Maharjan (Migration)

[2023] AATA 2212

Maharjan (Migration) [2023] AATA 2212 (11 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shova Maharjan
Mr Kishor Maharjan

REPRESENTATIVE:  Mr Surendra Man Shrestha (MARN: 9578885)

CASE NUMBER:  2211727

HOME AFFAIRS REFERENCE(S):          BCC2021/2065113

MEMBER:Kira Raif

DATE:11 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 887 (Skilled – Regional) visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 11 January 2023 at 9:01am

CATCHWORDS
MIGRATION – cancellation – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled - Regional) – ground for cancellation – incorrect information in visa application – marital status – validity of marriage – maintained a de facto relationship – when the relationship ended – before grant of visa – failure to notify the Department – non-disclosure of the existence of a child – consideration of discretion – likely to still have been granted the visa – significant hardship – decision under review set aside

LEGISLATION
Marriage Act 1961 (Cth), s 88B
Migration Act 1958 (Cth), ss 101, 104, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 887 (Skilled - Regional) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) is a national of Nepal, born in October 1987. She was granted the Skilled - Regional visa in December 2019. In June 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she had not complied with s 101 of the Act. The applicant seeks review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant. The other applicant’s visa was automatically cancelled as a consequence of the cancellation of the first named applicant’s visa, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on 4 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister. The applicants were represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

6. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.

7. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act.

   Primary decision

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that she made the application for the Skilled - Regional visa in February 2018 and included Mr Kishor Maharjan as her spouse and dependent. The applicant completed an application form in which she referred to Kishor Maharjan as her spouse/de facto partner and provided his personal details. In another part of the form the applicant referred to Kishor Maharjan as her husband and she stated that she had no children. The applicant included with the application the marriage certificate evidencing her relationship with Mr Kishor Maharjan.

10. The applicant and Mr Kishor Maharjan were granted the Skilled visas on 6 June 2019. Mr Kishor Maharjan was granted the visa on the basis of being the spouse and a member of the family unit of the applicant.

11. On 6 January 2020 Mr Maharjan sponsored his spouse Sanu Maiya Dangol Maharjan (Sanu Maiya) (who is the sister of the applicant) and daughter Kinjal (born in October 2009) for a Partner visa. The delegate refers to information in the Department’s file showing that Kishor Maharjan and Sanu Maiya were married in January 2006 and they claimed to have stayed in the relationship with love and affection after Mr Maharjan and the applicant married in 2008. It is noted that the applicant and Mr Maharjan divorced on 1 September 2019 while Mr Kishor Maharjan and Sanu Maiya were never legally divorced prior to the applicant’s marriage to Kishor, which would render their marriage invalid.

12. The delegate concluded that the applicant provided incorrect answers in her Skilled visa application when she referred to Kishor Maharjan as her spouse and to their marriage in August 2008 and when she claimed the information in her application was complete and correct.

13. In her response to the NOICC the applicant states that Kishor was married to Sanu Maiya in 2019 (she provided a Confirmation of Relationship issued by the Kathmandu District Court Bench in October 2019) and prior to the marriage their relationship was of a male and female, not of husband and wife. The applicant notes that her sister filed a case against Mr Maharjan to establish their marriage in September 2019, in accordance with the laws of Nepal. The applicant states that her marriage to Kishor was valid, as was her divorce. The applicant admits that she provided incorrect information about the children (by stating she and her husband had no children) but states that this was because she was unsure whether she should mention the child as being her stepdaughter or niece and she had already provided details of her sister.

    Was the applicant’s marriage to her husband valid?

14. The key issue that led to the cancellation of the applicant’s visa is the validity of her marriage to Kishor Maharjan. The delegate refers in the primary decision record to information before the Department which indicates that Kishor and Sanu Maiya were married on 23 January 2006 and were not divorced prior to the applicant’s and Kishor’s marriage in 2008. The delegate concluded that the applicant’s and Kishor’s marriage would have been invalid under the Marriage Act 1961 (the Marriage Act) and therefore not recognised under the Migration Act.

15. The primary decision record does not specify what information indicates that Sanu Maiya and Kishor Maharjan were married in 2006. The Tribunal has not been provided with a copy of the marriage certificate from that date, nor with any other probative evidence of their marriage in 2006. The evidence on which the delegate’s decision was based has not been made clear to the Tribunal. Further, the Tribunal is of the view that if that information was obtained from Sanu Maiya’s Partner visa application, it is not necessarily reliable.

16. In her submission to the Tribunal dated 2 January 2023 the applicant states that she and Kishor Maharjan divorced on 1 September 2019 and in January 2020 Kishor sponsored Sanu Maiya and their daughter Kinjal. The applicant states that in October 2019 the Kathmandu District Court Bench ordered the de facto relationship between Kishor and Sanu Maiya be declared de jure, and she states there had been a de facto relationship and the child was born out of this relationship. The applicant states that after the divorce, Kishor married Sanu Maiya according to the Nepalese law and in these circumstances, s 88D of the Marriage Act does not apply.

17. The Tribunal acknowledges the applicant’s evidence that a court in Nepal recognised the marriage between Sanu Maiya and Kishor Maharjan in September 2019 and it appears there would have been no need for them to marry in 2019 if they were married in 2006 (with no evidence of divorce prior to 2008 being provided). The Tribunal also gives some weight to the explanations offered by the applicant and Mr Maharjan that despite not having registered marriage, Kishor and Sanu Maiya maintained a de facto relationship, with the approval of their parents, and that relationship was known to others, which may have led the authorities to record their status as married.

18. As the Tribunal has not been provided with a 2006 marriage certificate between Kishor and Sanu Maiya, and in the absence of clear identification of evidence that led to the finding that they were married, and having regard to their marriage certificate dated 2019, the Tribunal cannot be positively satisfied that Kishor and Sanu Maiya were legally married in 2006. That is, the Tribunal cannot be positively satisfied that the applicant’s marriage to Kishor in 2008 was contrary to s 88D of the Marriage Act.

19. The applicant did present evidence of her marriage to Kishor in 2008. It is not apparent that any inquiries had been made with the authorities in Nepal to ascertain the validity of that document and in the absence of those, or other probative evidence about the (in)validity of marriage, the Tribunal cannot be satisfied that the applicant’s marriage to Kishor was not valid or not legally recognised in Nepal. The Tribunal cannot be positively satisfied that the applicant’s reference on the application form to her marriage to Kishor in 2008 was incorrect.

20. It is also significant, in the Tribunal’s view, that the concepts of spouse and member of the family unit are not limited to formal marriages. The application form expressly refers to de facto relationships and ‘significant others’. Thus, even if it was established that Kishor Maharjan and Sanu Maiya were legally married in 2006 and that the applicant’s marriage to Kishor in 2008 was not valid, that does not preclude the existence of a de facto relationship between them in 2018 when the visa application was made. If a de facto relationship was in existence when the application was made, the applicant’s reference to Kishor as her spouse on the application form does not indicate the provision of incorrect answers.

    Did the applicant and Kishor Maharjan continue to be spouses when the application was made?

21. Whether or not the applicant was legally married to Kishor Maharjan when the application was made, her reference to Kishor Maharjan as her spouse would not have been incorrect if the applicant and Kishor were in a de facto relationship. Conversely, it is possible that the applicant completed the application form in a way that incorrect answers were given or provided if their marital or de facto relationship had ceased by the time the visa application was made and if they were no longer in a spousal relationship (despite continuing to be formally married). The Tribunal has thus considered whether the applicant and Mr Maharjan continued to be spouses at the time the application was made.

22. As noted above, when making the Partner visa application Sanu Maiya claimed she had been in a relationship with Kishor Maharjan from 2006.

23. In oral evidence the applicant told the Tribunal that her sister and husband had an affair and were only ‘boyfriend and girlfriend’. She states that the relationship between them broke down and when they came to Australia in 2009, her husband had no or little contact with her sister. When the child was born, her sister did not tell her about the pregnancy or about giving birth and it was only about a year later that her husband found out that he had a child. (Mr Kishor’s evidence to the Tribunal was different as he stated that he learned about the pregnancy before the child was born but did not tell the applicant until about a year later.) The applicant said that when her husband found out about the baby, he and Sanu Maiya had chats sometimes but they did not start a relationship at that time. The applicant states that the presence of the child affected her relationship with Kishor a little and affected her mentally.

24. The applicant states that around 2016 she had a surgery and sponsored her mother and sister to come to Australia to look after her. During that visit they all got together and had a good chat about the future. Because she was not able to have children and her sister had a child with her husband, they all agreed that she would ‘move on’ while her husband and her sister could resume their relationship. The applicant states that she decided to have her own choices and establish her own identity and move on with life and to bring her sister to Australia so that the child would live with her parents. The applicant states that after her sister returned to Nepal, she and her husband continued having contact with each other.

25. That evidence would strongly indicate that the applicant was no longer in a relationship with Mr Kishor Maharjan that was to the exclusion of all others from 2016, well before the visa application was made. However, Mr Maharjan told the Tribunal that this occurred in 2019 and not in 2016 and the applicant’s evidence is that her memory is poor so she could not recall the date of her sister’s visit to Australia. The Tribunal has obtained the sister’s movement records which show that she made first entry to Australia in May 2019 and not in 2016 and if the applicant’s evidence is to be accepted, that conversation took place several months after the visa application was made but before the visa was granted.

26. Mr Kishor Maharjan also gave oral evidence to the Tribunal and stated that he met Sanu Maiya at college where they were studying together and they started to live together. He states that de facto relationships were not unacceptable as people were better educated at the time and while people may have spoken behind their backs, it was okay for them to live together. He stated that their parents were agreeable for them to live together but they did not support the marriage because of Sanu Maiya’s health issues.

27. Mr Maharjan told the Tribunal that after Sanu Maiya came to Australia in 2019, they decided to get back together because he was concerned about his daughter. The applicant also confirmed that when her mother and sister visited Australia, she and her husband decided they would divorce. When asked why they did not divorce straight away, she said that they had already spent so much time in Australia and thought it would be better to get permanent residence first. The applicant thought that changing her marital status during the visa processing would delay the process.

28. The Tribunal considers there are many inconsistencies and deficiencies in evidence that brings into question the credibility of the applicant, her sister and her former husband. For example,

    a.The applicant and Mr Maharjan state that from the time Sanu Maiya came to Australia in late 2019, she and her husband continued to live under the same roof but not as husband and wife. The Tribunal notes that in the divorce application the applicant claimed to have been living separately from her husband from May 2019 as she was fearful of her husband. This seems to contradict the applicant’s evidence to the Tribunal that she and Mr Maharjan continued to live together as husband and wife until her sister’s return to Australia in late 2019. The Tribunal is of the view that either the information in the divorce application or the applicant’s evidence to the Tribunal about the living arrangements has not been truthful.

    b.The primary decision record also indicates that when Mr Maharjan sponsored Sanu Maiya, they referred to having ‘love and affection’ despite Mr Maharjan’s marriage to the applicant in 2008. The applicant denied there was ‘love and affection’ between them and claims their relationship ended before 2008 and while there would have been contact between them as in any family, there was no relationship.

    The Tribunal found Sanu Maiya’s evidence on that issue to be highly evasive when she told the Tribunal that the information in her Partner visa application was correct. She initially did refer to having ‘love and affection’ with Mr Maharjan between 2008 and 2019 but later changed her evidence and suggested there was no relationship between them.

    Similarly, Mr Maharjan initially told the Tribunal that after 2008 he continued to have a ‘de facto’ relationship with Sanu Maiya and said that they sometimes ‘dated’ when he visited Nepal. When the Tribunal noted its concerns with that evidence, his evidence changed and Mr Maharjan stated that they were merely friends and met as relatives and spoke about their child but there was no relationship between them.

29. The Tribunal also has considerable concerns with the fact that the applicant’s relationship with Mr Maharjan ended as soon as they were granted the Skilled visas, however, that is not inconsistent with the parties’ evidence that in 2019 the family decided that Mr Maharjan would resume his relationship with Sanu Maiya while the applicant would ‘move on’.

30. The Tribunal places considerable weight on the fact that the applicant’s marriage to Mr Maharjan lasted over 10 years. Given the length of that relationship, the Tribunal considers it somewhat unlikely (albeit not impossible) that the marriage was entered into solely for the purpose of enabling Mr Maharjan to obtain the Australian visa and sponsor the applicant’s sister to Australia.

31. The Tribunal has formed the view that untruthful evidence has been provided about Mr Maharjan’s relationship with Sanu Maiya. However, and significantly, it is possible that untruthful information was provided in the Partner visa application to strengthen Ms Sanu Maiya’s prospects of obtaining the visa, rather than in the Skilled visa application.

32. Having regard to the above evidence, the Tribunal has formed the view that when the application was made in 2018, the applicant and Mr Maharjan continued to be in a spousal relationship. In 2019 when the applicant’s family visited from Nepal, the family decided that Kishor and Sanu Maiya would resume their relationship and, from that time, the applicant’s relationship was no longer one of mutual commitment and to the exclusion of all others. That is, the applicant’s relationship with Kishor Maharjan ended a few months before she was granted the visa. The applicant in her oral evidence confirmed that this occurred before the visa was granted but claims she did not want to complicate things by informing the Department.

33. In the Tribunal’s view, the applicant’s circumstances changed after she made the application for the visa in a way that an answer on the form (about her relationship to Kishor Maharjan) became incorrect. The applicant failed to inform the Department of the changes in her circumstances, thereby breaching s 104 of the Act.

34. However, the Tribunal is mindful that this is not the basis of the present cancellation and the NOICC makes no reference to the possible non-compliance with s 104. As such, the Tribunal is not able to rely on that provision. It is open to the delegate to consider that basis in the future.

1. Similarly, the Tribunal acknowledges that if the above findings are correct, it may be that Sanu Maiya gave incorrect information in her Partner visa application if she claimed to have been in an ongoing relationship with Mr Maharjan since 2006, giving rise to the application of PIC 4020. That is not a matter for the present Tribunal.

   Was there any other non-compliance with s 101 of the Act?

2. It is not in dispute that Kishor Maharjan had a daughter born in 2009. That child was not mentioned on the application form.

3. The applicant provided several reasons for not including the child. The applicant claims she was confused about whether to refer to the child as her stepdaughter or niece and also they had no intention of bringing the child to Australia. The applicant states that she had never applied for the visa before and had no professional help. She also thought the question was about her children and not her husband’s. The Tribunal does not accept these explanations. Firstly, the question on the form is unequivocal – whether there are children. It does not refer to migrating children or children who will be coming to Australia in the future. Secondly, the form does refer to children from previous relationships and in the Tribunal’s view, it would have been apparent that it includes the children of both the applicant and her husband. Thirdly, the Tribunal is mindful that even if the applicant did not obtain professional advice, this did not preclude her from being able to answer all other questions on the form without any issues. As for the applicant’s evidence that she did not know how to refer to the child, in the Tribunal’s view, she could have referred to her as either her niece or stepchild rather than not refer to the child at all.

4. The Tribunal finds that Mr Kishor Maharjan, who was included in the application, had a child. That child was not included in the application form. The Tribunal finds that by stating ‘no’ in response to the question about children, the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

5. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

6. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth). Briefly, they are:

   The correct information

7. The correct information is that the applicant’s husband had a child from another relationship and the child was not mentioned in the application form.

   The content of the genuine document (if any)

8. This is not relevant in the present review.

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

9. Every member of the family unit would have been required to meet the health requirements. The applicant’s husband had a minor child who would have been considered to be a member of her family unit and would have been required to meet the health requirements which she did not undertake.

10. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

11. These are discussed above. Essentially, the applicant claims that she had misunderstood the question on the form, did not know how to refer to the child and did not intend for the child to migrate. These claims are addressed above.

    The present circumstances of the visa holder

12. The applicant told the Tribunal she is working as a shift supervisor at Oporto. She intended to buy a property but because of visa issues, she has not been able to, so she now lives in Dubbo with her sister and husband.

13. The applicant refers to her father’s ill-health and states that it has been hard on everyone because they are not able to travel and visit him. She states that her parents are financially dependent on her. The Tribunal is prepared to accept that evidence.

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

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

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

15. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

16. The application was made in February 2018 and about five years have passed since the non-compliance.

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

17. There are no known breaches of the law.

    Any contribution made by the visa holder to the community

18. The applicant refers to making financial donations and to her past employment. The Tribunal accepts that the applicant has made some contribution to the community.

19. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140

20. The visa held by the other applicant Mr Kishor Maharjan would be subject to consequential cancellation under s 140. That may lead to the Partner visa application he made with Sanu Maiya and the children being refused but there will not be consequential cancellation of their visas.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

21. Kishor Maharjan has two minor children. They are presently holding Bridging visas granted on the basis of their application for the Partner visa and the Tribunal accepts that if Mr Maharjan’s visa is cancelled, he may be unable to sponsor his partner and children for the visa, so they may not be able to remain in Australia.

22. The applicant states that divorce is not accepted in Nepal and her niece who was born out of wedlock would be affected. The Tribunal does not accept that evidence. The Tribunal is mindful that the child was living in Nepal for 10 years prior to her entry to Australia and there is no evidence before the Tribunal to indicate she had experienced any discrimination or harm as a result of being born out of wedlock.

23. Importantly, Mr Maharjan’s evidence to the Tribunal is that Sanu Maiya informed the authorities that they were married in 2006 and she also gave that information to the child’s school to avoid the child being bullied at school. He told the Tribunal that his name appeared on the child’s birth certificate from the time of her birth. That is, Mr Maharjan was considered as the child’s father from the time of the child’s birth and was formally accepted as such by the authorities. The child is perceived by the authorities as being born when Sanu Maiya was married to Kishor Maharjan. In these circumstances the Tribunal does not accept the child would experience any discrimination in Nepal due to being born out of wedlock.

24. The applicant also states that being born out of wedlock may cause mental harm to the child. The Tribunal does not accept that is the case, given that her parents continue to live together but in any case, the Tribunal does not consider that such “mental harm” would only occur in Nepal and not in Australia where the child’s circumstances of birth would be the same.

25. The applicant and Mr Maharjan told the Tribunal that the child is studying in Australia and is doing well. That may be the case. It is also claimed that the child cannot read Nepalese well. The Tribunal is mindful that the child has spent the majority of her life in Nepal, speaks Nepalese at home (according to the applicant) and even if her written Nepalese is not as good as it was, the Tribunal is of the view that she would be able to catch up, as she had easily done when facing the new environment in Australia.

26. The applicant states that the education system is better in Australia and her niece had missed some years of schooling in Nepal and it would be hard for her to catch up and she would miss some years. The Tribunal accepts that this may be the case.

27. The applicant states that it is also better for the youngest child to remain in Australia. The applicant states that they would have a better education, opportunities and future in Australia. There is little evidence before the Tribunal to support these claims.

28. Mr Maharjan told the Tribunal that his son had health issues when he was born but these have now resolved.

29. The Tribunal has considered the evidence about the children’s best interests. The Tribunal accepts that the children have now been living in Australia for a few years and that the elder child attends school and is well settled. However, the Tribunal does not accept the generalised statements that the children would be better off in Australia than in Nepal. The applicant has not established that the children will not have access to adequate healthcare, education and other services. They would be in the care of both parents. Overall, the Tribunal does not consider that the best interests of the children would be adversely affected if the applicant’s visa is cancelled.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations

30. The applicant states that she has no job and no experience in Nepal and would have to start from the beginning. The Tribunal accepts that may be the case but the Tribunal does not consider these claims give rise to Australia’s protection obligations.

31. The applicant states that because of her divorce, society will not treat her in the same way. She refers to experiencing emotional hardship, as well as financial hardship if her visa is cancelled. To the extent that these claims may form the basis of Australia’s protection the Tribunal is of the view that the applicant is eligible to seek a protection visa in Australia. The Tribunal is of the view that the cancellation of the applicant’s visa would not lead to her removal in breach of Australia’s non-refoulement obligations. As for the principles of family unity, there are no family members in Australia who are Australian permanent residents.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

32. If the applicant’s visa is cancelled, and unless she is granted another visa, the applicant would become an unlawful non-citizen and could be detained and removed from Australia. There is no suggestion of indefinite detention. The applicant would have limited options of making other visa applications onshore due to the operation of s 48 and would be subject to an exclusion period in relation to some future visa applications. The cancellation of the visa would result in the applicant’s spouse not being able to sponsor his wife and children for the Australian visas. The applicant would also lose the entitlements she had acquired as a permanent resident of Australia and would not be eligible for Australian citizenship if her visa is cancelled.

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

33. The applicant refers to the length of her stay in Australia, stating that it would be very hard for her to go back to Nepal and start from the beginning. She states that she has a good job and is able to support her parents in Nepal. She refers to her father’s illness and states that she hopes that she can bring her father to Australia for better treatment.

34. The applicant states that she does not have any work experience in Nepal and would have to start from the beginning. She states that she would have to find a job and may not be able to pay for her father’s expensive treatment and medication. The Tribunal accepts that may be the case.

35. The Tribunal accepts that if the applicant’s visa is cancelled, she may find it more difficult to support her parents in Nepal. The applicant also refers to Australia having a better health system than Nepal (and to her condition) but she has not established that she would not have access to adequate health support in Nepal.

36. The applicant states that they did not intentionally provide any incorrect answers and simply made a mistake. The applicant states that their lives should not be ruined because of that mistake and, particularly, the children should not be punished.

37. The Tribunal accepts that significant hardship would be caused to the applicant and her family if the visas are cancelled.

38. The Tribunal has considered all the circumstances of this case. The Tribunal has formed the view that the applicant gave an incorrect answer on the application form and that she did not comply with s 101 of the Act. The Tribunal found that there are grounds for cancelling her visa.

39. For the reasons set out above, the Tribunal has formed the view that the incorrect answer relates to the non-disclosure of the child, rather than information about the applicant’s relationship with her then husband because that relationship ended after the application was made and before the visa was granted. It is relevant and significant, in the Tribunal’s view, that if the correct information was known, the applicant is likely to still have been granted the visa as there is nothing to suggest that the child would not have met the health requirements. Notably, even if the applicant did not have a valid marriage to Mr Maharjan and did not have a de facto relationship with him (that is, if the Tribunal is wrong in its finding made above), the applicant would have been eligible to be granted the visa for which she had applied, although Mr Maharjan may not. These factors weigh against the cancellation.

40. The Tribunal acknowledges that the cancellation of the visa is likely to result in significant hardship to the applicant and her family. This is because the applicant has spent a lengthy amount of time in Australia, has a stable job, social and other connections to this country and the Tribunal accepts her evidence that she would have to “start again” if she was to return to Nepal. The Tribunal also accepts that the applicant’s parents are financially dependent on her and that her father requires treatment. The Tribunal also accepts that if the applicant’s visa is cancelled, her former partner, sister and their children are unlikely to be able to remain in Australia and that may also result in hardship. These factors also weigh against the cancellation.

41. Having considered all the circumstances of this case, the Tribunal has decided to give greater weight to those factors that weigh against the cancellation.

42. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

43. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 887 (Skilled - Regional) visa.

44. The Tribunal has no jurisdiction with respect to the other applicant.

    Kira Raif
    Senior Member