Heidar Nejad (Migration)

[2018] AATA 3949

Heidar Nejad (Migration) [2018] AATA 3949 (23 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nima Heidar Nejad
Mrs Homa Berahman
Miss Tina Heidar Nejad
Master Rayan Heidarnejad

CASE NUMBER:  1716546

DIBP REFERENCE(S):  BBC2016/690753

MEMBER:Kira Raif

DATE:23 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 23 August 2018 at 3:30pm

CATCHWORDS
MIGRATION – Cancellation – Skilled Independent (Permanent) visa – Subclass 189 Skilled Independent – incorrect answers – bogus documents – IELTS test report – another person attended IELTS test –facial comparison report – significant discrepancies in IELTS photo – previous test scores –English proficiency – psychological situation – children’s time in home country – children’s ability to settle – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109

CASES
BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Iran. The first named applicant (‘the applicant’) was born in July 1974. The applicants were granted Skilled visas in August 2015. On 15 June 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 and s.103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 25 July 2017. The applicant seeks review of the delegate’s decision.

3. 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.

4. The applicants appeared before the Tribunal on 21 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

6. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

7. 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.

   Did the notice comply with the requirements in s.107? 

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

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

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.103 of the Act.

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

    a.The applicant applied for the Skilled visa in March 2015. In response to a question on the application form whether the applicant had undertaken an English language test in the past 36 months, the applicant stated ‘yes’.

    b.The applicant provided the details of his most recent English test, stating he has done an IELTS test on 27 September 2014 in Iran. The applicant gave the test reference number 14IR000568HEIN026A. He stated that his language ability was ‘superior’.

    c.The applicant signed a declaration that he had read and understood the information provided in the application. The applicant signed a declaration that he had provided complete and correct information in the form and any attachments.

    d.The applicant included with his application an IELTS Report Form dated 12 October 2014. The Report Form contained the following information.

    Date of test  27/09/14
    Family Name  Heidar Nejad
    First name   Nima
    Candidate ID  U30662489
    Date of Birth   25/07/74          
    Country of Nationality       Islamic Republic of Iran
    First language   Farsi
    Test Report Form Number                    14IR000568HEIN026A
    Test results  Listening band 9
      Reading band              8.5
      Writing Band               8

    Speaking Band            8

    Overall band score     8.5

    A digital photograph of the candidate was included on the form.

    e.The applicant was granted the Skilled Independent Class SI visa on 4 August 2015 and arrived in Australia on 16 February 2016.

    f.On 17 February 2017 the Department became aware that the photo contained within the IELTS report showed significant facial discrepancies with the applicant’s additional personal identifies held by the Department.

12. The delegate concluded that the applicant gave incorrect answers on the application form when he referred to having undertaken the English language test in the 36 months before the application was made, and also by declaring that the information he gave on the form and any attachments was complete and correct in every detail. The delegate also found that the applicant gave incorrect answers when he referred to having done the language test on 27 September 2014 and by stating that his language ability was superior. The delegate found that the applicant did not comply with s. 101 of the Act. The delegate further found that the applicant did not comply with s. 103 of the Act because the IELTS test report form he submitted with the application was a bogus document.

13. In his written response to the NOICC the applicant states that he completed the form truthfully and his answers were honest and true. The applicant stated that he did sit the IELTS exam on 27 September 2014 and obtained good scores. The applicant noted that entering the IELTS test room required verification and strict security checks, including proof of identity, which was reliable. The applicant states that the ‘apparently plump face’ on his IELTS photo was due to his year-long inactivity and stress owing to preparing for the exam, which also made him tired-looking and he was unshaved and this may have caused the discrepancy.

14. The Tribunal finds the applicant’s explanations unconvincing. Any facial comparison report would not be based merely on the applicant’s ‘plumpness’ or facial hair or tired look, as the applicant suggests. It is a sophisticated assessment which considers a number of characteristics and is capable of making distinctions resulting from age, facial hair, weight differences, etc. The primary decision record indicates that the facial recognition report indicates significant discrepancies between the photo of the IELTS candidate and the applicant’s photo which accompanied his biodata records to the Department. In the Tribunal’s view, ‘significant discrepancies’ cannot be explained by the applicant putting on weight, being tired or unshaven. The Tribunal considers the report to be reliable and probative.

15. The Tribunal is also mindful of the significant differences in test results from the tests undertaken within a short time of each other. The applicant provided to the Tribunal the results of the test he claims to have completed on 7 June 2014, three months before the test in question. In the earlier test, the applicant achieved the scores of 4; 5.5; 5 and 6 for listening, reading, writing and speaking respectively. In the latter test his results were 9; 8.5; 8 and 8 for listening, reading, writing and speaking. Notably, the latter test was an academic test while the earlier one was a general test, which is considered to be easier. The Tribunal does not consider it possible, or plausible, that within three months the applicant’s English proficiency and his scores could have improved so dramatically. The significant discrepancies in the test results support the finding that the second test was not undertaken by the applicant.

16. In oral evidence to the Tribunal the applicant states that he made a mistake. The applicant states that due to economical, mental and personal problems at the time, and due to bad advice he received from a friend, he made a mistake and arranged another person to sit the test. He states that the IELTS test is known to be too hard and unfair and a friend’s friend attended the IELTS test for him.

17. The applicant admits in his oral evidence to the Tribunal that he did not sit the IELTS test and that a friend sat the test for him. Having regard to the applicant’s evidence, the Tribunal finds that the applicant filled in or completed his application form in a way that incorrect answers were given:

    a.When the applicant stated that he had undertaken an English test in the 36 months before the application was made.

    b.By referring to the test done on 27 September 2014 and giving the test reference number.

    c.By stating that his English proficiency was ‘superior’.

    d.By stating that the information he gave on the form and in attachments was complete and accurate.

18. The Tribunal finds that the applicant did not comply with s.101 of the Act.

19. The Tribunal further finds that the IELTS test report form dated 12 October 2014 which the applicant gave with his visa application was a bogus document because it purports to have been, but was not, issued in respect of the applicant. The Tribunal finds that the applicant did not comply with s.103 of the Act. The Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

20. 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).

21. 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

22. The correct information is that the person who had undertaken the IELTS test on which the applicant relied in his visa application was not the applicant. The correct information is that the applicant had not undertaken the IELTS test to which he referred in his application and did not have the English proficiency on which he relied in his application.

    The content of the genuine document (if any)

23. The genuine document would not identify the applicant as a person who had undertaken the IELTS test in September 2014. The content of the genuine document would show that the applicant did not achieve the IELTS test scores on which he relied.

    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

24. The language proficiency is relevant to a number of considerations, including the allocation of points and a separate requirement on English proficiency. The applicant passed the English proficiency requirements due to his IELTS test results and was awarded the highest number of points for superior English. The Tribunal finds that the decision to grant the visa was based, wholly or partly, in incorrect information and on a bogus document.

25. The applicant told the Tribunal that he and his family have been living in Australia for several years, that their English has improved and that their claims should be assessed at present. However, the English proficiency requirement applies before the visa is granted, rather than at some indeterminate time in the future. If the applicant was unable to demonstrate sufficient English proficiency, he would not have been granted the visa even if the applicant believes he now has better English.

    The circumstances in which the non-compliance occurred

26. In his response to the NOICC the applicant denied the non-compliance and states that he simply looks different on the various photographs. For the reasons stated above, the Tribunal does not accept the explanations put forward by the applicant in his submission to the delegate and the applicant now admits that these were false.

27. The applicant told the Tribunal that his country was under sanctions and there was a possibility of the war. The applicant referred to his psychological situation at the time but he provided no medical or otherwise probative evidence concerning his ‘psychological situation’. The applicant conceded that he had no medical issues but referred to general country information which, in the Tribunal’s view, is not sufficient to establish that the applicant suffered any medical, psychological or other conditions which affected his decision-making. While the Tribunal accepts that the applicant was keen to leave Iran, the Tribunal does not consider that his desire to do so justifies the provision of incorrect information and bogus documents.

28. In oral evidence to the Tribunal the applicant states that he made a mistake and it is human to make mistakes. The applicant refers to the economic and other circumstances and poor advice from a friend. The applicant states that there were difficulties in Iran, he was growing older and there was the possibility of a war, so even though he was hesitant to do it, he organised for a friend of a friend to do the test for him in return for a ‘gift’. The Tribunal is mindful that arranging another person to sit an IELTS test is a complex process which would have taken a certain degree of planning. It is difficult to see how that could be said to be a ‘mistake’. The applicant repeatedly told the Tribunal that the mistake was unintentional. As noted above, the Tribunal considers that evidence problematic, given that the applicant had deliberately arranged for another person to sit the IELTS test for him, knowing that he could not pass, and in return for a payment. The applicant’s actions were made deliberately and were specifically designed to mislead. They were not unintentional.

    The present circumstances of the visa holder

29. The applicant refers to the length of time he has spent in Australia and to having settled in Australia. The applicant states that he operates a business and he plans to expand to the global market. The applicant provided evidence of his business activities and supporting statements and the Tribunal accepts that the applicant operates a business and is engaged in business activities in Australia. The Tribunal accepts that the applicant pays taxes and contributes to the economy and is establishing financial links. The Tribunal acknowledges supporting statements from other parties, including a character statement from the applicant’s employer. The applicant’s evidence to the Tribunal is that his employer, who provided the character reference, is unaware of the visa issues and the provision of the incorrect answers and bogus document to the Department. In the Tribunal’s view, that detracts from the value of the character reference, although the Tribunal is prepared to accept that the writer believes the applicant to be a person of ‘character and integrity’.

30. The applicant told the Tribunal that he found his first job after three and a half months and to date, he continues to work in his field of specialisation, which is agriculture and husbandry. The applicant provided evidence of his professional engagements and the Tribunal accepts that evidence. He states that they bought a car. The applicant stated that it was hard to keep a full-time job once his visa was cancelled, so he started his own small business. The applicant provided to the Tribunal evidence of his business activities and the Tribunal accepts that evidence.

31. The applicant stated in response to the NOICC that his partner is trying to find a job and his two children attend school and childcare. The applicant told the Tribunal that his wife works at Coles. The applicant provided to the Tribunal evidence of his wife’s employment at Coles and various school records relating to his children.

32. The applicant states that his daughter, who is eleven, is very good at athletics and hopes to participate in the Olympics for Australia one day. His son, who is four, loves soccer and he hopes his son will join the national team.

33. The applicant states that the entire family are trying hard to succeed in Australia. The Tribunal acknowledges and accepts that evidence and accepts that the family have made an effort to settle in Australia. The Tribunal accepts that both the applicant and his partner are gainfully employed and that the children are well settled at school. The applicant refers to being an honest, law-abiding and reliable citizen and the Tribunal accepts that there is no evidence of any breaches of the law, other than the issues that give rise to the cancellation of the visas.

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

34. In his response to the NOICC the applicant denied having provided a bogus document and stated that he did undertake the IELTS test. The applicant provided various explanations as to why the photograph on the IELTS test report looked different. The applicant now admits that he did not sit the IELTS test. The Tribunal finds that the applicant continued to provide incorrect information to the delegate in response to the NOICC.

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

35. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

36. The application for the visa was made in March 2015 and about three and a half years passed since the non-compliance.

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

1. There are no other known beaches of the law. The applicant repeatedly told the Tribunal that he is not a criminal and has not breached any laws and has led an honest life with his family.

   Any contribution made by the holder to the community

2. The applicant refers to his business in Australia and the Tribunal accepts that the applicant operates the business and is paying taxes. The applicant provided to the Tribunal a number of documents evidencing his employment and a variety of statements in support of his other activities. The Tribunal acknowledges that evidence.

3. The applicant refers to his and his wife’s employment in Australia for Australian companies and his social activities, including his involvement in a soccer club. The applicant states that it demonstrates his life for Australia and the Australian culture. The applicant states that he immersed himself in the Australian way of life. That may be the case, although by the same reasoning the applicant’s previous employment and social activities in Iran would have demonstrated his love for Iran and the culture of his home country.

4. The applicant refers to his knowledge of agriculture and husbandry and refers to the contribution he can make in the future. Although the Tribunal considers this claim speculative, the Tribunal accepts that the applicant hopes to make a contribution to Australia in the future.

5. 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

6. If the applicant resides in Australia and 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. His partner and children may also become unlawful non-citizens if their visas are 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 possible 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

7. Visas held by the applicant’s spouse and two children are subject to consequential cancellations under s.140 and have 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

8. In oral evidence to the Tribunal the applicant referred to the present situation in Iran. The applicant states that there are new sanctions against Iran. The applicant states that the country is being led into the war and the situation there is unsafe. There is greater safety in Australia and he does not want his family to be sent to a country in crisis. The Tribunal found the applicant’s statements to be generalised with little reference to the applicant’s personal circumstances or those of his family.

9. In any case, the Tribunal does not consider that the applicant or his family will be refouled if their visas are cancelled because the applicants are able to make an application for a protection visa if they believe Australia owes them protection obligations. The Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148 that 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. There is no suggestion that the applicant is prevented from validly applying for or being granted a protection visa by s.48A of the Act, or because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456. Thus, whether or not his present visa remains cancelled, the applicant’s claims for Australia’s protection can be considered through a separate process. For that reason, the Tribunal is not satisfied Australia’s non-refoulement obligations would be breached as a result of the visa being cancelled.

10. The Tribunal has considered the best interests of the applicant’s children.

11. The applicant’s evidence is that his two young children attend school and kindergarten and have formed friendships and are immersing themselves in the Australian language and culture. The Tribunal accepts that evidence. However, the Tribunal is also mindful that the children have spent a substantial part, if not the majority, of their lives in Iran and not in Australia. They have been living in Australia for the relatively short period of time of two and a half years, and have spent more time in their country of birth. The applicant’s evidence to the Tribunal is that they have no family in Australia while the children would have the benefit of extended family in Iran. There is nothing to indicate that in Iran, the children would be denied access to education, healthcare, etc.

12. The applicant told the Tribunal that his daughter is an exceptional athlete but she will not be able to participate in athletics in Iran because of the compulsory hijab and other restrictions. The Tribunal does not accept that wearing a hijab would preclude the child from being able to participate in sport. A basic internet search shows that there are women athletes and women participating in sports at elite levels.[1] The Tribunal does not accept that the applicant’s daughter will be unable to participate in sport in Iran. The applicant also stats that the education system in Australia is better than in Iran but presents no evidence to support that assertion. As noted above, there is nothing to suggest that the children will be denied access to education or other basic services.

    [1] See, for example,

13. The Tribunal accepts that the family have now settled in Australia and the children attend schools and may have made new friends. However, the Tribunal also notes that the same situation would have existed when the family lived in Iran. The children would have had different friends, attended schools in Iran and would have been settled in their own country. The applicant’s decision to leave Iran for Australia meant that the children were uprooted from their familiar environment and brought to a new country and on the applicant’s own evidence, they have settled well. The Tribunal does not consider that the children would have any difficulties re-settling in Iran.

14. The applicant’s spouse referred to the situation in Iran when children were given expired inoculation, and said that her son is due to have his inoculation soon. The applicant’s partner said that it would be better for her small son to stay in Australia. The Tribunal notes that mistakes can and do occur in any country, including Australia. The fact that children may have been given expired inoculations does not suggest systemic withholding of medical services or abuse, but rather an isolated incident. The Tribunal does not accept that the children will be denied access to healthcare in Iran, or that their health and well-being would be adversely affected as a result of residence in Iran.

15. In such circumstances, the Tribunal does not consider that the children’s best interests require their presence in Australia. The Tribunal is of the view that it is in the children’s best interest to be with their parents, but that need not be in Australia. While the Tribunal accepts that the children are settled here, the Tribunal has formed the view that they would have no difficulties re-settling in their home country. The Tribunal does not consider that the best interests of the children would be adversely affected by the cancellation.

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

16. In his evidence to the Tribunal the applicant expressed remorse. He said he was stuck in a ‘vicious cycle’ and having lied once, he had to continue with his lies in response to the NOICC. The Tribunal considers it problematic that not only did the applicant provide a bogus document and incorrect information in the initial application, but he continued to do that after his entry to Australia. Despite the applicant’s expression of remorse, he has not taken any steps to inform the Department of the incorrect information during his residence in Australia and he continued to provide incorrect information in response to the NOICC. The Tribunal does not consider that the applicant is genuinely remorseful for his actions, given that his remorse has only been expressed in response to the cancellation of his visa.

17. The applicant states that he and has family have settled in Australia, and both he and his wife work for Australian companies and pay taxes, and they are involved in other activities. The Tribunal accepts that evidence. The applicant states that it is difficult to move the entire family from their settled circumstances. The Tribunal accepts that evidence, and accepts that the cancellation of the visa and departure from Australia may cause hardship to the family, although the Tribunal is also mindful that the applicant made the decision to relocate his family from their own home country to Australia, despite the fact that they were well settled in Iran. The Tribunal has formed the view that the children would be able to re-settle in Iran.

18. The applicant states that they ‘burned all the bridges’ when coming to Australia, and he referred to the economic and financial situation in the country. The Tribunal is not satisfied they would be unable to rebuild these bridges upon return to Iran. The applicant states that in Australia people’s strengths are discovered, for example, his daughter can participate in athletics and he has been able to engage in business. As noted elsewhere, the Tribunal is not satisfied that the applicant’s daughter would be unable to participate in athletics in Iran, and the Tribunal is also not satisfied that the applicant would not be able to engage in business in Iran, even if it may be different business.

19. The applicant states that he has made only one mistake and the family have already been punished for the mistakes he has made. The applicant refers to uncertainty and lack of sleep while waiting for the visa process. The applicant states that he will never make another mistake. The Tribunal acknowledges that evidence, although as noted above, the Tribunal is somewhat concerned by the fact that the applicant’s remorse appears to be very recent and only expressed once his visa was cancelled. As recently as in response to the NOICC the applicant continued to provide incorrect answers to the delegate.

20. The applicant repeatedly told the Tribunal that the situation in Iran is unsafe. He refers to the possibility of war, but there is nothing before the Tribunal to suggest that there is an imminent possibility of a war and the general risk of a war in the Middle East is not new. The applicant refers to the economic situation in the country generally, but he has given little evidence about his personal situation and his own economic situation. There is no evidence to establish that the family will be adversely affected economically if they were to return to Iran. The applicant states that because of the sanctions, he had to sell his business and he spent a lot of money on migration. The Tribunal accepts that there may be adverse financial implications if the family were to return to Iran, but the Tribunal is not satisfied on the evidence before it that the family will not be able to re-establish themselves in Iran.

21. The applicant states that he would be embarrassed in front of his family because he has spent two and a half years in Australia and had to return. The Tribunal accepts that may be the case.

22. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave or provided incorrect answers in his application and had not complied with s.101 of the Act. The Tribunal finds that the applicant gave a bogus document with his visa application and did not comply with s.103 of the Act. The Tribunal has found that there are grounds for cancelling his visa.  The Tribunal accepts that the cancellation of the visa would cause hardship to the family. The visas held by the applicant’s spouse and children have also been cancelled and the entire family would be required to leave Australia if they do not hold other visas. There are significant consequences to the visas being cancelled. The Tribunal accepts the applicant’s evidence that they have given up their lives in Iran in order to migrate to Australia. The Tribunal accepts the applicant’s evidence that with the current sanctions against Iran, the financial situation would be difficult, although the Tribunal is not satisfied the family would not be able to re-establish themselves in Iran. The Tribunal accepts that the family have made an effort to settle in Australia and participate in various activities here and contribute to the community. The parents are working and the children attend schools. They are involved in sporting activities and other community activities. The Tribunal accepts the applicant’s evidence that they have made a contribution to the society and will endeavour to contribute in the future. The Tribunal accepts that there are reasons why the visas should not be cancelled.

23. Against these considerations, the Tribunal places significant weight on the fact that the provision of incorrect answers and of the bogus document was significant to the grant of the visa. If the applicant was unable to demonstrate English proficiency, he would not have been entitled to the grant of the visa, and in the Tribunal’s view that consideration weighs heavily in favour of cancellations. The Tribunal finds that the applicant had deliberately sought to mislead the Department by taking steps to find another person to sit the test for him. He did so knowingly and intentionally in order to obtain the preferred migration outcome. The Tribunal also places weight on the fact that the applicant continued to be untruthful in his response to the NOICC by claiming that he did sit the IELTS test and offering various reasons why his photograph looked different. The applicant knew the information he was providing was false, yet he continued to offer that information. In the Tribunal’s view, that shows a disregard for the Australian law and a willingness to breach that law when the applicant decides it better suits his circumstances.

24. The Tribunal has found that the best interests of the children do not require their presence in Australia. The children’s best interests would be best served by remaining with their parents, whatever country they live in. The Tribunal has formed the view that the circumstances in which the non-compliance occurred, and the significance of the non-compliance to the applicant’s eligibility for the visa, as well as the applicant’s subsequent untruthful conduct towards the Department, outweigh other 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

25. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa.

26. The Tribunal has no jurisdiction with respect to the other applicants.

    Kira Raif
    Senior Member