KURUP (Migration)

KURUP (Migration) [2018] AATA 799 (16 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Santosh Dhandas Kurup
CASE NUMBER:  1620496
DIBP REFERENCE(S):  BCC2014/1255041, BCC2015/1983530
MEMBER:Katie Malyon
DATE:16 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.
Statement made on 16 March 2018 at 1:53 pm

CATCHWORDS
Migration – Skilled Independent (Permanent) visa – Subclass 189 – Skilled – Independent – Bigamous relationship – Conception of child – Look Out Circular (LOC) – Indian Police Clearance – Child’s medical certificate – Wife’s evidence – Fraudulent Documentation – Marriage Certificate
LEGISLATION
Migration Act 1958, ss 5F, 101, 107, 109, 375A
Migration Regulations 1994, r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Dalla v DIBP [2016] FCA 998
Drake v MIEA (1979) 24 ALR 577
Jasbeer Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994)
Kumar v MIMA [1999] FCA 156
McDonald v D-G of Social Security (1984) 1 FCR 354
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Baker (1997) 73 FCR 187
Nagalingam v MILGEA & Anor (1992) 38 FCR 191
Re Drake and MIEA (No. 2) (1979) 2 ALD 634
Saleem v MIMIA [2004] FCA 234
SCAN v MIMIA [2002] FMCA 129
Suleyman v MIMA [2000] FCA 610
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
SZEEM v MIMIA [2005] FMCA 27
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235
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 Immigration on 1 December 2016 to cancel the Subclass 189 (Skilled – Independent) visa of the review applicant, Mr Santosh Dhandas Kurup, under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that, in breach of s.101(b) of the Act, Mr Kurup declared in his Subclass 189 visa application lodged 20 May 2014 that he was the ‘spouse’ of his wife Mrs Varna Kurup (nee Ms Varna Ravindran) and was in a ‘married relationship’ with her (as those terms are defined in s.5F of the Act): however, this contradicts evidence provided more recently to the Department that he was in a significant relationship with another person, Ms Purnima Bisen. He had bigamously married Ms Bisen 8 months before the application was lodged and then conceived a child with her about 10 months after the application was lodged. A copy of the delegate’s decision was provided to the Tribunal.
The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.
Mr Kurup appeared before the Tribunal on 14 March 2017 to give evidence and present arguments. The Tribunal also received independent oral evidence from his wife, Mrs Kurup. Mr Kurup was represented in relation to the review by his registered migration agent, who also attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel Mr Kurup’s visa should be set aside. It does so on the basis that it has considerably more information than that which was available to the Department at the time of the delegate’s decision.
RELEVANT LAW
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.101, s.102, s.103, s.104, s.105 or s.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 their 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 of the Act, the power to cancel the visa does not arise. Section 108 requires the Minister to consider the response from the visa holder to the s.107 notice and decide if there was non-compliance in the way described in the notice.
If the Tribunal decides that there was non-compliance by the applicant in the way described in the s.107 notice then it is necessary, pursuant to s.109(3) of the Act, to consider whether it is appropriate that the visa be cancelled: that is, the cancellation power contained in s.109 is discretionary. Regulation 2.41 of the Migration Regulations 1994 (the Regulations) lists the prescribed circumstances referred to in s.109(1)(c) of the Act. Extracts from the Act and the Regulations relevant to this case are set out in the Attachments to this decision.
It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[1] However where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing the facts is on the Minister (or on review, the Tribunal).[2] Although the visa holder must be invited to show that the ground does not exist or, if it does, to show cause why the discretion to cancel should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled.[3] As French, Hill and Carr JJ said in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25]:
“The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.”
While the decision Zhao was concerned with cancellation under s.119 of the Act, in the opinion of the Tribunal the Court’s comments would be equally applicable to s.109 of the Act.
[1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-3; Nagalingam v MILGEA & Anor (1992) 38 FCR 191 at 200; McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[2] Mian v MILGEA (1992) 28 ALD 165 at 169; Jasbeer Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
[3] See Zhao v MIMA [2000] FCA 1235, French, Hill & Carr JJ, 1 September 2000.
When considering visa cancellation matters on review, case law also establishes that it is appropriate for the Tribunal to have regard to the following legal principles:
·the Tribunal is required to bear in mind the nature of the allegations and the gravity of the consequences;[4]
·in exercising its powers of review under the Act in respect of a visa cancelled under s.109 of the Act, the Tribunal must first decide whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and no others;[5]
·the weight to be given to the matters set out in r.2.41 of the Regulations is a matter for the decision-maker (in this case, the Tribunal) to determine having regard to all the circumstances;[6]
·the statutory obligation to have regard to the matters set out in r.2.41 of the Regulations does not exclude other considerations;[7]
·when considering whether to exercise the discretion to cancel a visa under s.109 of the Act where an applicant has been charged with an offence or offences, the Tribunal can only note the fact of an applicant being charged and afford it no weight unless making findings of facts on the conduct amounting to a breach of law: that is, unless and until an applicant is convicted or unless and until the Tribunal makes an affirmative finding on the basis of material reasonably probative of the fact that the applicant has breached the law, the applicant is entitled to the presumption of innocence;[8] and,
·the Tribunal may have regard to lawful government policy and any other matter that the Tribunal considers relevant. In this regard, the Tribunal will ordinarily apply lawful government policy unless there are cogent reasons against its application.[9]
[4] Briginshaw v Briginshaw (1938) 60 CLR 336. Although the decision in Briginshaw has no direct application to administrative decision-making, in reaching a decision about non-compliance it is appropriate for the Tribunal to bear in mind the nature of the allegations and the gravity of the consequences: Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10]; Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3.
[5] Saleem v MIMIA [2004] FCA 234 at [32], [37] and [46]; SZEEM v MIMIA [2005] FMCA 27 at [32] and [37].
[6] Suleyman v MIMA [2000] FCA 610.
[7] MIMA v Baker (1997) 73 FCR 187 at [194].
[8] Dalla v DIBP [2016] FCA 998, Logan J at [29]
[9] Drake v MIEA (1979) 24 ALR 577, Bowen CJ & Deane J at 590; Re Drake and MIEA (No. 2) (1979) 2 ALD 634, Brennan J at 645.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to cancellation of Mr Kurup’s Subclass 189 visa as well as the Department’s file relating to application for the visa.
Mr Kurup was granted his Subclass 189 visa having met the criteria in cl.189.311 of Schedule 2 to the Regulations as a secondary applicant. At the time of application on 20 May 2014, Mr Kurup stated he was legally married to the primary visa applicant - his wife of 6½ years Mrs Varna Kurup – and, further, that he was in a genuine relationship with her to the exclusion of all others. Following visa grant on 31 July 2014, the Department’s movement records confirm that, together with his wife and 4 year old daughter Kiara, Mr Kurup relocated to Australia from India on 18 May 2015.
As noted in the delegate’s decision, the Department received information from Ms Bisen who claims she married Mr Kurup on 3 September 2013 and has given birth to 2 of his children. The timeline of events, as alleged by Ms Bisen, is set out below in italics. For completion, the Tribunal has added additional non-contentious dates for context:
·20 January 2008 - Mr Kurup marries Varna Ravindran
·
29 June 2011 - Varna Kurup (nee Varna Ravindran) gives birth to Mr Kurup’s


daughter Kiara
·16 December 2011 - Ms Bisen gives birth to Mr Kurup’s son Nirvaan
·3 September 2013 - Mr Kurup bigamously marries Ms Bisen (8 months before his
   visa application is lodged)
·
20 February 2014 - Varma Kurup lodges expression of interest to migrate to


Australia
·28 April 2014 - Varma Kurup invited to apply for Subclass 189 visa
·20 May 2014 - Subclass 189 visa application is lodged
·31 July 2014 - Subclass 189 visa is approved
·March-April 2015 - conception of Ms Bisen’s daughter (8 – 9 months after visa
   approval)
·
18 May 2015 - Mr Kurup, his wife Varma Kurup and daughter Kiara Kurup arrive in


Australia
·15 June 2015 - Ms Bisen contacts the Department
·29 December 2015 - Ms Bisen gives birth to Mr Kurup’s daughter Shubhankari
·8 January 2016 - s.107 notice is issued to Mr Kurup
·1 December 2016 - Mr Kurup’s Subclass 189 visa is cancelled.
Based on evidence in the Department’s file, the Tribunal is satisfied that the delegate reached the necessary state of mind to engage s.107 of the Act and, further, that the Notice of Intention to Consider Cancellation (NOICC) issued to Mr Kurup under s.107 of the Act on 8 January 2016 complied with the statutory requirements. In a submission forwarded to the Tribunal prior to the hearing, Mr Kurup’s current representative states that he has not detected any error in the s.107 notice that would render it invalid.
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 NOICC issued under the s.107 notice was non-compliance with s.101(b) of the Act.
Section 101(b) of the Act states that a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided. The issue before the Tribunal is whether Mr Kurup provided incorrect answers in his Subclass 189 visa application and, if so, whether his visa should be cancelled.
Section 107 notice and visa cancellation
The particulars of the non-compliance in relation to s.101(b) of the Act identified and particularised in the s.107 notice was information provided by Mr Kurup in his application for a Subclass 189 visa was incorrect. The NOICC referred to information received from Ms Bisen that he has been married on 2 occasions and that his second marriage to her on 3 September 2013 was bigamous. It also states Ms Bisen advised she had given birth to a daughter on 29 December 2015 and that Mr Kurup is the child’s biological father: as such, the conception date for this child would have been around March – April 2015. The visa application was lodged on 20 May 2014, which is 8 months after the date of Mr Kurup’s marriage to Ms Bisen and 10 months before the approximate conception date of the child born 29 December 2015.
In the NOICC, the delegate observed that 2 marriage certificates were referred to the Australian Embassy in New Delhi which undertook integrity checks regarding their veracity: one marriage certificate relates to his marriage to Mrs Kurup and the other relates to his marriage to Ms Bisen. Both of the marriage certificates have been confirmed as genuine by Indian authorities. Furthermore, according to information provided by Mumbai Police, the police are satisfied that Mr Kurup was still legally married to Varna Kurup at the time of his second marriage in September 2013 and advised the Department that charges against him relating to bigamy, physical and mental assault as well as criminal intimidation are listed for trial. As Mr Kurup lodged his Subclass 189 visa application between 2 significant events - first, his bigamous marriage to Ms Bisen and, second, the conception of his child with her - the delegate considered that he was not in a relationship with the primary visa applicant Varma Kurup at the time of application which met the criteria under s.5F of the Act of having a mutual commitment to a shared life to the exclusion of all others (emphasis added).
Mr Kurup’s former representative responded to the s.107 notice on 19 January 2016 with a comprehensive submission and supporting documents. Documentation included a Statutory Declaration from Mr Kurup in which he denied that he had ever married Ms Bisen. He submitted that the marriage certificate presented to the Department must be bogus despite the Australian Embassy in New Delhi undertaking integrity checks regarding its veracity. Mr Kurup states that he first met Ms Bisen when he left the HDFC Bank in Mumbai and moved to another branch in Lower Parel: he handed over his work to her in March 2010. He states that, because they worked together for the handover period of 1 month, she got to know him and told people he was a friend. Mr Kurup says that in her role with the HDFC Bank, Ms Bisen had access to a lot of personal identity documents not only of customers but also of staff such as himself. He notes the total absence of photographs of any claimed wedding ceremony or any evidence whatsoever of cohabitation with Ms Bisen. He also notes there is no DNA evidence to link him to the children born to Ms Bisen. Mr Kurup reports he has filed a complaint with Indian Police against Ms Bisen in response to what he considers to be baseless allegations. Mr Kurup also made submissions regarding the frequency of scam marriages occurring in India due to the lack of centralised control.
Lodged in support of Mr Kurup’s response to the s.107 notice was extensive evidence from family, friends and work colleagues attesting to the genuine and ongoing relationship that Mr Kurup has with his wife, Varna Kurup, as well as evidence of their ongoing cohabitation.
On 26 August 2016, the delegate forwarded to Mr Kurup’s representative a photograph of Ms Bisen’s son Nirvaan apparently celebrating his second birthday on 16 December 2013 with Mr Kurup and invited his comments. No response was received.
The delegate considered all the evidence and concluded that, based on information before the Department, Mr Kurup had breached s.101(b) of the Act as he declared in his Subclass 189 application that he was in a ‘married relationship’ with his ‘spouse’ Varna Kurup, whereas the evidence indicates that he was in a significant relationship with Ms Bisen. The delegate also notes that the Department offered the opportunity for Mr Kurup to undertake DNA testing at his expense - as Ms Bisen had indicated she is amenable to having her children’s DNA tested - to confirm that he was not the father of Ms Bisen’s children. The delegate observed that DNA testing in India is not particularly expensive (around A$260). As Mr Kurup did not respond to the offer, the delegate considered his lack of co-operation in regard to DNA testing cast doubt on his credibility.
Documentation lodged prior to the hearing
Prior to the hearing, Mr Kurup appointed a new representative who provided the Tribunal with a detailed submission together with supporting documentation. The representative reiterated that Mr Kurup answered questions regarding his relationship with the primary applicant, Mrs Kurup, correctly. Mr Kurup denies he ever married Ms Bisen or that he was, at any time, in a spouse-like relationship with her. However, Mr Kurup’s representative states that his client acknowledges being involved in an extra-marital affair in February 2015 for around 2 months with Ms Bisen and that, as a result, there is a possibility that her second child could be his biological child.
Documentation provided to the Tribunal prior to the hearing includes:
·Statutory Declaration of Mr Kurup dated 3 March 2017;
·Statutory Declaration of Varna Kurup dated 3 March 2017;
·Affidavit of Mr Kurup’s mother, Bhanumathi Kurup, dated 1 March 2017 with attached;
ocopy Requests for Information under Right to Information Act 2005 dated 14 January 2017 and 27 January 2017 addressed to the Public Information Officer, Municipal Corporation, Mumbai;
ocopy letters from Municipal Corporation of Greater Mumbai dated 31 January 2017 and 18 February 2017;
ocopy Form “D” Memorandum of Marriage between Ms Bisen and Mr Kurup dated 3 September 2013; and,
ocopy Certificate of Registration of Marriage between Ms Bisen and Mr Kurup dated 3 September 2013;
·Medical Certificate from Bakul Parekh Children’s Hospital dated 3 September 2013 in relation to Kiara Kurup;
·prescription for Kiara Kurup from Bakul Parekh Children’s Hospital dated 3 September 2013;
·copy of Judgement of Judge Mehta in the Family Court at Ahmedabad in Suit No.1557 of 2012 dated 1 July 2013 confirming Ms Bisen’s Divorce from her husband Shantanu Pradeepkumar Gupta dated 1 July 2013 which states, inter alia, that ‘(A)ccording to the petitioners, they have one son named Nirvaan out of their wedlock”. The Judgement awards sole and absolute custody of the child to Ms Bisen by consent;
·copy emails between migration consultancy Y-Axis and Mr Kurup as well as Mrs Kurup confirming discussions about migrating to Australia commenced in July 2013; and,
·Mr Kurup’s current Indian police check issued by the Indian Consulate in Sydney dated 16 February 2017.

In his Statutory Declaration dated 3 March 2017 lodged with the Tribunal just prior to the hearing, Mr Kurup states that he:
·knew Ms Bisen from his work at HDFC Bank in Mumbai and they became friends. He started receiving threats from her when she asked him to leave his wife and threatened she would kill his daughter Kiara.
·and his wife decided to pay (money) to Ms Bisen as they were worried about the safety of their daughter. He started talking to Ms Bisen: he reminded her they used to be good friends at work and asked why was she doing this to them. She replied that she loved him and wanted to be with him. Over the next few months, they started getting on well and he would see her occasionally. They continued to pay her so that she would not threaten his family.
·slept with her one night in February 2015 and then, again, maybe 4 - 5 times to early April 2015.
·felt very bad about this and did not want to hurt his wife. He started making excuses about being too busy to see Ms Bisen and did not see her after the start of April 2015. At first, she was very angry and aggressive, threatening him and his family again. In May 2015, he thinks she moved to Delhi, but he is not sure
·moved to Australia with his wife and daughter in May 2015 and spoke with Ms Bisen after arriving. He has not seen her since. She was asking where he was but he did not tell her: he said he was on vacation. She said she would ruin his life.
·believes Ms Bisen is upset that he ended the affair and that’s why she has made allegations against him about this marriage ceremony in September 2013 which is completely untrue.
·acknowledges that there is at least a possibility that her second child, born in December 2015, is his biological child although he is not sure whether she was seeing other people at the same time that they were conducting their affair. While he acknowledges that Ms Bisen claims her second child is his, he has concerns about her truthfulness given she has obtained a Marriage Certificate through fraudulent means.
·did not participate in a marriage ceremony as claimed on 3 September 2013: rather, he accompanied his daughter to the Doctor as confirmed by the Medical Certificate provided by Dr Parekh.
In addition, Mr Kurup also provides statements in his Statutory Declaration regarding his relationship with his wife as well as their time together in Australia including time with their daughter Kiara. This is echoed by his wife in her Statutory Declaration.
Mr Kurup’s new representative also provided a detailed submission referring to supporting documentation.
Hearing
At the commencement of the hearing, the Tribunal noted that the Department’s file contains a certificate issued in accordance with s.375A of the Act (the s.375A Certificate). The effect of such a certification is that the Tribunal is prohibited from disclosing the document, or information in it. The Tribunal has considered the validity of the s.375A Certificate in this case and finds that it is valid. The s.375A Certificate has been completed by a delegate of the Minister and specifies a public interest reason why the document, or information in it, should not be disclosed.
Having read the document the subject of the s.375A Certificate, the Tribunal is satisfied that the information contained in that document is not relevant to the issue of whether, at the time he applied for his Subclass 189 visa application until the time the visa was granted, Mr Kurup provided incorrect answers in his application. The Tribunal notes that, in any event, during the course of the hearing and in the presence of his wife, Mr Kurup conceded that he may be the father of Ms Bisen’s daughter born 29 December 2015. Essentially, this is the gist of the document which is the subject of the s.375A Certificate.
Mr Kurup’s evidence
Asked for his comments in relation to Ms Bisen’s allegations, Mr Kurup told the Tribunal that he has never, ever, married her. He said that he is an educated person (with a Bachelor of Commerce and a Master of Business Studies), fully aware of the consequences of any such action and that he and his wife had planned their migration to Australia (or Canada) as long ago as June 2013: in the circumstances, getting married to someone in September 2013 just would not make any sense. He added that, in relation to the document claimed to be a Marriage Certificate, the 3 witnesses give their respective address as the slums in Mumbai. He knows only one of the people named in the claimed Marriage Certificate as one of his former HDFC co-workers. The other 2 are total strangers. He also told the Tribunal of the extensive use of fraudulent documentation in India, which is widely acknowledged in the media.
Mr Kurup told the Tribunal that he was aware of the Look Out Circular (LOC) issued by the Ministry of Home Affairs dated 13 August 2015 in respect of him following Ms Bisen’s claims made to Indian police. It has since lapsed and, significantly, the Indian Consulate in Sydney had issued him with a clear police clearance dated 16 February 2017.
The Tribunal observed that Mrs Kurup’s Subclass 189 visa was granted 31 July 2014 but the family did not move to Australia until 10 months later in May 2015. Mr Kurup explained that, at the time, they really could not leave India because they had to give proper notice to their employers, explore work options online in Australia, sort out long-term leasing of the property that he and his wife had purchased in Mumbai and, following Ms Bisen’s threats in February 2013, they needed to continue to pay her money so she did not carry out her threat to harm his family. He added it all had to be taken into consideration.
In addition, the Tribunal observed that production of a Medical Certificate from Kiara’s doctor on the day of the claimed marriage raises doubts in the mind of the Tribunal as to its veracity, especially having regard to Mr Kurup’s comments in relation to the ease with which fraudulent documentation can be obtained in India. Mr Kurup said that his mother had been cleaning out her house and had found a box of old documents. He recalled driving his wife and Kiara to the Children’s Hospital on 3 September 2013: Kiara suffers from asthma. Mr Kurup explained that the certificate was required for his work so that he could to explain his absence and that his mother still had it at home only because he would have scanned it to his head office.
Consistent with the provisions of s.359AA of the Act, the Tribunal put to Mr Kurup evidence of a photograph of himself with a 2 year old boy in December 2013 that Ms Bisen claims to be his son: this is the photograph that the delegate forwarded to Mr Kurup in the email of 26 August 2016 for comment referred to above in para [21]. He did not respond to the delegate’s invitation. Mr Kurup told the Tribunal that, at the time, he was working with Axis Bank managing the credit card business and was required to travel a lot. He went to Ahmedabad where Ms Bisen was working at the time and the photograph was taken one day after work. The Tribunal showed Mr Kurup another photograph - this one shows Mr Kurup, Ms Bisen and her son Nirvaan. Asked why, in relation to this photo, Mr Kurup has his hand on Ms Bisen’s shoulder, he said he ‘did not think about it, as mutual friend took the photo’ and added his ‘hand was definitely not on her waist’. He confirmed he had no personal relationship with Ms Bisen in December 2013 (when the photograph with Nirvaan was taken) time or beforehand, it was purely professional, they were just colleagues.
In relation to the comment in his Statutory Declaration of 3 March 2017 that he might be the father of Ms Bisen’s second child, Mr Kurup said that he did meet up with Ms Bisen after she had threatened harm to his family in February 2013. He added, it was not with a view to having sex with her but, rather, just to keep her away from his family. But, one night in February 2015, he was ‘too drunk (with alcohol) and just got carried away’. They had sex another 3 or 4 times. He expressed deep sorrow for his conduct and said it was ‘a horrible mistake’. He said he stopped seeing Ms Bisen in April 2015 and thinks she moved to Delhi in May 2015.
Mr Kurup drew the Tribunal’s attention to the fact that Ms Bisen indicated on the claimed Marriage Certificate that she was “unmarried” when, in fact, she had divorced her husband on 1 July 2015. Other concerns he has with the claimed Marriage Certificate include: the absence of any apartment number or building number on the document as her address, the fact that everything is on 3 September including going to the temple, the registry office and the application being given to the Marriage Celebrant. In his view, that is not possible and is just another indication of the fact that the document is fraudulent.
During the course of the hearing, Mr Kurup told the Tribunal about litigation that his parents have initiated in India against Ms Bisen after she came around to their house one evening in May 2015 to harass them about him and his whereabouts. He also told the Tribunal that he has a Solicitor representing him in relation to the claims made by Ms Bisen regarding alleged domestic violence and bigamy. He explained the litigation in India can take years and agreed to have his Solicitor in India provide the Tribunal with an update.
Mrs Kurup’s evidence
Mrs Kurup gave independent evidence to the Tribunal. She told Tribunal that she and her husband have known each other since they were very young. They remained in touch even when she moved to the USA for her postgraduate studies in 2004 at Stony Brook University. They became engaged on 11 January 2007 and then married on 20 January 2008. Mrs Kurup said she has nothing but love, respect and admiration for her husband of 9 years. They have always lived together as husband and wife and he has always been with her. He has not been with anyone else. She described Mr Kurup as her pillar of strength, someone who has given her security which is what she expects from a spouse. The Tribunal found Mrs Kurup to be a compelling witness.
Mrs Kurup echoed her husband’s evidence to the Tribunal in relation to Ms Bisen’s threats in February 2013 to harm her and her daughter. She said she was furious and told her husband that she (Ms Bisen) could go to hell. He responded by saying it would be better to be friendly to her so that she would not try to harm them. They agreed to pay her money after some hooligans in a car were observed tailing her to and from work. During this time, her husband was ’removed, sad and quiet’. When she asked him what was wrong, he said just said ‘sorry, I was drunk’. She didn’t quite know what it meant at the time.
Asked why the family did not come to Australia as soon as their Subclass 189 visa was granted, Mrs Kurup said that both had jobs and had to consider giving notice and/or transitioning to her employer based in Australia. She worked with JP Morgan at the time. In addition, her daughter was about to start school and they had the house that she and her husband had bought to think of. While the daughter was still at pre-school, it was better to stay in India because they lived with her husband’s family: as a result, Kiara had access to her grandparents and both she and her husband could focus on work and saving money for the move to Australia, in addition to paying Ms Bisen. They had discussed the possibility that her husband would resign his job first and then she would follow. She was aware that they needed to arrive in Australia within 12 months of visa grant.
Mrs Kurup confirmed that it was her mother-in-law who located the Doctor’s old Medical Certificate. She confirmed Kiara suffers from asthma and they were living with her husband’s parents at the time. She recalls her husband driving her to the hospital, as he usually did.
In the event that the Tribunal should find there are grounds for cancelling Mr Kurup’s Subclass 189 visa for the reasons set out in the delegate’s decision, the Tribunal also took oral evidence from Mr Kurup and his wife regarding the prescribed considerations set out in r.2.41 of the Regulations. Essentially, both Mr Kurup and his wife referred to the need for the family to remain together in Australia in the interests of their daughter - especially as Mr Kurup is the primary caregiver - and also their careers.
Representative’s submissions at the hearing
The representative assisting Mr Kurup told the Tribunal it is not in dispute that a document has been registered with the Municipal Corporation of Greater Mumbai as a Marriage Certificate. However, the issue for his client and Mr Kurup’s Solicitor in India is that there was absolutely no basis to lodge such a document because the marriage never took place. The document lodged with the Municipal Corporation of Greater Mumbai is fraudulent. The representative also points to the total absence of any photographs of the couple at a claimed wedding.
Evidence provided after the hearing
After the hearing, the representative provided the Tribunal with assorted further documentation including, relevantly:
·a submission addressing Mr Kurup’s claims as well as matters raised during the hearing; and,
·letters from Yashodhna Gavankar, Mr Kurup’s legal representative in India, dated 16 March 2017 and 7 November 2017.
Representative’s submission after the hearing
Mr Kurup’s legal representative’s submission states the claimed Marriage Certificate document which has been registered is fraudulent. He refers to articles in the Indian press accompanying the former representative’s submission to the Department regarding the frequency of marriages in India being registered without the knowledge of the other party, including even Bollywood actors.[10]
[10] Patel, B., “Marry-Go-Round” , Mumbai Mirror, 29 February 2008, <mumbaimirror.indiatimes.com/mumbai/cover-story//articleshow/15790015.cms>; Subramani, A., “Court smells fake marriage certificate racket orders probe”, The Times of India 6 December 2013, <timesofindia.indiatimes.com/city/chennai/Court-smells-fake-marriage-certificate-racket-orders-probe/articleshow/26929328.cms>; “Lawyer still runs fake marriage shop”, The Times of India, 11 February 2005, >
The current representative also submits that there are a number of discrepancies and anomalies arising from his examination of the document claimed to be a Marriage Certificate attached to the delegate’s NOICC of 8 January 2016 when compared with the documents provided to Mr Kurup’s mother in response to her request for information under the Right to Information Act 2005 address to the Public Information Officer including:
·misspelling of Mr Kurup’s middle name in various registration documents including the claimed Marriage Certificate provided to Mr Kurup with the NOICC;
·the fact that both parties indicate on the Form “D” Memorandum of Marriage they were “Unmarried” and placed their signature against this marriage status when, in fact, if the marriage had occurred as claimed, then both parties should have noted they were “Divorced”: Ms Bisen told the Department she was divorced when she married Mr Kurup (a copy of her Divorce Certificate was provided to the Tribunal) and Ms Bisen also claims that Mr Kurup had told her that he had divorced his wife;
·noticeable differences in handwriting including signatures on each of the documents;
·the absence of symbols and a border on the Form “D” Memorandum at Marriage registered with the Public Information Officer compared with the claimed Marriage Certificate provided to Mr Kurup with the NOICC; and,
·the absence of thumbprints on the Form “D” Memorandum of Marriage.
In the representative’s opinion, these discrepancies and anomalies should create doubt in the mind of the Tribunal regarding whether the claimed marriage ever occurred despite registration of the documentation. He also refers to the absence of any other documentation in support of the marriage-like relationship apart from the 2 photographs shared with Mr Kurup at the hearing. The representative suggests that placement of Mr Kurup’s hand on Ms Bisen’s shoulder does not, in any way, imply a sexual or other type of relationship at that time.
Indian representative’s letters
Mr Kurup’s legal representative in India has advised the Tribunal of 3 matters in the Metropolitan Magistrate 72^nd Court at Vikhroli in Mumbai which he is assisting Mr Kurup and his family as follows:
1)Case No.347 of 2016 is listed for consideration by the Judge on 2 April 2018 in relation to a bigamy charge. To date, Mr Kurup has not been provided with a copy of the Police Report despite the report being filed with the court in April 2016.
The Indian representative states that, at the hearing on 2 April 2018, the Magistrate will apply his judicial mind to the Police Report submitted and, if appropriate, frame formal charges against Mr Kurup. No such charges have yet been framed.
The Tribunal has independently confirmed these details from the Indian eCourts’ website.[11]
Mr Kurup’s representative states that Mr Kurup reserves his right to argue against the charge and/or apply for discharge. Subject to the court’s approval, Mr Kurup will give evidence via video conference or teleconference. Given timeframes in the Magistrates Court, the next listing could be 2 years from now.
Australia’s most recent DFAT Country Information Report on India notes that the Indian justice system is notoriously inefficient, reflecting the lack of properly qualified and practising judges which slows the judiciary’s ability to consider the large number of pending cases. The report also notes a May 2013 parliamentary panel enquiry found the Indian justice system experiences protracted delays with one of the world’s lowest ratios of judges to population, with only 13 judges for every 1 million people, compared with 50 in developed countries.[12] This is confirmed in various is paper articles.[13]
2)Case No. 112 of 2015 is in relation to domestic violence by Mr Kurup and his relatives. The Indian representative advises the court has not yet framed issues and no evidence has been led. Ms Bisen amended her petition before the Court when there was a hearing on 22 November 2017. Mr Kurup’s representative anticipates another 3 - 4 years for the final outcome.
3)Case No.31 of 2017 is a claim by Mr Kurup’s father alleging Ms Bisen has forged signatures of Mr Kurup to fabricate an alleged Marriage Certificate and used the forged document as evidence in courts and other authorities knowing that it is false. Information obtained under the Right to Information Act 2005 reveals glaring irregularities in the manner Ms Bisen obtained the alleged Marriage Certificate.
[11] Department of Foreign Affairs, DFAT Country Information Report – India, 14 July 2015, p. 21
[13] Doshi, V., “India's long wait for justice: 27m court cases trapped in legal logjam” The Guardian, 6 May 2016 mhttps://>
The representative notes that no orders have been made in any of the above-mentioned legal matters and that Mr Kurup is keen and willing to undergo trial to prove his innocence in a court of law. In his letter of 16 March 2017, the representative opines that, in his opinion, “the fraud played by (the) complainant was crystal clear” which is why the last mentioned proceedings were initiated by his client and evidence will be lead about the fraudulent Marriage Certificate. Furthermore, in his opinion, Mr Kurup has a “very bright chance of success in these proceedings and prove his innocence”.
Consideration of evidence

Essentially, for there to be non-compliance in this case, Mr Kurup must have not been in a ‘married relationship’ with his wife Mrs Kurup as defined in s.5F(2) of the Act at the time of visa application on 20 May 2014 until the time of the delegate’s decision to grant the Subclass 189 visa on 31 July 2014. The non-compliance relates to the issue of whether it is true that, in the period between the lodgement of the application and the delegate’s decision to approve the Subclass 189 visa application, Mr Kurup was not in an exclusive relationship with his wife. The delegate cancelled Mr Kurup’s Subclass 189 visa on the basis of being satisfied he appeared to be in a significant relationship with another person and had been for a lengthy period at the time of application and, as such, his claim to be in a ‘married relationship’ with his ‘spouse’ Varma Kurup (as those terms are defined in s.5F of the Act) was incorrect. The Tribunal must be satisfied that the non-compliance is established before proceeding to cancel Mr Kurup’s visa.
Evidence in the Department’s file and before the Tribunal which suggests that Mr Kurup was
non-compliant in the manner contemplated the delegate’s decision is:
1)the claimed Marriage Certificate produced by Ms Bisen to the Department which suggests that he was in a bigamous relationship. As noted in the delegate’s decision, a copy of which was provided to the Tribunal, this Marriage Certificate – which states Mr Kurup married Ms Bisen on 3 September 2013 - was confirmed as authentic by Indian Registry officials to the Department;
2)based on the Marriage Certificate dated 3 September 2013, Indian police have initiated proceedings to prosecute Mr Kurup for the offence of bigamy and, separate proceedings on foot in relation to a claim of domestic violence. Arising from this, Indian authorities issuing a LOC to stop and interview Mr Kurup should he return to India; and,
3)Mr Kurup’s admission that Ms Bisen’s second child ’might be his’.
The Tribunal has carefully considered each of the elements of the evidence outlined above.
First, the Tribunal notes the LOC was issued by the Indian Intelligence Bureau of the Ministry of Home Affairs on 13 August 2015 and was provided to the Department by Ms Bisen. The delegate gives considerable weight to the issue of the LOC by Indian police. However, consistent with its terms, the LOC lapsed on 13 August 2016, that is, 12 months after it was issued.
Mr Kurup’s Indian representative has advised the Tribunal that his client has not received a copy of any police report. Furthermore the Tribunal notes that, in the signed letter sent to Mr Kaur’s mother dated 18 February 2017, the Minister for Corporation of Greater Mumbai’s Public Information Officer states that it has “not received any letter from police authority asking for of (sic) marriage certificate authenticity so far”. Notwithstanding this and having regard to the fact that there are current proceedings in the Mumbai Municipal Court in relation to bigamy and domestic violence charges as acknowledged by Mr Kurup – and, in respect of which, his Indian representative states his client intends to vigorously defend - the Tribunal has been provided with an Indian Police Clearance Certificate provided by the Indian Consulate in Sydney dated 16 February 2017.
To confirm the probity of the document, the Tribunal independently contacted the Consulate for confirmation of the authenticity of the document. On 12 October 2017, the Tribunal received written advice from the Consulate that it had provided the Police Clearance Certificate to Mr Kurup. The Police Clearance Certificate states that, as at 16 February 2017, there is “nothing adverse against the name of” Mr Kurup “so far as his stay in India is concerned which would have rendered him ineligible for grant of travel facilities including visa/immigration/any other services for/in Australia”.
In the circumstances, the Tribunal accepts that Mr Kurup has an Indian Police Clearance which would entitle him to travel to and remain in Australia.
Second, in relation to the authenticity of the claimed Marriage Certificate, the Tribunal notes the concerns raised by both Mr Kurup’s former representative and his current representative regarding how easy it is to obtain fraudulent documentation in India. Apart from the documentation referred to the Tribunal by Mr Kurup’s representatives in support of these claims, the Tribunal observes the apparent ease of obtaining fraudulent documentation in India has been an ongoing problem recognised by the Commonwealth Department of Foreign Affairs and Trade (DFAT). In this regard, the Tribunal notes DFAT’s most recent
Country Information Report on India states that:
“(D)ocument fraud is a significant industry in India. Complete packages of fake documents can be arranged and provided by an organised network of professional agents”.[14]
The report also observes that, in a 2009-10 report, the Department identified fraud is a significant risk in the Indian caseload “given how easily genuine documents with fraudulent details can be obtained“ and that the “absence of a centralised national identity database compounds this problem”.[15] The prevalence of fraud in India continues to present issues for public administration as evidenced by more recent newspaper articles on the theme.[16] This issue has also been recognised by Canadian immigration authorities in a report by the Immigration and Refugee Board of Canada.[17] Based on this evidence, the Tribunal accepts it is possible that Ms Bisen has, as claimed by Mr Kurup, lodged a fraudulent document with the Indian Registry office.
[14] Department of Foreign Affairs, DFAT Country Information Report – India, 14 July 2015, p. 23
[15] Ibid
[16] Immigration and Refugee Board of Canada “India:Availability and prevalence of fraudulent identity documents, including membership casts political parties – IND104839.” EHttp://irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=455287
Mr Kurup’s representative indicated that his client accepts Ms Bisen has lodged a fraudulent document claiming to be a Marriage Certificate and that this has led to the situation that Mr Kurup finds himself in now before the Tribunal. This explains why the Department was advised that the document provided to it by Ms Bisen was authentic. Mr Kurup’s mother obtained a similar document when she, too, made application pursuant to the Right to Information Act 2005.
Third, highly relevant for the issue the subject of the Tribunal’s consideration in this matter is evidence provided by Mr Kurup and his wife at the hearing which confirms that took their daughter on 3 September 2013 to the Bakul Parekh Children’s Hospital & Multispecialty Paediatrics Centre (the Hospital). The Medical Certificate issued in respect of Kiara provided to Mr Kurup and his wife acknowledge their attendance at the Hospital on 3 September 2013 for their daughter’s treatment. They also provide a copy of the Prescription issued by the Hospital during their visit. The website for the Hospital states that it has 50 beds and has set a benchmark in neonatal intensive care, paediatric healthcare and is one of India’s fastest growing tertiary care hospitals.[18]
[18] >
Following the hearing, the Tribunal contacted the Chief Executive Officer of the Hospital, Dr Bakul Parekh, to confirm the authenticity of the Medical Certificate provided by Mr Kurup and his wife to the Tribunal. By way of brief background, the Tribunal notes that Dr Parekh is a Past President of the Indian Academy of Paediatrics (IAP) and has been an Executive Board member of the IAP in various roles from 2010-2015 as well as a Committee member since 2003. He is also the National Co-ordinator for Problem Solving in Paediatrics Infectious Diseases and a member of the IAP’s Committee for teaching the teachers of post-graduate students. In addition, he has been a Committee member of both the Neonatolgy Chapter of IAP and IAP’s Intensive Care Chapter of since 2004. He is also a Life Member of the Indian Medical Association. The Tribunal accepts that Dr Parekh is a doctor of considerable profile and a highly regarded member of the medical profession in India in his specialist fields of general paediatrics, infectious diseases, neonatology and intensive care.
Dr Parekh confirmed in writing for the Tribunal the bona fides of the original Medical Certificate and the Prescription. He noted in his email in response to the Tribunal that he had issued fresh copy of the original Medical Certificate (which was brought into the Hospital by Mr Kurup’s mother) because the original one that she provided for him to authenticate had a child’s scribble on it. He did so only after checking the Hospital’s records of their attendance. Dr Parekh also notes that, whenever baby Kiara came to the Hospital, she was always accompanied by both her parents. He adds that, since the Medical Certificate provided was for both of the parents, it is the case that both of them came to the clinic and they would have both been present on 3 September 2013. Dr Parekh confirmed that Kiara was not admitted to hospital on that day. He states that Mr and Mrs Kurup came during the middle of the day, sometime between 10:30 am to 2:00 pm.
In her evidence to the Tribunal, Mrs Kurup confirmed that she and her husband attended the Hospital on 3 September 2015. Mr Kurup drove her and Kiara there. She said that after Kiara had been seen by the doctor for her asthma problem they took her home in the car: she was not admitted to hospital.
The Tribunal accepts that Mr Kurup and his wife attended the Hospital sometime late in the morning through to early afternoon on 3 September 2013. Their daughter was not admitted to hospital. In the circumstances, the Tribunal is satisfied that it would be highly unlikely that, having taken his sick daughter to hospital, Mr Kurup would - or could - find time to attend a temple wedding and then accompany Ms Bisen to the Registry office to lodge a copy of the claimed Marriage Certificate. Evidence from Dr Parekh weighs strongly in favour of doubting whether any marriage occurred on 3 September 2013. It lends credibility to Mr Kurup’s claim that Ms Bisen created a fraudulent document and then lodged that bogus document with the Indian registry office.
Fourth, the Tribunal found that evidence provided by Mrs Kurup overwhelmingly supports her husband’s claim that Ms Bisen wilfully and knowingly creating a fraudulent document for lodgement with the Indian registry office. As noted above, the Tribunal found Mrs Kurup to be a compelling witness.
After the Tribunal took independent evidence both from Mr Kurup and his wife, the Tribunal put to Mrs Kurup - in the presence of her husband - his admissions regarding his acknowledged affair in early 2015 with Ms Bisen. Mrs Kurup confirmed she has known Mr Kurup since 1999, they started dating each other in May 2000 and have been together ever since in an exclusive relationship, including at the relevant time - that is, from 3 September 2013 when the alleged bigamous marriage is said to have occurred and December 2015 when Ms Bisen had her second baby which she claims is Mr Kurup’s child. Mrs Kurup said she and her husband were absolutely in an exclusive relationship living together with his parents in Mumbai. His work did require him to travel from time to time to other cities including Ahmedabad. Where Ms Bisen was working.
Mrs Kurup told the Tribunal that the relationship she has with her husband is one based on mutual trust, love, respect and admiration for each other - the only time her husband ever disappointed her was in early 2015 when he had an extra marital affair with that woman - Ms Bisen - and she is now aware that he may actually have another daughter in India as a result. This pains her, but she supports him, and loves him still: he has admitted to her that it was all a very big mistake and has apologised to her, again and again. Mrs Kurup added not only does her husband have her 100% support but he also has the support of all of her family in India as well as his own family in India. She explained that, during their marriage, they purchased a 2 bedroom property together in Mumbai which is currently leased out. They lived with Mr Kurup’s parents so that their daughter Kiara would have the benefit of living with her grandparents. This allowed she and her husband the opportunity to focus on their careers which enabled her, as an IT specialist and following her postgraduate studies in USA, to apply successfully to migrate to Australia. The couple’s focus is on their daughter and the future of their careers in Australia.
The Tribunal notes extensive documentation in the Department’s file in relation to evidence of the couple’s cohabitation and spousal relationship including joint purchase of their apartment in Mumbai, multiple statements from friends and relatives (from both Ms Kurup’s family as well as Mr Kurup’s family), insurance papers confirming each other to be the beneficiary of their insurance, evidence of joint travel both in India and overseas as well as evidence of ownership of joint bank accounts and lease of property in Sydney.
Given the significant nature of the cancellation of a permanent visa, the Tribunal must be positively satisfied of non-compliance. The nature of the evidence in this matter is such that it does not amount to positive satisfaction as to the non-compliance in the way described in the notice under s.107 of the Act.
Based on the cumulative evidence provided - in particular, the Police Certificate issued by the Indian Consulate in Sydney and the country information confirming the recognised ease of obtaining fraudulent documentation in India as well as the evidence Dr Parekh and Mrs Kurup - the Tribunal is not satisfied that the document claimed by Ms Bisen to be a Marriage Certificate and which she lodged with the Indian Registry office is a genuine document. Further, based on evidence provided, the Tribunal is satisfied that at the relevant time Mr Kurup and his wife have been in a ‘married relationship’ and that they have lived together as husband and wife to the exclusion of all others since the time of their marriage. The Tribunal acknowledges Mr Kurup and his wife admit he had an extra marital affair for 3 months in early 2015.
Conclusion
Having regard to the evidence provided, the Tribunal finds that there was no non-compliance by the applicant in the way described in the notice issued under s.107 of the Act. As the Tribunal is not satisfied that there was non-compliant by the applicant in the way described in the notice under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.
Katie Malyon

Member
ATTACHMENT A
Relevant extracts from the Migration Act 1958

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.
….

5F       Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
…..

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.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
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.
108    Decision 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.

109 Cancellation 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.

oOOo
ATTACHMENT B
Relevant extracts from the Migration Regulations 1994

2.41Whether to cancel visa — incorrect information or bogus document (Act, s 109 (1) (c))
For the purposes of paragraph 109 (1) (c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c)the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d)the circumstances in which the non-compliance occurred;
(e)the present circumstances of the visa holder;
(f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)any other instances of non-compliance by the visa holder known to the Minister;
(h)the time that has elapsed since the non-compliance;
(j)any breaches of the law since the non-compliance and the seriousness of those breaches;

(k) any contribution made by the holder to the community.

oOOo

[2018] AATA 799

16 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction