Eromosele (Migration)

[2024] AATA 1632

Eromosele (Migration) [2024] AATA 1632 (5 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sylvester Eromosele

REPRESENTATIVE:  Mr Michael Kah

CASE NUMBER:  2401698

HOME AFFAIRS REFERENCE(S):          BCC2023/5557700

MEMBER:Kira Raif

DATE:5 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 05 June 2024 at 1:26pm

CATCHWORDS

MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect information in the visa application – amended birth certificates for children – undeclared relationship with a previous partner now deceased – former wife accepted parental responsibilities for step-children – employment in the disability sector – best interests of the Australian citizen child – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 48, 100-105, 107, 109, 140
Migration Regulations 1994, 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 Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Nigeria, born in May 1978. He was granted the Spouse visa in February 2022. In December 2023 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant had not complied 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. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 5 June 2024 to give evidence and present arguments. Several witnesses were available to give oral evidence at the hearing but the Tribunal did not consider there was a need to take oral evidence from them, noting that all had provided written statements. The applicant was 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.

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. It indicates that the applicant made the application for the Partner vias on 14 January 2020. On the application form the applicant

   -gave details of his children: Jennifer Eromosele (b 7/11/05), Favour Eromesele (b. 6/6/04) and Praise Eromosele (b 28/10/09),

   -in response to a question about his previous relationships, the applicant stated that between March 2006 and March 2019 he was married to Ms Faith Osemen Eromosele. The applicant stated that he and his ex-wife lived apart while he was studying in Australia and their marriage broke down irretrievably in late 2018. The divorce was granted in March 2019 and came into effect on 20 June 2019,

   -completed a declaration that the information he provided with the application was complete and correct in every detail.

10. The primary decision record indicates that the applicant presented with his application the birth certificates of his three children, issued in 2014 and 2017 respectively. All birth certificates listed Faith Imafidon as the mother of the three children. The applicant also presented a copy of the divorce certificate evidencing his divorce with Faith Osemen Eromosele. The delegate notes that the applicant had declared his children and submitted the same birth certificates for his children in support of his Student visa application.

11. The applicant was granted the temporary Partner visa in January 2022 and the permanent Partner visa in February 2022. In September 2023 the applicant had sponsored his three children for the Child visas. In support of that application, the applicant  provided birth certificates for his three children. The delegate notes that

    -the birth certificate for Jennifer was the same as the one provided with the applicant’s Partner visa application. It lists the applicant as the father and Faith Imafidon as the mother,

    -the birth certificate for Praise, issued in November 2017, which was submitted with the Partner visa application, lists the child’s mother as Faith Imafidon. However, Praise’s birth certificate submitted with the Child visa application was issued in August 2022 and lists her mother as Maitt Iwapion,

    -the birth certificate for Favour, issued in November 2017, which was submitted with the Partner visa application, lists the child’s mother as Faith Imafidon. However, Favour’s birth certificate submitted with the Child visa application was issued in August 2022 lists his mother as Maitt Iwapion,

    -the delegate noted that the birth certificates for Praise and Favour, issued in 2017 and 2022, are handwritten and have similar writing and appear as if the name of the mother was copied from the former name (Faith Imafidon),

    -in the sponsorship form in support of the Child visa application the applicant referred to another family member, Maitt Iwapion, stating that this person was deceased.

12. The delegate noted that the evidence suggests that Favour and Praise and not the biological children of Faith Imafidon and also that the applicant failed to declare his relationship with Maitt Iwapion in his Partner visa application. The delegate found that the applicant provided incorrect answers in relation to the following information when he

    -declared that he had three children from his relationship with Faith Imafidon

    -failed to declare his relationship with Maitt Iwapion

    -presented the children’s birth certificates which identified Faith Imafidon as their mother.

13. In his response to the NOICC the applicant stated that he had a child with Maitt Iwapion, Favour, but because Maitt Iwapion was young, his family took responsibility for the child. Once he married Faith Imafidon, she took care of the child, as well as the child born from their relationship, Jennifer. The applicant states that he had a ‘chance meeting’ with Maitt  Iwapion who gave birth to Praise in January 2009. The applicant stated that he did not declare his relationship with Maitt Iwapion as his previous migration agent only required details of his previous marriages or de facto relationships. The applicant states that he did not consider Maitt Iwapion as a former partner since the children were not born in an exclusive relationship with her and he had no contact with her following the children’s birth.

14. With respect to the birth certificates, the applicant refers to a ‘technical error’ by the issuing authority. He states that in 2017 his ex-wife Faith Osemen Imafidon, who supported him in the visa process, applied for these and had ‘inadvertently’ indicated herself as the mother. These documents were submitted directly to the agent in Nigeria and he did not view the documents and was unaware of their content. The applicant states that when he applied for the Partner visa, the documents were sent from his Nigerian agent to his Australian migration agent and he did not view the birth certificates. He only became aware of the differences when sponsoring his children for the Child visa when he arranged the new birth certificates.

15. In support of his response to the NOICC the applicant provided a number of documents, including several statements explaining the discrepancies in the application form, the issuance of the birth certificates and other materials. These included statements from the applicant’s representative, from his ex-wife, official records from Nigeria and other material.

16. The applicant substantially repeated these claims in his evidence to the Tribunal. In his declaration sworn on 27 May 2024 the applicant states that for a short time in 2003 he had a relationship with Maitt Iwapion and she became pregnant with his eldest child Favour.  They had a brief encounter in early 2009 and Maitt became pregnant with Praise. He married Faith Oromosele in Mach 2006 and they separated in late 2018. Faith is the mother of Jennifer and she also helped raise his other children, Favour and Praise. The applicant states that he had another relationship with Suah Flomo from January 2019 and they were married between November 2019 and October 2022. He also had a brief relationship with Rosaline Fatmata Kpaka and during that relationships she became pregnant with Gracious.

17. The applicant states in his declaration that when the children’s birth certificates were required, Faith was responsible for gathering evidence and had ‘inadvertently’ marked herself as the mother of Favour and Praise and provided these certificates to the agent. The applicant states that in Nigeria a person who looks after the child refers to themselves as a mother. The applicant states that he did not view the documents before his children applied for the visa and later on, with the help of his uncle, he was able to obtain different documents.

18. In oral evidence the applicant told the Tribunal that he did not have a relationship with Maitt but they were ‘on and off’ and had an affair while at high school, when his eldest child was conceived. He states that they never lived together and met when both were still very young. During this time his eldest chid was conceived and once the child was born, the child was left with his mother and Maitt left. The applicant states he later met Faith through church and his second child was conceived and born in late 2005. He married Faith in 2006 and when his eldest child was two years old, she came into the household and Faith was raising both children. The applicant states that he met Maitt again during the school function and they had intercourse in the car, when his child was conceived. The applicant states that it was a one-off event and he did not want to destroy his marriage. He told Faith about the interaction and she was upset, so his family became involved in ensuring their marriage would continue. The applicant states that Maitt passed away around 2014.

19. The applicant states that it was Faith who obtained the birth certificates for the children and he did not ask her how she obtained the children’s birth certificates but culturally, Faith would have been considered as the mother of the children. He states that the Partner application was prepared by a migration agent and he did not check the application form and the papers that were submitted with the application.

20. The Tribunal has considerable concerns about the applicant’s description of his relationship with Maitt Iwapion given that they had two children together. The Tribunal is not persuaded by the applicant’s description that he had some form of relationship with Maitt Iwapion at school, resulting in the birth of his eldest daughter, then some years later he had a single encounter with Maitt Iwapion which resulted in the birth of another child. The Tribunal is of the view that the applicant is seeking to misrepresent the nature of his relationship and to minimise such relationship between himself and Maitt Iwapion.

21. Nevertheless, there is little evidence before the Tribunal to enable it to make a positive finding that the applicant’s relationship with Maitt Iwapion was in the nature of a married or de facto relationship. There is little evidence to suggest that they shared financial arrangements, had established a joint household or represented themselves to others as being in a married or de facto relationship. The Tribunal has formed the view that there is insufficient evidence for a positive finding that such a relationship existed. That means that there is insufficient evidence for a positive finding that the applicant gave an incorrect answer on the application form when he failed to mention a marital or de facto relationship with Maitt Iwapion.

22. The second issue that formed the basis of the NOICC was the applicant’s indication that he had three children from his relationship with Faith Osemen. The applicant claims that Ms Osemen had ‘inadvertently’ indicated herself to be the mother of the three children when applying for their birth certificates. The Tribunal does not accept that evidence. It is unclear how one could ‘inadvertently’ claim oneself to be a parent of a child who is not their biological child, even if Faith did accept parental responsibilities in relation to these children.

23. It is significant that in his Partner visa application the applicant referred to his relationship with Faith Osemen and stated that there were three children from that relationship. That is, the applicant expressly indicated that all of his three children were from his relationship with Faith, withholding information about the biological mother of the two children.

24. The applicant claims that he did not read the application form and did not check the content of the documents as he claims an agent had prepared his application. The Tribunal is of the view that it was the responsibility of the applicant to ensure the two applications contained correct information and his claimed failure to familiarise himself with the content of the application suggests his indifference with respect to his obligations under the Migration Act. The Tribunal also notes that under s. 100 of the Act, an answer to a question is incorrect even though the person who gave or provided the answer or caused it to be given, did not know it was incorrect.

25. In the Tribunal’s view, the birth certificates of the two children are likely to be bogus documents because they were obtained as a result of a false or misleading statement. However, the NOICC does not refer to a breach of s. 103 and the Tribunal does not make a finding on whether the applicant may have breached s. 103 of the Act by providing bogus documents.

26. The Tribunal finds that in his application form the applicant claimed he had three children from his relationship with Faith Osemen. The Tribunal finds that information was incorrect as two of these children were born outside of that relationship. The Tribunal finds that in that respect, 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 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

27. 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).

28. 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

29. The correct information is that two of the applicant’s children are not the children of the applicant’s relationship with Faith Osemen but are children from another relationship.

    The content of the genuine document (if any)

30. 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

31. The applicant’s visa was granted on the basis of his relationship with the sponsor. The Tribunal is of the view that the applicant’s previous relationships (of any nature) were relevant in assessing the nature of his relationship with the sponsor. The fact that the applicant had two children from his interactions with a person other than his declared partner would have been relevant in assessing his past relationships and the applicant’s relationship with the sponsor.

32. The issue here is not whether the applicant would have been granted the visa if the correct information was known. It is whether the decision to grant the visa was based on incorrect information. In the Tribunal’s view, that is the case. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information.

    The circumstances in which the non-compliance occurred

33. These are addressed more fully above. The applicant claims, essentially, that he was not aware of the information recorded in the children’s birth certificates and that he did not refer to the mother of his two children as he was never in a relationship with her. The applicant told the Tribunal that he had not read his Partner visa application and did not check the content of the documents and the application form.

34. The Tribunal is of the view that the applicant failed to take reasonable steps to ensure his application form contained correct information.

35. The applicant told the Tribunal that he had no ulterior motive to deceive and did not intend to provide incorrect information. The representative notes that the issue relates to non-migrating children of a former relationship and it was the applicant who had provided the correct information to the Department voluntarily and has corrected the Department’s records. The Tribunal accepts that the applicant does not appear to have gained any advantage as a result of the incorrect answer being given.

    The present circumstances of the visa holder

36. In his response to the NOICC the applicant states that he is a licensed mechanic working independently and that he works as a health support worker supporting NDIS participants.

37. In his submission to the Tribunal the applicant states that since his arrival in Australia he had completed a number of courses and holds various qualifications and licences. He states that in January 2022 he creased his own disability support company which is awaiting registration approval before employing staff.

38. The applicant refers to his employment as a disability support worker and a mechanic with Transdav and the contribution he makes by working with vulnerable members of the community. The applicant told the Tribunal about his passion for the two jobs.

39. The applicant told the Tribunal about his involvement with the church and evangelical activities, as well as voluntary work at the church. 

40. The applicant refers to his ties to Australia, including with his child, his former partners, and  his contribution through his church activities, as well as contribution as a skilled worker.

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

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

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

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

   The time that has elapsed since the non-compliance

3. The application for the Partner visa was made in January 2020. About four and a half years passed since the non-compliance.

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

4. There are no known breaches of the law.

   Any contribution made by the holder to the community.

5. The applicant refers to his employment in the disability sector, stating that through his work he supports people with disabilities. The applicant states that once his company receives registration, he intends to offer employment to others.

6. The applicant also spoke about his voluntary activities in the church. The applicant told the Tribunal that he is often called to fix different cars and he helps others. The Tribunal accepts that the applicant has made some contribution to the community.

7. 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.

8. There are no persons who would be subject to consequential cancellation.

   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.

9. The applicant refers to his Australian citizen daughter Gracious, born in May 2021. He states that he is actively involved in Gracious’ upbringing, shares custody of the child with the child’s mother and pays child support. (He provided evidence of child support payments.) The applicant states that there is shared parental responsibility and he is involved in all important decisions relating to the child. The applicant describes the activities he does with his daughter, including regular church attendance. He states that his absence would cause emotional distress to his daughter, as his continued involvement is important to her emotional stability and development.

10. The applicant told the Tribunal that he sees his daughter several days a week and he picks her up from the school, helps with homework, plays with her outside and otherwise supports her.

11. The applicant refers to a close relationship with the children of his previous relationship, Abraham and Emmanuel and the emotional support he provides to them. He states that he is a father figure to these children. The applicant provided a number of photographs with the children, evidence of payment of child support and other materials. In oral evidence the applicant states that he is a father figure to the two children and he recently supported one of them through his court case. The applicant states that the school calls him whenever there are issues at school for Emmanuel (as his father is overseas) and he is identified as Emmanuel’s father by the school.

12. The applicant told the Tribunal that his financial support will ensure his daughter can receive a good education and if his visa is cancelled, his daughter will be traumatised and will not have the financial support. The applicant also states that his children overseas have been offered the opportunity to study in Australia but would need visas to travel to Australia.

13. The applicant has two minor children, one overseas and his daughter in Australia and the applicant claims to maintain parental responsibilities in relation to a child from a previous relationship who is a minor. The Tribunal accepts that it would be in the best interest of his minor daughter in Australia to remain with her father and not to be separated from her father, noting in particular that the applicant maintains a close relationship with his daughter and provides her with practical and financial support.

14. The Tribunal is also prepared to accept that the applicant maintains the relationship with his stepson. However, the Tribunal found his evidence quite vague and on the basis of that  evidence, the Tribunal is not able to make a positive finding that this child’s best interests would be adversely affected by the cancellation of the applicant’s visa.

15. The applicant also has a minor child overseas and his evidence is that he provides financial support to his children and without such support, the children’s education would end. The applicant also told the Tribunal that he intends to bring his children to Australia for them to continue their education here. The Tribunal accepts that the children’s opportunities may be limited if the applicant is not able to provide them with financial support. The Tribunal acknowledges that it may be in the best interests of the applicant’s minor child overseas if  the applicant is able to remain in Australia, to provide financial support and act as a sponsor to enable the child’s migration to Australia.

16. The Tribunal finds that it is in the best interests of the children that the applicant’s visa is not cancelled.

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

17. The applicant told the Tribunal that his father had been killed and he is the first son, and that would mean that he would face the same challenges if returned to his home-country. The applicant states that his mother always told him not to come back as his father’s community had been threatening her and asking for his whereabouts. The applicant states that his father was a chief and a military officer and he has been supporting his father, so his father’s community had been threatening his mother, who told him not to come back.

18. The Tribunal found the applicant’s claims to be extremely vague. He has not satisfactorily identified the nature of the threat, nor the source of it. The applicant’s evidence is unsupported by any documentary evidence and, significantly, these claims had been raised for the first time in his oral evidence to the Tribunal, despite the applicant making multiple written submissions to the delegate and the Tribunal.

19. The Tribunal is not satisfied the applicant has been truthful in these claims and the Tribunal is not satisfied that the applicant genuinely fears any harm upon return to his home country. The applicant himself stated that his sister suggested that his mother may have dementia and that mother may be unreliable.

20. On the limited evidence before it, the Tribunal does not accept  the applicant’s claims. The  Tribunal does not consider the cancellation of the applicant’s visa would lead to the removal in breach of Australia’s nonrefoulement obligations.

21. With respect to the principles of family unity, Tribunal is mindful that the applicant is able to seek other visas to travel to Australia, should he be required to leave as a result of the visa being cancelled. The Tribunal does not consider that family unity obligations would be breached by the cancellation.

    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.

22. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant would become an unlawful non-citizen and could be detained and removed from Australia. There is no suggestion of indefinite detention. The applicant would have limited options of making other visa applications onshore due to operation of s. 48 and would be subject to an exclusion period in relation to some future visa applications if made offshore. The applicant would also lose the entitlements he had acquired as a permanent resident of Australia and would not be eligible to the Australian citizenship if his visa is cancelled. The applicant would be unable to act as a sponsor for his children if he is not a holder of a permanent visa.

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

23. In his response to the NOICC the applicant provided a statement from the sponsor (his ex-wife) who refers to him being of good character and providing support to her family and her son. In his submission to the Tribunal the applicant refers to his interactions with Gracious’ mother and states that she would face significant challenges in meeting her parental responsibilities as a single mother.

24. The applicant provided a number of supporting statements in his submission to the Tribunal, including statements from his former partner, and multiple character references. The applicant spoke about his strong community connections and connections to the church, as well as his employment as a skilled worker and his future in Australia.

25. The applicant states that if his visa is cancelled, there will be nobody able to look after his family financially and otherwise. Their education will stop as he is supporting them financially and his family will experience financial hardship. The Tribunal accepts that the applicant provides financial support to his children in Australia and overseas and that financial hardship may be caused to his family if the visa is cancelled and if the applicant is not able to earn money in Australia.

26. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant had not complied with s. 101 of the Act and that there are grounds for cancelling his visa.

27. In determining whether the visa should be cancelled, the Tribunal has given the greatest weight to the following considerations.

28. Firstly, while the decision to grant the visa may have been based in part on an incorrect answer, that would have been so to a very insignificant extent. The applicant declared his three children in the Partner visa application and while he had provided misleading information about the biological mother of the children, that is unlikely to have had any effect on assessing his relationship with the sponsor. The Tribunal has formed the view that the applicant’s relationship with Maitt may have been relevant to the assessment of his Partner visa application, however, the Tribunal acknowledges that the applicant would not have been required to disclose that relationship if it was not a married or de facto one. Further, the applicant’s evidence is that Maitt had passed away around 2014 and by the time he made the application for the Partner visa and it is very unlikely the correct information about Maitt being the mother of his two children would have made any substantial difference to the outcome of the application.

29. Secondly, the Tribunal has formed the view that it is in the best interest of the Australian citizen child that the applicant remains in Australia and maintains a relationship with her. The Tribunal has accepted the applicant’s evidence that he supports his daughter physically, emotionally and financially and such support may not be available to the same degree (or not at all) if the applicant is not able to remain in Australia. The Tribunal has formed the view that it is in the best interest of that child that the visa is not cancelled and this is a primary consideration.

30. Thirdly, the Tribunal accepts that considerable hardship would be caused to the applicant’s family if his visa is cancelled, particularly given the fact that the applicant is the main source of financial support for his family in Australia and overseas. The Tribunal accepts that in the absence of such support (if the applicant cannot maintain a job in Australia), the children’s future opportunities would be limited.

31. The Tribunal has also given some weight to the applicant’s contribution to Australia through his employment and voluntary activities.

32. The Tribunal has formed the view that these circumstances outweigh other factors that may be in favour of the cancellation. Having considered all the circumstances, the Tribunal has determined that the visa should not be cancelled.

    Conclusion

33. 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

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

    Kira Raif
    Senior Member