Gandhi (Migration)

[2024] AATA 3107

Gandhi (Migration) [2024] AATA 3107 (21 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajat Gandhi

REPRESENTATIVE:  Mrs Noreen Babur Choudhary

CASE NUMBER:  2403786

HOME AFFAIRS REFERENCE(S):          BCC2022/370800

MEMBER:Ann Duffield

DATE:21 August 2024

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 21 August 2024 at 12:12pm

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – disputed timing of the parties’ divorce – abandoning parental rights – separation prior to arrival in Australia – delay in inform the department – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 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 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not inform the department of his change of circumstances as required under s.104 of the Migration Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 7 May 2024 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

6. The applicant is a citizen of India born in November 1982. He has a brother who is an Australian citizen. He has previously travelled to Australia on a visitor visa in 2011, 2015, 2108.

7. The sponsor is a citizen of India and is also an Australian permanent resident by grant of a subclass 190 Skilled Nominated visa on 28 February 2019. The applicant was not included in the 190 application at the time it was lodged by the sponsor.

8. The parties were married in India in January 2009, and they have a child together born in 2011. The application for the subclass 309/100 visa was lodged in September 2019.

9. According to court documents relating to their divorce in India, the parties had separated on 3 January 2020, and they had not been living together since that time.

10. The applicant was granted a visa on 13 January 2021 whilst outside Australia. He arrived in Australia on 17 April 2021 as the holder of a subclass 100 visa.

11. The sponsor notified the department on 15 February 2022 of her and the applicant’s divorce which was finalised on 22 January 2022. She stated that she wished to withdraw her sponsorship.

12. The applicant did not notify the department of his separation and divorce from his Australian resident partner until 15 August 2022.

13. The applicant travelled to India in January 2024 and returned on15 February 2024. Whilst in India he re-married (a different person) on 6 February 2024. He has informed the Tribunal that he wishes to sponsor his new wife to Australia as soon as possible as she has indicated that unless she can come to Australia their marriage will be terminated.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. 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.

16. 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.

    Submission before the Tribunal

17. The Tribunal has before it the department’s file and the Tribunal file, including a copy of the Notice of Intention to Cancel, the applicant’s responses to that notification and the delegate’s decision. Prior to the scheduled hearing the applicant provided a submission and the following documents:

    a.Letter to the department dated January 2024

    b.Statement from the applicant dated 6 May 2024

    c.Submission from the applicant’s representative dated 29 April 2024

    d.Statements from Ranu Aggrawal, Shabnam Gandhi and Shagun Gandhi supporting the applicant’s claim that he and his sponsor were still living together until he departed India in April 2021

    e.Copies of a travel itinerary for the applicant and the sponsor for travel to Australia in April 2021

    f.Copy of insurance policy which includes the applicant’s ex-wife and daughter valid to 2021

    g.Three photographs of himself with his daughter and the sponsor in 2020 and 2021 and 2022.

    h.Tenancy agreement

    i.Copy of his marriage certificate to his new wife dated January 2024.

18. In his letter to the department dated 10 January 2024 in response to the notice to consider cancellation, the applicant states that he followed advice from his sponsor and agent that he did not need to attend a health examination in relation to the sponsor’s subclass 190 visa application and that is the reason why he was not included in the permanent visa granted to his sponsor and their daughter in 2019.

19. The applicant was subsequently sponsored by the sponsor for a 309/100 visa in September 2019 and the visa was granted in January 2021.

20. The applicant states that he was shocked by the sponsor’s request for a divorce which he received when he was in quarantine after he arrived in Australia in April 2021. The parties applied to the Indian Court for a waiver of a mandatory six-month waiting period to finalise their divorce on 30 December 2021 and this was granted. The divorce was finalised on 22 January 2022.

21. The Tribunal has confirmed this requirement was law at the time of the parties’ divorce in 2020/21. (Section 10A of Indian Divorce Act, 1869. The law at the relevant time required that the couple must be separated for over a year, have not been living together and that the matters of children’s custody, maintenance and property rights need to be agreed to mutually.

22. The court documents also indicate that the applicant and the sponsor settled their disputes amicably via a settlement MOU dated 22 September 2021. The thumbprint and signature of the applicant’s father, who represented him at the relevant hearings, appear on all the documents.

23. In his submission the applicant restates his claim that he and his wife were never separated during the visa process and grant and that it was not until after he arrived in Australia that his ex-wife sought a divorce. The applicant also states that his ex-wife was involved in an extra marital affair.

24. The applicant states through his representative, that a family conclave was convened by the sponsor’s parents where, amongst other things, it was agreed to tell the court that the separation took place 2 years before the divorce to ensure that the divorce could take immediate effect. The applicant claims that he was pressured by the family and because he was concerned about the impact of the divorce on his daughter, he reluctantly agreed. At the time of application and grant, the applicant states, they were happily married and in a genuine relationship with each other.

    Tribunal hearing

25. The applicant told the tribunal that the sponsor relocated to her parents’ house on 4 April 2021 because there was a festival and she wanted to go there to celebrate with her family. However, she did not return to his parents’ house where they had lived for many years. He claimed that they had planned to travel to Australia together however she decided that he should go first and get established with a home and employment beforehand.

26. After he came to Australia on 17 April 2021 his sponsor called and told him that she would not return to his parent’s house without him. He believed at that time that they were still married. He stated that it was not until September 2021 that he came to understand that she was not returning to the marriage. He claims he found out that she was having an extramarital affair and that’s why she wanted a divorce.  Her personal belongings were returned to her when the divorce proceedings commenced in September 2021.

27. The Tribunal put to the applicant that his account has changed from his initial statements where he said that he found out that she wanted a divorce when he was in quarantine, ie in April 2021. He said he may have misinterpreted the call. The Tribunal asked him whether he and the sponsor maintained contact between April and September 2021 when he claims he first found out that she wanted a divorce, and he said that one of her uncles approached him and told him that she didn’t want to go to his parents’ house.

28. The Tribunal asked the applicant why he didn’t communicate directly with the sponsor during this time, and he said that her parents asked him not to call her because of her relationship with the third party. The Tribunal confirmed with him that he had no communication whatsoever with the sponsor or his daughter from April and September 2021.

29. The applicant told the Tribunal that the man with whom the sponsor was having an affair forwarded her the emails between them revealing the affair. He did not recall the dates when the emails were exchanged but he believes that the emails were sent to him in around July or August 2021. Prior to this time, he claims that he was not aware of the affair. He did not know whether the sponsor and her boyfriend they were still together or whether they had subsequently married.

30. The Tribunal notes that the emails were exchanged between April and September 2012, some 12 years earlier.

31. The Tribunal asked the applicant why he agreed to the harsh terms of the divorce which included abandonment of all parental rights to his daughter. He said because it would have taken time to fight the requirement. He said he didn’t want his daughter to see her parents fighting in the courts and because the sponsor wanted to remarry.  The Tribunal put to the applicant that time appeared to be on his side as he was not the one seeking a swift divorce in order to remarry. Asked why he would agree to abandoning his daughter, the applicant said he didn’t want his daughter to witness the divorce and hoped that at some stage things might change. The Tribunal put to him that nevertheless it was his choice to agree to the terms of the divorce and he confirmed that was the case, however re-iterated that his ex-wife was in a hurry and that’s why he agreed.

32. The Tribunal asked him if his ex-wife would have agreed to visitation rights, and he said that she would. The Tribunal put to him that if there could have been an agreement on visitation then why would the divorce be protracted and bitter and why did he agree to abandonment of those rights and he said that her lawyer had told her that the only condition for the divorce was that he have no visitation rights.

33. The Tribunal asked the applicant why they asked to have the six-month interim period between the application of the divorce and the grant of the divorce waived. The applicant said that it was because his ex-wife was in a hurry and the court allowed for special circumstances. He said that because the divorce was mutual the six months could be waived. The Tribunal asked if there was a submission made to the court in relation to the waiver and if there was could the applicant provide it after the hearing. The Tribunal also sought a copy of the MOU. A copy of the MOU was received after the hearing but the Tribunal did not receive a submission in relation to the waiver, if there even was one.

34. The applicant told the Tribunal that the MOU required that she have all her personal belongings returned and that there be no visitation rights. There was no financial settlement save the return of some jewellery.

35. The Tribunal asked why the sponsor applied for a subclass 190 visa and he said that she had a brother here and he had also travelled to Australia on several occasions. He said that they discussed coming to Australia and decided that she apply for the visa rather than him because her skills were in demand and the chances were greater than his of obtaining the visa.

36. The applicant told the Tribunal that he was included in the application and completed a Form 1222. Asked why he was then refused the visa he said that there was a misunderstanding about when or whether he had to attend a medical test. The Covid pandemic meant that he couldn’t go to the medical appointment which had been made on his behalf by his ex-wife’s agent. The Tribunal put to him that in his submission he said something different. The Tribunal put to him that in his submission he said that his ex-wife and her agent told him that he didn’t have to have a medical, but now he was saying that an appointment was made but he missed it because of COVID restrictions.  He said that the agent received the texts.

37. Asked what he thought about not receiving the 190 visa at the same time as his ex-wife he said that he wasn’t aware that he had been dropped off until she returned from Australia in around July 2019. He told the Tribunal that she went to Australia with her daughter on their own and she also did not know that he wasn’t also visaed. He also states that he didn’t know why it was refused. The Tribunal put to the applicant that it did not appear that he and his ex-wife communicated about these important matters.

38. After that they decided to apply for the partner visa in September 2019.

39. The Tribunal put to the applicant that one of the reasons that the waiver was given by the court appeared to be because he and his ex-wife told the court that they had been separated since January 2020.

40. The Tribunal put to him that he now wanted the Tribunal to accept that he and his ex-wife lied to a court and signed legal documents containing information which he knew to be false. He said it was because he was being put under pressure by his ex-wife to get a quick divorce. He claimed that her parents were pressuring her because she had an extra-marital affair and if she didn’t want to live with the applicant or wanted to live with someone else then don’t spoil the life of the applicant and get the divorce done quickly. He said that his parents liked him as he had taken care of them.

41. The Tribunal put to him that he appeared to be saying that he lied to a court, and abandoned his parental rights to his daughter because his ex-wife’s parents pressured him to because he was a nice guy? He said that his ex-wife was getting sick because she was afraid of the affair being exposed and wanted to get away as soon as she could. He said that he gave her whatever she wanted because he wanted to make her happy because he loved her.

42. The applicant said that he was also suffering mentally and was far away while all this was happening. Asked why he didn’t go back to India to live given all that had happened he said that he wanted to establish his life in Australia and had been working hard.

43. The applicant told the Tribunal that he attended the court hearing via video link and his father represented him in person at the court. His ex-wife was physically present along with her legal representative. The applicant had told the Tribunal earlier that he was a lawyer and practiced law in India for twenty years.

44. The Tribunal asked the applicant if he was clear about the requirements of s.104 and asked him why it took eight months to inform the department. He said it took a long time to get a copy of the divorce. The Tribunal informed him that his ex-wife sent the department a copy of the divorce papers along with her withdrawal of sponsorship on 16 February 2022 and asked why he couldn’t get a copy at that time as well. He said he obtained a copy between January and August 2022. He was unable to clarify the date he received the document, even after the hearing.

45. The Tribunal asked the applicant why there was a no-contact clause in the MOU and he said that theirs was an arranged marriage through a relative and they didn’t want the matter of his ex-wife’s extra-marital affair discussed. He said he preferred a peaceful outcome rather than fighting through the courts and making his ex-wife and daughter suffer.

46. The applicant told the Tribunal that he recently moved to Canberra and was working for Uber and Delivery Log.  He currently rents a three-bedroom home which he hopes his wife and her son will come and stay there with him. He has purchased all the white goods for the home as well as a car. His parents also visit, and they stay with him.

47. The Tribunal asked the applicant if he wanted to address the matters in regulation 2.41 and the representative said that they would provide a written submission after the hearing.

48. The Tribunal asked the applicant if provided any evidence of his continued relationship with his ex-wife after September 2019 when they lodged the application and he said that he did not because they were still in a marriage. The Tribunal put to the applicant that it understood that that was his claim however the Tribunal had in front of it evidence signed by a Judge after a court hearing that he attended that he and his ex-wife separated in January 2020. The Tribunal put to the applicant that it gave that document significant weight.

49. The Tribunal asked the applicant to provide any other evidence that he and his ex-wife were in a continuing marriage after they lodged the application in September 2019. The Tribunal put to the applicant that it also had four statements from relatives and others and reminded him to address the matters in regulation 2.41 that may weigh against the cancellation of the visa.

50. The Tribunal took evidence from the applicant’s brother who told the Tribunal that the applicant and the sponsor were in a genuine marriage prior to the applicant’s departure. He affirmed that the applicant lied to the court because he had been pressured by his ex-wife’s family. He told the Tribunal that there would have been a lot of trauma associated with drawing out the divorce and he wanted to protect his daughter. He said that when he picked up his brother from the airport, he saw how distraught he was.  He thought that the applicant received the emails regarding the sponsor’s affair sometime after he arrived.

51. The Tribunal asked the applicant if he wanted to call the witnesses he had listed and if they had anything to add that was not in their written statements and it was agreed that it would not be necessary. The Tribunal put to the applicant that it would allow them two weeks to provide the requested submission and any other information or documentation he wanted to provide to support his claims. The Tribunal said if they needed more time, it would consider an extension. Final submissions were received by the tribunal on 11 July 2024.

    Post hearing submissions

52. After the scheduled hearing the applicant, through his representative, provided the following documents:

    a.Copy of the MOU signed 22 September 2021

    b.Copy of the sponsorship form signed by the applicant and the sponsor dated 25 September 2019

    c.Email forwarded to the applicant on 7 May 2024 providing copies of emails between his ex-wife and her alleged lover dated from 10 April 2012 to 21 April 2012.

    d.Two short videos of a birthday celebration however there is no commentary describing the event, who the participants are, when it was or where it was or whose birthday was being celebrated.

    e.Submission from the applicant through his representative dated 29 May 2024.

1. The submission to the Tribunal is confusing in a number of respects. For example, in the first paragraph, the applicant’s representative states that the date of separation of 3 January 2020 is incorrect or inaccurate and that “it asserts that the actual separation took pace in April 2021”. It is not clear what document “it” refers to. In both the MOU and the court record of the divorce provided by the representative to the Tribunal, the date of separation continues to be recorded as 3 January 2020. The only time that a date of April 2021 is recorded as the date of their separation, is in the statements of the applicant himself (and in statements by his supporters).

2. The applicant through his representative states that the 40S form and form 80 were voluntarily signed by the applicant and the sponsor in relation to her sponsorship of the applicant for a spouse subclass 309/100 visa, thus legitimising the validity of the application and attesting to the fact that they were in a genuine relationship at the time of application.

3. The representative also states that the sponsor has alleged that the applicant offered her money in exchange for the assistance with their PR application. He goes on to state there is no evidence of the exchange of money between the parties or how much it was thus casting doubt on their (the sponsor’s) claim. He says that the sponsor has breached the terms of the MOU by making this allegation and that the applicant wanted to remain in the relationship for the sake of their daughter and his love for the sponsor.

4. The Tribunal did put the allegations to the applicant during the hearing however it did not indicate that it was the sponsor who made these allegations (it was not). This may be a misunderstanding on the part of the applicant and his adviser.

5. The applicant, through his representative claims that the sponsor took the lead in pursuing the divorce and convening a family conclave which set terms favourable to her whilst the applicant was deprived of his rights concerning their daughter.

6. The representative states in the submission that “the sponsor has already decided to pursue divorce, prompting the applicant to leave India for Australia”.  This suggests to the Tribunal that the marriage had indeed ended prior to the applicant departing India in April 2021. It is also inconsistent with the evidence provided by the applicant and his representative to the Tribunal to date, including the oral evidence at the hearing, which states that the divorce proceedings, including the family convocation, commenced in September 2021, with the MOU being signed in September 2021, well after the applicant departed India for Australia.

7. The representative states that the applicant received emails from a friend which revealed the sponsor’s involvement with another man. This revelation led the applicant to understand the reasons behind the sponsor’s desire for divorce and so, subsequently, feeling resigned and perhaps emotionally overwhelmed, the applicant accepted all the terms and conditions outlined in the MOU. The emails provided by the applicant through his representative indicate that he received them on 2 August 2021 from the man with whom his ex-wife is alleged to have been having an affair.  The email contains earlier email exchanges between the applicant’s ex-wife and her lover between 10 and 21 April 2012.

8. The applicant maintains that he and his ex-wife were in a genuine, ongoing, and long-term spousal relationship at the time of application and of grant in January 2021 and that the divorce request from his ex-wife occurred after his arrival and was not subsequently finalised until February 2022 after which he notified the department in August 2022.

9. The Tribunal wrote to the applicant through his representative and sought clarification on these matters, informing him that it might find them to be adverse to the applicant. The Tribunal received a response on 11 July 2024.

10. In his response to the Tribunal’s concerns, the applicant maintains that the MOU was settled whilst he was in Australia, and he had no input into it and no ability to change it including the date at which the relationship was asserted to have ended. He states that he did not realise the importance of this date but maintains that he and his ex-wife were not separated prior to his departure for Australia. He states that the terms of the MOU in relation to his daughter were harsh and had he been able to challenge it he would have done so. He was not in court at the time but was represented by his father, whose thumbprint and signature appears on all the relevant documents.

11. The applicant did not specifically address the considerations in regulation 2.41 or provide any other documents.

    Adverse information and 375A Certificate

12. The information covered relates to a letter received by the department from the sponsor withdrawing her sponsorship of the applicant.

13. The department also received adverse information from several third parties about the applicant including that the applicant paid the sponsor a large sum of money to lodge the spouse application when they had already separated, and she was living with her parents. There are also allegations that domestic violence was committed by him against the sponsor. A further allegation was that he has been caught shoplifting and travelled on trains without a ticket.

14. This information was put to the applicant at the Tribunal hearing, and he strongly denied it. The Tribunal has given no weight to the allegations.

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

15. 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.104 which requires an applicant to, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

16. In the present case the applicant did not inform the department of the separation of himself and his Australian permanent resident spouse on 3 January 2020, one year prior to the grant of the subclass 309 visa on 13 January 2021. As a result of the grant of the subclass 309 visa, the applicant was subsequently granted a subclass 100 visa. It is the latter visa that is being cancelled since section 107A provides that failure to comply with s.104 of the Act, associated with a previous visa may enliven grounds for cancellation of the visa holder’s current visa.

17. The applicant lodged an application for a combined partner (subclass 309/100) visa on 10 September 2019 based on his marriage to, and sponsorship of, his Australian permanent resident spouse at the time. In the application both parties declared that their relationship was genuine and continuing and that they had a mutual commitment to a shared life as husband and wife.

18. Based on the information contained in the application the applicant was granted the partner provisional (309) and partner (Migrant) 100 visa on 13 January 2021 while outside Australia. He arrived, without the sponsor, on 17 April 2021.

19. In February 2022 the sponsor wrote to the department informing them of her divorce from the applicant and provided copies of the relevant court documents relating to their divorce. In those documents it was declared by both the applicant and the sponsor that they had been separated and not living together since 3 January 2020. The document states:

    “We the petitioners (the applicant and the sponsor) state that we are Hindu by religion and were married on 14.01.2009 at Delhi according to Hindu rites and customs. Due to irreconcilable temperamental differences started living separately since 03.01.2020.”

20. The department notified the applicant of its intention to consider cancellation of his visa on 10 January 2024. The applicant responded on 10 January, 13 January, 16 January, 31 January, 3 February and 18 February 2024. Specifically, it put to him that he did not inform the department of his separation from the sponsor in January 2020 and hence did not comply with his obligations under s.104. Had the applicant informed the department, he would not have been granted partner provisional (309) and partner (Migrant) 100 visa on 13 January 2021 as he was no longer the spouse of the Australian permanent resident sponsor.

21. In response the applicant maintained that he and his ex-wife were in a genuine relationship at the time of application and grant and that his ex-wife sought a divorce from him after he arrived in Australia. He submits that he notified the department of his divorce at the same time he notified them of his change of passport on 15 August 2022 and that he had fulfilled his notification obligations by doing this. He further stated that he did not know he had not complied with s.104 until he received the notice.

    Findings and reasons

22. The Tribunal found the applicant’s oral evidence at the hearing to be evasive and contradictory. For example, in his written statement he claimed that he found out that his ex-wife wanted a divorce when he was still in quarantine, ie during April/May 2021, however at the hearing he told the Tribunal he did not find out until September 2021. Asked by the Tribunal why his account had changed he suggested he misunderstood the phone call.  The Tribunal finds this explanation unpersuasive.

23. Equally unpersuasive is that the applicant and his ex-wife did not speak to each other during the time he arrived in Australia until the divorce and even so, he claims they communicated through her family members. It was his allegedly his ex-wife’s uncle who told him of the impending divorce in September.

24. The applicant has indicated in his oral evidence that his ex-wife was having an affair at the time of their separation and one of the reasons she wanted a swift divorce was so she could marry her lover. He said he found out about the affair in around September 2021 and that’s the time that the negotiations for the MOU and divorce were being held.

25. However, the evidence provided by the applicant does not support this claim. The emails between his ex-wife and her alleged lover were dated between 10-21 April 2012 – some 12 years prior. At no time in any of the oral or written evidence has the applicant indicated that these emails were 12 years old. He has implied that the affair was contemporaneous with their marriage breakdown. There is no evidence before the Tribunal that the affair continued beyond 2012 or that it was a reason, or part of the reason, for their divorce. The applicant’s evidence is misleading at best.

26. The applicant’s accounts in relation to why he did not receive a subclass 190 visa at the same time as his wife and daughter is also implausible in the Tribunal’s mind. At the hearing before the Tribunal, he claimed that neither he nor his wife knew that he did not receive a 190 visa until after she returned from Australia in 2019. It seems to the Tribunal that all applicants would have received notification of the visa grant and if the sponsor travelled to Australia to obtain her visa, its implausible that, if the applicant was living with her at that time, he would not have known at that point that his application was denied and the reason for it. The Tribunal has no evidence before it that the applicant was even included on the subclass 190 visa application and whilst he undertook to provide a copy of it to the Tribunal after the hearing he has not done so.

27. At the hearing the applicant told the Tribunal that he did not understand why he didn’t receive the visa and didn’t know whether the sponsor had removed him from the application or not. He told the Tribunal that he couldn’t get to the medical appointment because of COVID restrictions and that the sponsor’s agent received texts about the appointment. However, in his written statements, for example the one dated 6 May 2024, he states that he received the text. Furthermore, in his response to the Notice of Intention to Cancel dated 10 January 2024 he claimed that his ex-wife and her agent told him that he was not required to go for the medical and that’s the reason he was refused. The Tribunal put this to him at the hearing and he said that he might have misunderstood.

28. The applicant’s account raises questions in the Tribunal’s mind about whether the marriage had in fact ended prior to January 2020 and the reason why the applicant was not granted a subclass 190 visa along with the sponsor in 2019 is because he was never included in the application as a member of her family unit in the first place. Be that as it may, the confusing and contradictory nature of his claims give rise to the reliability of his evidence.

29. The applicant told the Tribunal that he is a lawyer with 20 years’ experience in the Indian Courts. He attended the divorce proceedings via video-link and was represented in person by his father. Despite his attendance during the proceedings (albeit via video-link), the applicant continued to state and re-state that he had no influence over the proceedings and had he been there (he was), he would have challenged the MOU and had access to his daughter.

30. This is problematic to the Tribunal for several reasons: Firstly, it seems to the Tribunal that the applicant had ample opportunity and legal experience to influence the terms of the MOU and the divorce and that his decision to abandon his daughter was made without any alleged pressure from his ex—wife or her family. Nor does the Tribunal accept that the reason he didn’t fight the harsh terms of the divorce was from any sense of duty to protect his ex-wife from rumours of an affair or to protect his daughter from a protracted and possibly bitter divorce. For whatever reason, he agreed to the MOU and the divorce because it’s what he wanted.

31. Secondly, despite stating that “had he been there he would have challenged these findings”, referring to the MOU and divorce conditions (see his letter to the Tribunal of 11 July 2024), he was in fact there and did not challenge them. Nor did he challenge the stated date of separation which he claims was inserted by his ex-wife’s family and he was unable to dispute the matter.

32. On the other hand, he has also stated in his oral evidence to the Tribunal and in written evidence elsewhere, that he did not want to challenge the MOU or the divorce because he loved his ex-wife, wanted to protect her reputation (and his) and didn’t want to subject his daughter to the trauma of a divorce, not because he wasn’t there. It seems to the Tribunal that he cannot have it both ways.

33. The Tribunal does not accept that the applicant, a lawyer with twenty years’ experience in the Indian court and legal system, would disgrace himself and his profession by lying before a judge in court for any reason, let alone the wholly unpersuasive reasons he has proffered.

34. The Tribunal notes that the applicant did not provide any additional evidence to support his claims that he and his ex-wife remained in a continuing and genuine marriage right up until his arrival in Australia. The documents he has provided, including the photographs and videos which he claims are after January 2020 are unpersuasive in the context of the serious concerns held by the Tribunal regarding the truthfulness of the applicant’s account.

35. The medical coverage for his ex-wife and daughter were linked to his employment which he did not leave until the time he departed for Australia or shortly before. This is not therefore “proof” that they remained married but rather a consequence of his employment.

36. The insurance documents in relation to his daughter are both a tax minimisation mechanism and a savings fund for his daughter. These had a five-year time frame which the applicant could not have extracted himself from without presumably losing the benefit that had accrued. The last one he funded ended in 2021 and at the hearing he stated that he did not continue with this scheme. Again, the Tribunal is not satisfied that this constitutes proof that he and his ex-wife remained in a genuine marriage.

37. The Tribunal also notes letters and statements from neighbours, relatives and friends stating that the applicant was living with the sponsor until April 2021. The Tribunal would expect that friends and relatives would want to assist the applicant and provide whatever statements of support he may have sought from them. However, in the context of the serious concerns the Tribunal has with the credibility of the applicant’s account, it gives these statements little weight.

38. The evidence before the Tribunal does not speak to a genuine and continuing marriage at the time the visa was granted, but to a marriage that had already ended in January 2020. The Tribunal prefers the evidence of the Indian Court in relation to the date at which his marriage to his ex-wife ended. The applicant’s evidence, in the Tribunal’s mind, is a poor recollection of a hastily constructed account contrived solely to continue a deceit that began when the applicant realised that his separation from his ex-wife would lead to the refusal of his spouse application.

39. The Tribunal finds that the applicant and his ex-wife separated in January 2020, 12 months prior to the grant of his visa and that he did not inform the department the department of this change of circumstance. Therefore, for the reasons above, there was non-compliance with s.104 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

40. 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).

41. The Tribunal put to the applicant and his representative at the hearing that they did not appear to have prepared a submission which addresses any of the prescribed matters in Regulation 2.41 and asked if there was a reason for that.

42. The applicant said that he had provided some life insurance documents and photos along with a copy of bookings made for flights for both him and the sponsor in April 2021. He said that this was proof that they were together at the time. He told the Tribunal that the insurance was a tax minimisation scheme. He explained that in India such insurances were a tax deduction. He said that he pays the premiums yearly for five years and when it matures his daughter receives the lump sum. He no longer makes those payments since the divorce in 2021.

43. The applicant also provided some documents in relation to the merger of the sponsor’s bank accounts which were addressed to her at the applicant’s home address. He also provided an employer contribution medical certificate which was a perquisite of his employment which was valid until February 2021. He said that he was not sure if that was extended beyond that time. The Tribunal asked him to provide it to her if it was available. The Tribunal did not receive any further information.

44. There was a discussion at the hearing about the applicant providing a written submission addressing Regulation 2.41, however neither the submission of 29 May 2024 nor 11 July 2024 addressed these matters specifically. The Tribunal has therefore extracted from the applicant’s written and oral evidence his responses to those prescribed circumstances as best it can.

45. In exercising its 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. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     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.

    ·     the circumstances in which the non-compliance occurred.

    ·     the present circumstances of the visa holder

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

    ·     any other instances of non-compliance by the visa holder known to the Minister.

    ·     the time that has elapsed since the non-compliance.

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

1. 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. The Tribunal has given this consideration as follows.

   the correct information and the content of the genuine document (if any): 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 and the circumstances in which the non-compliance occurred.

2. The correct information iis that the marriage between the applicant and the sponsor ceased in January 2020, and the applicant did not inform the department of his change of circumstances prior to the grant of his visa in January 2021. Had he done so, the application would have most certainly been refused.

100. The applicant was obliged under s.104 to inform the department of this change of circumstances as the decision to grant the visa was based wholly or partly on the incorrect information. The core criteria for the grant of a 309/100 visa is that the applicant is the spouse of the sponsor within the meaning of the Migration Act. According to the content of the correct document, the findings of the Indian Court dated 22 January 2022, provided to the Tribunal by the applicant, the applicant and the sponsor separated in January 2020 some 12 months prior to the grant of the visa.

The applicant’s current circumstances

101.   The applicant’s current circumstances are that he is working as an Uber driver and has a lease on a home until September 2024. He has one brother resident in Australia but his other family members, including his ex-wife and daughter, and his present wife, reside in India. He has resided in Australia since January 2021 a period of some three years. This is not, in the Tribunal’s mind a lengthy period and he has not stated that he has developed community, business or personal ties whilst he has been here such that would provide some positive weight to not cancelling his visa.

102.   The applicant is a lawyer and there is no reason why he could not continue to practice law if he returned to India. The Tribunal acknowledges that it is his stated preference to remain in Australia and to sponsor his new wife here and the decision to cancel would cause some distress to himself and his new wife, and perhaps some hardship in terms of relocating to India and finding employment.

103.   The applicant was obliged to inform the department of the change of his circumstances as soon as practicable after his separation from his ex-wife on 3 January 2020. He did not do so. Furthermore, when he informed the department of his divorce in August 2022, some six months after it was formalised in an Indian court, he again did not disclose that he and his ex-wife had separated more than a year prior to the grant of his visa in January 2021.

104.   There is no evidence before the Tribunal that the applicant has not complied with any of his other obligations.

105.   The non-compliance occurred in January 2020 when the applicant did not advise the department that his circumstances had changed and that he and his ex-wife had separated. He did not notify the department until August 2022 of his divorce which was finalised in February 2022. A period of some four years has elapsed since the non-compliance occurred.

106.   There is no evidence before the Tribunal that the applicant has breached any law since the non-compliance.

107.   The applicant has not provided any evidence that indicates any contributions he has made to the community whilst in Australia. He states that he was working full time and paying taxes.

108.   There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 if the applicant’s visa was cancelled nor are there any children whose interests would be affected by cancellation. The applicant has voluntarily abandoned all rights to his child, who in any case, is an Australian permanent resident on his mother’s visa. He has stated that he provides no financial assistance to his ex-wife and child or that he has any contact with the child in any way.

109.   The applicant’s present wife and her child, his stepchild, reside in India and do not hold Australian visas.

110.   If the applicant’s visa is cancelled and he is required to return to India, he has made no claims that he would suffer persecution or significant harm upon his return and there is no evidence before the Tribunal that Australia would be in breach of its non-refoulement obligations should he be required to return. The applicant has no close family members in Australia except his brother. The Tribunal is satisfied that Australia would not be in breach of any family unity obligations should he be required to return. His present wife and the remainder of his family are in India as is his daughter from his first marriage.

111.   If the applicant’s visa is cancelled, he would be subject to Australian law as it applies to all non-citizens. He would, for example be taken into migration detention if he does not depart prior to the cessation of his bridging visa and liable for removal if he doesn’t otherwise resolve his immigration status. Additionally, the cancellation of his visa would activate a bar on s.48 of the Act which gives him limited opportunity to apply for further visas whilst he remains in Australia. He may also have limited opportunity to be granted further temporary visas if the visa is cancelled in relation to Public Interest criterion 4013.

112.   The applicant has remarried someone in India recently and told the Tribunal that he needed his permanent residency to be able to sponsor her to Australia. He said that one of the reasons that she agreed to marry him was to be able to come to Australia. He was concerned that if he was unable to do so quickly, the marriage would come to an end. The applicant has said that the lease on his apartment doesn’t cease until September 2024, and he would be liable for expenses associated with breaking the lease. He wants to continue to live and work in Australia.

113.   The Tribunal has considered and weighed the merits of all these factors carefully and on balance is not satisfied that they weigh in favour of not cancelling the applicant’s visa.

CONCLUSION

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

DECISION

115.   The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Ann Duffield
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

104Changes in circumstances to be notified

(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4)Subsection (1) applies despite the grant of any visa.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.