GECHESKI (Migration)

GECHESKI (Migration) [2019] AATA 3542 (5 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Borislav Gecheski
Mr Filip Geceski
CASE NUMBER:  1831543
DIBP REFERENCE(S):  BCC2017/3366058 CLF2012/36242
MEMBER:Hugh Sanderson
DATE:5 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 801 (Spouse) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 05 July 2019 at 2:25pm

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – ground for cancellation – incorrect information in visa application – marital status – failure to disclose prior relationships – claimed date of inception of relationship with sponsor – consideration of discretion – legally married to a different person at time of application – overseas on day claiming to have met sponsor at a party in Australia – significant bearing on decision to grant visa – deliberate action to mislead the Department – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the first named applicant (the applicant) had provided incomplete answers and incorrect information in respect of his Partner visa application and was not satisfied that the visa should not be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction in this review application, the only decision that is before the Tribunal is that with respect to the applicant. The decision to cancel the second named applicant’s visa (the son of the visa applicant) was subject to a separate decision and was not made in the decision that is subject to this current review application. As the decision which is subject to this review did not involve a decision in respect of the second named applicant, the Tribunal has no jurisdiction with respect to the second named applicant.
A separate review application was filed by the applicant’s son (file number 1831544) and a separate decision has been made in respect of that application.
Background
The applicant is a citizen of the Republic of Macedonia and is currently 49 years old. He first entered Australia on 8 August 2006 holding a subclass 572 Student visa. Since then, he has travelled out of Australia as follows:
·     From 9 July 2008 to 6 August 2009;
·     From 22 December 2010 to 13 January 2011;
·     From 17 July 2013 to 27 September 2013;
·     From 6 June 2015 to 7 August 2015;
·     From 12 August 2016 to 8 September 2016; and
·     From 28 July 2018 to 16 September 2018.
The applicant applied for a subclass 820 Partner (Temporary) and subclass 801 Partner (Residence) visa on 22 February 2012. He was sponsored in that application by Radojka Dragojevic. In that application, the applicant provided the following information:
·     He had been previously married to Aleksandra Kostova who he divorced on 9 July 2010 and there were two children of that relationship;
·     He did not disclose any other marriage or relationship with any other person;
·     He claimed that the sponsor had been previously married to and divorced Laza Gajic on 1 June 1973;
·     He stated the sponsor had two children who live with their father who the sponsor was not married to and she has no contact with the children;
·     He did not disclose the sponsor had previously been married to Zoran Petrovic who she had sponsored for a Spouse visa;
·     He claimed he first met the sponsor on 14 September 2010 and, in answer to the question of how long after they met did they begin a relationship, he answered “months”;
·     In answer to the question of when did he and the sponsor make the decision that they both wanted to commit to a long-term relationship he answered “31 December 2010”;
·     In answer to the question of when and where did they begin a married or de facto relationship he stated “2 February 2011, Riverwood, Sydney”; and
·     In answer to the question of whether either of them are still legally married to another person the applicant answered “No”.
The applicant provided a statement in support of the application where he stated the following:
I have met Radojka Dragojevic on 14^th of September 2010 at a friend’s place in Riverwood on our friends birthday. We were invited for a birthday party by our friend’s cousin.
I felt a connection with Rada from this moment and I felt very nervous from this moment also. After time of a few months we had many phone calls to each other and I felt a warm connection. I was still nervous and I believed I was nervous for a reason as there was strong feelings. Due to my previous Marriage failure I didn’t know what these feelings were until now.
We had a similar destiny, so we had a lot to talk about. The most mutual thing common that we shared was our broken relationship, and the children that we both miss and love so much. We had such a similar past and we really understand each other. I can honestly say this is the love feeling with Rada.
So after a certain period of time at 1st of January 2011, New Year’s eve we met again at same friends place and fell in love that night. To be honest I think I was in love before we met again on new years eve.
Since then we started to see each other on a regular bases, and decided that we want to try to live together for a while to make sure that we don’t make another mistake again. So I moved into Radas house on 2/2/2011. I am studying a business course in Sydney and I work 20 hours per week as a cleaner in Wollongong…
The sponsor provided a statement to the Department which corroborated the claims made by the applicant in his statement, including that they met at a friend’s place at her birthday party on 14 September 2010 and “became very good friends from this moment onwards. We exchanged phone numbers and kept in contact on regular bases, until we all met again on new year’s eve 2010 and became very close intimately” (sic).
On the basis of the information provided, the applicant was granted a subclass 820 Partner (Temporary) visa on 23 December 2013. On 31 March 2014 the applicant provided further documents in support of the grant of the subclass 801 Partner (Residence) visa. This included a claim that the applicant was still in a de facto relationship with the sponsor and their relationship was genuine and continuing. He claimed that the de facto relationship had been in existence for a total of more than 24 months. Based on the information provided, the applicant was granted a subclass 801 Partner (Residence) visa on 25 July 2014.
Adverse information obtained by the Department
The Department was advised of information which was inconsistent to the claims that had been made by the applicant and the sponsor in respect of his Partner visa application. This information included the following:
·     Radojka Dragojevic had previously been married Zoran Petrovic on 1 September 2002 and she had sponsored him for a Spouse visa;
·     Information from Centrelink showed the applicant had claimed he commenced his de facto relationship with Radojka Dragojevic on 30 September 2013 with his marital status prior to this being declared as ‘single’ and from 31 August 2014 was declared as ‘separated’;
·     The applicant had married Brooke Louise Humphries on 22 October 2010 and divorced her on 11 April 2012;
·     On the applicant’s social media account he posted photographs of himself and his former wife, Aleksandra Geceska, on a number of occasions between 3 October 2009 and 9 September 2015;
·     The applicant’s movement records showed that he was out of Australia from 22 December 2010 to 13 January 2011 and his social media accounts show that he was with Aleksandra Geceska on New Year’s Day 2011 when he claimed that he had been with Radojka Dragojevic on that day and they had declared their love for each other in Australia;
·     The applicant’s son, Filip Geceski, was interviewed in respect of an application he made for a Child visa and he claimed the applicant’s relationship with Radojka Dragojevic broke down in May 2014, and then later changed the statement to claim that the breakdown occurred in September 2014;
·     The applicant in his application for Australian citizenship claimed he was in a relationship with Radojka Dragojevic from 18 February 2011 and ended in separation in September 2014 after the relationship became strained and broke down after his mother became unwell around late 2012 when he was travelling to Wollongong to be with his mother to provide assistance which impacted on his relationship with the sponsor; and
·     When the applicant returned to Macedonia in August 2016 his children put pressure on him and his former wife to get back together and he married his first wife again on 18 August 2016.
The Department wrote to the applicant on 17 September 2018 with a notice of intention to consider cancellation of the applicant’s visa under s.109 of the Act. The applicant responded on 2 October 2018 with a statement and various documents supporting the claim regarding why the visa should not be cancelled. Submissions were made on behalf of the applicant by his agent.
The delegate who considered the application found that the applicant had not complied with s.101(a) and S.101(b) of the Act by failing to fill in or complete his application form in such a way that all questions on it are answered and no incorrect answers are given or provided. The delegate came to this conclusion for the following reasons:
·     The applicant was previously married to Ms Humphries and the applicant did not disclose this relationship in his Partner visa application;
·     The claim that he did not provide this information by mistake and shame of the failed marriage and fear of losing the sponsor was not plausible or credible and the delegate found the omission was made to avoid scrutiny of his claimed relationship with Radojka Dragojevic after having married Ms Humphries only two months prior to claiming to have fallen in love with Radojka Dragojevic;
·     The applicant failed to provide information of Radojka Dragojevic’s marriage to Zoran Petrovic;
·     The claim that he was not aware of Radojka Dragojevic’s marriage to Zoran Petrovic and the sponsor may have failed to disclose this due to lack of room in the application form was not plausible as there was sufficient room and the parties would have known the importance of having to disclose all prior relationships, particularly when Radojka Dragojevic had previously sponsored Zoran Petrovic for a Spouse visa;
·     It was noted that s.100 of the Act provides that 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;
·     The failure to disclose this relationship and the applicant’s relationship with Ms Humphries indicated the applicant was deliberately concealing information to avoid further investigation as to whether the relationship was contrived to facilitate a positive migration outcome;
·     The applicant had acknowledged that he was outside Australia on 31 December 2010 which was the date he claimed he and Radojka Dragojevic met again at the same friend’s place where they first met and fell in love demonstrating he provided incorrect information in support of his Partner visa application; and
·     The information from Centrelink raises questions as to the duration of any claimed relationship as does the information provided by the applicant’s son in respect of his Child visa application.
As the delegate concluded that the applicant had provided incorrect answers and information in respect of his Partner visa application the delegate then considered whether the applicant’s visa should be cancelled. In considering this aspect, the delegate took into account the submissions by the applicant and other factors including the following:
·     The correct information was that the applicant was married to Ms Humphries at the time the application was filed, that the applicant was not in Australia on New Year’s Day 2011 to commence any relationship with Radojka Dragojevic and Radojka Dragojevic was previously married to and sponsored Zoran Petrovic;
·     The failure to provide this information appeared to have been done to facilitate a positive migration outcome;
·     The fact that the applicant was still married to Ms Humphries at the time of his claimed relationship with Radojka Dragojevic called into question whether he had a commitment to an exclusive relationship with his sponsor;
·     The incorrect answers called into question the credibility of the claims made by the applicant and whether he was ever in a genuine de facto relationship with the sponsor;
·     The fact that the applicant claimed he did not want to disclose his marriage to Ms Humphries does not overcome the requirement that he provide that information to the Department in the Partner visa application;
·     The applicant has been living primarily in Australia but his current wife, Aleksandra Geceksa, and their eldest son continue to live in Macedonia and there is no reason why the applicant could not also live in Macedonia;
·     The applicant’s son, Filip, who was granted a Child visa would have his visa cancelled and be required to depart Australia if the applicant’s visa was cancelled;
·     Having to return to Macedonia would cause the applicant and his son some hardship;
·     The applicant continues to deny he intentionally provided incorrect information in his application;
·     The applicant made no effort to correct the incorrect information in the Partner visa application until after he received the notice of intention to consider cancelling his visa;
·     There was no information before the Department of any other non-compliance or breach of any laws by the applicant;
·     As the non-compliance was claimed to have happened in February 2012 the applicant would have developed social and economic ties in Australia but they would not prevent him from returning to Macedonia;
·     The applicant claims that he is working hard, paying taxes and regularly attends the Orthodox Church in Wollongong; and
·     The applicant’s son, Filip, was only able to obtain his Child visa on the basis of the false claims made by the applicant.
The delegate considered that the reasons not to cancel the visa did not outweigh the reasons to cancel a visa and issued a decision cancelling the applicant’s subclass 801 Partner (Residence) visa.
Information to the Tribunal
The applicant provided a statement to the Tribunal where he claimed that because his marriage to Ms Humphries was for only one day he thought there was no need to register it in the immigration application and given the fact that he had “received an electronic automatic divorce” from the court.
The applicant also wanted to clarify what he meant when he described the events of New Year’s Eve 2010. He said that he and the sponsor were intimate over the phone and fell in love over the phone on New Year’s Eve in 2010. He claimed that not a day went past that they didn’t speak to each other since the start of November 2010. He claimed they fell in love during their phone call on New Year’s Eve when they admitted their true feelings for each other and “it became obvious over a few drinks over the phone.”
A report was provided from Philip Wolfers, psychologist, dated 12 June 2019. In this he made the following observations:
·     At the time of filling out the forms for his citizenship application he was under stress due to his relationships arising from the illness of his mother;
·     He remarried his first wife at the urging of their children and as his first wife had suffered a stroke and needed him to look after her;
·     The errors in the application were entirely inadvertent because he was not paying enough attention in his stressed state to be aware of his errors;
·     The stress and anxiety the applicant was facing at the time would have led the applicant to make errors in his application;
·     The applicant has very poor mental control and it may be expected he would omit or make mistakes recalling facts and details solely due to his weakness in his working memory; and
·     The applicant’s poor memory recall constituted a cogent explanation for how the applicant made errors and omissions in his application which were very likely to have been inadvertent.
The applicant provided information that he applied for his divorce from Ms Humphries on 16 February 2012, six days prior to filing the application for the Partner visa. The application was given a court date of 11 April 2012. A decree nisi was pronounced by the Court on 11 April 2012 and the divorce became absolute on 12 May 2012.
The applicant provided statements from his mother, and two friends, Michael Dimovski and Zakilina Vasikeska.
The applicant appeared before the Tribunal on 17 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages. The applicants were represented in relation to the review by their registered migration agent.
The Tribunal raised the issue of the certificate issued on the Department’s file pursuant to s.375A of the Act. The Tribunal noted the information was records from the Department of Human Services relating to the sponsor. The only information which was relevant in those documents was the information referred to by the Department in their decision, a copy of which the applicant had provided to the Tribunal. The applicant’s agent confirmed that there was no issue as to the validity of the certificate.
The applicant confirmed that he had not provided information in his application as to his marriage to Ms Humphries. He said that it was not misleading, but only a misunderstanding. He said the marriage had ended after a couple of days and he was ashamed. He said that he had spoken to an officer in the Family Court and he was told that these things happen all the time and not to worry about it. He said that he was told he would not have to mention it.
The Tribunal raised the issue that the failure to provide that information was relevant as it would have allowed the Department to consider the genuineness of his relationship with the sponsor and also to consider whether he and the sponsor had been living together in a de facto relationship for at least 12 months prior to the filing of the application. The applicant said that he was lost and under pressure. He said the Family Court officer told him not to worry about it and there was nothing to hide about his marriage to Ms Humphries.
Due to issues with regard to problems with interpretation it was agreed that the hearing be adjourned to a further day. The hearing resumed on 28 June 2019.
The applicant said that he was currently living with his mother and stepfather in their home in Coniston. He said that his son was living with him in the home when he was living in Australia. He said his stepfather has two children, a son who is 47 years old and married with two children and living in Shellharbour, and a daughter who is 45 years old and married and living in Shellharbour. He said his stepfather does not have a good relationship with his son, but has a good relationship with his daughter and sees her every couple of months. He said his mother and stepfather receive the age pension. They own their home which is not subject to any mortgage.
The applicant said that both his mother and stepfather are not in good health. His stepfather suffers from diabetes and his mother had an operation about two and a half years ago and is required to use a walking frame. He said that he was working at Coles as a team leader of their cleaners. He works from 5:00 am to 2:30 pm from Tuesday to Saturday.

The Tribunal noted the applicant had not disclosed his stepfather or his stepsiblings in the application. The applicant said that he did not remember this, but may not have understood the question. He said that he had no reason to hide it.
The applicant said his son, Filip, was now living with his mother in Macedonia. He returned to Macedonia because he was not allowed to study in Australia. He confirmed that he had remarried the mother of his children. He said his wife and son live in the unit owned by his wife and where they used to live together when he was living in Macedonia. He said that he did not intend to sponsor his wife for a Partner visa at this time as she had problems with her health.
The applicant said that he remarried his wife because his wife suffered a stroke and he wanted to help her. He said that they got married as the medication his wife takes is expensive and he wanted to pay half the costs of that medication. The Tribunal noted that the fact that he wanted to contribute to the costs of his wife’s medication would not require him to marry her. He said that he had been living with his wife for a long time and his children put pressure on him to remarry her.
The applicant said that he does not intend to go back to look after his wife as his mother is unwell and she needs his help here. He said that if things got better then he would sponsor his wife to live in Australia.
The applicant said that when he applied for his divorce from Ms Humphries that he was first required to attend Relationships Australia to obtain a certificate. He said that he attended a counselling session which was not attended by Ms Humphries in February 2012. He said that after he filed the divorce application he was told he did not have to attend the hearing, which was listed on 11 April 2012 and that he would just be advised of the divorce automatically.
The Tribunal read to the applicant the statements provided by himself and his sponsor (set out above) which described their first meeting on 14 September 2010 and the fact that the applicant said that he felt a connection with his sponsor from that moment. The applicant claimed that the information provided in those statements was correct. The Tribunal noted that this was inconsistent with the information provided in his statement dated 17 June 2019 where he claimed that he met the sponsor at that party but “this was just a general hello and goodbye”.
The applicant claimed that when he first met the sponsor he just said hello. He said that he was in a difficult situation and then in November 2010 he had a meeting with her and her cousin in a restaurant and had a conversation and there was some closeness and he felt relaxed.
The Tribunal noted that his claim of having met the sponsor in November 2010 had not been referred to previously. The Tribunal indicated that the fact that this claim was now being made undermined his credibility. The applicant said that it was not difficult to understand what he had said as he and the sponsor had a telephone conversation and a meeting was instigated by the cousin. He said that maybe he missed it when he provided information to the Department. He said he had a poor memory for dates.
The Tribunal referred to the information provided by the applicant and his sponsor to the Department about the start of their relationship on New Year’s Eve 2010. This indicated the applicant and the sponsor met in person at their cousin’s New Year’s Eve celebration party. The applicant said that the meeting was after he returned to Australia on 20 January 2011 at some religious day. He said that on New Year’s Eve he had been intimate over the phone, with his sponsor saying to him such things as “I love you” and “you sound so nice I want to see you again.”
The applicant said that after seeing the sponsor in November 2010 the next time he saw her was on 20 January 2011. The Tribunal indicated that it seemed implausible that if they had declared their love for each other on New Year’s Eve that he would not see the sponsor for seven days after he had returned to Australia. The applicant said that he was busy with his studies and the sponsor was busy with her work. The Tribunal noted that it was unlikely that any school or college was operating in January. The applicant did not provide a response.
The applicant confirmed that he had never registered his de facto relationship with the sponsor. The Tribunal noted that a requirement of applying for a Partner visa on the basis of being in a de facto relationship was that the parties must have been in a de facto relationship for at least a period of 12 months ending immediately before the date of the application. The applicant said that he did not remember what was said because the sponsor did it. The applicant said that he never gave false information.
The applicant said that he saw Mr Wolfers on one occasion for the preparation of the report submitted. He said that he also suffered a car accident in February 2019 and he had been under a lot of stress of late.
Michael Diminovski gave evidence in support of the application. He had previously provided a statutory declaration to the Tribunal. He said that the applicant was an honest and hard-working person. He said that he met the sponsor in late 2012 in Wollongong. He said the applicant had been coming down to Wollongong every two or three weeks before that.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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?
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 in the following respects:
·The applicant failed to provide a correct answer by giving incomplete information by failing to disclose that he had been legally married to Ms Humphries;
·The applicant failed to provide a correct answer by giving incomplete information by failing to disclose that the sponsor had been legally married to Zoran Petrovic;
·The applicant failed to disclose that at the time of the application he was legally married to Ms Humphries; and
·The applicant provided incorrect information in his and the sponsor’s statutory declarations claiming they met on New Year’s Eve 2010 at a cousin’s party when the applicant was not in Australia.
The applicant’s agent submitted that it could not be argued that the applicant did not provide incomplete and incorrect information. The applicant’s agent acknowledged that the failure by the applicant to provide information about his marriage to Ms Humphries was a failure to comply with the requirement that in the application all questions are answered and no incorrect answers are given or provided.
The applicant has acknowledged that he married Ms Humphries on 22 October 2010. He has provided a copy of the Marriage Certificate to the Department. On 16 February 2012 he applied to the Federal Magistrates Court, Wollongong Registry, for a divorce. As the marriage had been less than two years’ length, he was required to obtain a certificate from Relationships Australia. The divorce application was heard on 11 April 2012 and a divorce order was made which took effect on 12 May 2012. The applicant has provided to the Tribunal a copy of his Divorce Order.
At the time the Partner visa application was filed, the applicant had been married before to Ms Humphries. The applicant did not disclose this information in response to question 23 when, in the application, it is asked if he had been married before.
At the time the Partner visa application was filed, the applicant remained married to Ms Humphries, even if the applicant considered his relationship with her as having ended and they had never lived together. That marriage only ended once the Divorce Order became final on 12 May 2012. The applicant did not disclose this information and provided an incorrect answer in response to question 72 when, in the application, it is asked if either of you (the applicant or the sponsor) are still legally married to another person. By answering “No”, the applicant gave an incorrect answer.
The applicant has provided an explanation as to why he did not provide this information and answered no in response to whether either he or his sponsor was still legally married to another person. This is discussed below.
The Department has raised a number of other issues where it is claimed the applicant has provided incomplete or incorrect answers. As the Tribunal has found the applicant failed to provide details of his marriage to Ms Humphries in his application and answered “no” to the question of whether he was still legally married to another person the Tribunal finds that there was non-compliance with s.101 of the Act and it is not necessary to consider the other allegations of non-compliance. The allegations of non-compliance and the information the applicant did provide in his Partner visa application is, however, discussed below when considering whether the visa should be cancelled.
For these reasons, the Tribunal finds that there was non-compliance with s.101 of the Act by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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).
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 correct information
The correct information is that the applicant was, at the time of the application, married to Ms Humphries who he had married on 22 October 2010. He did not divorce Ms Humphries until 12 May 2012.
The fact that the applicant married Ms Humphries on 22 October 2010 leads the Tribunal to conclude that when the applicant claimed in a statement provided in support of the application that he met the sponsor on 14 September 2010 and “felt a connection with Rada from this moment” in the description of the development of the relationship that this statement is false. The claim that “after a certain period of time at 1st of January 2011, New Year’s eve we met again at same friends place and fell in love that night” is also incorrect as at that time the applicant was overseas, posting photos of himself and his former wife together, while the sponsor was in Australia.
In a statement provided by the applicant dated 17 June 2019, he claimed that when he met the sponsor at her party in September 2010 “this was just a general hello and goodbye as I was committed to Ms Humphries”. This is not the information that was provided in the original statement provided by the applicant. He describes having a connection with the sponsor from that moment. He describes himself as being nervous due to his attraction to the sponsor and felt “a warm connection” during the many phone calls they made to each other over the next few months.
The difference between what is described in the statement provided by the applicant in his application in support of the Partner visa and his current claims indicates he is continuing to provide false information.
The applicant’s explanation as to meeting the sponsor at the same friend’s place on New Year’s Eve 2010 is also not plausible. He now claims that they “were intimate over the phone and we fell in love over the phone over New Year’s Eve as I was in Macedonia for a short time and Radojka was at a party at the place where I first met her in Australia.” Again, this is not plausible. The clear impression of the statement given by the applicant in support of the Partner visa application is that they met each other in person at a party. If the parties have been in regular communication by telephone prior to that, which the applicant previously claimed, it is not plausible that the applicant would telephone the sponsor at a New Year’s Eve party and declare his love for her at that time. The Tribunal does not accept the applicant had any misunderstanding of what he was writing or was making a mistake as to dates. This is particularly so when the claims being made by the applicant as to the time and events of the claimed development of the relationships were corroborated by the sponsor. This indicates the applicant and sponsor worked together to generate false claims as to the development of any claimed relationship they had. The Tribunal finds that this is a further example of the applicant providing false information to obtain or preserve his right to reside in Australia without any regard for the truth.
If the correct information had been provided by the applicant at the time of his application for the Partner visa this would have raised issues as to the genuineness of the relationship between the applicant and the sponsor. Credibility is a significant issue when assessing the genuineness of the relationship and the failure of the applicant to provide correct information in respect of his relationship with Ms Humphries calls into question the information he has provided as to his relationship with the sponsor.
If it was accepted that the applicant was in a genuine relationship with his sponsor at the time of the application, the fact that the applicant did not provide correct information as to the development of his claimed relationship with the sponsor also raises questions as to whether the parties were living together in a de facto relationship for at least a period of 12 months ending immediately before the date of the application. This would be significant in considering whether the applicant met, at the time of the application, the requirements for the grant of a Partner visa on the basis of claiming to be in a de facto relationship with the sponsor.
The fact that the correct information was not provided by the applicant means the Department did not carry out further investigations or checks into the genuineness of the claimed relationship between the applicant and the sponsor. This must be given significant weight when considering whether the applicant’s visa should be cancelled.
The applicant did not disclose the sponsor’s previous relationship with Zoran Petrovic who she had previously sponsored for a Partner visa. If the correct information had been provided, this would have given the Department a signal to make a closer assessment of the genuineness of the relationship between the applicant and the sponsor.
The applicant has claimed that he was never aware that the sponsor had previously been married to Zoran Petrovic. As both the applicant and the sponsor declared previous marriages and children from prior relationships in the application, it is not plausible that there would be any reason for them not to disclose a second marriage unless this was deliberately done so that the Department was not aware of this information. If it is the case that the applicant was genuinely unaware of the sponsor’s previous marriage to Zoran Petrovic this indicates the parties did not provide each other the degree of companionship and emotional support which would have been expected in a genuine relationship.
The content of genuine documents
There were no bogus documents provided by the applicant in support of his application and the issue is based on the failure to provide correct answers and the information provided in the statements made by the applicant.
Whether the decision to grant a visa was based wholly or partly on incorrect information
The assessment by the Department on whether the applicant and the sponsor were in a genuine de facto relationship and met the requirement in r.2.03A(3) that the applicant and sponsor had been in the de facto relationship for at least a period of 12 months ending immediately before the date of the application was based on the incorrect information provided by the applicant. This included the fact that he did not disclose that he had married Ms Humphries on 22 October 2010 and that he was still legally married to her at the time of the application. It includes the information provided by the applicant as to the circumstances of the development of his claimed relationship with the sponsor.
If the correct information had been provided it would have significantly altered the manner in which the Department would have assessed whether the applicant was in a genuine and continuing relationship with the sponsor. It would have also led to the Department requesting further information as to the claimed relationship, and in particular the claims that the parties had been living together since February 2011.
The issue of the credibility of the applicant and the sponsor is a significant issue in assessing the genuineness of any claimed de facto relationship. That the applicant and the sponsor provided false information to the Department in support of the application would have undermined their credibility and the claims they were making as to the genuineness of their relationship.
The failure to provide the correct information had a significant bearing on the decision to grant the applicant his Partner visa and this must be given significant weight when considering whether to exercise the discretion to cancel the visa.
The circumstances of non-compliance
The applicant claimed he did not disclose his marriage to Ms Humphries because they had separated almost immediately after their marriage and he claimed someone at the Family Court had told him not to worry about it and that he did not need to disclose it to anyone. He also claimed that he was embarrassed about the short duration of the marriage and so did not want to disclose this information to his sponsor. The Tribunal does not accept that these claims are adequate explanations for the failure of the applicant to provide the information to the Department of his marriage to Ms Humphries.
The Tribunal does not accept that any officer of the Family Court or of any registry accepting the filing of a divorce application would have advised the applicant that he did not have to disclose the fact that he had married Ms Humphries to any other person or authority. In particular, the Tribunal does not accept that he would have been advised or accepted that advice if it was given that he did not have to disclose this information to the Department. The questions in the application are clear that he was required to provide information of any prior marriage and if he was married to any other person at the time of the application. The applicant deliberately chose to fail to provide the information and give a false answer.

The questions put in the application require the applicant to provide full and complete information as to any previous marriage. The Tribunal does not accept the applicant would not have been aware that he would be required to disclose his marriage to the Department when applying for the Partner visa. The applicant was, at that time, applying for his divorce from Ms Humphries. This further indicates that his mind would have been directed to the fact that he was, at the time of the application, still married to Ms Humphries and was taking action to legally end that marriage relationship.
The Tribunal does not accept that the applicant would not have disclosed his marriage to Ms Humphries to the Department because he was too embarrassed disclose the relationship to the sponsor. If the applicant and the sponsor were in a genuine relationship and provided each other’s degree of companionship and emotional support which would be expected in a genuine relationship then he would have been willing to disclose this information to the sponsor. That he claims he was not willing to disclose this indicates they did not have a commitment to a long-term relationship. This is particularly so as both the applicant and the sponsor had disclosed the fact that they have been previously married on one occasion, and therefore disclosing their second marriage would not have been a cause for embarrassment, regardless of its duration.
The Tribunal finds the circumstances by which the non-compliance occurred was a conscious and direct action by the applicant as he was aware that by disclosing his marriage to Ms Humphries it would have caused the Department to closely scrutinise the claims made as to his relationship with the sponsor, including the manner in which it was claimed the relationship developed and whether that relationship was ever genuine.
The Tribunal finds the information in the statements provided by the applicant in support of his Partner visa were to deliberately generate a false impression of the development of any claimed relationship he had with the sponsor. The Tribunal does not accept that the description of his claimed first meeting with the sponsor on 14 September 2010 and their declaration of love for each other where they were “intimate’ on New Year’s Eve 2010 were simply a misunderstanding. The information provided in the applicant’s statement, and by the statement from the sponsor, was clearly written to provide the impression that the parties had been in a close relationship for at least five months prior to their claiming to have started living together and having an “intimate” relationship for two months before they started living together.
At the hearing, the applicant provided a variation on the claims made as to the development of the relationship. He now claims that after returning to Australia on 13 January 2011 he then arranged with friends to meet the sponsor at a restaurant on 20 January 2011. This is the first time the applicant has made this claim. There is no explanation as to why, if this was the first time the applicant saw the sponsor after he met her in September 2010 that this information, if it is correct, was not disclosed when the Partner visa application was filed. By providing this information, the Tribunal finds the applicant is seeking to address the incorrect information he has shown to have provided in the Partner visa application by generating further false claims.
It was claimed that the applicant had a bad memory for dates and this was what had generated the false information. The Tribunal does not accept this.
The applicant was, at the time of the application, taking steps to obtain his divorce from Ms Humphries. He would have been aware of his marriage and the specific date of that marriage. He would have been aware at the time of the application that he was still legally married to Ms Humphries. The Tribunal does not accept that there could be any misunderstanding or incorrect interpretation, for any reason, when asked the question of whether he was still legally married to another person at the time of the application that he answered “No”.
The information with regard to the applicant’s claim that he first met the sponsor on 14 September 2010 and became very good friends from this moment onwards is information not just given by himself, but also by the sponsor. Similarly, the claim that they met in person on New Year’s Eve 2010 and were “intimate” is made by both the applicant and the sponsor. Particularly as the claim is that the parties committed to a relationship with each other and were “intimate” on a specific event such as a party on New Year’s Eve indicates that there was no misunderstanding as to dates, but rather simply false information being provided by the applicant. The Tribunal finds the applicant and the sponsor conspired together to generate this false information.
In coming to this conclusion, the Tribunal has taken into account the report from Mr Wolfers. This report is dated 12 June 2019 and finds that the errors and omissions in the application to the Department were inadvertent and a result of his mental and emotional condition at the time of the application, some seven years before that report was prepared or Mr Wolfers first saw the applicant. There is no contemporaneous information of any depression or anxiety suffered by the applicant at the time he filed his Partner visa application. There is no information which would indicate Mr Wolfers had access to any such contemporaneous information or that the assessment of the applicant’s state of mind in 2012 was based on anything apart from his interviews and responses to various assessment tests conducted in 2019. At the time the report was being prepared, the applicant was facing the cancellation of his visa to be able to reside in Australia and had also recently suffered a motor vehicle accident. These are significantly different circumstances to those he faced at the time he was applying for a Partner visa and claiming to be in a stable and happy relationship with the sponsor.
As set out above, the Tribunal does not accept that the false information provided by the applicant as to the circumstances of the development of his claimed relationship with the sponsor and his marriage to Ms Humphries was inadvertent or due to any difficulties in remembering dates. The information as to his claimed relationship with the sponsor was corroborated with similarly incorrect information provided by his sponsor. The only error in the applicant’s memory was that on New Year’s Eve 2010 he was in Macedonia with his former wife. The fact that he and the sponsor were claiming to be, at that time, committing to a relationship together and being “intimate” indicates a deliberate action by both the applicant and the sponsor to provide false information to the Department. The failure to provide information about his marriage to Ms Humphries was at the time that the applicant was applying for a divorce and he would have been fully aware of his marriage to Ms Humphries when he was completing the Partner visa application.
The Tribunal does not accept that the provision of the false information was inadvertent or due to any mental condition suffered by the applicant at that time. It was a deliberate action of the applicant who conspired with the sponsor to provide a false narrative as to their claimed relationship.
The applicant also failed to disclose the sponsor’s previous marriage to Zoran Petrovic and the fact that she had previously sponsored him for a Partner visa. The applicant claims this was because the sponsor had not told him about this relationship. If it is the case that the sponsor did not tell the applicant about her previous relationship with Zoran Petrovic this indicates that the parties did not provide the degree of commitment to the relationship, companionship or emotional support to each other which would be expected in a genuine relationship. As there is no evidence, however, that the applicant was aware of the sponsor’s previous marriage to Zoran Petrovic the Tribunal places no weight on this aspect of the false information when considering whether the applicant’s visa should be cancelled.
Present circumstances of the applicant
The applicant continues to reside in Australia and is employed as a team leader of cleaners at Coles supermarket. He continues to live with his mother and stepfather. He has friends and other associates in Australia as well as various connections within the Macedonian community and church in Australia. Friends of the applicant have provided statements and given evidence to the Tribunal in support of the applicant.
The applicant remarried his first wife on 18 August 2016 and she continues to live in Macedonia in the home the applicant previously lived in with her and their children. He has not sponsored her, at this time, for a Partner visa as she is suffering from various medical conditions and he claims that he married her as she needed his support and the children put pressure on him. There is nothing to stop him from returning to live with his wife and family in Macedonia.
It was claimed the applicant was providing support to his mother and stepfather. There is little independent information as to their circumstances. The applicant is working full-time and has been able to return to Macedonia for extended periods since he has claimed that he has been living with his mother. There is nothing to indicate that his mother and stepfather have not been able to adequately care for themselves over these periods or at any time while the applicant has been living in Australia.
Response to the Department’s notice
The applicant responded to the Department’s notice considering the cancelling of his visa by providing a response and further information. This included information about his marriage and divorce from Ms Humphries. He has now provided the divorce order.
The only time the applicant advised the Department of incorrect information was after the Department had advised him that they were aware of incorrect information which had been provided by him in his application. The applicant has provided, as discussed above, various explanations for the false information he provided and differing versions as to the development of his claimed relationship with the sponsor which again undermine his credibility.
Other instances of non-compliance
There is no other information before the Tribunal of any other instances of non-compliance by the applicant in his dealings with the Department.
Time since non-compliance
The incorrect and false information provided by the applicant was done in his application and supporting documents filed on 22 February 2012, more than seven years ago. Based on that information, he was granted a subclass 820 Partner (Temporary) visa on 23 December 2013 and a subclass 801 Partner (Residence) visa on 25 July 2014. He has subsequently sponsored his son for a Child visa.
Over the time that the applicant has resided in Australia he would have developed close social and economic ties with people living in Australia. He has claimed that the relationship he had with his sponsor, which was the basis of him being given the right to reside in Australia, ended in September 2014 two months after he was granted the right to reside permanently in Australia on the basis of that relationship.
The applicant has continued to maintain close relationships with his family and friends in Macedonia, returning to Macedonia on a number of occasions since being given the right to reside permanently in Australia. He remarried his first wife in August 2016.
Contributions to Australian community
The applicant has been employed throughout his time in Australia and has contributed to the Australian tax system. He has also benefited from that system. He has a number of friends amongst the Macedonian community in Australia and is respected by them. There is little other information as to any contribution the applicant has made to the Australian community.
Australia’s international obligations
There is no information which would indicate that if the applicant’s visa was cancelled the applicant would not be able to return to live in Macedonia. He has returned to Macedonia on a number of occasions since been given the right to reside in Australia and has family and friends living there. He remarried his first wife and she continues to live in Macedonia.
As a result of the applicant’s visa being cancelled, the applicant’s son, who was sponsored by the applicant for a Child visa, has also had his visa cancelled. His son is over 18 and has voluntarily returned to Macedonia although it is stated he hopes that his visa will be reinstated and he be able to reside in Australia.
Other consequences of any visa cancellation
If the visa is cancelled, the applicant will lose the right to reside in Australia. If this happens, it is likely that he would return to reside in Macedonia where his current wife and children live. If the applicant’s visa is cancelled it would restrict his capacity to apply for any other visa to enter or reside in Australia. There is no information before the Tribunal which would indicate the applicant would meet the criteria for the grant of any other visa to reside in Australia.
The applicant’s son, who he sponsored for a Child visa, will also have his visa cancelled. The applicant’s son has returned voluntarily to Macedonia and is currently residing in Macedonia. The Tribunal accepts that the applicant’s son would prefer to be able to reside in Australia, however, there is little information which would indicate the applicant’s son has not been able to successfully return to Macedonia and re-establish his life there. There is little information as to the adverse effects on the applicant’s son’s life if he is no longer the holder of the right to reside permanently in Australia.
Overall assessment
The Tribunal has considered all the circumstances of the applicant, including how any cancellation will affect his family, both individually and cumulatively. The Tribunal finds the failure of the applicant to provide information about his marriage to Ms Humphries was a deliberate action by him with the intention that it would mislead the Department when assessing the genuineness of his relationship with the sponsor. Similarly, the claims made by the applicant and the sponsor as to the development of their claimed relationship were also deliberately provided to deceive and mislead the Department as to their assessment of the genuineness of their claimed relationship. This fact must be given significant weight when considering whether the applicant’s visa should be cancelled.
The applicant has been living in Australia for an extended period and provides support to his mother and stepfather. He has developed community ties within the Macedonian community in Australia. He is currently in employment and may find it difficult to obtain similar employment in Macedonia.

100. He continues to have an extended family living in Macedonia and remarried his first wife, who continues to live in Macedonia in 2016. His son has returned to Macedonia and there is no information before the Tribunal which would indicate that he has had any problems living in Macedonia since his return.
101. After weighing all the information about the incorrect information in the circumstances of the applicant and his family, the Tribunal finds the weight of evidence supports a decision to cancel the applicant’s visa. Accordingly, 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
102. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 801 (Spouse) visa.
103. The Tribunal has no jurisdiction with respect to the other applicant.
Hugh Sanderson
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.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

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.

[2019] AATA 3542

5 July 2019

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

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Natural Justice