Ho (Migration)

[2018] AATA 5264

Ho (Migration) [2018] AATA 5264 (12 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Tuong Ho

CASE NUMBER:  1731946

DIBP REFERENCE(S):  BCC2016/2902220

MEMBER:Kira Raif

DATE:12 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 December 2018 at 7:23am

CATCHWORDS
MIGRATION – Subclass 100 (Spouse) visa – cancellation – ceased to have a genuine and committed spousal relationship – applicant advised Centrelink of separation from partner prior to permanent visa grant – credibility issues – applicant spent no time with sponsor since arrival – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 104, 107, 109(1), 375A
Migration Regulations 1994, Schedule 2

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam, born in September 1975. The applicant was granted the Class BC Partner visa in August 2016. On 26 September 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.104 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 15 December 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 4 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent. The Tribunal informed the applicant about the existence of the s.375A Certificate, provided the applicant with a copy of the Certificate and gave him an opportunity to comment on its validity.

4. 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.

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

7. Section 107 of the Act 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.

8. 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. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104 of the Act.

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

    a.    The applicant made an application for the Partner visa in February 2014. His application was initially refused but the case was remitted by the Tribunal (differently constituted) in May 2016.

    b.    The applicant completed an application form 47SP. In that form:

    i.In response to Question 35, the applicant gave his partner’s details as Thi Lanh Ho, born in January 1991.

    ii.In response to Question 55, the applicant stated that he was married on 19 December 2013.

    iii.On page 25, the applicant signed a declaration that he would inform the Department of any changes to his circumstances and that he would inform the Department if his relationship with his partner breaks down or ends in divorce, separation or death before the application is decided. The applicant signed the declaration on 13 February 2014.

    c.    The applicant was granted the Class BC visa on 3 August 2016.

11. On 13 July 2017 the Department received advice from the Department of Human Services (Centrelink) that the applicant advised Centrelink of his ‘separated’ marital status as of 30 June 2016, prior to being granted the permanent visa and prior to his arrival in Australia. The Tribunal sought confirmation from Centrelink and was provided with the extract of the relevant pages which are consistent with the information in the primary decision record and indicate that the sponsor’s status was shown as ‘separated’ from 30 June 2016.

12. In his response to the NOICC the applicant states that he had not advised Centrelink of his separation from June 2016. The applicant states that he and his partner had not separated prior to his arrival in Australia in August 2016 and had to live apart due to living in separate countries. The applicant denied that he failed to comply with s.104 of the Act.

13. The applicant provided a written submission to the Tribunal on 21 November 2018. The applicant outlined his immigration history. The applicant states that he had not received any payments from Centrelink until August 2016 and in the application for divorce, the date of separation is stated as 15 August 2016. The applicant states that he and his partner did not separate until after his arrival in Australia on 13 August 2016. The applicant states that neither he nor his partner advised Centrelink that their marital status was ‘separated’ as of 30 June 2016.

14. The applicant included with his submission a number of documents, including copies of his communication with the Department and a statutory declaration in which the applicant states that he never informed Centrelink about his status being ‘separated’ as he and his partner had not separated prior to his arrival in Australia. The applicant provided some of his Centrelink records and evidence of his employment and other materials. The applicant repeated these claims in his written submission of 9 December 2018. The applicant also provided to the Tribunal a declaration from the sponsor stating that she had not declared to Centrelink or other government departments that the separation occurred on 15 August 2016. Given that this is the information recorded on the Centrelink file, the Tribunal finds that evidence unpersuasive.

15. The Tribunal finds the applicant’s claims problematic. As the primary decision record indicates, Centrelink records show that the applicant and the sponsor separated in June 2016. The Tribunal acknowledges the applicant’s claim that he never informed Centrelink about the separation and accepts that it is possible that the information was provided to Centrelink by the sponsor. In the Tribunal’s view, that is immaterial because a spousal relationship requires commitment of both parties and if either party believes there was separation, that would indicate that the commitment of one of the parties is lacking.

16. The applicant claims the separation occurred on 15 August 2016 and he relies on the divorce application to support that as the date of the separation. In the Tribunal’s view, the probative value of that statement is insignificant. The date of separation noted on the application for divorce is the date provided by the parties. There is no independent verification of the date. That is, the date of separation recorded on the divorce application is self-reported and may have been reported correctly or incorrectly by the parties. The applicant claims the Centrelink records are inaccurate and the same reasoning can be applied in relation to the divorce application. The fact that it refers to 15 August 2016 as the date of separation does not necessarily establish that this was the date the parties separated.

17. The applicant told the Tribunal that they could not have separated in June 2016 because they were living in different countries and they were not living together. However, separation relates to the parties’ commitment to the relationship and an intention to maintain a genuine spousal relationship. It is not limited to physical cohabitation. For the purpose of establishing the breach of s.104, separation is not about physical separation nor the formal separation date recorded on the divorce application. It is about the date when the applicant and the sponsor ceased to have a genuine and committed spousal relationship. Therefore, the Tribunal does not consider that the fact that the applicant and sponsor were living in different countries on 30 June 2016 implies that they could not have separated at that time.

18. The Tribunal has significant concerns about the fact that the applicant claims the separation occurred two days after his first entry to Australia. Separation for the purpose of the divorce, and that is what the applicant relies on, implies that the parties believed their relationship broke down irretrievably. In the Tribunal’s view it is very unlikely, if not impossible, that the applicant and the sponsor had made that determination within two days of the applicant entering Australia. Entering into a spousal relationship is a significant commitment and so is separation. At the very least, the applicant and the sponsor would have had some discussion about their plans for their life together or the reasons they believed this would not occur. The applicant claims that until his entry to Australia the relationship was genuine and ongoing. The Tribunal does not consider it plausible that between 13 August 2016 when the applicant first entered Australia and 15 August 2016 when he claims the separation occurred, the applicant and the sponsor had gone from having a mutually committed relationship to the relationship that had irretrievably broken down.

19. The Tribunal questioned the applicant in the course of the hearing about the circumstances of the relationship breakdown. The applicant told the Tribunal that before he was granted the visa, his relationship with the sponsor was good. The applicant said that once he was granted the visa, he communicated his flight details to the sponsor but she did not meet him at the airport. The applicant’s evidence to the Tribunal is that his relationship with the sponsor until his entry to Australia was great. By that time the applicant claims the relationship had been in existence for a few years and the applicant made the first entry to a new country. This was a very significant event for both of them, if the relationship was genuine. Yet the sponsor had not made arrangements to meet the applicant at the airport. The applicant said that the reason for the sponsor not meeting him at the airport is because her car broke down and she could not come but there are alternative means of getting to the airport, if she wished to do so. The applicant also said that the sponsor had an urgent ‘private matter’ to tend to, but could not explain what that was. The Tribunal is not satisfied the sponsor was unable to make arrangements to be present at the airport. In the Tribunal’s view the fact that she did not meet the applicant at the airport shows her lack of interest in the relationship and the fact that it ended before the applicant’s entry to Australia.

20. The applicant told the Tribunal that after he caught a cab to his wife’s home, she was not present, so he went to stay with a friend. The applicant’s evidence is that he rang his wife from the airport and she told him she could not meet him because her car broke down and something urgent came up. That would suggest that she did intend to meet him. Yet, the applicant’s evidence is that when he came to her home after catching a cab, the sponsor was not present and had made no arrangements for the applicant to be able to enter the house, for example by leaving a key for him. The sponsor did not contact the applicant later in the day to invite him to her home, which she might have done if she had made arrangements for the applicant to stay with her. The applicant simply travelled to Australia and went to stay with a friend. In the Tribunal’s view that shows the sponsor’s complete indifference about the applicant’s circumstances and lack of concern for his welfare. It offers a strong indication that the couple had no intention to live together upon the applicant’s entry to Australia.

21. The applicant explained to the Tribunal that while in Vietnam, he told his wife that he had a child and asked her to sponsor the child and she may have been upset about it and did not want to talk to him as a result. The applicant’s evidence indicates that by the time he landed in Australia, his wife did not want to talk to him, did not meet him at the airport, made no arrangements to allow him to enter or stay at her house and made no effort to have anything to do with him. That suggests to the Tribunal that by the time of his entry to Australia, the applicant’s relationship with the sponsor had ended.

22. The applicant told the Tribunal that the only problem between them was the fact that he told his wife about the child and she was upset. The Tribunal does not accept that explanation. The applicant said he told his wife about the child when the visa was granted, which was about 10 days before his entry to Australia, and said she was unhappy about it. The applicant said he wanted to hide the information about the child until he was given the visa. Putting aside the Tribunal’s concerns about the nature of the applicant’s relationship with the sponsor in circumstances where the applicant was deliberately untruthful about something so significant, the Tribunal notes the applicant’s evidence that even after he told the sponsor about the child, she told him to come to Australia anyway. The applicant said that they believed they could work it out. If that was the case, and if the relationship was ongoing despite the sponsor being upset, as the applicant claims, it is inexplicable that the sponsor would then refuse to meet the applicant at the airport and would not let him into her house once he travelled to Australia. Either the relationship ended once the sponsor learned about the child when the applicant was still in Vietnam, or the relationship continued and was ‘great’, despite that information, because the parties wanted to work it out. While the applicant claims the latter was true, the sponsor’s conduct after his entry to Australia contradicts the applicant’s claim. The Tribunal has formed the view that the applicant was less than truthful in his description of the events around the time of his entry to Australia.

23. The Tribunal is mindful that the applicant presented with his submission of 9 December 2018 a statutory declaration from his former wife. The Tribunal is concerned that she did not attend the Tribunal hearing and was not available to give evidence in support the applicant’s claims concerning the date of separation so that the Tribunal was not able to test her evidence. Her statutory declaration does not make any reference to the circumstances of the relationship breakdown as set out by the applicant.

24. The applicant claims that the day after he came to Australia, he went to the sponsor’s house and spoke to his wife and discussed with her his intention to sponsor his child but his wife refused. She gave him an ultimatum of either sponsoring the child or staying with her. He got upset and moved out. The applicant’s evidence is that he has never lived with the sponsor since entering Australia. He spent the first night at a friend’s home, then had a conversation with his wife and then they split up. The fact that the parties have spent no time at all together since the applicant’s entry to Australia supports the Tribunal’s view that their relationship had ended before the applicant was immigration cleared.

25. Further, the Tribunal does not accept the applicant’s evidence that the reason for the breakdown of the relationship was the applicant’s desire to sponsor his daughter. The applicant’s evidence to the Tribunal is that he had not sponsored his child to come to Australia before his visa was cancelled. He claims he was on Centrelink initially and had difficult circumstances and could not sponsor her. Yet he also claims that his wife was receiving Centrelink payments and had several children to support and despite that he expected her to sponsor his daughter and ended the relationship when she refused because his child was so important to him. It is unclear why the applicant believed they could sponsor his daughter a day after he entered Australia but not for a year after that before the applicant’s visa was cancelled. The applicant then told the Tribunal that he was new to the country and did not know the laws, but that contradicts his earlier evidence that a lawyer in Vietnam told him that he could sponsor the child once he came to Australia. The Tribunal has formed the view that the applicant has not been truthful in his evidence about the reason for the relationship breakdown.

26. The applicant also told the Tribunal that his daughter has been living with her mother and step-father and he has not spoken to the child’s mother about whether she would allow the child’s migration to Australia. The applicant said he did not know whether the child could migrate. In such circumstances, the Tribunal is not satisfied that the applicant had a genuine intention to bring the child to Australia. If he did, the applicant would have at least raised that possibility with the child’s mother and he has not done so. For that reason also, the Tribunal does not accept that the child’s sponsorship was the reason for the breakdown of the applicant’s relationship with the sponsor. The Tribunal does not accept that until his entry to Australia the applicant and the sponsor had a good relationship and that it broke down only after they talked and the sponsor refused to sponsor the applicant’s daughter.

27. The applicant told the Tribunal that he did not mention the child in his Partner visa application because he was unaware of the child until 2014. However, even if the applicant was unaware of the existence of the child when the application was made, he became aware of the child two years before visa grant. There is no evidence that the applicant informed the Department of the existence of the child. While that in itself may provide a basis for the cancellation of the visa for breach of s.101 of the Act, the Tribunal places no reliance on that fact for the purpose of establishing the breach in the present case as that breach was not specified in the NOICC. However, the fact that the applicant failed to mention the child in his visa application or before the visa grant shows, in the Tribunal’s view, that the applicant was untruthful in his dealings with Immigration and that he is not a person of credibility. That is relevant to the assessment of the applicant’s claims.

1. For all these reasons, the Tribunal has formed the view that the applicant has not been truthful in his evidence concerning the circumstances of the relationship breakdown and the reason for it. The Tribunal does not accept that the relationship broke down two days after the applicant entered Australia because his wife refused to sponsor the child. The nature of the parties’ interactions after the applicant entered Australia suggests that the applicant and the sponsor never had an intention of living together and made no arrangements to do so. The Tribunal finds that their relationship broke down before the applicant entered Australia.

2. The Tribunal finds that the applicant’s circumstances changed in a way that an answer to a question on the application form was incorrect in the new circumstances. The Tribunal finds that the applicant failed to inform an officer of the Department in writing of the new circumstances and of the correct answer. The Tribunal finds that the applicant did not comply with s.104 of the Act.

3. The Tribunal finds that there was non-compliance with s.104 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

4. 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).

5. 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

6. The correct information is that the applicant’s relationship with the sponsor ended before the applicant’s entry to Australia and before he was immigration cleared. The Tribunal has formed the view that the applicant was no longer in a genuine spousal relationship with the sponsor by the time of his immigration clearance.

   The content of the genuine document (if any)

7. This is not relevant in the present case.

   Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

8. The applicant was granted the Partner visa on the basis of his relationship with the sponsor. There is no suggestion that the applicant relied on any of the exceptions, including the death of the sponsor or family violence or a parental order.

9. To be granted the Partner visa, the applicant must have established, for the purpose of cl.100.221 that at the time of decision, he was the spouse, including a de facto spouse, of the sponsor. If the applicant was no longer in a spousal relationship with the sponsor, and if none of the exceptions noted above applied, the applicant would not have been eligible for the grant of the Partner visa.

10. The Tribunal finds that decision to grant the visa was based, wholly or partly, on incorrect information.

    The circumstances in which the non-compliance occurred

11. The applicant denies that the relationship ended before he came to Australia and claims it ended two days after his entry to Australia because of the argument about the child. The Tribunal has formed the view, for the reasons stated above, that the relationship ended before the applicant’s entry to Australia.

    The present circumstances of the visa holder

12. The applicant told the Tribunal that his house in Vietnam was flooded and he was given inadequate compensation by the government and he could not buy another property. If he were to return to Vietnam, he could not find any place to live.

13. The applicant told the Tribunal that he presently works in a factory and had worked in another factory previously. He said that he was receiving Centrelink benefits for the first 10 months after his entry to Australia and has been working since. The applicant presented some evidence of his employment to the Tribunal but limited evidence of his finances. Even if the Tribunal were to accept that the applicant’s house was destroyed and inadequate compensation given, there is little evidence before the Tribunal to indicate whether the applicant has any savings to help him with purchasing or renting a place in Vietnam, or if he could get financial support from other sources. The applicant also told the Tribunal that he used to work as a fisherman in Vietnam. The Tribunal is of the view that the applicant could obtain a job in Vietnam to help him with his living expenses including accommodation.

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

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

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

15. The applicant told the Tribunal that he did not inform the Department about his child when making the Partner visa application. That would indicate that the applicant had not complied with s.101 of the Act.

    The time that has elapsed since the non-compliance

16. As the visa was granted overseas, the obligation to inform continues until the applicant’s entry to Australia. According to the primary decision record, the applicant entered Australia on 13 August 2016. More than two years passed since the non-compliance.

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

17. There are no known breaches of the law.

    Any contribution made by the holder to the community

18. The applicant has not referred to any contribution to the community. He told the Tribunal that he hopes to be able to stay in Australia, work and pay taxes and contribute to Australia.

    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 Procedures 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

19. 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 from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may lose certain entitlements he may have acquired as a permanent resident of Australia. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. If the applicant is not a holder of a visa, he cannot act as a sponsor for others, including his child.

    Whether there would be consequential cancellations under s.140

20. There are no persons whose visas would be cancelled under s.140 of the Act.

    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 

21. The applicant told the Tribunal that he would have no place to live if he were to return to Vietnam and he would not have adequate compensation for the house. He said that he would lose the privileges because he moved out of the house. In his submission of 9 December 2018 the applicant states that because his house has been destroyed, it would be difficult if not impossible for him to find a place to live. The applicant presented no documentary evidence to the Tribunal to confirm that his house had been destroyed and that the compensation was inadequate or that he had made any attempt to find alternative accommodation but was unable to. In any case, the Tribunal is mindful that the applicant is eligible to make an application for a protection visa and any concerns that the applicant may have would be addressed as part of that application.

22. The applicant told the Tribunal that he has a daughter in Vietnam. He presented no birth records and no evidence of the child. There is no evidence that the child has ever travelled to Australia or lived with the applicant.

23. The applicant told the Tribunal that life in Vietnam for children is not as good as life in Australia and she would have better opportunities in Australia and could be cared for by society. However, the Tribunal is also mindful that the child’s mother lives in Vietnam and the applicant’s evidence is that the child has always lived with her mother and is also supported by her step-father. The Tribunal is not satisfied that being removed from her mother and a settled family environment would be in the best interests of the child. The applicant also suggested that his former partner has another child from the new relationship and cannot love his daughter as much as he would but there is no evidence to support that contention and the Tribunal does not accept that evidence.

24. The applicant told the Tribunal that the child lives with her mother and step-father and that he has never lived with the child. There is no evidence that the child has any meaningful relationship with the applicant, even though the applicant claims he visited the child infrequently and gave her gifts. He did not know of the child’s existence until 2014. In such circumstances, the Tribunal does not consider that the best interests of the child require the child’s residence with the father, rather than the mother. The Tribunal does not consider the child’s best interests would be adversely affected by the cancellation of the visa. The Tribunal finds that the best interests of the applicant’s child do not require the applicant to be a holder of an Australian permanent visa.

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

25. The applicant spoke about the hardship that he would experience as a result of having to return to Vietnam because he would not have a place to live. As noted above, the applicant presented no evidence to support his claims and has not satisfied the Tribunal that he would be unable to find alternative accommodation, whether with the help of his own employment or other means. While the Tribunal accepts that the applicant has been living in Australia for over two years and is working and appears to be settled in Australia, the Tribunal does not accept that the applicant would be unable to find accommodation and resettle in Vietnam.

26. The applicant told the Tribunal that if he breached immigration laws, it is because his knowledge was limited and he apologised for his conduct. The Tribunal does not accept that explanation. The applicant would have been well aware that the ongoing relationship with his sponsor was central to his eligibility for the Partner visa and the applicant would have recognised that he had to keep Immigration informed about the relationship status.

27. The applicant stated that he wanted to remain in Australia and work and pay taxes and contribute to the community by building a better Australia. The Tribunal acknowledges that evidence.

28. The applicant requested that he should be granted a temporary visa to be able to earn money to support himself in Vietnam. The granting of visas is not a matter for the Tribunal.

29. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s relationship with the sponsor ended before the applicant entered Australia and was immigration cleared and the applicant was no longer the spouse of the sponsor. His circumstances changed and the applicant failed to inform Immigration about such changes. The Tribunal has found that the applicant did not comply with s.104 of the Act.

30. The Tribunal accepts that the applicant has been living in Australia for close to two and a half years and has been gainfully employed for some of that time. The Tribunal acknowledges the applicant’s evidence that he wants to continue to live and work in Australia and contribute to society and that he may have limited opportunities to do so if his visa is cancelled. He will also be unable to sponsor his child to live in Australia. The Tribunal accepts that a certain degree of hardship would be caused by the cancellation if the applicant has to leave the country and the Tribunal accepts that the applicant may have to re-establish himself in Vietnam, including finding new accommodation and employment. The Tribunal accepts that there are reasons the visa should not be cancelled.

31. The Tribunal has found that the cancellation would not be in breach of Australia’s obligations. There are no other known breaches of the law. Over two years have passed since the non-compliance.

32. Against these considerations, the Tribunal notes its determination that the applicant has not been truthful in his evidence concerning the reasons for the breakdown of the relationship. The Tribunal has rejected the applicant’s explanation that the relationship ended a day after his entry to Australia because of the dispute about his child. The Tribunal has formed the view that the couple never intended to live together and never made any arrangements to do so. The Tribunal places significant weight on the fact that the existence of a committed and genuine relationship was central to the applicant’s eligibility for the visa and if it was known that the relationship ended, the applicant would not have been entitled to be granted the Partner visa.

33. The Tribunal also notes that the applicant has been untruthful in other respects in his application by failing to refer to his child during the processing of the application. The Tribunal finds that the applicant lacked candour in his dealings with the Department.

34. The Tribunal finds that the nature of the breach and its significance to visa eligibility outweigh other considerations. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member