa is cancelled and if he 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 and if he continues to be in a genuine relationship with the sponsor, he may be eligible to apply for another Partner visa. There is no suggestion that the applicant will be indefinitely detained.

21. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that he gave incorrect answers on the application form and had breached s. 101 of the Act. The Tribunal has found that there are grounds for cancelling his visa. The Tribunal has considered the applicant’s circumstances. The Tribunal acknowledges that about eight years have passed since the non-compliance. The applicant has been living in Australia for about three years since he had been granted the visa and has settled in Australia. The Tribunal accepts that the applicant is working and is providing financial support to his family. The Tribunal accepts that his family relies on that support and that a certain degree of hardship may be caused if the applicant cannot continue employment in Australia although the Tribunal does not accept the applicant’s claims that the family would be financially jeopardised if the visa is cancelled.

22. There are no other known instances of non-compliance or breaches of the law, although the Tribunal has some concerns about the applicant’s evidence to the Tribunal that the divorce with the second wife occurred in 2007, which appears to contradict his evidence in response to the NOICC that the divorce took place in 2014, which may suggest that the applicant continued to give incorrect information.

23. The Tribunal has formed the view that the best interests of the children would not be adversely affected by the cancellation of the visa because the cancellation will not lead to separation of family members and also because the Tribunal has rejected the applicant’s claim that the family would experience financial hardship as a result of the cancellation of his visa.

24. The Tribunal has formed the view that the incorrect information was relevant to the assessment of the applicant’s visa application and the decision to grant the visa was based, at least partly, on the incorrect information. Given that the applicant was legally married to another person at the time he claimed to be in an exclusive relationship with the sponsor, it is not possible to state, as the applicant does, that his visa would have been granted even if the correct information was known. It is not necessary for the Tribunal to make that determination. The Tribunal notes that the applicant has expressed no remorse for the provision of incorrect answers and continues to claim that he has not provided incorrect answers. The Tribunal has found the applicant’s evidence about the circumstances in which the incorrect answers were given to be unconvincing because the Tribunal does not accept that the applicant had misunderstood the question and also because the applicant appears to have made very little effort to ensure the information he gave was correct. The Tribunal has formed the view that the applicant either provided incorrect answers intentionally or with reckless indifference to his obligations.

25. The Tribunal has formed the view that the circumstances in which the cancellation arose, and the fact that the decision to grant the visa was based at least partially on the incorrect information, outweigh other considerations. Considering circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member