Jokic (Migration) - [2023] AATA 3240

Jokic (Migration) [2023] AATA 3240 (9 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dragomir Jokic
REPRESENTATIVE:  Ms Adele Wan
CASE NUMBER:  2217390
HOME AFFAIRS REFERENCE(S):          BCC2021/1064754
MEMBER:Deputy President Justin Owen
DATE:9 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 09 August 2023 at 2:47pm

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – changes in circumstances not notified – two criminal charges and AVO between making of application and granting of visa – personal circumstances, language, mental health treatment and reliance on representative – genuineness of relationship at the time – charges withdrawn and dismissed, and AVO expired – sponsor took Australian citizen child overseas without applicant’s permission – best interests of child – possibility of indefinite detention and opportunity for applying for bridging visa – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 98, 104, 107, 109(1), 111, 501
Migration Regulations 1994 (Cth), r 2.41(c)
Crimes Act 1900 (NSW), ss 91P(1), 91Q(1)
CASES
CFE16 v Minister for Immigration; CFD16 v Minister for Immigration [2020] FCCA 1083
Feng Guo v MIBP [2018] FCCA 1173
MIAC v Khadgi (2010) 190 FCR 248
Promsopa v MICMSMA [2020] FCA 1480
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a 34-year-old male born in Croatia. He was granted a Subclass 801 (Spouse) visa on 20 April 2021. The delegate cancelled the visa on 18 November 2022 on the basis that the applicant had not complied with s 104 of the Act which states that changes in circumstances need to be notified to the Department.
The applicant had lodged his Combined Partner (subclass 820/801) visa application on 17 April 2020. In that form the applicant answered NO to the question ‘has any applicant ever been charged with any offence that is currently awaiting legal action?’ On 20 April 2021, on the basis of all the information the applicant provided to the Department, the applicant was granted both the Partner (Temporary) (subclass 820) and the Partner (Permanent) (subclass 801) visa. On 11 May 2021 the Department however received information that the applicant had been charged with two criminal offences on 8 March 2021, and that he was subject to an Apprehended Violence Order (AVO) issued on 19 March 2021.
The delegate noted that the applicant had not informed the Department of his criminal charges and the AVO between the charges being laid in March 2021 and the grant of his visa the following month, a period of 43 days.
The delegate found therefore that the applicant did not comply with s 104 of the Act because he did not notify the Department that he was charged with two offences prior to the grant of his Partner visa. The delegate considered the applicant had not informed the Department of a change of circumstance, namely that he was facing criminal charges. The delegate noted s 104 of the Act required the applicant to correct his original answer of NO to the question ‘Has the applicant ever been charged with any offence that is currently awaiting legal action?’
The delegate subsequently wrote to the applicant under s 107 of the Act informing him of the purported non-compliance with s 104. The applicant did not agree there was non-compliance. The delegate considered the applicant’s written representations but was satisfied there had been non-compliance with s 104 of the Act. The delegate subsequently considered the applicant’s reasons as to why his visa should not be cancelled. The delegate, having weighed up the various considerations in favour and against cancellation of the visa, decided to cancel the applicant’s visa under s 109 of the Act.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 27 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Serbian and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 104(1).
Particulars
On 17 August 2022 the Minister’s delegate invited the applicant to comment on the delegate’s intention to consider cancellation of his permanent Partner (Subclass 801) visa. The applicant had been granted a Subclass 801 visa on 20 April 2021. He had been sponsored by his Australian citizen sponsor.
The applicant responded on 7 September 2022 and provided further information on 3 October 2022.
On 18 November 2022 the Minister’s delegate, having taken into account the applicant’s response, decided to exercise discretion under s 109 of the Act to cancel the applicant’s visa having decided that the applicant did not comply with s 104 of the Act. In that decision, the Minister’s delegate concluded the reasons for not cancelling the applicant’s visa did not outweigh the non-compliance.
Section 104 of the Act states:
(1)If circumstances change so that an answer to a question of the non-citizen’s application form or an answer under the section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances before the visa is granted.
[…]
(4)Subsection (1) applies despite the grant of any visa.
Claimed non-compliance
The Tribunal notes that the applicant previously provided the Tribunal with a copy of the delegate’s decision as part of the review process. The delegate’s decision provides a summary of the process leading to the claimed non-compliance.
On 17 April 2020 the applicant applied for a Combined Partner (subclass 820/801) visa. The applicant’s sponsor was [Ms A].
In his Partner visa application on page 26 the applicant was asked ‘Has the applicant ever been charged with any offence that is currently awaiting legal action?’ The applicant answered ‘No’.
On 20 April 2021, on the basis of all the information the applicant provided to the Department, the applicant was granted both the Partner (Temporary) (subclass 820) and the Partner (Permanent) (subclass 801) visa.
On 11 May 2021 the Department received information that the applicant had been charged with two criminal offences on 8 March 2021, and that he was subject to an AVO issued on 19 March 2021.
The Department had received information that the applicant had been charged with two criminal offences under s 91P(1) and 91Q(1) of the Crimes Act 1900 (NSW) on 8 March 2021 and was due to attend Fairfield Local Court on 18 June 2021. The charges related to the intentional recording by the applicant of an intimate image without consent. The Department was also informed that the AVO issued on [Date] referred to the sponsor as the protected person.
The delegate subsequently wrote to the applicant under s 107 of the Act informing him of the purported non-compliance with s 104. The delegate found that the applicant did not comply with s 104 of the Act because he did not notify the Department that he was charged with two offences prior to the grant of his Partner visa. The delegate considered the applicant had not informed the Department of a change of circumstance, namely that he was facing criminal charges. The delegate noted s 104 of the Act required the applicant to correct his original answer of NO to the question ‘Has the applicant ever been charged with any offence that is currently awaiting legal action?’
The Tribunal discussed these matters with the applicant at its hearing. The applicant did not agree there was non-compliance.
In his written submissions the applicant claimed he had been going through many changes in his life between charges being laid against him on 8 March 2021 and his visa then being granted 43 days later on 20 April 2021. He submitted that those changes in circumstances were to blame for his failure to notify the Department of his criminal charges as required under s 104 of the Act. The applicant stated that dealing with criminal charges for the first time, continual visits to the NSW Police to provide statements and finding a suitable criminal lawyer to represent himself against the charges were all factors contributing to his failure to notify the Department of his criminal charges. He also attributed his adjustment to the separation from his partner, whilst also holding grave concerns for the wellbeing and safety of their young daughter, who was in the sponsor’s custody, as other factors that explained his failure to notify the Department.
The applicant stated his language issues as a non-English speaker meant that organising and understanding such matters contributed to a further delay. The applicant also stated in his written submission that he had begun seeing a psychologist in mid-2020 when problems first emerged in the relationship. He provided a report from a psychiatrist Dr Blagoje Kulijic from December 2020 stating he was suffering from an adjustment disorder with anxiety, depression, and post-traumatic disorder. A subsequent May 2023 report from psychologist Ms Delphine Bostock was also submitted.
At the Tribunal’s hearing the applicant furthermore stated that his former representative was essentially responsible for his failure to inform the Department of the changes in his circumstances. He stated that he believed she was looking after the lodgement of documentation and any updates to the Department as required. He said he had not been made aware of the need to update the Department about the charges after the lodgement of his application forms. He stated that quite simply he did not know of the need to contact the Department. He said that he knew the charges he faced were serious, but notifying the Department simply had not crossed his mind.
The applicant in his written submission has also made an alternate claim that the grounds for cancellation did do not exist as there was no non-compliance. The basis for this claim is that it was not ‘practicable’ for him to notify the Department of his changes in circumstance. This is because of his claimed psychological state during the relevant March/April 2021 period, a time when he was dealing with criminal charges for the first time. The applicant has submitted it was therefore open to the Tribunal to consider there were no grounds for cancellation as there was not a non-compliance as it had not been ‘practicable’ for the applicant to notify the Department given his personal circumstances at that time.
The Tribunal has considered the applicant’s submissions.
Addressing firstly the claim that the grounds for cancellation did do not exist as there was no non-compliance due to the applicant’s psychological state in March/April 2021, and it was subsequently not ‘practicable’ for him to notify the Department, the Tribunal quite simply does not accept this argument. Whilst the Tribunal accepts the applicant was in a stressful environment during the period between 8 March 2021 and the time of the grant of his Partner visa on 20 April 2021, the Tribunal is not satisfied that the applicant was somehow precluded from contacting the Department. The Tribunal has reviewed the submitted medical evidence from Dr Blagoje Kulijic and Ms Delphine Bostock. Ms Bostock, who only saw the applicant for the first time in 2023, claims that it was possible that the ability of the applicant “to process information was impaired by the chronic stress during the relationship with [Ms A], and compounded by concern for his daughter; locating alternate accommodation and seeking legal advice.” The Tribunal again accepts the applicant may have been under stress and even seeking treatment. It does not however, based on the limited medical evidence before the Tribunal, convince the Tribunal he was unaware and subsequently unable to notify the Department of his changed circumstances. The applicant was aware of his criminal charges in March 2021. He was in the community and had legal representation in relation to his application. In such circumstances, the Tribunal considers it remained practicable for the applicant to inform the Department of his change in circumstances during this 43-day period. The Tribunal acknowledges it was a relatively short period of time to notify the Department, and accepts he was ‘stressed’ due to the laying of the charges, but this does not negate the legislative obligation for the Department to be notified. The Tribunal rejects the submission of the applicant that it was not ‘practicable’, in the circumstances the applicant has claimed, for him to notify the Department of his change in circumstances.
The Tribunal has considered the applicant’s other explanations for his failure to notify the Department. None of them provide a satisfactory response for the non-compliance.
In relation to the applicant’s claim that he was relying on his then legal representative, and, because she had apparently not informed him of the need to inform the Department of his change in circumstances he was not responsible, the Tribunal firmly rejects this assertion. Utilising a representative does not outsource the responsibility to meet his or her obligations when lodging a visa application. The Tribunal notes s 98 of the Act that states an applicant who does not fill out his or her forms is nevertheless taken to have done so. Section 111 furthermore states that the cancellation provisions of s 109 apply whether the non-compliance of an applicant is deliberate or, as claimed by the applicant, inadvertent. Whilst the Tribunal might accept the applicant was unaware he was obliged to inform the Department of his criminal charges, that does not obviate the requirement to do so.
In relation to his claim that his mental health at that time precluded him from informing the Department of his change in circumstances, the Tribunal does not accept the submission. The Tribunal has considered the evidence submitted by the applicant, including the reports of Dr Blagoje Kulijic and Ms Delphine Bostock. Ms Bostock especially has discussed that it was “possible” that the applicant was unable to inform the Department of his change in circumstances after his charges due to the “chronic stress” caused by a combination of criminal charges, having to seek alternate accommodation, and concern for his daughter who was in his sponsor’s custody. The Tribunal has reviewed the evidence and again, whilst acknowledging the period was challenging for the applicant, does not accept he was either unable to, or precluded from, contacting the Department to inform it of his change in circumstances.
The Tribunal rejects the applicant’s claims that his language difficulties were also an explanation as to why he had failed to inform the Department of his change in circumstances. The applicant could have availed himself of an interpreter when contacting the Department to discuss his application and update them in relation to his personal circumstances. He also had a representative who was fluent in English and who could have passed on the updated information to the Department.
The Tribunal also rejects the applicant’s claim that the fact he was dealing with criminal charges for the first time, was visiting the NSW Police to provide statements, and was trying to source a suitable criminal lawyer also justify his failure to notify the delegate of his change in circumstances. The applicant was able to effectively manage his legal affairs when responding to the criminal charges. Responding similarly to the Department by simply informing them of the existence of the criminal charges ought not to have been beyond his capabilities.
The Tribunal has also taken into account the applicant’s previous statutory declaration of 7 September 2022. He points out that at the time he applied for his Partner visa he had not in fact been charged. He claimed his answer of ‘No’ to the question ‘Has the applicant ever been charged with any offence that is currently awaiting legal action?’ was therefore correct, as he had declared ‘No’ at a time prior to any charges being laid. He claims ‘currently’ means at the present time, which he interpreted as the time of application. Accordingly, he claims his circumstances had not changed, as the information was correct at the time of application. He stated that his circumstances would only have changed if he was found guilty of these charges. Given the charges were withdrawn and dismissed, he claims his circumstances never actually changed. The Tribunal rejects this submission. The Tribunal notes that convictions are an entirely separate question in the Partner visa application. The question the applicant was asked specifically referred to charges for any offence currently awaiting legal action. The applicant’s response at the time of the lodgement of his visa application was certainly correct. His circumstances however changed following the charges being laid. At that point, his original answer became incorrect and he was obliged under s 104 to notify the Department of these changes in circumstances. He failed to do so. The Tribunal subsequently rejects his interpretation of the notification requirements as outlined in his statutory declaration of 7 September 2022.
On the evidence before the Tribunal, the Tribunal finds that the applicant has failed to comply with s 104 of the Act by failing in his Partner visa application to inform and notify the Department that he had been charged with the aforementioned criminal charges. The applicant subsequently failed to notify the Department of a change in his circumstances as soon as practicable in writing. The applicant failed to inform the Department of his new circumstances, and the correct answer to the question relating to whether he had been charged with any offence that was currently awaiting legal action, as soon as practicable.

For these reasons, 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?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations). Briefly, they are:
·     the correct information;
·     the content of the genuine document (if any);
·     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;
·     the circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches; and
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
In his Partner visa application the applicant answered ‘No’ to the question ‘Has the applicant ever been charged with any offence that is currently awaiting legal action?’ Whilst this was correct at the time of application on 17 April 2020, the applicant was subsequently charged on 8 March 2021 with two criminal offences relating to the intentional recording of an intimate image without consent under s 91P(1) and 91Q(1) of the Crimes Act 1900.
The applicant did not update the Department of these charges prior to the grant of his Partner visa some six weeks later.
Section 104 of the Act states:
(1)If circumstances change so that an answer to a question of the non-citizen’s application form or an answer under the section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
As discussed previously in this decision record, the applicant’s circumstances therefore changed on 8 March 2021, and the previous answer of ‘No’ to the question became incorrect, due to the new circumstances, being these criminal charges. The correct answer became ‘Yes’. The Tribunal has found that the applicant did not ‘as soon as practicable’ inform the Department in writing of his new circumstances and of the (new) correct answer. The applicant was obliged to inform the Department prior to the grant of his Partner visa.
The Tribunal has taken into account the applicant’s various reasons as to why he failed to correct what became incorrect information. These are summarised earlier in this decision record: such as his mental health (as summarised in the psychologist’s report of 25 December 2020); his lack of knowledge about the visa process; his language issues; the stress of managing his criminal charges; his reliance on his representative; and his concerns for his daughter. The Tribunal is not satisfied, for the reasons previously stated in this decision record, any of these reasons submitted adequately explain or justify his failure to do so. The Tribunal does not accept his submission that informing an officer in writing of his changed circumstances was not reasonably practicable.
The applicant has claimed his non-compliance was inadvertent, and in oral evidence continually put responsibility for his failure to inform the Department of the changed circumstances back to his former representative. The Tribunal again notes s 111 of the Act that states the cancellation provisions apply whether the non-compliance was deliberate or inadvertent. The applicant in this case remains responsible for the omission.
The applicant in his written submissions has asserted that whilst notifying the Department would have delayed the processing of the Partner visa application, the ultimate outcome still would have been the applicant was granted the Partner visa. This was because the charges were in fact withdrawn and dismissed, and the applicant would have subsequently passed the character test. The Tribunal notes the applicant was still the subject of an AVO at that time, and considers the applicant’s conclusion to be somewhat speculative.
The Tribunal notes that the applicant is required to be in a spousal or de facto relationship both at the time of application and the time of decision. The evidence suggests the relationship was in considerable trouble by the time of the charges being laid by the NSW Police in March 2021. The parties were no longer cohabitating and it is likely the relationship by then had ended. The applicant has submitted that despite the relationship breakdown with the sponsor, the applicant would still have been allowed to be granted a Partner visa through the exceptions pertaining to a child of the applicant. The applicant is the father of an Australian citizen child of the relationship. He has been supporting the child financially through the Child Support Agency. On the evidence before the Tribunal, the Tribunal finds the applicant would have met the child of the relationship exception that would have allowed the applicant to be granted the Partner visa despite the relationship breakdown.
The Tribunal finds the provision of the correct information would have resulted in the assessment of the applicant’s Partner visa application to be delayed until the charges were withdrawn and dismissed: which was not until 4 August 2022, nearly 17 months after the grant. By this time the relationship had ceased between the applicant and the sponsor. By this stage however, the Tribunal is confident that the applicant would have been able to avail himself of the exception pertaining to a child of the relationship. There is obviously a child of the relationship, the applicant’s daughter who he was supporting. The applicant on the evidence before the Tribunal had legal access to his daughter.
The Tribunal is of the view that the correct information in relation to the applicant’s two charges may have delayed the assessment of his Partner visa application, though it would not have been fatal to the application. Whilst the delay may have meant the final assessment did not occur until August 2022 when the relationship had ceased, the Tribunal is satisfied the applicant still would have been able to successfully claim the exception relating to a child of the relationship.
The Tribunal weighs this consideration slightly against cancelling the applicant’s visa.
The content of the genuine document (if any)
There is no evidence before the Tribunal of non-compliance by the applicant with s 103 of the Act. The Tribunal gives this consideration no weight.
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
The Tribunal notes the applicant’s written submissions, and oral testimony that if he had actually provided the correct information that he still would have been granted his 801 Partner visa after the charges were dismissed.
The Tribunal notes from Feng Guo v Minister for Immigration and Border Protection [2018] FCCA 1173 that when applying reg 2.41(c) of the Regulations and considering whether to cancel a visa under s 109 of the Act, the Tribunal is required not to ‘speculate’ on what might be the delegate’s decision if they had been aware of the correct information, but instead to make an assessment of ‘whether the incorrect information or bogus document was the basis, or part of the basis, for the decision to grant the visa or immigration clear the person.’ What is required by the Tribunal is ‘consideration of the actual decision to grant the visa or immigration clear the person whose visa has been cancelled rather than to engage in speculation of what might have happened if there were correct information.’ The Tribunal has approached this consideration on this basis.
The applicant raised s 501 of the Act and noted, when assessing the character test, policy guidelines state that if an applicant has an unresolved criminal matter that has not been finalised, then the delegate should generally wait until the charges are finally determined before considering whether the character test is satisfied.
The applicant was granted his Partner visa on the basis he was in a genuine de facto relationship with his sponsor. The Tribunal considers the delegate did not have the opportunity at the time of assessment to inform himself of all the circumstances pertaining to the de facto relationship – such as the parties’ commitment to each other – given he was not aware of this information.
In relation to the applicant’s submission that, following Departmental policy concerning the character test, the application would have been delayed had the delegate been aware of the pending charges, and the application ultimately proceeded successfully after the charges were withdrawn and dismissed, the Tribunal has some sympathy for this view. Nevertheless, the role of the Tribunal here is not to speculate but to consider whether the incorrect information was the basis, or part of the basis, for the decision to grant the visa. The Tribunal is of the view the incorrect information was part of the basis for the decision to grant the visa. The delegate was unable to be aware of all the circumstances of the applicant and sponsor’s relationship by not being informed of the pending charges that were laid as a result of the sponsor’s complaint.
The Tribunal weighs this consideration slightly in favour of cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
The non-compliance of the applicant occurred when the applicant failed to notify the Department of a change in circumstances as required under s 104 of the Act. The particulars were that he had been charged with two criminal offences under s 91P(1) and 91Q(1) of the Crimes Act 1900 on 8 March 2021. The applicant’s response in his earlier Partner visa application on page 26 where he was asked ‘Has the applicant ever been charged with any offence that is currently awaiting legal action?’ and answered ‘No’ became incorrect and the applicant failed to contact the Department to make the required update to his circumstances. On 20 April 2021, on the basis of all the information the applicant provided to the Department, the applicant was subsequently granted both the Partner (Temporary) (subclass 820) and the Partner (Permanent) (subclass 801) visa despite the applicant not having informed the Department of this change in his circumstances.
The applicant states that it was “just over one month” from the date of his charges to the time his visa was granted. He states that in the context of his personal circumstances, his delay in notifying the Department was “real and reasonable”.
The Tribunal has earlier in this decision record discussed the applicant’s claims concerning his mental and psychological health during this period; his language challenges; his lack of knowledge of Australian migration law and reliance on his former representative; and his circumstances with his sponsor. The Tribunal again acknowledges the circumstances he was facing during this period between 8 March 2021 and the grant of his visa on 20 April 2021. Based on the evidence before it, the Tribunal does not accept his purported mental health challenges at the time precluded him from undertaking the relatively straightforward obligation of updating the Department of his current circumstances. Similarly, language challenges are not uncommon to many visa applicants who are able to maintain their obligation of keeping the Department informed of their circumstances whilst their substantive visa applications are under consideration. There is nothing before the Tribunal to suggest this was a matter beyond the applicant’s ability.
The applicant’s apportionment of blame on his former representative for not updating his circumstances, and keeping him informed, also carries little weight with the Tribunal. Utilising a representative does not obviate the need for an applicant to keep abreast of his visa compliance obligations. The applicant had an obligation to keep himself informed of his compliance requirements, which includes updating the Department of any changes as soon as is practicable.
The Tribunal acknowledges that the applicant’s circumstances with his sponsor and daughter at the time he was charged in March 2021 were difficult with having to find himself a criminal lawyer and dealing with issues over his residence and the custody of his daughter. Whilst the Tribunal appreciates the challenges, the need to keep the Department informed remains. The Tribunal does not accept that these challenges precluded the applicant from doing so.
The Tribunal does note that the non-compliance was a relatively short period of time between the charges of 8 March 2021 and the grant of the visa on 20 April 202, and gives this some weight in its consideration. The Tribunal considers it lessens the weight that should be weighed against the applicant.
The Tribunal weighs this consideration very slightly in favour of cancelling the applicant’s visa.
The present circumstances of the visa holder
The Tribunal has considered the present circumstances of the applicant. The applicant is working full-time in the building and construction industry. He has worked almost his entire time in Australia. The applicant has some family members living in Australia such as his uncles and aunts along with his nephews and nieces. He told the Tribunal’s hearing he now lives alone in Liverpool. He has a new girlfriend.
Importantly, the applicant has an Australian citizen daughter, who is the child of the applicant and the sponsor. The applicant discussed how the sponsor has taken their daughter with her over to [Country] without any consultation whatsoever. He states he has no idea how she obtained an Australian passport for his daughter as he has never signed any document acknowledging his support of the application as her father. He states that his daughter and the sponsor have been offshore now for just under a year. The applicant stated he would like to pursue legal action to lock in joint custody and have his daughter return to Australia but has faced financial challenges.
The applicant stated, and provided photographs affirming this, that the sponsor has recently permitted him access to video calls with his daughter that take place from the applicant’s mother’s residence which is in [Country]. These calls occur around once a fortnight.
The applicant stated he was very concerned he would lose access to his Australian citizen daughter if his visa was cancelled and he departed Australia. He stated he feared the sponsor would not support him accessing his daughter from offshore.
The applicant also expressed concerns that if his visa was to remain cancelled and he depart Australia, that his daughter would suffer both emotionally and financially from losing access to her father. The applicant stated he financially supported his daughter, and this support would become more difficult if he were compelled to depart Australia.
The applicant has asserted the loss of access to his daughter represented a considerable harm to himself and his daughter.
The Tribunal accepts the applicant is very fond of his daughter and has provided her with considerable financial support. The Tribunal considers his regard and desire to support her is genuine. The Tribunal accepts that cancellation of the applicant’s visa would cause considerable challenges for the applicant in seeing his young Australian citizen daughter and spending time with her. The Tribunal notes he would find it very difficult to again see his daughter in Australia. The Tribunal accepts this would have a detrimental impact on their father/daughter relationship.
The Tribunal furthermore notes the evidence before it as to the applicant’s state of mind and psychological health. Whilst the Tribunal notes the applicant is a fully-functioning working adult in the Australian community, the Tribunal also acknowledges that the laying of the charges that were dismissed almost 18 months later had an adverse impact upon the applicant’s wellbeing. The stress of this situation, and having to seek legal representation at the same time as being compelled to depart his home, was in all likelihood a stressful time for the applicant.
The evidence from the Tribunal’s hearing suggests the applicant has rebuilt his life since the charges he faced were withdrawn and dismissed. He has his own home, has an excellent record of employment, and has a good record of providing regular financial support to his daughter. The Tribunal noted the applicant was subject to a two-year AVO that expired in March 2023. The applicant confirmed that there had been no breaches and the AVO had now expired with no new application made. There is no evidence or claim of any other adverse interactions with the law.
The Tribunal weighs this consideration strongly against cancelling the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant now concedes he had an obligation to notify the Department of any changes to his circumstances that occurred prior to the grant of the visa. The applicant submits that whilst his language difficulties and his lack of understanding of his legal obligations were to some extent explanations for his non-compliance, he concedes that some weight should be given in favour of cancelling his visa due to his non-compliance. The Tribunal notes the admission, though also notes the applicant at times in his oral testimony continued to claim he was not in breach of s 104 of the Act and sought to hold his former representative responsible.
The Tribunal weighs this consideration slightly in favour of cancelling the applicant’s visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence or information of any other instances of non-compliance by the applicant. Given this, the Tribunal weighs this consideration slightly against cancelling the applicant’s visa.
The time that has elapsed since the non-compliance
The applicant’s non-compliance with s 104 of the Act occurred in March 2021 when he failed to notify the Department about a change in his circumstances prior to the grant of his Partner visa the following month.
A period of two years and five months have elapsed since the non-compliance, a period the Tribunal considers is not insignificant.
The applicant submits that his ties to Australia have grown since his non-compliance in relation to his personal, employment and family ties. In relation to his personal ties, he now has a girlfriend in Australia and has continued his relationship with his Australian-domiciled family members such as aunts, uncles, nephews and nieces. In relation to employment, he has continued his work in the building industry. The Tribunal notes the correspondence from the employer Metsquare Pty Ltd that has attested to the applicant’s skill and value as an employee. His family ties are obviously characterised by his Australian citizen daughter. The Tribunal accepts he is very close to his daughter, despite her currently being in [Country] with the sponsor, and he has provided her with regular and ongoing financial support.

The Tribunal weighs this consideration against cancelling the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
At the hearing the applicant said he had not been in breach of the law since the non-compliance. There is no evidence before the Tribunal to the contrary. Given this, the Tribunal weighs this consideration slightly against cancelling the applicant’s visa.
Any contribution made by the holder to the community
The applicant has submitted that he is a positive contributor to the Australian community in relation to his employment record and the skills he brings to the workforce. The Tribunal notes the letter of support from one of his employers attesting to his value and experience. The Tribunal accepts the applicant has a strong work ethic and is a good and reliable employee. The Tribunal accepts in the construction industry he has played a key role in the supervision of safe working practices in some key State building projects. The Tribunal notes the sentiments of his Metsquare employers as to the chronic shortages of skilled and competent employees like the applicant in the wider construction industry. The Tribunal has given some weight to his contribution to the community through the skills he provides the economy and the workforce.
The applicant has asserted the taxes he pays from his employment as a positive contribution to the community. The Tribunal gives these contributions little weight. Whilst the Tribunal accepts that the applicant pays income tax, the Tribunal considers this is no different to any other individual engaged in paid employment. The Tribunal furthermore notes that during the period after he was granted his 801 Partner visa, the applicant would have enjoyed access to a wide range of Government benefits and public resources funded through the Australian taxation system.
The applicant has also stated he has assisted the Australian economy by making timely child support payments. The Tribunal acknowledges the applicant’s sound record in this area, but considers the benefit principally is to his daughter rather than the wider community.
The applicant submits that the fact he is a religious person who attends church each Sunday and actively participates in church activities is a positive contribution. The Tribunal considers volunteerism is to be applauded, and the Tribunal recognises his commitment to his faith. There is little evidence however as to how his contribution is assisting the community. The Tribunal weighs this in his favour, but the weight is limited.
The applicant has also asserted his involvement in a local youth basketball team – Red Stars – as assistant coach is a contribution to the community as is his work with Prime Health Focus which is focused on fitness. The Tribunal accepts he is involved in both groups and gives them limited, but positive weight in his favour.
The Tribunal weighs the applicant’s contributions to the community slightly against cancelling the applicant’s visa.
Other matters
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 would be consequential cancellations under s 140
The applicant confirmed at the hearing there are no dependent visa holders as part of his visa. The Tribunal therefore finds that there will be no consequential cancellations under s 140 if the visa is cancelled. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
The applicant stated at the Tribunal’s hearing that he has not applied for protection. There is no evidence or claim that he holds any fears about returning to Serbia. The Tribunal finds that cancellation of the applicant’s visa will not be in breach of any of Australia’s obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) or the International Covenant on Civil and Political Rights (ICCPR). Cancellation of his visa will not lead to the applicant being removed from Australia in breach of Australia’s non-refoulment obligations.
The applicant may of course still lodge a Protection visa application if he holds such concerns. The Tribunal would note nevertheless that no claims or concerns have been expressed.
Of more concern to the Tribunal is the situation relating to the applicant’s young daughter, [Miss B]. The Tribunal notes [Miss B] was born on [Date] and is an Australian citizen. The Tribunal is satisfied that the applicant is the father of [Miss B].
In 1990, Australia ratified the United Nations Convention on the Rights of the Child (CRC). The Convention came into force the following year. Relevantly, Article 3 and the preamble respectively states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
and
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can assume its responsibilities within the community.
The Tribunal notes in CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor [2020] FCCA 1083 at [25] the statement of Riethmuller J:
The distinctions in reasoning process may seem subtle until one considers the purpose and effect of the Convention. By adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider with and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make a primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures that it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighted.

100. The Tribunal notes the Courts have found generally it is in the best interests of the child to remain with their family and has therefore taken the CRC into account. The Tribunal has noted in Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 at [54] where his Honour held that the deprivation of Australian citizen children of the benefits of their Australian citizenship, the social and linguistic disruption of their childhood and the loss of various educational opportunities in Australia were all matters to be considered.
101. In his submissions to the Tribunal, the applicant has asserted that it is in the best interests of the applicant’s [Age]-year-old daughter that she maintain a positive relationship with her father, the applicant. The applicant has asserted it will be contrary to the CRC if the Tribunal considered otherwise.
102. The Tribunal has treated the best interests of the applicant’s child as a primary consideration in its deliberations.
103. This is an unusual case. According to the evidence before the Tribunal, the sponsor has taken the [Age]-year old Australian citizen daughter to Serbia and has been there for some considerable months. The applicant states that he has never given any permission for the child to depart Australia, and has not signed any documentation as part of an Australian passport application. These are all issues beyond the Tribunal’s remit, though the Tribunal does record its concerns as to the circumstances in which the applicant’s daughter has apparently departed Australia.
104. The applicant has stated that he has fortnightly video chats with his daughter when the sponsor takes her to his mother’s home in [Country]. The Tribunal has noted the child support documentation that was submitted which illustrates the applicant consistently provided his daughter with financial support up until he his visa was cancelled and he had to cease employment. The Tribunal accepts the applicant has played a positive role in his daughter’s life and is committed to her well-being.
105. The sponsor of the applicant, his former partner, and his daughter are Australian citizens. In all likelihood they will return to Australia at some point. Should the applicant’s visa be cancelled, the likely scenario is that he will ultimately be compelled to depart Australia. In such circumstances, the Tribunal considers the likelihood is the applicant will be separated from his daughter on a long-term basis. Given the status of the applicant and sponsor’s relationship, the Tribunal accepts there is no real possibility in the future of the sponsor and their daughter relocating to [Country] to be with the applicant. The most probable situation will be the applicant will be offshore and the sponsor and their daughter will be in Australia.
106. The Tribunal is satisfied that the the long-term risk is long-term separation of the applicant from his daughter. Cancellation would result in a highly probable long-term separation of the applicant from his young daughter. The Tribunal notes that separation of a parent from a child can have enduring consequences for the child in terms of their social, emotional and psychological development.
107. The Tribunal has considered the evidence before it in relation to the best interests of the child. Having regard to the existing authorities and consistent with Departmental guidelines, the best interests of the applicant’s child is a matter that should be given primary consideration. The Tribunal is of the opinion that it is therefore relevant to consider the circumstances of the applicant’s young daughter and to make an assessment as to her best interests. The Tribunal is obviously aware that the impact of the cancellation of the applicant’s visa and his potential deportation or remaining in immigration detention, are all matters that extend beyond the applicant himself and impact upon his daughter, notwithstanding the applicant’s relationship with the child’s mother, the sponsor, has now ceased.
108. The Tribunal accepts the evidence that the applicant plays an important role in the support of his and the sponsor’s daughter. Through his employment he has provided the child with support after the end of his relationship with the sponsor. The Tribunal considers the applicant has an important role to play in providing his daughter with ongoing emotional and financial support, particularly when she returns to Australia as an Australian citizen. The applicant stated it is his intention to reach a situation where he and the sponsor have shared custody of their daughter. The Tribunal accepts that this situation can be most ideally achieved if the applicant remains in Australia.
109. On the evidence before it in relation to international obligations and specifically, the best interests of the child, the Tribunal weighs this factor against cancelling the applicant’s visa.
Whether there are mandatory legal consequences to a cancellation decision
110. The Tribunal finds that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. The Tribunal notes that indefinite detention is a theoretical possibility if the applicant’s visa was to be cancelled. The applicant will however have the opportunity to apply for a Bridging visa E so that he may remain in Australia and in the community lawfully whilst making arrangements to leave. The Tribunal furthermore notes the s 48 bar and its potential impact on the applicant should his visa be cancelled. Section 48 of the Act imposes limitations upon applicants whose visa has been refused or cancelled while in Australia and essentially prevents applicants from applying for another visa or repeatedly applying for a visa while in Australia. Depending on the visa applied for, the Tribunal notes that the applicant will be subject to Public Interest Criteria 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances.
111. The Tribunal acknowledges the challenges these present to the applicant but notes that these are the intended consequences of the legislation.
112. On the evidence before it, the Tribunal weighs this consideration slightly against cancelling the applicant’s visa.
Any other relevant matters
113. In his submissions to the delegate after receiving the notice of intention to cancel his visa, the applicant provided a letter from his them employer stating he was an excellent, diligent and valued employee who played an important role in assisting the business meet its contractual obligations. As stated previously, the Tribunal accepts the applicant has been a key and valued employee to his employers and plays a key role in the business. The Tribunal has also addressed this matter under the head ‘any contribution made by the holder to the community’ and gives some limited weight against cancelling the applicant’s visa on this basis.
114. The applicant has stated that the accusations that were made against him by his sponsor, made at the end of a toxic relationship, were false and ultimately dismissed by the Court as they were lacking in foundation and evidence. The applicant states it is unreasonable that he continues to be punished as he failed to notify the Department of criminal charges that were ultimately dismissed, and in a window of little more than a month. The Tribunal accepts that the charges were withdrawn and dismissed. The Tribunal attributes no adverse weight to the applicant as a result of the charges themselves, and accepts he has no adverse criminal findings that have been made against him either in Australia or Serbia. The Tribunal would disagree however with his complaint about the process that led to the cancellation of his visa. The applicant’s visa was cancelled because he failed to meet a very clear requirement of the Act that he notify the Department of changes in his circumstances. By failing to do so, and the Tribunal acknowledges the relatively narrow timeframe of six weeks, the Department was not able to avail itself of all the relevant information concerning the applicant’s visa application. The applicant’s non-compliance itself provided the grounds for his visa to be cancelled. The applicant has then been afforded the opportunity to provide evidence on the question of whether the visa should in fact be cancelled. The delegate considered his response and decided to cancel his visa.
115. The Tribunal review process has allowed the applicant to submit further evidence and for his matter to be considered de novo. The applicant has been able to provide a wide range of evidence in relation to the considerations as to why his visa should not in fact be cancelled. The Tribunal has considered his submissions and his oral testimony. The grounds to cancel his visa are obvious, despite his protestations. Having found there was the requisite non-compliance as per s 104, the Tribunal has assessed the applicant’s evidence both oral and written to the delegate previously and now to the Tribunal. Having assessed all the prescribed circumstances as set out in reg 2.41, and having weighed the various considerations, the Tribunal has ultimately concluded that the applicant’s visa should not be cancelled. In reaching this finding, the Tribunal has placed considerable weight on the best interests of the applicant’s Australian citizen [Age]-year-old daughter.
116. The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both independently and cumulatively. Taking all the considerations into account, the Tribunal considers the visa should not be cancelled.
117. 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 not be cancelled.
DECISION
118. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Justin Owen
Deputy President

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.