Ghori (Migration)

Ghori (Migration) [2018] AATA 3640 (27 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Hameed Uddin Ghori
Ms Syeda Shaima Azamuddin
Master Mohammed Abuzer Ghori
Master Mohammed Abubaker Ghori
Miss Zainab Ghori
CASE NUMBER:  1724951
DIBP REFERENCE(S):  BCC2016/4252456
MEMBER:Kira Raif
DATE:27 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 886 (Skilled - Sponsored) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 27 August 2018 at 4:24pm

CATCHWORDS
Migration – Cancellation – Skilled (Residence) (Class VB) visa – Subclass 886 (Skilled (Sponsored)) – Whether the applicant provided incorrect information in the application form – Where applicant used an alias to obtain a migration outcome – Where the applicant failed to disclose an outstanding debt to the Commonwealth – Incorrect information provided – Whether the visa should be cancelled – Where the applicant’s children have spent their formative years in Australia – Significant hardship if visa is cancelled – Best interests of the applicant’s children would be to remain in Australia – Applicant’s consistent, concerted efforts to deceive authorities outweigh other considerations – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 109, 140, 375A
Migration Regulations 1994 (Cth), r 2.41, Schedule 4, PIC 4004, 4020(2A)
Statutory Declaration Act 1959 (Cth), s 11
CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
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 886 (Skilled - Sponsored) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicants are nationals of India. The first named applicant (the applicant) was born in March 1978. He previously applied for, and was granted, a Student visa and he made a number of other visa applications in Australia. The applicant and his family were granted the Class VB Skilled visas in December 2013. On 15 August 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 of the Act. The applicants seek review of the delegate’s decision.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
On 15 August 2018 the Tribunal received a request from the applicant to postpone the hearing as the applicant has appointed a migration agent to act for him. The Tribunal has considered the request but decided not to grant the postponement. The Tribunal is mindful that the applicant was invited to attend the hearing a month earlier. The application for review was lodged in October 2017. In the Tribunal’s view, the applicant had ample time and opportunity to appoint a representative or to change representatives. While the applicant chose to do that two weeks prior to the hearing, he has not satisfied the Tribunal that he could not have taken that step earlier. The Tribunal is also satisfied that the applicant has had adequate time to prepare his case.
The Tribunal informed the applicant of the existence of the s.375A Certificate on the Department’s file. In his submission to the Tribunal of 20 August 2018, the applicant claims that he was not given access to certain documents or information in the Department’s file and reliance on such material would deny him procedural fairness. The Tribunal is satisfied that the information that is relevant to the review was sufficiently set out in the NOICC and the primary decision record. The Tribunal does not accept that the applicant is denied procedural fairness by not having access to the information that is the subject of the s.375A Certificate, because that information is sufficiently covered in other documents and the applicant is aware of it. The Tribunal is also of the view that since the applicant now admits the provision of incorrect answers that formed the basis of the cancellation, there is no practical injustice resulting from the non-disclosure of the documents that are the subject of the Certificate.
The applicants appeared before the Tribunal on 22 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, Mr Khan. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
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.
Section 107A relevantly provides that non-compliance that can constitute a ground for cancellation includes non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
Did the notice comply with the requirements in s.107?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. 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 of the Act. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:
a.   On 20 July 2005 the applicant applied for a Class TU Student visa offshore. He was granted that visa on 18 August 2005 and entered Australia as a holder of the Student visa.
b.   In that Student visa application the applicant:
i.Stated ‘no’ in response to a question whether he was known by any other name
ii.Stated ‘no’ in response to a question in the character declaration where he was asked if he had been excluded from, or asked to leave any country including Australia
iii.Stated ‘no’ in response to a question in the character declaration asking whether the applicant or any person included in the application ever had an outstanding debt to the Commonwealth
iv.Stated ‘no’ in response to a question asking whether he held a visa for travel to Australia
v.Stated ‘no’ in response to a question asking whether he had been refused an entry permit or visa to Australia.
c.   On 21 April 2009 the applicant applied for a General Skilled Migration visa. His responses to the questions in that application were as follows:
i.At Question 1 of Form 1276 the applicant stated his full names as Hameed Uddin Ghori.
ii.At Question 5 of Form 1276 the applicant answered ‘n/a’ in response to a question whether he was, or had been, known by any other name.
iii.At Question 31 of Form 1276 the applicant was asked to provide details of his previous employment. The applicant stated that from January 2000 to August 2005 he worked as an accountant at Royal Motors, Hyderabad, India.
iv.At Question 71 of Form 1276 the applicant stated ‘no’ in response to a question whether he ever had any outstanding debts to the Australian government.
v.At Question 75 of Form 1276 the applicant was asked if he held a visa to travel to Australia. The applicant referred to the Student visa and provided a visa grant number. The applicant did not declare that he held any other visas.
d.     The applicant was granted the Skilled Class VB visa on 2 December 2013.
e.     On 26 October 2012 the identity recognition system of the NSW Roads and Maritime Services (RMS) detected a facial match between the visa holder and Wahed Ali. On 9 July 2013 a Department officer wrote to the applicant and the applicant provided reasons why the issuing restrictions should be lifted by the RMS. These had been accepted, although the delegate suggests that the facial comparison report was not considered as part of that assessment.
f.     On 14 December 2016 the Department identity report concluded that Hameed Uddin Ghori and Wahed Ali (born on 8 July 1972) are the same person. The primary decision record refers to the following findings made in that report:
A departmental facial comparison report dated 7 December 2016 concludes that photographic images of Wahed Ali obtained from his previous visa application form and from the University of Wollongong student records and the photographic images of the visa holder obtained from his visa and citizenship applications represent the same person.
g.     Wahed Ali used a residential address at Oxford Street, Mortdale, NSW immediately prior to his departure from Australia and also by the applicant upon his arrival in Australia.
h.     On 18 May 2017 Departmental officers conducted site visits in India and conducted interviews at the declared addresses of both Wahed Ali and the visa applicant’s own family residence. The Departmental officers noted
i.That Wahed Ali never lived at his declared address or anywhere in the village he claimed to have lived, indicating he was living elsewhere
ii.In the applicant’s home village, photographs of the applicant and of Wahed Ali were shown to members of the applicant’s family. The applicant’s brother Kaleemuddin confirmed that the photograph of Wahed Ali was an image of the applicant. Several members of the community confirmed the same information.
iii.The applicant’s 1995 identity card issued by the Electoral Commission of India was sighted. The photograph of the visa holder appears to be the same person as those in the images of Wahed Ali.
iv.Wahed Ali had a debt to the Commonwealth of $1500.
In his written response to the NOICC the applicant denied that he was previously known as Wahed Ali or that he used another identity. The applicant denied that he was present in Australia prior to August 2005. The applicant suggested that he was a victim of identity theft and fraud. The applicant stated that his identity can be confirmed by the Indian government using biometric data systems. With respect to the visit by the Immigration officers to his home town, the applicant states that his brothers did not identify the photograph of Wahed Ali as that of the applicant and there was ‘apparent miscommunication and misunderstanding’ between the parties. The applicant referred to a photograph of himself in 1995 on the Indian Electoral Commission ID and stated there was no resemblance with Wahed Ali’s photograph. The applicant referred to age difference between Wahed Ali and himself and denied having made another visa application. The applicant included with his submission a number of documents, including several statements from third parties, which, he claims, identify him under his genuine name of Ghori.
In his declaration submitted with the response to the NOICC, the applicant also referred to a number of activities, including study and employment and attendance at social functions which he claims to have done in India before his entry to Australia in 2005. The applicant provided several statements from third parties who refer to the applicant’s presence in India. The applicant denies that his relatives identified Wahed Ali’s photograph as his.
The applicant stated that in 1998 he paid a fee to a migration agent and gave the agent his personal documents, but the agent had absconded and may have travelled to Australia. The applicant stated that he only travelled to Australia in 2005.
The Tribunal acknowledges the substantial amount of documents the applicant presented in his response to the NOICC, which seek to show that the applicant was resident in India prior to 2005. However, against such documents the Tribunal also notes that:
a.The Department’s identity report and the facial comparison report identify the applicant and Mr Ali as the same persons. The Tribunal considers such reports to be probative and persuasive evidence as these are completed using sophisticated comparison techniques.
b.The RMS advice also indicates that the applicant and Mr Ali have been identified as the same person. This was done independently of any inquiries carried out by the Department and is independent confirmation of the findings made by Departmental experts.
c.The primary decision record refers to the comparison of a number of photographs, including the photographs of Mr Ali on the Student papers at the University of Wollongong, passport photographs and photographs on various applications submitted by Mr Ali and the applicant. These have been identified as the same person. The applicant stated that a migration agent took his documents in 1998 and disappeared and there may have been identity fraud. The applicant presented no evidence to support this contention, for example, no evidence of any dealings with, or payment to, the migration agent, no evidence of the matter being reported to the police, no evidence that the applicant made any attempt to reclaim the documents and no evidence that he took any action against the agent. The applicant does not explain why there would be any benefit to anyone in using the applicant’s photograph when entering Australia and attending university study. The Tribunal finds the applicant’s claim of identity fraud unpersuasive.
d.The home address used by Mr Ali on departure and by the applicant on arrival in Australia is the same. In his written submission to the delegate the applicant claimed that a friend helped him find accommodation and the address at Mortdale is a common stop-over point for young Indian students coming to Australia for the first time, with many people living at the premises. The Tribunal does not accept that evidence. While it may be a common address and while the Tribunal accepts there may be many students living at the premises, this cannot be the only such address in Sydney. The Tribunal does not consider it could be a mere coincidence that of all the places the applicant could have stayed upon arrival in Australia, he was referred to precisely the same address used by Mr Ali on departure. In the Tribunal’s view, the fact that the two persons who have been identified as being the same would use the same home address within a short period of time is a strong indication that the applicant and Mr Ali are the same person, rather than an indication of a coincidence.
e.The Tribunal acknowledges the various documents presented by the applicant which he claims confirm his residence in India prior to 2005. However it is well established that fraudulent documents are readily available in India. In these circumstances, the Tribunal prefers the verification reports conducted by the Australian experts such as the Department’s identity report and the RMS advice. The Tribunal considers these to be more probative.
The applicant’s claims set out in his submissions to the Tribunal of 20 August and 21 August 2018 and also his oral evidence to the Tribunal is substantially different to his evidence to the delegate. In his evidence to the Tribunal, the applicant concedes that he has given incorrect answers and used a different identity to travel to Australia between 1999 and 2003. The applicant states that he wanted to come to Australia in search of a better future. He had applied for a Student visa in 1997 but the application was refused. The agent advised him that his passport cannot be reused to get an Australian visa and the agent advised him to conceal his identity and organised another travel document under a different name. At his immature age, the applicant states he did not make the right decision and was under the influence of the possibility of prospective future and financial help to his family. In October 1998 his agent prepared another Student visa application which was granted under the name of Wahed Ali. He entered Australia in February 1999 as Wahed Ali and stayed until 2003, supporting his family. The applicant states that during his stay he was honest and of good behaviour and involved in community activities. The applicant states that the two periods of unlawfulness in November 2002 (one day) and March 2003 (two days) were not his fault, as he was not aware of this as he submitted the papers to the agent who delayed lodging the application. The applicant states that he was not aware of the debt to the Commonwealth until the cancellation letter, but he is willing to clear it.
The applicant states that after he returned to India in 2003, he was desperate to come to Australia. He was experiencing emotional distress, grief and confusion and suffering from cessation of his Australian life standards. He decided to apply for a Student visa under the name of Hameed Uddin Ghori and to stay in Australia permanently.
After completing his studies in Australia, he applied for the Subclass 119 visa, which was refused due to a mistake made by the agent. In 2013 he was invited to comment on the facial recognition report and he denied it straight away because he wanted to stay in Australia permanently. He was running his own business and was in a long term commitment with a franchisor, had employed many Australians and paid taxes. He sponsored local events and activities. The applicant refers to his family circumstances and the reasons for his action.
The issue is whether the applicant has given or provided incorrect answers on the application form. The Tribunal considers the facial recognition report to be probative and persuasive of the fact that Hameed Uddin Ghori and Wahed Ali are the same person. The applicant now admits that he did use the identity of Wahed Ali to travel to Australia and to live in Australia between 1999 and 2003. Having regard to the facial recognition report and the evidence set out in the primary decision record, as well as the applicant’s own evidence to the Tribunal, the Tribunal finds that the applicant known by the name of Hameed Uddin Ghori and Wahed Ali are the same person. As such, the Tribunal finds that the applicant filled in the forms in a way that incorrect answers were given as set out at paragraph 12 above.

The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994. Briefly, they are:
The correct information
The correct information is that the applicant had been known by a different name and used a different identity to travel to, and stay in, Australia between 1999 and 2003. The correct information is that the applicant stayed in Australia for about four years and had a debt to the Commonwealth at the time he applied for the Skilled visa. The Tribunal acknowledges that the applicant has now paid the debt but that debt existed at the time the decision was made to grant the visa.
The content of the genuine document (if any)
This is not relevant in this case.
Whether the decision to grant a visa, or immigration clear the visa holder, was based, wholly or partly, on incorrect information or a bogus document
There are several criteria relevant to the grant of the visa that rely on the person’s identity and immigration history. Identity is relevant to PIC 4020(2A) and if the delegate was aware that the applicant had been known by a different name, a more thorough assessment would have been conducted in relation to this provision. PIC 4004 required the delegate to be satisfied that the applicant did not have any outstanding debts to the Commonwealth and the primary decision record indicates that the applicant did have such a debt at the time he applied for the Skilled visa. The applicant’s evidence to the Tribunal is that he made an application for a Student visa and then another substantive visa during his first stay in Australia and that application was refused. As the applicant appears to have lived in Australia as a holder of a Bridging visa prior to his departure in 2003, he may have been subject to an exclusion period at the time he made his application for, and was granted, the Student visa in 2005. The Tribunal finds that the decision to grant the visas to the applicant was based, wholly or partly, on incorrect information.
The circumstances in which the non-compliance occurred
The applicant claimed in his response to the NOICC that he has not been known by any other name and that he was in India when Mr Ali was in Australia. The applicant denied any non-compliance. In his submission to the Tribunal the applicant admits that he entered and lived in Australia using a different name. In his written submission to the Tribunal the applicant outlined his circumstances in India and his desire to stay in Australia and support his family. Essentially, the applicant states that he provided incorrect information because he wanted to stay in Australia. He continued to provide incorrect information in subsequent dealings with Immigration because he was settled in Australia and did not want to lose his visa.
In his submissions to the Tribunal of 20 and 21 August 2018 the applicant refers to his ‘guilt’ and the circumstances that led him to make the decision to enter Australia using a false identity. Both the applicant and his partner in their respective statements refer to the ‘unintentional fault that happened over 20 years back’. The Tribunal finds these submissions misleading. The applicant has not expressed any guilt, nor remorse, until after his visa was cancelled and shortly before his appearance before the Tribunal. The applicant had ample opportunities to present truthful information over many years but had not done so. The ‘fault’ was not unintentional but was well planned and considered, as the applicant describes his desire to travel to Australia initially and the steps he took to arrange a false identity. That could hardly be said to be unintentional. He continued to be untruthful in his subsequent dealings with the Department, and as recently as in response to the NOICC. In circumstances where the applicant persistently gave the same false information in all his dealings with the Department, it could hardly be said that the fault was ‘unintentional’. The Tribunal finds that it was deliberate, intentional and that the applicant’s actions were taken with the sole purpose of allowing his stay in Australia and with no regard for the Australian law.
Neither is it correct to state that the fault occurred 20 years ago. The applicant did use a different identity when he entered Australia in 1999. However, he also failed to disclose that identity and his previous residence in Australia in his Student visa application made in 2005 and his Skilled visa application made in 2009. It is such non-disclosure that gave rise to the cancellation of his visa.
In his written submission to the Tribunal, the applicant explains that his mother died when he was young and his father was poor and he was denied many opportunities. As he grew older, he felt the financial responsibility to support his family and heard from an agent that there was a possibility of migrating to Australia. He applied for the Student visa in 1997 while his friends’ visas were granted. The agent advised him to conceal his identity and he was ‘not thinking straight’ and prepared a new visa application. The applicant states that he stayed in Australia under a different identity until 2003 and supported his family financially. During this time he was ‘very honest’ and a ‘good behaving person’. The Tribunal is mindful, however, that the relevant breach is not the use of the false identity in 1999 but the applicant’s failure to disclose that identity, and his previous residence in Australia, in visa applications made in 2005 and 2009. Even if the applicant was desperate to come to Australia due to his family circumstances (and the Tribunal does not consider that the applicant’s desire for a better financial position justifies such a significant breach of the Australian laws), his application for the Skilled visa was made in April 2009. By that time the applicant was no longer an impecunious man too young to appreciate what he was doing. The applicant has been living in Australia for several years and was well established in Australia. Yet, the applicant continued to provide false information to the Department by failing to disclose the use of a different identity and his previous stay in Australia.
The applicant told the Tribunal that he was unware of the exclusion period when applying for the Student visa in 2005 and he said he would have waited an extra year and declared his true identity if he knew the law. In the Tribunal’s view, one does not need to have an extensive knowledge of the law to appreciate that correct and truthful information must be provided in a visa application. The applicant also told the Tribunal that he made no enquiries about the visa. In the Tribunal’s view, it was the applicant’s responsibility to ensure the knowledge of the law that was relevant to his application and the applicant could have easily made inquiries or obtained information from the Department. The applicant said that he wanted to stay in Australia, he was settled here and he was afraid his application would be refused. The applicant said that by the time he made the application in 2005, he did not want to remember his past. That appears to be the real reason the applicant did not disclose the information. He deliberately avoided taking any steps to ensure his compliance with the law in order to maximise his chances of obtaining the visa.
The present circumstances of the visa holder
The applicant has been living in Australia for a number of years and is settled in Australia. He provided evidence of operating a business in Australia but told the Tribunal he has now sold the business. He provided evidence of having purchased a property in Sydney. His four children attend schools. The applicant refers to his community ties and to the help he provides to other members of the community.
The applicant told the Tribunal that he was running a 7-Eleven franchise but he sold it in April 2018 because of his visa. He has now invested in a restaurant and also works as chef in the same restaurant. They are in the process of transferring the lease on the business and have invested about $100,000. At present, the restaurant employs four staff. The applicant said that if the visa is not reinstated, he will sell the business. Following the hearing, the applicant provided to the Tribunal evidence of property ownership and relating to his business dealings.
The applicant refers to his wife’s health, stating that she is going through a ‘big trauma’ and was recently hospitalised. Following the hearing, the applicant presented medical records relating to his partner. These refer to a condition which appears to have been manage but contrary to the applicant’s and his wife’s evidence, the medical records do not appear to refer to medical problems of such degree of severity as to require ongoing and complex medical involvement. There is no evidence of the applicant’s wife undergoing treatment for ‘trauma’ or depression or any other such illness to which the applicant and the psychological report refer. The wife has provided a statement to the Tribunal following the hearing indicating she was too embarrassed to mention her condition to anyone but in the absence of contemporaneous medical records, the Tribunal does not accept the applicant’s evidence about his wife’s state of health.
The applicant said that his children are attending school. His eldest son is playing soccer for his school. His second son plays cricket and hopes to play for Australia one day. His daughter is in Year 2. The youngest child is a year and a half. His eldest son understands what is happening with the visa and it has affected his study. His children have grown up in Australia and have no idea about the Indian life and do not want to live in India. The Tribunal accepts the applicant’s evidence.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
In his response to the NOICC the applicant denied having used another name. The applicant provided extensive documentary evidence to establish his residence in India before 2005, including an employment reference, his academic transcript and a number of statements from third parties. In his written submission to the Tribunal the applicant concedes that he did live in Australia between 1999 and 2003. The Tribunal finds that the applicant provided an extensive amount of bogus documents and incorrect information in his response to the NOICC.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate states that the applicant applied for a Business visa in September 2011 and did not declare his earlier identity, and the applicant confirmed that in his oral evidence. The Tribunal finds that the applicant did not comply with s.101 in relation to his Business visa application made in 2011.
The applicant also told the Tribunal that he made an application for a Student visa around 2007 and did not declare the use of a different identity and his previous residence in Australia in that application, as he did not want to jeopardise his visa. The Tribunal finds that the applicant did not comply with s.101 in relation to his Student visa application made in 2007.
The time that has elapsed since the non-compliance
The applicant made the application for the Student visa in July 2005 and for the Skilled visa in April 2009. Thirteen years have passed since the non-compliance in relation to the Student visa and over nine years since the non-compliance in relation to the Skilled visa. The applicant’s evidence to the Tribunal is that during his residence in Australia he had bought a property with a long-term mortgage and runs a business employing Australian citizens. The Tribunal accepts that evidence.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant claims to be a respectable and truthful resident of Australia and to have no criminal offences, and there is no evidence that the applicant has been charged with, or convicted of, any offences.
The applicant provided a statutory declaration to the delegate in response to the NOICC, declared on 5 September 2017. In that declaration the applicant states that he had been living in Hyderabad between January 2000 and August 2005. In his submission to the Tribunal the applicant states that he has been living in Australia between February 1999 and August 2003. The Tribunal finds that the applicant had intentionally made a false statement in his declaration in breach of s.11 of the Statutory Declarations Act 1959. A penalty for intentionally making a false statement in a statutory declaration is imprisonment for four years and the Tribunal finds the breach to be serious.
Any contribution made by the holder to the community
The applicant claims in his submission to the delegate that he runs a business and employs Australian citizens. The applicant told the Tribunal that he has sold that business but now runs a restaurant and employs several staff.
The applicant states that he supports the local community whenever possible and he also volunteers for a non-profit charity organisation Deccan Australia Welfare Association (DAWA) of which he is a trustee and a foundation member. The applicant described to the Tribunal the activities of the organisations he is involved in and his own role. The applicant provided a statement from the DAWA. The applicant also provided a statement from the Islamic Association Western Sydney Suburbs, which refers to the applicant’s participation in religious and other community events. The applicant told the Tribunal that he always attends their functions and cooks for the community. The Tribunal accepts that evidence and accepts that the applicant has made contributions to the community and actively participates in community activities.
The applicant refers to being a witness in a criminal trial and the Tribunal accepts that evidence.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual, PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed. His partner and children may also become unlawful non-citizens if their visas are consequentially cancelled. There is no suggestion that they will be detained indefinitely. The Tribunal acknowledges that unless the applicants are granted other visas, they may be unlawful non-citizens and subject to detention and removal from Australia. There may be restrictions on the applicants’ future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention.
Whether there would be consequential cancellations under s.140
The visas held by the applicant’s spouse and three children would be subject to consequential cancellations and have been cancelled. One of the applicant’s children is an Australian citizen.
The applicant’s spouse states in her statement to the Tribunal that her citizenship application had been approved in January 2015 but the ceremony was delayed, and if it was not delayed, she would not be in the situation she is in now. It may be that the ceremony was delayed because there was an investigation concerning the cancellation of the applicant’s visa but in any case, the applicant’s spouse was not granted Australian citizenship and her visa has now been cancelled.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
There is no evidence, and the applicant does not claim, that Australia has protection obligations towards him. The Tribunal is also mindful that the applicant is able to make an application for a protection visa if he believes Australia owes him protection obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application.
The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations.
The applicant has four children in Australia. Three of his children were born in Australia and were permanent residents prior to the cancellation of their visas and the youngest child is an Australian citizen. In his submission to the Tribunal of 20 August 2018 the applicant states that his three younger children were born in Australia and one is an Australian citizen. They have been raised in Australia their entire lives. The applicant refers to an UNICEF publication about development in formative years, noting that his eldest child has spent 12 years in Australia and is into the formative years of his life. The other children are in early childhood and all the children are at a crucial stage of development. The applicant submits that sending them to India will have a detrimental impact on their development as they will live in a country with unsafe conditions both in the education system and the community.
The applicant has not presented adequate evidence to satisfy the Tribunal that his children would be unsafe in India. The applicant refers to general information – for example, articles showing that there is corporate punishment in India which may be detrimental to them – but the applicant has not provided adequate information about his own family circumstances and what options may be available to him, for example: what schools the children may attend, what environment they would live in, what support, including from the extended family would be available to them, etc. It is not sufficient to state that the situation in Australia is more preferable than the situation in India or that there are potential problems in India such as corporal punishment. The Tribunal must consider the circumstances of this particular family and the interests of these particular children, and broad references which the applicant makes are unhelpful.
The applicant told the Tribunal that the children visited India only for short periods and they have not spent much time in India. His children have only been exposed to the Australian culture and education. They are scared of going to India and of the Indian education system. The applicant said that he has distant relatives in Australia, and siblings and a mother-in-law in India. The applicant’s children have provided written statements to the Tribunal explaining why they wish to remain in Australia and not return to India and the applicant’s daughter gave oral evidence to the Tribunal. The applicant said that this wife and children are innocent and were not involved in anything he has done and should not be punished for it. The evidence of the applicant’s wife is that she was unaware of the applicant’s first visit to Australia and the Tribunal is prepared to accept that evidence. The Tribunal accepts that neither the applicant’s spouse nor the children had any involvement in the provision of incorrect answers.

The Tribunal acknowledges that the applicant’s three children were born in Australia and spent their entire lives in Australia. The Tribunal accepts that his eldest child has spent the majority of his life in Australia, as he came to Australia at a very young age. The Tribunal accepts that the children attend Australian schools and are well used to living in Australia. The Tribunal accepts that it is in the best interests of the children to maintain that environment. The Tribunal accepts that the best interests of the children require their presence in Australia.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
The applicant refers to the length of time he has spent in Australia, the fact that he runs a business and has bought a property and is well settled here. The Tribunal accepts that evidence. The applicant states that leaving Australia would have a detrimental effect on his children, three of whom were born in Australia and the eldest spending the majority of his life in Australia. This has been addressed above and essentially, the Tribunal accepts that evidence. The applicant refers to his wife having a mental breakdown for fear of having to leave Australia and live in India as she fears for her children. The Tribunal accepts that the cancellation of the visa could cause significant hardship to the family. The Tribunal also acknowledges the applicant’s evidence that due to the child’s age, the Australian citizen child is likely to leave the country to stay with his parents.
The applicant told the Tribunal that he would not know what to do in India. He claims it is hard to run a business and it would be hard to live without a high income. It would also be hard for his children to adapt and he may not be able to provide for them. The applicant said that the education system is expensive and the health system relies on ability to pay. The applicant referred to low employment and he said if he started a business, it would be hard to do it. The applicant has not presented convincing evidence to support these claims. The applicant told the Tribunal that he has not explored business or other opportunities in India because he does not want to think about returning to India. In such circumstances, the Tribunal does not accept that the applicant would be unable to either find a job or operate a business. His evidence to the Tribunal is that he has invested about $100,000 in a restaurant, and has plans to expand it, and he will sell the restaurant if the visas are not reinstated. That would suggest that the family have some savings that may be used towards their living expenses in India. The Tribunal does not accept on the evidence before it that the family will be unable to support themselves in India or that the children will be denied access to appropriate education and other basic services.
Nevertheless, the Tribunal accepts that the cancellation of the visa could cause considerable hardship to the family.
The applicant provided several character references to the Tribunal (mostly unsigned). The applicant’s friend Mr Khan also gave oral evidence to the Tribunal about the applicant’s character and requested that the applicant should be given a second chance. The Tribunal accepts that those who provided the character references believe the applicant to be a person of good character.
The applicant also provided to the Tribunal a psychological report from Ms North. The Tribunal considers that evidence problematic. The report indicates that the applicant saw the psychologist for a single session on 16 August, five days before his scheduled appearance before the Tribunal. The arrangements were made by the applicant’s migration agent, as is clear from the report which refers to the agent’s ‘letter of instructions’. There is no evidence of the applicant seeing that or any other psychologist before. Given the timing and the circumstances in which the report was initiated, the Tribunal has formed the view that the report was prepared for the sole purpose of assisting the family with the visa issues. The Tribunal is not convinced that a thorough assessment of the family’s circumstances could effectively be made on the basis of a single visit and at least some of the findings in the report appear to be based on the applicant’s and his wife’s self-reporting. For example, Ms North refers to Ms Azamuddin’s mental state over the past year as she described symptoms of anxiety and depression. It is not apparent that any independent assessment of Ms Azamuddin’s circumstances had been carried out and the Beck inventory to which the report refers is identified as a self-report inventory. Ms North describes the family’s circumstances and background and the applicant’s immigration issues on the basis of the applicant’s own evidence. Ms North concludes that despite misleading the Department, the applicant’s behaviour since that time has been ‘exemplary’ and that he has ‘proven himself to be an exemplary member of the community’. It is unclear how Ms North could have reasonably formed these conclusions, having met the applicant once three days before the report was written and it is also not apparent that Ms North was made aware of the various breaches when forming her conclusions. As the Tribunal has formed the view that the family sought the psychological report for the benefit of their visa matters and for no other reason, the Tribunal considers any self-reporting that formed the basis of Ms North’s findings to be self-serving and unreliable. The Tribunal considers the psychological report of little probative value.
Nevertheless, and despite the Tribunal’s reservations about the psychological report, the Tribunal accepts that that the best interests of the children are to remain in Australia. The Tribunal accepts that the applicant’s spouse has been affected by the cancellation and the possibility of having to leave Australia. The Tribunal accepts that the cancellation of the visas is likely to cause significant hardship to the family.
The Tribunal acknowledges the reference to Ms Azamuddin’s medical condition and the subsequent medical evidence. As noted above, the medical reports are somewhat limited and Ms Azamuddin’s condition appears to have been treated. There is no evidence that she would be unable to access adequate medical treatment in her home country. The Tribunal is not satisfied that Ms Azamuddin would be denied medical treatment as a result of the cancellation of her visa.
Another issue of concern to the Tribunal is the application the applicant made in 2000. The applicant told the Tribunal that after he first entered Australia in 1999 and finished his initial study, his migration agent gave him the option of extending the Student visa and pay for another course or applying for a different visa that would allow him to stay in Australia and work. The applicant said that he made that application because he wanted to stay in Australia and earn. The applicant told the Tribunal that there was no truth in the claims that he made in that application and he only made the application in order to be able to stay in Australia. He also appealed the refusal decision to the Tribunal but did not attend the hearing. The Tribunal finds that this is another instance of the applicant being deliberately untruthful in his visa application and in his dealings with the Department, because the applicant decided that his desire to stay and work in Australia was of greater importance than his obligations under the Australian laws.
The applicant told the Tribunal that when he was living in Australia between 1999 and 2003, he obtained a drivers license in his false identity of Wahed Ali and also opened a bank account. The applicant said that he had no choice because he used that name to enter Australia. The Tribunal finds that the applicant was deliberately misleading in his dealings with various agencies in Australia during his residence under the false name.
The applicant repeatedly told the Tribunal that during his first period of stay in Australia he was honest and law-abiding and a good member of the community. With respect, the Tribunal does not consider that to be the case. In that period, the applicant entered the country using a false identity, used the false identity to open a bank account and obtain a driver’s license and made a visa application with deliberately false claims in order to stay and work in Australia. These actions could hardly be said to reflect the applicant’s compliance with the Australian law.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there was a breach of s.101 of the Act in the way described in the NOICC and that there are grounds for cancelling the visa.
The Tribunal considers there are reasons why the visa should not be cancelled. The applicant has been living in Australia for many years and is well settled in Australia. He operates a business, employs Australian staff and contributes to the economy. His wife and children are settled in Australia and one of his children is an Australian citizen. He makes significant contribution to the community through various activities. He has purchased a home in Australia and has made financial investments. The Tribunal accepts that the applicant’s partner is distressed about the possibility of having to leave Australia, as are his children, and the Tribunal acknowledges the medical evidence in relation to Ms Azamuddin. The Tribunal accepts that the cancellation of the visa would cause a significant degree of hardship to the family. Most importantly, the Tribunal has formed the view that the best interests of his four children would be best served if they remain in Australia and the Tribunal acknowledges the applicant’s evidence that one of his children is an Australian citizen and that child is likely to leave Australia with his family. The Tribunal acknowledges that the best interests of the children constitute a primary consideration, although it is not a determinative factor in exercising discretion.
Against these considerations, the Tribunal finds that the breach was a serious one. The applicant used a different identity to enter Australia previously and he failed to disclose that identity in his subsequent dealings with the Department. Being satisfied of an applicant’s identity is at the core of the Australian immigration system. There are several criteria that would have been dependent on the incorrect information the applicant gave, including special return criteria in Schedules 4 in relation to the Student visa, PIC 4020(2A) which is directly relevant to the applicant’s identity and the applicant’s debt to the Commonwealth which was outstanding at the time the decisions to grant him the visas were made. It is at least possible that the applicant may not have been able to meet the requirements for visa grant if the correct information was known and it is a certainty that the correct information would have affected the assessment of his eligibility for the visa.
The Tribunal places significant weight on the fact that the applicant had been persistently untruthful in his dealings with Immigration throughout his stay in Australia and he appears to have little genuine remorse about his action, despite his quite recent expression of remorse. His written evidence to the Tribunal is that he did use a false identity to first travel to Australia on a Student visa in 1999. While staying in Australia, he used the false identity to obtain the drivers license and a bank account. He made an application for a substantive visa knowing the claims were false only in order to be able to live and work in Australia. He continued to be untruthful in his second visa application in 2005 simply because he preferred living in Australia and was upset about losing the standard of living he became accustomed to. His own comforts appear to have been of greater significance than his obligations under the Australian laws. The applicant was untruthful in his Student visa application made in 2007, the Business visa application made in 2011 and the Skilled visa application made in 2009. He was untruthful in his response to the RMS in 2013. Consistently throughout his stay in Australia, the applicant had knowingly and deliberately provided false information to the Department and other authorities because his preference was to remain in Australia. The applicant appeared to have been unconcerned about the Australian laws and his obligations under the Australian laws as long as his desires were satisfied.
The Tribunal acknowledges that the applicant has now expressed remorse but the Tribunal is concerned that he has only done so in response to the cancellation of his visa and until recently, the applicant continued to rely on false information in his dealings with Immigration and the Tribunal. The Tribunal does not consider the applicant’s expression of remorse as being genuine.
It is highly problematic that the applicant continued to be untruthful in his most recent dealings with the Department in response to the NOICC. As noted above, the applicant denied in his response to the NOICC that he was known by another name. Indeed, the applicant had gone to considerable lengths to falsify the evidence which he submitted in response to the NOICC. His evidence to the Tribunal is that he asked his friends and a business partner to provide statements containing false information and the academic transcript also contained incorrect information because he did not complete the course. The applicant submitted a large volume of bogus documents in response to the NOICC. Not only did he himself provide false or misleading information to the Department, but he had also arranged for others to do that on his behalf. The Tribunal has formed the view that the applicant has demonstrated a complete disregard for the Australian laws over the past twenty years.
The applicant also provided to the delegate a declaration sworn on 5 September 2017 in which he outlined all the activities he engaged in while living in India until 2005. The applicant now claims he was in Australia between 1999 and 2003. The information he supplied in his declaration as recently as September 2017 was entirely false.
The applicant claims in his submission to the Tribunal that he did so ‘contrary to his nature and inside honest feelings’. However, the applicant’s persistent provision of false information in almost every dealing he had with Immigration since he first entered Australia in 1999 may not support the applicant’s claim that he did so ‘against his honest nature’. Rather, it shows a consistent pattern of behaviour that was designed to deceive. The applicant has made a calculated attempt to mislead the Department in order to stay in Australia.
In his various submissions to the delegate and the Tribunal the applicant refers to being a law-abiding citizen of good standing and the fact that he is well regarded in the community and has never committed any offences. The Tribunal does not agree with that assessment. Travel to Australia on a false passport is an offence and living in Australia using a false identity is not consistent with the Australian laws and values. The consistent falsity of his claims in various visa applications does not indicate the applicant’s compliance with the Australian law. The deliberate provision of false information in a statutory declaration is an offence and the Tribunal is mindful that the applicant presented with his submission to the delegate a number of witness statements from India, which contained false information and these were prepared at the applicant’s request. Contrary to the applicant’s submission, the Tribunal does not consider his conduct indicates the applicant’s respect for the Australian laws.
The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached if the visa is cancelled.
The Tribunal acknowledges that there are strong reasons why the visas should not be cancelled. Most importantly, the Tribunal has formed the view that the best interests of the applicant’s four children would be to remain in Australia. The Tribunal also accepts the applicant’s evidence that he is well settled in Australia and that he has made a significant contribution to the Australian community. However, the significance of the breach and the extent of the applicant’s falsehoods throughout his stay in Australia, his persistent disregard for the Australian laws, and continuous provision of incorrect information and bogus documents in many of his dealings with the Department and other authorities outweigh, in the Tribunal’s view, such considerations.
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
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 886 (Skilled - Sponsored) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Kira Raif
Senior Member

[2018] AATA 3640

27 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction