Javid (Migration)

[2018] AATA 4950

Javid (Migration) [2018] AATA 4950 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yahya Javid

CASE NUMBER:  1805400

DIBP REFERENCE(S):  BCC2017/1772004

MEMBER:Kira Raif

DATE:26 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

Statement made on 26 October 2018 at 2:31pm

CATCHWORDS

MIGRATION – Cancellation – Child (Migrant) (AH) – Subclass 117 (Orphan Relative) visa –  false information provided – parents alive and location known – evidence of money transfers to parents – bogus documentation – mother’s death certificate false – applicant’s circumstances – well settled in Australia – family support in Australia and overseas – involvement in community activities – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101, 103, 107, 109, 359AA

Migration Regulations 1994 (Cth), r 1.14

CASES

MIAC v Khadgi (2010) 190 FCR 248

COT15 v MIBP (No 1) (2015) 236 FCR 148

BCR16 v MIBP (2017) 248 FCR 456

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 117 (Orphan Relative) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Afghanistan. He was granted the Class AH Orphan Relative visa on 30 January 2013. In October 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 in relation to his visa. The applicant provided his response to the Notice and his visa was cancelled on 28 February 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 24 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by his 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

4. 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.

5. 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.

6. 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?

7. 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.

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.101 and s.103 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 the application for the Class AH Orphan Relative visa on 30 October 2011, claiming to be the orphan relative of his brother Ali Javid. As part of that application, the applicant completed the application form 47CH.

    b.In response to Questions 2 and 6 of Form 40CH it was stated that the applicant was Yahya Javid and his date of birth 1 June 1996. At Question 8 of Form 47CH the applicant stated his date of birth as 1 June 1996.

    c.In response to Question 27 on the application form seeking details of family members, the applicant provided the following information

    Father        Mohammad Essa Javid  missing
    Mother        Zahra Zahedi  deceased
    Brother       Ali Javid  Australia
    Sister         Mahbarab Javid  Pakistan
    Brother       Ahmad Javid  Iran

    d.The applicant signed a declaration at Question 56 of Form 47CH stating that the information he had supplied in the application was complete, correct and up to date in every detail. The applicant stated that he had read and understood the information supplied to him in the application.

    e.The applicant also submitted the Sponsorship form 40CH. At Question 12 of that form it was stated that the child’s parents were both dead, of unknown whereabouts or permanently incapacitated. It was stated that the father Mohammed Essa Javid was of unknown whereabouts and the mother Zahra Zahedi was dead. 

    f.The applicant provided with his application a copy of his mother’s death certificate dated 22 May 2011. It states that the mother had been injured in a car accident and passed away in September 2010.

    g.On 15 January 2012 the Orphan Relative application was refused but on 23 August 2012 the Tribunal (differently constituted) remitted the matter to the Department and the applicant was granted the visa on 30 January 2013.

    h.On 4 March 2017 Farzana Qasimi lodged a Partner visa application sponsored by the applicant. Ms Qasimi provided the following information on the application form 47SP

    i.In response to Question 35 referring to the partner’s details, Ms Qasimi referred to Javid Yahya, date of birth 1 July 1995.

    ii.At Question 51 of Form 47SP Ms Qasimi stated that the sponsor’s father was Mohammad Issa Javid and that he was residing in Afghanistan. The sponsor’s mother was Zahira Zahedi and that she was deceased.

    iii.Ms Qasimi signed a declaration that she had read and understood the information provided in the application and that she had provided complete and correct information in every detail on the form and on any attachments.

    i.The primary decision record refers to the information held by the Department, showing that the applicant made several money transfers to Zahrh Zahdi in Iran between June 2013 and April 2017. His brother Ahmad also made transfers to Zahra Zahedi in Iran between February 2015 and December 2016. The decision indicates that the names of the recipients for the transfers, Zahrh Zahdi / Zahra Zahedi / Zahere Zahedi and Mohammad Eisa Jawed match the names of the visa applicant’s mother and father and there was no evidence that the applicant had any additional family members with similar names.

    j.In his written response to the NOICC the applicant states that he was born in Iran but the family moved to Afghanistan in 2005. In 2007 his father was arrested by the Taliban and his mother fled to Pakistan with the children. In 2009 he and his brother Ahmad moved to Iran but they were deported back to Afghanistan. In 2010 their mother went missing. The applicant and his brother Ahmad migrated to Iran where they remained illegally until 2013. In September 2010 their brother Ali was contacted by an Imam who advised him that a woman believed to be their mother was killed in a car accident. At the time of the application the applicant, who was only 15, observed abductions, extortions and other crimes by the Taliban and believed elders confirming the death of his mother. He submitted his mother’s death certificate. In June 2013 the applicant’s mother made contact with the applicant and at that point he became aware that his parents were held captive by the Taliban but were alive. The father was released by the Taliban in 2014 and joined his mother in Iran. At the time of visa lodgement he truly believed his mother was dead and his father missing. Once he learned that his parents were alive, he decided to inform the Department but they were advised by others that their visa could be cancelled if they informed the Department and that he should wait for the grant of citizenship. Once his wife decided to apply for the Partner visa, they decided to keep the existing information and not inform the Department about the parents being found. 

11. The Tribunal considers the applicant’s claims problematic.

12. Firstly, the Tribunal is concerned with the timing of these events as described by the applicant. The application for the visa was made in October 2011 and the processing took several years. The applicant’s visa was not granted until January 2013 and the applicant entered Australia shortly thereafter. The Tribunal considers it odd that throughout the lengthy processing of the application and until the applicant entered Australia, he claims to be unaware of his parents’ circumstances, yet within a few months of entering Australia, he ‘rediscovered’ that his parents were alive and started providing them with financial support. In oral evidence, the applicant could not explain the timing of these events, other than to state that he was very happy to find out that his mother was alive. The Tribunal considers it more likely that the applicant knew about his parents’ circumstances and that his mother was alive and that he always intended to provide them with financial support and has done so as soon as he was able to, following his entry to Australia.

13. Secondly, the primary decision record indicates that the applicant’s brother Ali, who was the sponsor in the applicant’s Orphan Relative visa application, sent money to their father Mohammad Essa on 19 June and 23 June 2013. The applicant’s claims that his father was released by the Taliban in 2014 and the money transfers to him in June 2013 contradict the applicant’s evidence about his parents’ circumstances.

14. In oral evidence to the Tribunal the applicant claims that he and his brother used their parents’ bank account when they fled to Iran and the money was sent from their brother in Australia to them in Iran for their living expenses. The applicant claims that they lived in a small town where everyone knows each other. It was difficult for him and his brother to open their own accounts in the bank as they were refugees and also because of age. His parents had a savings account from before 2005 from the time they lived in Iran, so the bank manager helped them by allowing them to use that account. The applicant said that the manager knew of their situation and tried to help but he warned the applicant that the account may be blocked and they would need to take out the money quickly.

15. The Tribunal considers it implausible that at the time when the applicant’s mother was considered to be dead or missing and when his father had been missing for years, the applicant’s parents would still have an operational bank account which the bank would allow the applicant and his brother to use for money transfers. The applicant does not claim that his or his brother’s name appeared on that account. The account was in the names of his parents. No matter how sympathetic the bank manager may have been, the Tribunal does not accept that the applicant or his brother would be allowed to use another person’s account for money transfers. In the Tribunal’s view, a more plausible explanation is that the account was used by the applicant’s parents or, even if it was used by the applicant and his brother, this was done with the express permission and authorisation of his parents. The transfers that occurred in June 2013 support the Tribunal’s view that the applicant’s parents were alive and well and not in captivity and that the applicant and his siblings were aware of their parents’ whereabouts.

16. Thirdly, the Tribunal is unpersuaded by the applicant’s account of why his mother was believed to have died in a car accident. The applicant’s evidence is that his mother was taken away in a car on her way from the local bazaar. They had not heard from the mother but assumed she was taken by the Taliban. Later on they found a woman involved in a car accident and the village elders assumed it was the applicant’s mother because she was the only person missing in the area. The Tribunal finds it implausible that the person would be assumed to be the applicant’s mother on the sole basis that she was the only missing person, when the village elders would have had some familiarity with the family and should have been able to visually identify the applicant’s mother. The applicant could not explain to the satisfaction of the Tribunal why neither the village elders, nor the hospital or any other organisation responsible for any formalities following a person’s death would not have verified the person’s identity before presuming it was the applicant’s mother. The Tribunal does not accept the applicant’s claims.

17. Fourthly, the applicant and his brother gave inconsistent accounts of their mother’s abduction. This information was the subject of an s.359AA process. The applicant told the Tribunal that his mother was taken by the Taliban in a car and the car was travelling fast and when his mother tried to leave the car, she was killed. That account appears to contradict the applicant’s earlier oral evidence that he did not know how his mother passed away but assumed she was killed by the Taliban because of her religion. In his written statement in response to the NOICC the applicant claims a neighbour told them their mother was taken by the Taliban and there is no mention of her being killed while trying to escape from the car.

18. Notably, the applicant’s brother Ahmad told the Tribunal initially they did not know what happened to their mother but later on their brother told them that his mother was in a car with another Pashtun driver and they were travelling too fast and the car was involved in a crash. Ahmad makes no mention of the car being driven by the Taliban abductor and his mother trying to escape while the car was travelling at high speed.

19. To explain that discrepancy, Ahmad told the Tribunal that he mentioned a Pashtun man while Yahya referred to the Taliban driver because most people in the area where they lived were Pashtun and it was not possible to distinguish between the two. The car was going very fast and it was assumed they were escaping from the Taliban and the Pashtun person was helping their mother. Again, that contradicts Yahya’s claim that the car was driven by the Taliban as their mother was being abducted and that she was escaping from the driver, rather than with the driver. The Tribunal is mindful that a number of years had passed since the alleged incident and the applicant had the opportunity to speak to his mother and ascertain the facts.

20. For that reason also, the Tribunal has formed the view that the applicant has been untruthful in his claims and that his explanation concerning his parents is neither credible nor truthful.

21. Further, the applicant states in his response to the NOICC that when his partner applied for her Partner visa in 2017, they decided to keep the original information so as not to jeopardise the applicant’s own visa. That is, the applicant knew by 2017 that his parents were alive and well and no longer held by the Taliban. Yet the applicant decided to provide false information to Immigration because he believed it would be better for his migration status. In the Tribunal’s view, that offers a strong indication that the applicant is not a person of credibility and that he is willing to be untruthful with Immigration if he believes it better suits his circumstances. That finding supports the Tribunal’s view that the applicant has not been truthful in his orphan relative application in relation to his parents.

22. The Tribunal has formed the view that throughout the processing of his Child visa application, the applicant was aware that his parents were alive and of their whereabouts. The Tribunal has formed the view that the applicant has not been truthful in his response to the NOICC and oral evidence to the Tribunal by stating that he genuinely believed his father to be of unknown whereabouts and his mother deceased. The Tribunal has formed the view that the applicant had fabricated these claims to assist him with the cancellation of the visa.

23. The Tribunal is mindful that under s.100 of the Act, an answer is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further. s.111 provides that the cancellation provisions apply whether or not the non-compliance was deliberate or inadvertent.

24. The Tribunal finds that when the application was made, the applicant’s mother was alive. The Tribunal is not satisfied that the whereabouts of either the applicant’s mother or his father were unknown. The Tribunal finds that the information the applicant gave on the application form in relation to being an orphan relative was incorrect. The Tribunal finds that the applicant answered questions on the form, relating to his orphan relative status, in a way that incorrect answers were given. The Tribunal finds that the applicant did not comply with s.101 of the Act.

25. The Tribunal further finds that the mother’s death certificate which was submitted with the application was a bogus document either because it purports to have been issued, but was not issued in relation to a person or because it was issued on the basis of a false or misleading statement. The Tribunal finds that the applicant had given, presented, produced or provided, to an officer or the Minister or the Tribunal performing the function or purpose under the Act, a bogus document or caused such a document to be so given, presented, produced or provided. The Tribunal finds that the applicant did not comply with s.103 of the Act.

26. 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?

27. 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).

28. 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

29. The correct information is that the applicant’s parents, including the applicant’s mother, were alive and their whereabouts known. For the reasons stated above, the Tribunal does not accept the applicant’s explanation about the circumstances relating to his parents. The Tribunal is not satisfied his parents’ whereabouts were unknown.

    The content of the genuine document (if any)

1. The applicant provided a death certificate for his mother with his visa application. The mother has not passed away. The applicant told the Tribunal that the document was validly issued because they genuinely believed the mother had passed away. The Tribunal is mindful that s. 5(c) of the definition of a ‘bogus document’ includes a document that was obtained because of a false or misleading statement, whether or not made knowingly. Thus, even if the Tribunal were to accept the applicant’s claims (which it does not), the Tribunal finds that the death certificate was obtained because of a false or misleading statement and was therefore a bogus document.

   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

2. It is a requirement of the definition of ‘orphan relative’ in r.1.14 that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. That definition must be met at the time of application and the time of decision. The applicant was assessed as being an orphan relative because he claimed that his mother was dead and his father of unknown whereabouts. The information about the mother was incorrect. The Tribunal has formed the view that the mother was not dead and her whereabouts were not unknown. If that was known to the decision-maker, the applicant could not have met the definition of ‘orphan relative’ and would not have been granted the visa. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information and a bogus document.

   The circumstances in which the non-compliance occurred

3. The applicant states in his response to the NOICC and oral evidence to the Tribunal that he was unaware of his parents’ circumstances until June 2013 for his mother and April 2014 for his father. The applicant states that he believed his mother was deceased and his father missing when he made the application.

4. The applicant’s mother provided a statement to the delegate in which she claims that she was attacked and taken in a car in 2010, interrogated and subjected to physical harm. She was kept for three years before being released.

5. The applicant’s evidence concerning the circumstances relating to his parents is addressed above. For the reasons set out above, the Tribunal has formed the view that the applicant has not been truthful in his evidence. The Tribunal does not accept that the applicant believed his mother was dead and his father of unknown whereabouts. The Tribunal has formed the view that this evidence, together with the death certificate, was created to assist the applicant with his visa application. The Tribunal does not accept the mother’s statement because the Tribunal is of the view that the applicant is not a credible person and a statement from his mother was provided, at his behest, to assist with the visa process.

   The present circumstances of the visa holder

6. In his response to the NOICC the applicant refers to his settlement in Australia. He states that he has been working as a bricklayer and opened a company with his brother but due to his brother’s injury, they could not continue the work. The applicant provided his taxation records. He refers to his involvement in community organisations. The Tribunal accepts that the applicant is well settled in Australia and is gainfully employed.

7. The applicant states that he provides financial support to his wife and also helps with mortgage repayments for his brother. The applicant’s brother provided a statement in which he claims he could not meet his mortgage obligations without the applicant’s support. The applicant told the Tribunal that he pays $1500 a month towards the mortgage and the total repayment is $3500 a month. The applicant notes that due to his injury, his brother may not be able to work as a bricklayer and he may not be able earn enough in other jobs. No satisfactory documentary evidence has been provided to the Tribunal to support that assertion. For example, there is no evidence of the brother’s own income, and income of other family members, and whether such income would be sufficient to meet the mortgage repayments. The Tribunal acknowledges the medical evidence relating to the brother and while it may be that the brother cannot work as a bricklayer, it is not apparent that he cannot hold other jobs that do not involve physical activities to support his mortgage repayments. Nevertheless, the Tribunal accepts that the cancellation of the visa may cause financial hardship to the applicant and the family.

8. The applicant states that he cannot re-establish his life in Afghanistan as he has no one in Afghanistan and has conflicting culture and values and it would be an unwelcoming country.  The applicant referred to the hardship and discrimination he experienced when growing up. The Tribunal is mindful that the applicant’s parents reside in Iran and it is unclear whether he would be able to reside with them (he claims he lived in Iran illegally and was once deported and could not stay there). The applicant also has a sister in Pakistan and a spouse in Iran. The Tribunal notes that the applicant has considerable family support outside of Australia. But even if the applicant were to return to Afghanistan and live on his own, the Tribunal notes that he is an independent adult and the Tribunal does not accept he would be unable to re-establish himself. 

9. The applicant states that the cancellation of his visa would have a bad impact on his brother in Australia and the friends he has made. The Tribunal is prepared to accept that his family and friends would prefer for the applicant’s visa not to be cancelled. The applicant states that he depends on his Australian friends emotionally and physically. No probative evidence has been presented by the applicant about the physical dependence the applicant claims to have on his Australian friends or the need for such dependence. The Tribunal does not accept that such dependence exists. The Tribunal accepts that the applicant has formed friendships in Australia but such friendships do not necessarily establish emotional dependence. The Tribunal is not satisfied that the applicant is emotionally dependent on his friends in Australia but even if that were the case, the Tribunal does not consider that the provision of emotional support can only exist where the parties reside in the same country. The Tribunal is not satisfied that any such emotional support, if it exists now, would need to cease if the applicant were to leave Australia.

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

10. The applicant states in his response to the NOICC and oral evidence to the Tribunal that once he realised his parents were alive and well, he was planning to contact the Department but was advised that his visa may be cancelled, so he decided to wait until the grant of citizenship. The delegate found that the applicant continued to mislead the Department. However, the Tribunal is mindful that the obligation to inform of any changes in circumstances existed until the applicant was immigration cleared, which occurred on his entry to Australia in February 2013. After that the applicant was under no obligation to inform about any changes in his circumstances.

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

11. There are no other known instances of non-compliance by the visa holder.

    The time that has passed since the non-compliance

12. The application for the visa was made in October 2011. Seven years passed since the non-compliance.

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

13. The applicant stated in his response to the NOICC that he had been suspended from driving as a P plate holder. The applicant told the Tribunal that he was driving too fast and was fined for speeding and also for driving through a red light.

    Any contribution made by the holder to the community

14. The applicant refers to running his own bricklaying company although he explained to the delegate that the operation was suspended due to his brother’s injury. The Tribunal accepts that the applicant made a contribution through the payment of taxes.

15. The applicant told the Tribunal that he always helps others and teaches others what he has learned in Australia and he helps at community functions. The applicant refers to his participation in various organisations. The Tribunal accepts that evidence.

16. 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, 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

17. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period. There is no suggestion that the applicants will be indefinitely detained.

18. If the applicant is not the holder of a permanent visa, he will be unable to sponsor his partner for the Partner visa. The applicant told the Tribunal that he did not want to tell his wife about the cancellation of his visa and he only told her a few months ago. If the applicant is no longer a holder of a permanent visa, he may lose certain entitlements he may have had as a permanent resident of Australia.

    Whether there would be consequential cancellations under s.140

19. There are no consequential cancellations under s.140

    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  

20. In his submission to the delegate the applicant refers to the unsafe situation in Afghanistan. The applicant provided a number of documents concerning the situation in Afghanistan and his mother also provided a statement indicating that it would be unsafe for the applicant to live in Afghanistan. The applicant refers to the various reasons he may be targeted.  The applicant refers to his involvement in a movement in Australia and claims for that reason also he would be targeted in Afghanistan. In oral evidence the applicant spoke about the persecution he would face in Afghanistan because of his foreign birth and because he has been living in a western country for many years.

21. Despite that evidence, the Tribunal does not consider that the applicant will be refouled if his visa is cancelled because the applicant is able to make an application for a protection visa if he believes Australia owes him 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 finds that Australia’s non-refoulement obligations would not be breached as a result of the visa being cancelled.

22. There are no children who would be 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

23. The Tribunal notes the applicant’s evidence that when his wife applied for the Partner visa, they decided to continue to provide false information in relation to his parents. The applicant explained to the Tribunal that he was afraid of his visa being cancelled, so he decided to be silent about his parents and he also told his partner not to mention his parents. That shows non-compliance by the applicant’s partner but such non-compliance appears to have been made at the request of the applicant.

24. The applicant told the Tribunal that he was born in Iran and does not speak any of the Afghan languages well. He behaves like an Iranian. He would not be accepted in Afghanistan and when the family lived in Afghanistan, he was always humiliated as an Iranian. The applicant claims that separation from his family, including his wife, would be difficult. The applicant told the Tribunal that his wife’s parents would not allow her to live in Afghanistan and if his visa is cancelled, it would cause a breakup with his wife. The Tribunal accepts that the cancellation of the visa would cause hardship to the applicant.

25. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that the applicant answered the questions on the application form in a way that incorrect answers were given and he also provided a bogus document with his application. The Tribunal found that there are grounds for cancelling the visa because the applicant did not comply with s.101 and 103 of the Act.

26. The Tribunal accepts that the non-compliance occurred seven years ago and since entering Australia the applicant is well settled in Australia. He has formed friendships and has found employment and supports his brother financially and emotionally. He contributes to the community. The Tribunal accepts that significant hardship would be caused to the applicant by the cancellation of the visa, particularly if the applicant would be required to leave Australia. The Tribunal accepts that this may affect the applicant’s relationship with his family and the breakdown of his marriage.

27. Against these considerations, the Tribunal has formed the view that the applicant had deliberately falsified information about his parents in order to qualify for the Orphan Relative visa. The Tribunal has formed the view that the applicant was untruthful in his description of events concerning his mother. The Tribunal does not accept that her whereabouts were unknown and she was certainly not deceased. These are significant untruths that were central to the applicant being able to meet the visa requirements and in the Tribunal’s view, the applicant had deliberately provided false information in order to obtain the visa.

28. The Tribunal has found that the cancellation would not result in Australia breaching its international obligations. There are no others affected by the consequential cancellations.

29. The Tribunal accepts that there are strong reasons why the visa should not be cancelled. However, the Tribunal places greater weight on the circumstances in which the non-compliance occurred and the applicant’s lack of candour when dealing with the Department. The Tribunal also places significant weight on the fact that the applicant would not have been entitled to the visa if the correct information was known, as his parents’ circumstances were central to his ability to meet the ‘orphan relative’ criteria and the eligibility for the visa. In the Tribunal’s view, these factors outweigh other considerations.

30. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

31. The Tribunal affirms the decision to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

    Kira Raif
    Senior Member