Kumar (Migration)

[2023] AATA 512

Kumar (Migration) [2023] AATA 512 (10 February 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Gurdeep Kumar

REPRESENTATIVE:  Mrs Payal Narula (MARN:1568847)

CASE NUMBER:  2203366

HOME AFFAIRS REFERENCE(S):           BCC2021/2085876

MEMBER:  Michael Bradford

DATE OF ORAL DECISION:   10 February 2023 DATE OF WRITTEN STATEMENT:  17 March 2023 PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 17 March 2023 at 11:34am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of the family unit – relationship ceased – divorce proceedings – ongoing contact and counselling during separation – study plans – limited course progress – value of courses to future career – applicant charged with offences – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 5, 48, 109, 116, 119, 120
Migration Regulations 1994, Schedule 2, cl 500.311; Schedule 8, Conditions 8201, 8516; rr 1.12, 2.41

CASES

Akter v MIBP [2018] FCCA 3604                   

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

Introductory

1. This is a review of a decision made by a delegate of the Minister for Home Affairs who, on 8 March 2022, cancelled the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (the Act).

1. The applicant was granted the visa on a secondary basis, the primary applicant being his then wife, Ms Rani. Prior to that he had been in Australia under a Student TU-500 visa granted to him as a primary applicant on 10 July 2019. This earlier visa ceased when he was granted the secondary visa on 23 November 2020.

1. The delegate cancelled the secondary visa under s 116(1)(a) of the Act on the basis that the applicant was not in a continuing married relationship with Ms Rani at that time and was thus no longer a member of her family unit as prescribed by Regulation 1.12(2)(a) and Regulation

   500.311 of the Migration Regulations1994.

1. There are two issues arising in the review; the first is whether that ground for cancellation is made out, and if so, whether the applicant’s secondary visa should be cancelled.

1. At the conclusion of the hearing the Tribunal made an oral decision to affirm the delegate’s decision and indicated to the applicant that written reasons would be provided later.

1. These are my reasons for that decision.

Procedural aspects

1. The Review Application was filed on 9 March 2022 and is within time.

1. Two other documents were also filed on that date by the applicant these being a copy of the Notification of Decision and the Record of Decision under review.

1. In his Hearing Response form dated 23 January 2023 the applicant said that he did not intend to call any witnesses and did not intend to file any additional documents in support of his case. This is the position he initially maintained at the video conference hearing held on 10 February 2023 but then, in response to an enquiry from me about the scope of his documentary case, said he wanted to rely on the two affidavits he had provided to the delegate, firstly in response to the Notice of Intention to Consider Cancellation (NOICC) and later in response to an invitation from her to comment on additional information concerning divorce proceedings which had been commenced by Ms Rani.

1. As it happened the Tribunal had been provided with a copy of these affidavits by the Department and had read them, along with other documents in the Department’s paper file, prior to the hearing. I will return to look at his evidence and other documents in this file later in these reasons.

1. In addition to that material the applicant gave oral evidence at the hearing in the English language over a period of about 1 hour and 15 minutes. A question/answer method was utilised. He appeared to have a reasonably good understanding of the language and indeed seemed quite relaxed when giving evidence. His representative, Mrs Payal Narula, a Registered Migration Agent, did not attend the hearing, nor did she provide any submissions in support of his case.

1. The Tribunal also had access to PRISMS and Movements Details records for the applicant the information in which was discussed with him and was not controversial.

Certain evidentiary aspects, an overview of the case

1. At the outset it must be said that one of the main concerns I have about the applicant’s documentary case is that he relied on the affidavits which he provided to the delegate now more than 12 months ago and, in so doing, fails to address in that case the concerns which the delegate expressed in her reasons many of which remain as valid now as what they were then. Indeed, in some respects his case is more problematic now than what it was when the delegate cancelled his visa.

1. Ordinarily, if an applicant in a review of this kind does not heed requests from the Tribunal to provide in a timely manner up-dated documentary evidence to support the case he or she cannot expect the Tribunal to investigate aspects of it which, had they been made the subject of evidence, might have been investigated and might have put a different complexion on the overall merits of the case. It is not the Tribunal’s statutory function to conduct a roving enquiry to find out if an applicant has a case.

1. Similarly, if an applicant does not explain to the Tribunal why evidence on a particular topic has not been provided, he or she cannot expect the Tribunal to disregard that fact. In such a case, the Tribunal will be entitled to infer that the evidence would not have assisted the applicant’s case.

1. My overall impression of the evidence in this case, documentary and oral, is that the applicant has been less than frank in critical respects; that he has been unwilling to come forward with evidence on aspects which I would have expected him to lead evidence on; and that much of the evidence which he has led on other aspects has been tailored to suit his purposes.

1. Indeed, a good deal of what he has said, and left unsaid, both before the delegate and in the Tribunal, does him little credit, reflects poorly on him and serves only to undermine his case.

1. Ultimately, I am not prepared to act on his affidavit or oral evidence unless it is corroborated by other more reliable sources, is consistent with the objective features or inherent probabilities or amounts to an admission against his interests.

Relevant legislation

1. As is well known, under Sec 116 of the Act the delegate may cancel a visa if he or she is satisfied that a ground specified in that provision is established. Relevantly to this case these grounds include Sec 116(1)(a). A visa may be cancelled under Sec 116(1)(a) if the delegate, or other decision maker, is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

1. If satisfied that this ground is made out, the delegate or other decision maker such as the Tribunal must proceed to consider whether the visa should be cancelled having regard to the relevant factors including matters of government policy, where relevant.

1. This second stage essentially involves an evaluative exercise in which the Tribunal must consider the relevant factors, attribute weight to them and reach a discretionary decision which is reasonable in the circumstances.

The first issue; has the ground under Sec 116(1)(a) been established?

1. In the NOICC, served on the applicant on or about 27 January 2022, the delegate stated that the information before the Department appeared to indicate that the applicant was no longer in a married relationship with Mr Rani; that the information indicated that his relationship with her had come to an end on 20 November 2020; that he had been permanently separated from her since that time; that he was thus no longer a member of her family unit; and that these facts, if proved, could be a ground for cancelling his secondary visa. He was invited to comment on that information and to either demonstrate why that ground did not exist or give reasons why his visa should not be cancelled.

1. In response to the NOICC the applicant provided an affidavit sworn on 2 February 2022 in which he said that he had married Ms Rani in Australia on 23 July 2020, not long after they arrived here together on separate Student TU-500 visas to study in the higher education sector.

1. He refers in this affidavit to some worry and stress in their marriage about financial issues they were having by about June 2021 which required them to live apart. He seems unwilling in this affidavit to accept that these issues had led to any permanent separation at that stage but does not explain how living apart on a temporary basis would help to solve them. He goes on to refer to an incident which took place in July of that year when he confronted (his word) Ms Rani over an allegation that she had been having an extra-marital affair. According to him she admitted during this confrontation that she had been in another relationship. Whilst I accept this would have led to heightened tension between them and a deterioration in what was, according to him, a “fragile” relationship, I do not accept his evidence that the idea of them living apart was nothing more than an attempt to deal with financial stress in the marriage.

1. The applicant provided some documentary material in the form of statements relating to a joint bank account and other contemporaneous telephone records which, he said, showed a sharing of household expenses and ongoing contact between them after July 2021. He said they were attending counselling together, were in the process of reinstating their relationship and that his marital issues had caused him emotional distress. Although these records do not themselves support any of these contentions, I am prepared to accept they did have ongoing contact during their separation and did attend some counselling sessions together.

1. Put shortly, the applicant’s response to the NOICC in this affidavit seems to have been that he had not permanently separated from Ms Rani at that stage, although living apart they were still married, that he was hopeful of a reconciliation, that he was taking steps in that direction and that there were, consequently, no grounds on which to cancel his visa under Sec 116(1)(a) of the Act.

1. He gave other reasons why his visa should not be cancelled including a contention to the effect that the temporary separation which he says had occurred was beyond his control and that his response to Ms Rani’s admission of adultery was a natural reaction in the circumstances. What that reaction was remains unclear to me on the evidence he has led and, absent any explanation for him not dealing with it, I infer it would not have assisted his case. That said, I am also prepared to accept that a confrontation took place with Ms Rani in July 2021, that she made an admission along the lines he says she did and that he reacted to it in a way which, with the benefit of hindsight, he now apparently regrets. Certainly, he admits in this affidavit that the incident did not go well for him.

1. Although it may not matter a great deal, as he has not given any indication in his evidence as to when Ms Rani’s affair took place there remains the possibility that it occurred at some stage after they had separated.

1. In late February 2022 the delegate pursuant to Sec 120 of the Act invited the applicant to comment on additional information which had been received by the Department to the effect that Ms Rani had already commenced proceedings for a divorce in the Federal Circuit and Family Court of Australia (FCFCA).

1. In response to that invitation the applicant provided a further affidavit sworn on 3 March 2022 in which he accepted that Ms Rani had commenced those proceedings in November 2021 but said that he had not been served with the initiating process until mid-February 2022.

1. I do not accept his assertion that he was not served with the FCFCA process until on or about the second week of February 2022 in circumstances where she had, according to his March 2022 affidavit, filed it on 30 November 2021. I regard his evidence on this topic to have been tailored to avoid having to explain to the delegate why he did not voluntarily come forward with this information in his initial response to the NOICC.

1. It seems clear enough from this affidavit that Ms Rani was alleging in the FCFCA proceedings that she had separated from the applicant in November 2020, an allegation which the delegate had put to the applicant in the NOICC. Although he continued to deny in his March 2022 affidavit that they had separated in November 2020 he gave no meaningful evidence to substantiate his denial. He goes on in this affidavit to reaffirm his earlier evidence to the effect they were continuing to investigate in the court the prospects of a reconciliation and, to that end, were utilising the court’s annexed facilities for mediation and other alternative dispute resolution.

1. He requested the delegate to defer cancellation of his visa until such time as their marriage was formally dissolved by the court and indicated that he was in the process of filing another application with the Department for a Student TU-500 visa to enable him to undertake vocational studies in his own right.

1. In the Record of Decision (NOC), after considering the available evidence, the delegate was not satisfied that a marriage relationship still existed between them as was required by the definition of “spouse” under Sec 5F of the Act. More particularly, reference was made to the fact that Ms Rani had admitted having an affair during the marriage, a further deterioration had occurred in their relationship because of that, there was an absence of a mutual commitment to a shared life to the exclusion of all others, and a permanent separation which had led to the commencement of divorce proceedings by her.

1. The delegate did not accept that the documentary evidence, such as it was, suggested any regular sharing of expenses, ongoing financial dependency by him on her or other significant intermingling of financial arrangements. There were isolated transfers of funds in relatively small amounts by Ms Rani into the joint account for rent but these did not, by themselves, establish that a married relationship was still on foot or that a reconciliation had taken place or was likely to.

1. Those and other circumstances suggested to the delegate that the applicant was no longer in a genuine and committed relationship with Ms Rani, was in fact permanently separated from her, was thus no longer a member of her family unit at the time of her decision and that there was therefore a ground for cancellation of his visa under Sec 116(1)(a) of the Act.

1. In his oral evidence the applicant accepted that his marriage had been dissolved by the FCFCA during the second half of 2022. He was unable or unwilling to be any more specific in terms of giving me a date. He continued to assert that the separation had not taken place until November 2021but he gave no other evidence on this topic beyond what he had given to the delegate in his affidavits, evidence which I consider has been deliberately falsified to advance his case before the delegate. It is also quite incompatible with the timing of the

formal order for dissolution of his marriage, an event which he says took place during the second half of 2022, which itself suggests that the FCFCA was satisfied that the separation had continued for at least 12 months prior to the date on which the order was made.

1. Without knowing what evidence was led on this issue in the FCFAC and given the anecdotal evidence which the applicant has led in relation to it in the review, I am satisfied that the separation most probably did occur in November 2020, as was alleged by the delegate in the NOICC and reiterated by her in the NOC. This information apparently came from Ms Rani, whom the delegate considered to be reliable, and is reinforced by the fact that the applicant made no real attempt to refute it in his review case. Certainly, he has led no convincing evidence, documentary or oral, either before the delegate or in the review, to establish that it did not take place until November 2021.

1. In this case, it simply does not matter, at least for the purposes of determining whether the ground in Sec 116(1)(a) is made out, whether the applicant separated from Ms Rani in November 2021 (as he continues to assert) or at some earlier point in time. The simple and incontestable fact is they are now divorced. The actual timing of their initial separation may have a bearing on whether his visa should be cancelled since it may inform on the issue of whether and to what extent the applicant has failed to inform the Department of his changed circumstances, but it has no forensic significance to the issue of whether the ground for cancellation exists.

1. Nor, in my view, does it matter for present purposes whether the initial break-down of his marriage, the separation and eventual divorce were matters beyond his control. There is nothing in the legislation, including in Sec 116 itself, to support this proposition and, in any event, these are not matters about which the Tribunal could feel any actual persuasion in this case, even at the discretionary level, given the nature of the review process and the anecdotal material which the applicant has seen fit to provide regarding the circumstances in which they separated and remained apart.

1. Given their initial separation took place in or about November 2020, the admission of infidelity by Ms Rani, the impact which that admission had on him and the eventual dissolution of their marriage during the second half of 2022, it is patently obvious that the applicant is not at the time of this decision in a married relationship with her, that the ground for cancellation under Sec 116(1)(a) is made out and that the power to cancel his secondary visa is enlivened. To contend otherwise, as the applicant has done, does nothing to advance his case.

1. I note the applicant did not suggest in the review, nor indeed did he suggest to the delegate, that his secondary visa was not granted to him wholly or partly on the basis that he was at that time in a married relationship with Ms Rani.

1. Nor has he suggested that the NOICC was not a valid Notice under Sec 119 of the Act.

The second issue; should the visa be cancelled?

1. Unlike a visa cancellation under Sec 109 of the Act, there are no prescribed circumstances which the Tribunal is required to consider when reviewing a decision to cancel a visa under Sec 116(1)(a) of the Act. That said, Regulation 2.41 does provide a useful shopping list of factors which the Tribunal may have regard to at the discretionary level in a Sec 116 case, to the extent to which they are relevant, along with any other relevant matters, including the PAM 3 guidelines.

1. The delegate in this case also took into consideration, as she was bound to do, the applicant’s response to the NOICC and his additional comments on the divorce proceedings in his response to the Sec 120 notice.

1. It is unnecessary for me to reiterate the delegate’s findings on these matters in any detail. Some of the evidence in the applicant’s affidavits which the delegate addressed has been overtaken by more recent events, the formal divorce order being one of them, while other aspects of his evidence in that material is best considered in conjunction with his oral evidence led in support of the review.

1. In his oral evidence, the applicant said that in 2018 he completed a Bachelor of Agricultural Studies in his home country of India after 4 years of study and then worked on his parent’s farm for a short time before coming out here in July 2019 on his initial Student TU-500 visa to study in the higher education sector. Although he provided no documentary evidence to this effect, I am prepared to accept that he completed the Bachelor course as this would almost certainly have been made the subject of evidence to support the grant of his initial Student visa.

1. Whilst I can also accept that he most probably came out here to study in the higher education sector, as there is nothing in the objective features to suggest the contrary, he made no discernible progress in any of the three courses he enrolled in at that level, firstly a Master of Business at the University of Queensland, secondly a Master of Agricultural Science also at that same University and, thirdly, a Master of Business Administration at the Holmes Institute in Sydney, all during the period from July 2019 to November 2020.

1. His evidence in the February 2022 affidavit is to the effect that the COVID pandemic affected his ability to study these courses, or some of them, but I do not accept that it did, or at least not to the extent that it prevented him from engaging with them. He has led no evidence to this effect from a suitably qualified medical practitioner, nor did he take responsible measures to defer his enrolments in any of these courses. COVID is not and never has been, of itself, an excuse not to engage in productive studies while on a Student TU-500 visa.

1. Nor do I accept the bland assertion in that affidavit that he demonstrated during this period a genuine intention to study. I have seen no reliable independent evidence to support this proposition and the objective indicators suggest otherwise. He has not given any evidence that other adjustment issues were impacting on him apart from those stemming from his separation and its aftermath and these could not have been in play until in or about November 2020.

1. I also take notice that tuition in these high-level courses would not have been inexpensive, even if the fees were paid on a progressive basis, as I infer they would most likely have been.

1. Absent an acceptable explanation for the applicant’s failure to make any progress in any of these high-level courses it seems to me that, if he has demonstrated anything during this period of some 16 months it is simply an unwillingness on his part to engage with his studies coupled with a rather wasteful and irresponsible approach to his higher education. He may have studied these courses for relatively short periods of time but, if he did, he made no discernible progress in any of them and, more importantly, he has given me no acceptable explanation for it.

1. This was pure folly for an experienced student who should have known better and who should have taken steps to arrest his academic demise long before his enrolment in the MBA at Holmes came to an end in December 2020.

1. I agree with the delegate’s finding that in these circumstances the applicant did not fulfill the purpose for which his initial Student TU-500 visa was granted to him and that this failure is a significant adverse matter to take into consideration at the discretionary level.

1. In his February and March affidavits the applicant said that he wanted to correct his visa situation in Australia by applying for a further Student TU-500 to study a construction course and, in his later affidavit, said that his agent had in fact lodged that application with the Department on 2 March 2022, this being about 16 months after the separation had commenced. The Movements Details record appears to confirm that he did in fact do this as that date coincides with the date on which his initial Bridging visa was granted.

1. Attached to his February 2022 affidavit is a letter of 30 January 2022 from the Everthought College of Construction (ECC) for enrolment in a Certificate III in Wall and Floor Tiling. According to PRISMS this course was originally due to start on 4 April 2022 and to finish on 29 March 2024 but he did not proceed with it at that stage obtaining two deferments, the first on 7 April 2022 and the second on 13 July 2022.

1. According to PRISMS the CIII had, by reason of the deferments, an adjusted commencement date of 16 January 2023 and a completion date of 10 January 2025. A Diploma of Building and Construction (Management) at the same College, a course in which he has also enrolled, is now not due to start until 13 January 2025 and to finish on 19 January 2026.

1. The applicant has not explained why, in these circumstances, he continues to rely on these courses to support his review case, why he has enrolled in them, what his objectives are in studying them, and what his eventual plan is once he completes them. He has no demonstrated work history in these fields, nor indeed is there anything objective in his broader personal circumstances to explain these choices or to suggest that he has a genuine interest in pursuing a career in them, or either of them. They appear to me, on the evidence led, to have been plucked from thin air.

1. In his oral evidence the applicant informed me that his application for the further Student TU- 500 visa had been refused but he gave no further details.

1. I gather that he enrolled in these courses at ECC not so much to support his review case but rather to support his application for the further Student TU-500 visa. In any event, in his oral evidence he accepted that ECC would likely decline to defer his studies in the CIII any further once it became aware of the fact that his more recent visa application had been refused. He has not yet informed it of the refusal but said he had accepted the enrolment offer and had paid to ECC an initial enrolment fee of about $4,100 for the CIII, some if not all of which will likely be refunded.

1. Given his poor academic record in Australia while on his initial Student TU-500 visa, and his more recent personal circumstances, the outcome of his application for this further TU-500 visa was, in my view, likely if not inevitable.

1. That the Department has refused to grant the applicant a fresh TU-500 visa to pursue studies in these courses is, I think, an adverse matter to be taken into consideration. I do not know the reasons for the refusal but infer that the delegate was not satisfied that the applicant met the genuine temporary entrant criterion. Absent any indication in the evidence to the contrary, or of any steps having been taken to review that decision, it seems to me that the adverse outcome of this other visa application cannot assist the applicant in this review.

1. When the applicant obtained his secondary visa in November 2020 it was subject to condition 8201 which prevented him from engaging in studies or training for more than 3 months duration. His more recent Bridging visa, the one granted on 17 March 2022, is subject to the same restriction.

1. I am not prepared to speculate on what the Department might do in relation to this restriction if the applicant’s secondary visa was to be reinstated but given that secondary visas are often granted on this condition I have no reason to think that the restriction would not continue to apply.

1. I agree with the delegate’s finding that the applicant’s secondary visa can no longer be seen to have any utility for him in circumstances where he obtained that visa on the back of a marriage which has now been formally dissolved. On the evidence led he is in no other relationship which could possibly support it. Indeed, it seems to me that he has admitted as much by pursuing other visa options, albeit unsuccessfully.

1. Nor can I see how he can realistically expect the Tribunal to reinstate the secondary visa if it can no longer serve any legitimate migration purpose. He says he now wants to study but, even if I were to accept his evidence about this, and I am a long way off doing that, reinstating his secondary visa would not enable him to go down this path given the study restriction which the Department has imposed on it and the fact that he can no longer support a primary applicant.

1. These circumstances, if they are not overwhelming, attract very significant adverse weight at the discretionary level.

1. In his oral evidence the applicant accepted, and PRISMS confirms, that his enrolment in the MBA was cancelled on 8 December 2020 when he ceased studies in that course. Whilst it is true that he was on a secondary visa at that stage which meant he could no longer engage with those or any other studies for more than 3 months duration, on my findings his initial estrangement from Ms Rani had taken place in November 2020 and it was not until he responded to the NOICC in February 2022, some 15 months later, that the Department was informed of that fact.

1. The applicant has not paused to explain to me why he did not inform the Department of his separation from Ms Rani in a timely manner, as he was required to do under the terms of his secondary visa.

1. I do not accept his evidence, if this is the gist of it, that he and Ms Rani were working towards a reconciliation after November 2020, or that it was a realistic possibility once he became aware of her extra-marital affair in July 2021. This, it seems to me, is nothing more than a tailored account promoted by the applicant to explain why he did not inform the Department of his changed circumstances much sooner than he did.

1. A secondary Student’s visa, no less than any other type of visa, is not granted by the Department as a matter of right. It is a privilege and with it comes obligations and responsibilities which the Department, and the Tribunal, expects visa holders to recognise and discharge, something which the applicant has failed to do.

1. Although I accept that the separation from Ms Rani and its aftermath would likely have caused the applicant some emotional distress, he has led no evidence, medical or otherwise, to the effect that it compromised his ability to function effectively as from November 2020. Absent evidence along these lines I do not accept that it did.

1. In the circumstances of this case the applicant’s ongoing failure to disclose to the Department the change to his marital circumstances during the period from November 2020 to February 2022 is a matter which, in my view, attracts adverse weight.

1. I also agree with the delegate’s finding that the applicant has failed to maintain eligibility for the grant of the secondary visa (condition 8516) in that he no longer satisfies Regulation

   500.311 because of his relationship break-down. Although the actual weight to be attributed to this will vary from case to case, in this case the breach has been exacerbated by the applicant’s failure to disclose it to the Department in a timely manner. Again, this is, in my assessment, a factor which does not assist him.

1. As to the question of hardship, although the applicant gave oral evidence to the effect that he was working on a part-time basis as a driver for a company he identified as ADQLD Pty Ltd, he also said that he ceased working for them in October of last year, apparently. He did not say why but I have no reason to disbelieve him on this aspect and, in any event, the fact he is no longer working here does not assist him on this aspect.

1. Given the level of wasted tuition fees in the Masters courses, the likely refund from ECC for the more recent vocational courses he has enrolled in but can no longer pursue, the fact that he does not appear to be otherwise contributing to the local community, and the fact that he is now a single man with no dependents, I do not consider that he or anyone else will suffer undue hardship from the cancellation of his visa.

1. As he has led no evidence in relation to any personal ties he may have to India or the expectations of his family I cannot take them into consideration.

1. As to the legal consequences of the cancellation I agree with the delegate that as PIC 4013 does not apply to the applicant he will not be prevented from applying for another visa offshore should his circumstances support it. Sec 48 of the Act does apply but I give this factor minimal weight in his favour in the circumstances.

1. The other factors referred to by the delegate in her decision, namely whether there are international obligations and consequential cancellations, are relevant matters to consider but on the evidence do not arise.

1. Lastly, there is another matter I need refer to, namely the applicant’s oral evidence relating to two criminal charges laid against him under the Queensland Criminal Code arising from events which are said to have occurred at Forest Lake during the period from 17 July 2021 to 15 October 2021.

1. In the Department’s file, among numerous other documents, are two Bench Charge Sheets relating to these offences which were issued out of the Magistrates Court at Brisbane and dated 11 January 2022. These documents appear to be in a standard court form and do no more than identify the applicant, give certain details of the charges laid against him, provide internal reference details for administrative purposes, and identify a certain Police Officer, also for reference purposes.

1. Also in the Department’s file is a certificate which the delegate has issued pursuant to Sec 375A of the Act preventing disclosure of information in numerous documents, including the Charge Sheets, to any person other than to a member of the Tribunal on certain public interest immunity grounds.

1. These grounds are described in the certificate in multiple ways but, insofar as they purport to cover the information in the Charge Sheets, I am quite unable to see how any of them can apply to the information in the Charge Sheets, as is required by Sec 375A(1)(a); see also

Akter v MIBP [2018] FCCA 3604 at [58] where the court found that the certificate was not valid because the information covered by the certificate did not provide a basis for the stated public interest immunity reasons listed on the certificate.

1. In my view, insofar as the certificate relates to the information in the Charge Sheets, it is thus invalid and consequently did not prevent me from disclosing the information to the applicant during his oral evidence, which I did.

1. Having done that, the applicant readily admitted that he had been charged with these offences, namely obtaining or dealing with identification information contrary to Sec 408D(1) of the Code and dishonestly obtaining property having a value of at least $100,000 contrary to Sec 408C(1)(b) and (2A)(a) of the Code, that he had entered a plea of guilty to each of them and that he was due to be sentenced for them in the Magistrates Court at Brisbane on 16 February of this year.

1. It seems almost inevitable, given the nature of these offences, that the applicant has already been convicted of them, or that he will be in due course.

1. I consider these convictions to be a relevant matter for two reasons. Firstly, given the nature of the offences, they adversely affect his credibility as a witness and, secondly, they serve to undermine the general merits of his case. Plainly, they involve criminal conduct on his part which is contrary to the purposes for which his secondary visa was granted on 20 November 2020 and which, indeed, may result in his removal from Australia on public interest grounds.

1. That said, and without knowing anything in relation to the circumstances in which these offences were committed or dealt with by the court, I cannot regard them as having more than some weight in favour of cancellation.

Summary and conclusion

1. On the evidence led, it was well open to the delegate to find that a ground existed under Sec 116(1)(a) of the Act for cancellation of the applicant’s secondary visa, that his later divorce from Ms Rani reinforced that ground in any event and that, at the discretionary level, for the reasons given, the visa should be cancelled.

1. Indeed, the overall circumstances of this case are seen to weigh heavily in favour of the Tribunal exercising its discretion to affirm the cancellation.

DECISION

1. The Tribunal thus affirms the decision under review.

Michael Bradford Member