Mills (Migration)

Mills (Migration) [2019] AATA 6207 (26 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Godwin Paul Mills
Mr Uchenna Kalu Mills
Mr Peter Iruviere Mills
CASE NUMBER:  1728851
DIBP REFERENCE(S):  BCC2015/1318302
MEMBER:Michael Ison
DATE:26 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Skilled (Migrant) (Class VE) (Subclass 176) (Skilled – Sponsored) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 26 November 2019 at 11:39am

CATCHWORDS
MIGRATION – cancellation – Skilled (Migrant) (Class VE) visa – Subclass 176 (Skilled – Sponsored) – Federal Circuit Court remittal – s 375A certificate not disclosed – potentially adverse information – obligation to afford procedural fairness – no response to s 359A invitation – not entitled to appear before the Tribunal – ground for cancellation – incorrect information in visa application – relationship to two migrating dependents – custody, access or guardianship rights – bogus document – birth certificates – consideration of discretion – no bearing on grant of visa – circumvention of Australia’s migration law – actively misled the Department – presence of biological children in Australia – parenting orders – best interests of the children – degree of hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 105, 107, 109, 140, 359, 359AA, 359A, 359B, 359C, 360, 363A, 375A, 379A, 379G
Migration Regulations 1994 (Cth), rr 2.41, 4.17
CASES
BCR16 and Goundar v MIBP [2016] FCA 1203
BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148
Hasran v MIAC [2010] FCAFC 40
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Singh [2016] FCAFC 183
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Skilled (Migrant) (Class VE) (Subclass 176) (Skilled – Sponsored) visa under s.109(1) of the Migration Act 1958 (the Act).
The first named and primary applicant, Mr Godwin Paul Mills (Mr Mills) is a 42 year old Nigerian national. Any reference to Mr Mills’ visa or the visa is a reference to his Subclass 176 visa. Mr Mills’ current visa is referred to as his Bridging visa.
Background
Mr Mills applied for his visa on 26 November 2009, which was granted on 26 November 2010. Included in that application, were Mr Mills’ then wife, Ms Esther Meredith Onosolease and the secondary applicants, Mr Uchenna Kalu Mills (John) and Mr Peter Iruviere Mills (Peter) as “Migrating dependents”. As is explained in more detail below, birth certificates for John and Peter were provided to the Department in February 2010.
According to a statutory declaration declared by Ms Onosolease on 9 October 2015, Mr Mills and Ms Onosolease were a couple since 1998, lived together since 2000 and separated in February 2013.[1] Mr Mills first came to Australia in January 2011 and Ms Onosolease travelled to Australia with her daughter and John and Peter in August 2011. Ms Onosolease went to Nigeria in approximately February 2013, returning to Australia in approximately May 2013, Peter went to Nigeria in May 2013 and returned to Australia in June 2014 and Mr Mills returned to Nigeria in June 2014 for a short period and also says he travelled to China. It has been submitted on Mr Mills’ behalf that John has, at the time of this decision, returned to Nigeria.[2]
[1] Statutory declaration of Ms Onosolease declared on 9 October 2015, Department file, folios 99 to 100 at paragraph 5.
[2] Submission dated 26 September 2019, Tribunal file, folios 118 to 131 at folio 119.
Mr Mills and Ms Onosolease have two biological daughters: [Child A] who was born in [month year] and [Child B] who was born in Australia in [month year] and is an Australian citizen. Since November 2015 Ms Onosolease and [Child A] have held Class BB (Subclass 155) Resident Return visas. Since September 2016 Mr Mills has held a Bridging visa.
On 1 October 2015 the Department gave Mr Mills notice under s.107 of the Act of its intention to consider cancellation of his visa (s.107 notice) under s.109 of the Act. Mr Mills responded to this notice on 19 October 2015 in a submission prepared by a registered migration agent who is not Mr Mills’ current representative.
Cancellation of Mr Mills’ visa
The delegate cancelled Mr Mills’ visa on 7 January 2016 on the basis that Mr Mills did not comply with ss.101 and 103 of the Act, which are reproduced in the attachment to these reasons. The non-compliance found by the delegate was that in the visa application Mr Mills stated that the second named applicant, John, now aged 18 years, and the third named applicant, Peter, now aged 17 years, are his children and that no-one else not migrating with Mr Mills had custody, access or guardianship rights to John and Peter; and he subsequently provided bogus documents, being birth certificates, to that effect. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
Previous review by the Tribunal (differently constituted)
This matter was previously heard and determined by the Tribunal, differently constituted: Tribunal case 1600467, heard on 23 August 2016 and decided on 6 September 2016.
In that decision, the Tribunal affirmed the decision of the delegate to cancel Mr Mills’ Subclass 176 visa and found it did not have jurisdiction to review the consequential cancellation of John and Peter’s visas because those cancellations occur by operation of s.140 of the Act and not from a decision of the delegate.
Mr Mills’ appeal to and remit by the Federal Circuit Court
Mr Mills appealed the 2016 Tribunal decision to the Federal Circuit Court. On 9 November 2017 the Federal Circuit Court ordered, by consent, that the 6 September 2016 decision of the Tribunal be set aside on the ground Mr Mills had been denied procedural fairness. The basis of the Court’s order was that the Department had issued a certificate in accordance with the procedure set out in s.375A of the Act and this was not disclosed to Mr Mills despite some of the documents that were subject to the certificate being relevant, or potentially relevant, to the issues arising on the review by the Tribunal.
The matter then came back before the Tribunal as presently constituted. Mr Mills has been represented throughout this review by his lawyer and registered migration agent.
Jurisdictional issues
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to Mr Mills. The visas of John and Peter were automatically cancelled as a consequence of the cancellation of Mr Mills’ visa, not by a decision of the delegate or the Tribunal but by force of the operation of s.140(1) of the Act. As no decision was involved in the cancellation of John and Peter’s visas under s.140(1), the Tribunal has no jurisdiction with respect to the cancellation of John and Peter’s visas.
Tribunal’s 20 March 2019 letter: s.375A certificate and s.359A disclosures
On 20 March 2019 the Tribunal sent Mr Mills a letter informing him that (i) a delegate of the Minister had issued a certificate under s.375A of the Act on 20 January 2016 in relation to 41 folios on the Departmental file; and (ii) of potentially adverse information in accordance with the procedure set out in s.359A of the Act. The Tribunal provided a copy of the s.375A certificate in its letter, indicated its view that the certificate was validly issued in relation to 36 folios but released five folios covered by the certificate in full. The Tribunal invited Mr Mills to make submissions concerning the certificate, including but not limited.
The Tribunal considered that the 36 folios not released to Mr Mills, and a further 14 folios on the Departmental file, contained information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate. The Tribunal particularised the potentially adverse information in each of these folios, which included the statutory declaration declared by Ms Onosolease and also a statutory declaration declared by a third party,[3] and provided Mr Mills with copies of the 14 folios not covered by the s.375A certificate. The Tribunal’s letter explained the relevance of all of the potentially adverse information to Mr Mills’ review and the consequences for Mr Mills’ review if the Tribunal relied on this information, including that the information would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review.
[3] Statutory declaration of a third party declared on 8 October 2015, Department file, folio 98.
The Tribunal’s letter specified, in accordance with s.359B(2) of the Act and r.4.17, that Mr Mills had 14 days to provide comment on or to respond to the information or to seek an extension of time to comment on or to respond to the information, with effect that the responses to the s.375A certificate and the potentially adverse information were due by 3 April 2019.
Mr Mills’ loss of right to appear before the Tribunal
Mr Mills did not respond to the Tribunal’s letter dated 20 March 2019 within the prescribed period and no extension to the prescribed period to respond was sought. The Tribunal emailed the letter to the last provided email address for Mr Mills’ representative in accordance with the requirements of s.379A(5) of the Act. Mr Mills had earlier nominated his representative as his ‘authorised recipient’ of information from the Tribunal, in accordance with s.379G of the Act. The Tribunal notes this same email address was used by the Tribunal to send all correspondence to Mr Mills and all submissions made on behalf of Mr Mills during this review were sent from this same email address.
In these circumstances, s.359C(2) of the Act applies which provides the Tribunal may then make a decision on the review without taking any further action to obtain the applicant’s views on the information.
Section 360(1) of the Act provides the Tribunal must invite an applicant to appear before it to give evidence and present arguments. Section 360(2) provides s.360(1) does not apply if, amongst other matters, s.359C(2) applies. In that instance, as here, s.360(3) of the Act provides that if s.360(2) applies then the applicant is not entitled to appear before the Tribunal. Section 363A of the Act separately provides that if the relevant part of the Act states that a person is not entitled to do something then unless another provision of the Act expressly provides otherwise the Tribunal does not have the power to permit the person to do that thing. These provisions have been held to have the effect that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
Tribunal allows submissions from Mr Mills
Rather than proceed to make a decision on the information before it at that time, the Tribunal sought further information from Mr Mills. A Tribunal officer rang Mr Mills’ representative on 3 May 2019 to enquire whether the representative was still acting for Mr Mills. The representative confirmed he was still acting for Mr Mills. The Tribunal officer asked the representative why Mr Mills had not responded to the Tribunal’s letter dated 20 March 2019. The representative told the Tribunal officer he could not recall receiving the Tribunal’s letter dated 20 March 2019. The Tribunal officer confirmed that the email address the Tribunal’s letter was sent to remained the email address of Mr Mills’ representative. An email error message was not received by the Tribunal when the letter was sent by email on 20 March 2019.
Later that day, 3 May 2019, the Tribunal re-sent Mr Mills’ representative a copy of the Tribunal’s letter dated 20 March 2019 and informed the representative while his client had lost the right to appear before the Tribunal he could still respond to the Tribunal’s letter at any time until the Tribunal makes a decision on his application. The Tribunal notes the copy of the Tribunal’s letter dated 20 March 2019 was sent to the same email address the original was sent to. The representative confirmed he received this copy of the Tribunal’s letter and on 6 May 2019 requested his client be allowed to 13 May 2019 to respond to the Tribunal’s letter and requested that his client be allowed to appear before the Tribunal.[4]
[4] Tribunal file, folio 22.
On 7 May 2019 the Tribunal agreed to allow Mr Mills the additional time requested to respond to the Tribunal’s letter. In its response to this request the Tribunal also set out for Mr Mills’ representative the provisions of the Act referred to in paragraph 18 of these reasons that operate to prevent the Tribunal offering the applicant a hearing in circumstances where the applicant failed to respond to a letter sent to them by the Tribunal in accordance with the procedure set out in s.359A of the Act. The letter explained that these provisions operated to provide the Tribunal no discretion to offer an applicant a hearing in Mr Mills’ circumstances. The Tribunal provided this information in its 7 May 2019 letter to Mr Mills’ representative to inform the representative why his client’s hearing right was lost and invited the representative to address these issues in submissions if the representative was of the view that his client’s right to appear before the Tribunal was not lost or could be resuscitated.
On 13 May 2019 Mr Mills’ representative provided a four page submission and provided a copy of parenting orders made on 3 November 2015 and 20 January 2016.[5] In that submission Mr Mills’ representative did not make any submissions about his client’s loss of the right to appear before the Tribunal.
[5] Submission dated 13 May 2019, Tribunal file, folios 78 to 84.
13 May 2019 submission on behalf of Mr Mills on the s.375A certificate
As noted above the Tribunal provided Mr Mills with a copy of a certificate issued on 20 January 2016 in accordance with the procedure set out in s.375A of the Act.
On 13 May 2019, Mr Mills’ representative submitted on his behalf in relation to the certificate:
While the Applicant do not have any objection as to the validity of the certificate issued on folio 2-30 as this would be deemed as internal working documents of the Department and disclosure would be contrary to the public interest.
In relation to the certificate issued for folios 1, 31-32, 89-90 and 98-10, it is our submission that the reason for the non-disclosure is not contrary to the public interest and that such certificate cannot be issued to prevent the Applicant a procedure fairness and prevent him from knowing what documents or information the Department holds against in him in this proceeding.
It is our submission that the reason for the non-disclosure is to prevent the Applicant from knowing the whereabout of his ex-wife and effectively his children [Child A] Mills born [date] and [Child B] Mills born [date].
We confirm our instructions that the Applicant since the Orders were made in the Family Court of Western Australia has been travelling to Perth to spend time with his ex-wife and the children. We confirm our instructions that the most recent time they spent time together at the ex-wife's resident was from 05 April 2019 to 10 April 2019. Therefore, on the face of this information, it is unlawful and unconstitutional for the Applicant to be denied having access to these folios knowing that the reason for the issue of the certificate does not exist anymore.
It would be fair and reasonable for these documents to be disclosed to the Applicant. Such disclosure would reveal when the Department's interview with the ex-wife took place and what was discussed. As the present case, and without these documents being made available to the Applicant, it can reasonably be concluded that the Department's conduct in these proceedings amount to the gross conduct of separating and preventing the Applicant from seeing his children. (sic) [6]
[6] Tribunal file, folios 78 to 84 at folio 83 (back).
In accordance with the Full Federal Court decision in MIBP v Singh[7] the Tribunal is required to balance its obligations arising from certificates validly issued in accordance with s.375A of the Act with the Tribunal’s obligations to afford an applicant procedural fairness, including the right to be informed of, and being given the opportunity to comment on or respond to, any information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate under review.
[7] MIBP v Singh [2016] FCAFC 183
After receiving the submission made on Mr Mills’ behalf dated 13 May 2019, the Tribunal reviewed folios 1, 31-32, 89-90 and 98-104 from the Tribunal’s copy of the Department’s file, noting that the s.375A certificate stated it was in the public interest that the Tribunal not disclose the information in those folios because they:
… contain information regarding the visa holder’s ex-wife Ester (sic) Onosolease. She has requested that her whereabouts not be divulged to the visa holder.[8]
[8] Certificate issued in accordance with s.375A of the Act on 20 January 2016, Department file, folio 136.
The information in those folios contains detailed allegations about Mr Mills and his family and the circumstances in which he and Ms Onosolease came to claim John and Peter as their children. The folios include the statutory declaration declared by Ms Onosolease on 9 October 2015 in which Ms Onosolease expresses concern for her own safety and the safety of [Child A] and [Child B], including as a result of allegedly receiving threats from Mr Mills and his family. The Tribunal notes that Mr Mills contests and denies these allegations.
Balanced against these concerns are the considerations that Mr Mills has the right to know the full case alleged against him, that Ms Onosolease and Mr Mills as the biological parents of [Child A] and [Child B] are subject to parenting orders issued on 3 November 2015 and 20 January 2016 (by consent)[9] and that according to Mr Mills’ representative, protecting the confidentiality of Ms Onosolease’s whereabouts is no longer in the public interest because Mr Mills claims to have travelled to Perth to spend time with his daughters at Ms Onosolease’s residence, including as recently as July 2019.[10] There is evidence before the Tribunal of Mr Mills having travelled to Perth regularly since 2018, which is discussed below. The Tribunal has no independent information, such as evidence from Ms Onosolease or photographs, to confirm whether the claim made by Mr Mills that he has stayed at Ms Onosolease’s residence is true. However, the Tribunal notes that the parenting orders made by the Magistrates Court in Perth on 3 November 2015 include an order that:
[9] Tribunal file, folios 78 to 81.
[10] Submission dated 26 September 2019, Tribunal file, folios 118 to 131 at folio 119 (back).
11By consent of [Miss Onosolease], until further order of the Court, [Mr Mills] spend time with [Child B] in Perth as agreed between the parties in writing.[11]
[11] Tribunal file, folios 80 to 81 at folio 81 (back).
The Tribunal also notes that the parenting orders made by the Family Court on 20 January 2016 include an order that:
7. The mother and father shall keep each other informed at all times of their residential address, telephone numbers, mobile telephone numbers, work contact numbers and email addresses.[12]
[12] Tribunal file, folios 78 to 79 at folio 78.
Tribunal’s 23 May 2019 letter: release of information and further s.359A letter
After considering the submissions from Mr Mills’ representative the Tribunal decided to release the relevant folios to Mr Mills, with information redacted to remove any reference to Ms Onosolease’s location or contact details, in the form of a further letter dated 23 May 2019 that also complied with the procedure set out in s.359A of the Act.

To assist Mr Mills, as the Tribunal was releasing additional information to him, the Tribunal’s letter repeated the particulars, their relevance to Mr Mills’ review and the consequences for Mr Mills’ review if the Tribunal relied on that information from the Tribunal’s letter to Mr Mills dated 20 March 2019.
Some of the key claims made by Ms Onosolease about her and her children’s safety are corroborated in the statutory declaration made by a third party referred to in paragraph 14 of these reasons. The third party statutory declaration does not disclose the location of Ms Onosolease and so in that respect the s.375A certificate fails to particularise relevant public interest grounds to prevent its disclosure. However, the author of the third party statutory declaration expressed significant concerns for their own safety should Mr Mills or his family become aware that the author has made the declaration. As noted earlier in these reasons, Mr Mills contests and denies these allegations.
To address these concerns the Tribunal released the third party statutory declaration to Mr Mills’ without disclosing the name of the deponent, which the Tribunal assessed as not material in the context of the Tribunal’s view of the relevance of that information being corroborative of the specific and limited allegation in Ms Onosolease’s statutory declaration about where John and Peter lived in Australia.
6 June 2019 submission on behalf of Mr Mills
On 6 June 2019, Mr Mills responded to the information in the Tribunal’s 23 May 2019 letter through a written submission from his representative.[13] This response is referred to below.
[13] Tribunal file, folios 93 to 96.
This submission did not include any response to the statutory declarations of Ms Onosolease or the third party and stated the representative had not discussed the third party statutory declaration with Mr Mills.
Tribunal’s 15 August 2019 s.359(2) letter
On 15 August 2019 the Tribunal wrote to Mr Mills’ representative in accordance with the procedure set out in s.359(2) of the Act and specifically sought Mr Mills’ response to Ms Onosolease’s statutory declaration and the third party statutory declaration. The Tribunal’s letter also particularised what it considered to be inconsistent information and evidence provided by Mr Mills to the Department and to the Tribunal as previously constituted when compared to the information in the submission made on Mr Mills’ behalf dated 6 June 2019, as set out in paragraph 67 of these reasons.
The Tribunal’s letter also noted that Mr Mills’ explanation of the circumstances that led to the cancellation of his visa had changed significantly and in light of this asked Mr Mills to provide updated submissions in response to the prescribed circumstances in r.2.41 and in response to the policy considerations in the Department’s Procedures Advice Manual (PAM3).
On 29 August 2019 Mr Mills’ representative requested and was granted additional time to respond to the Tribunal’s letter dated 15 August 2019.
3 September 2019 submission on behalf of Mr Mills responding to the Tribunal’s 15 August 2019 s.359(2) letter
On 3 September 2019, Mr Mills responded to the Tribunal’s 15 August 2019 letter through a written submission from his representative.[14]
[14] Tribunal file, folios 110 to 113.
This submission provided a detailed response to the statutory declarations of Ms Onosolease and the third party, which are referred to below, and provided more information on the circumstances of the cancellation of Mr Mills’ visa, the impact of that cancellation on him and his family, particularly his children, and Mr Mills’ current circumstances, which are referred to below.
Tribunal’s 12 September 2019 s.359(2) letter
The Tribunal’s letter dated 15 August 2019 inadvertently reproduced the PAM3 policy considerations for the cancellation of a visa under s.116 of the Act, rather than under s.109 of the Act, which is the provision the delegate relied upon to cancel Mr Mills’ visa.
On 12 September 2019 the Tribunal wrote to Mr Mills in accordance with the procedure set out in s.359(2) of the Act and advised him of this error. The Tribunal’s letter enclosed a copy of the PAM3 policy considerations for the cancellation of a visa under s.109 of the Act. That enclosure is reproduced in the attachment to these reasons. The Tribunal’s letter invited Mr Mills to provide information to the Tribunal in the form of updated submissions in response to those specific policy considerations. The Tribunal’s letter also requested:
You have also made submissions to the Tribunal about your relationship with your children in Australia. Could you please provide more information about that relationship. This information could include, but does not have to be limited to, all of the times you and your children have spent time together since the Family Court orders dated 20 January 2016. The additional information could also include details and supporting evidence of all of your trips to Perth or elsewhere and your children’s trips to Melbourne or elsewhere to visit each other.
26 September 2019 submission on behalf of Mr Mills responding to the Tribunal’s 3 September 2019 s.359(2) letter
On 26 September 2019, Mr Mills responded to the Tribunal’s letter dated 12 September 2019 through a written submission from his representative.[15]
[15] Tribunal file, folios 118 to 131.
This submission included a four page written submission from Mr Mills’ representative and 12 pages of travel records, some of which are duplicates. The information in this submission is referred to below.
Tribunal proceeds to a decision
After receiving the submission on Mr Mills’ behalf dated 26 September 2019 the Tribunal decided to proceed to a decision without seeking further information from Mr Mills because:
·The Tribunal had provided Mr Mills, through his representative, with copies of the s.375A certificate and received Mr Mills’ comments on that certificate;
·The Tribunal considered the submissions on the s.375A certificate and reviewed the file of the Tribunal as previously constituted and the Tribunal’s copy of the Department’s file and provided Mr Mills with copies of potentially adverse information, including some information the s.375A certificate purported to apply to, that it was not clear to the Tribunal as presently constituted had been provided to Mr Mills previously. This information included the statutory declarations of Ms Onosolease and a third party which contained claims the Tribunal considered to be potentially adverse to Mr Mills or at least inconsistent with Mr Mills’ evidence and submissions to the Tribunal;
·The Tribunal received detailed submissions on Mr Mills’ behalf in response to this information;
·The Tribunal has had the benefit of listening to the recording of the hearing of the Tribunal as previously constituted that was conducted on 23 August 2016, which enabled the Tribunal as presently constituted to listen to the evidence of Mr Mills, John and Peter at that time;
·The Tribunal has read the decision of the Tribunal as previously constituted dated 6 September 2016 as that decision was referred to in submissions made on Mr Mills’ behalf;[16]
[16] The Tribunal has not relied on any findings of fact in the decision of the Tribunal as previously constituted. The Tribunal in listening to the recording of the 23 August 2016 hearing and receiving submissions on behalf of Mr Mills has made its own findings of fact as indicated in these reasons.
·The Tribunal has read the orders made by consent of the Federal Circuit Court dated 9 November 2017 to remit this review back to the Tribunal for reconsideration;
·Mr Mills has been represented throughout this review by his lawyer and registered migration agent;
·Mr Mills, through his representative, has provided detailed submissions to the Tribunal including those dated 13 May 2019, 6 June 2019, 3 September 2019 and 26 September 2019; and
·The Tribunal considers Mr Mills has now given evidence about, has had an opportunity to respond to or has responded to all of the material information the Tribunal is relying upon in making this decision including the apparent inconsistent evidence and submissions provided by or on behalf of Mr Mills prior to the 6 June 2019 submission when compared to the information in that and subsequent submissions.
In these circumstances, the Tribunal is satisfied that Mr Mills has had sufficient opportunity to provide information about and to respond to the determinative issues in the review.
For the following reasons, the Tribunal has concluded that the decision to cancel Mr Mills’ visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
The delegate sent the relevant notice on 1 October 2015.[17]
[17] Department file, folios 82 to 86.
Having reviewed the notice sent by the delegate to Mr Mills, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the relevant statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101 and 103 of the Act. The notice identified the non-compliance with s.101(b) of the Act as arising because Mr Mills provided incorrect information in the visa application that John and Peter are his and Ms Onosolease’s dependent children but subsequently both Mr Mills and Ms Onosolease conceded they are not their children but are the children of one of Mr Mills’ sisters. The notice identified the non-compliance with s.103 of the Act as arising because in support of Mr Mills’ visa application birth certificates were provided for John and Peter that stated Mr Mills is the boys’ father and that Ms Onosolease is the boys’ mother. The delegate considered these birth certificates to be bogus documents.
Mr Mills did not provide the Tribunal with a copy of the delegate’s decision for the review conducted by the Tribunal as previously constituted or for this review.
The Tribunal as previously constituted informed Mr Mills of potentially adverse information in accordance with the procedure set out in s.359AA of the Act during its hearing on 23 August 2016. That information was information in the delegate’s decision that Ms Onosolease informed the Department that John’s father is Mr Chidi Kalu and his mother is Mr Mills’ sister Vivian and that Peter’s father is Mr Kelvin Iruviere and his mother is Mr Mills’ sister Angela. The Tribunal as previously constituted explained the relevance of this information was it contradicted statements made in Mr Mills’ visa application and submissions and the earlier evidence of Mr Mills, John and Peter to the Tribunal. The Tribunal as previously constituted explained the consequence of the Tribunal relying on this information was that it could cause the Tribunal to find that there has been a non-compliance with the Act and could also mean, despite there being a discretion, that the Tribunal affirms the decision of the delegate.
The Tribunal, as presently constituted, has listened to the recording of the hearing conducted on 23 August 2016. Mr Mills, John and Peter each gave evidence at that hearing and their representative attended the hearing and made submissions. The Tribunal is satisfied that the Tribunal as previously constituted properly informed Mr Mills of information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate, explained its relevance and the consequences of the Tribunal relying on the information and afforded Mr Mills the opportunity to respond to or comment upon that information, offering him additional time to consider the information before doing so. The Tribunal notes that Mr Mills requested and was granted a short adjournment to consider the information before responding to or commenting upon it.
The Tribunal also notes that in Mr Mills’ response to the Tribunal’s letter sent in accordance with s.359A of the Act on 20 March 2019, submitted by his representative, it is stated:
It is accepted that there are grounds for cancelling the visa because the Applicant's non-compliance with s101 of the Act, his presence in Australia does not present any risk to the safety or good order of the Australian community.[18]
[18] Submission dated 13 May 2019, Tribunal file, folios 78 to 84 at folio 82 (back).
However, in a subsequent submission dated 6 June 2019 submitted by Mr Mills’ representative, it is stated:
In relation the non-compliance of ss 101(b) and 103 of the Act, we submit that the Applicant did not provide any incorrect answers to his visa application nor provided any bogus documents which contravened s 103 of the Act. We submit that the visa application was submitted by Mr Gillard without the Applicant being aware of the content of the response and documents provided to the Department. [19]
[19] Submission to the Tribunal dated 6 June 2019, Tribunal file, folios 93 to 96.
These submissions could be read as Mr Mills’ is conceding he breached s.101(b) of the Act but not s.103 of the Act. Such a concession would be sufficient for the Tribunal to find that a ground for the cancellation of Mr Mills’ visa exists and then proceed to consider whether the visa should be cancelled.
However, the Tribunal notes that in the submission dated 6 June 2019 Mr Mills contends that he did not provide any incorrect answers (s.101(b)) nor provided any bogus documents (s.103). The Tribunal therefore has taken the view that Mr Mills’ contests whether there are grounds for the cancellation of his visa at all.
Background
Mr Mills has provided two explanations of how the Department came to receive the information that John and Peter are his dependent children and John and Peter’s birth certificates that record Mr Mills as their father.
For present purposes, Mr Mills’ explanations can be summarised as follows.
Mr Mills’ first explanation, contained in the response dated 19 October 2015 to the Department’s s.107 notice and a submission dated 22 August 2016 and evidence to the Tribunal as previously constituted on 23 August 2016, is:
·John and Peter were abandoned as infants by their mother, by one of Mr Mills’ sisters in Nigeria, Vivian, and their fathers are unknown;
·In accordance with the traditions of the Igbo tribe that Mr Mills’ family are members of in Nigeria, Mr Mills stepped in and adopted the boys by tribal custom, in order that the boys not be treated as outcasts and bring shame to the family;
·When Mr Mills married Ms Onosolease, she became the boys’ mother;
·It was Mr Gillard who suggested Mr Mills come to Australia and Mr Gillard completed Mr Mills’ visa application on Mr Mills’ behalf without Mr Mills’ being aware of what was stated in his visa application. In particular, Mr Mills did not know that his visa application stated John and Peter were his biological children;
·Mr Gillard asked Mr Mills to obtain birth certificates for John and Peter, which Mr Mills did and provided to Mr Gillard, but Mr Mills had no knowledge of why the birth certificates were requested or how they would be used. Those birth certificates stated Mr Mills was the boys’ father; and
·When John and Peter arrived in Australia in August 2011 they lived with Mr Mills and his wife Ms Onosolease as part of their family.
Mr Mills’ second explanation, contained in the submissions dated 6 June 2019, 3 September 2019 and 26 September 2019, is:
·It was Mr Gillard who suggested Mr Mills come to Australia and Mr Gillard completed Mr Mills’ visa application on Mr Mills’ behalf without Mr Mills’ being aware of what was stated in his visa application;
·John and Peter are not Mr Mills’ children by adoption or otherwise and their parents are in Nigeria and are known to Mr Mills and his family;
·Mr Gillard added John and Peter to Mr Mills’ visa application;
·Mr Gillard then arranged for John’s father, Mr Kalu, to obtain birth certificates for John and Peter. Mr Kalu obtained and provided these to Mr Gillard who then submitted them to the Department in February 2010;
·Mr Mills’ did not have any knowledge of or consent to John and Peter being added to his visa application or the bogus birth certificates for John and Peter being obtained and provided to the Department;
·Mr Mills only became aware of John and Peter being added to his visa application and the birth certificates being provided after his visa was granted but before he flew to Australia in January 2011;
·When John and Peter arrived in Australia in August 2011 they lived with Mr Mills’ sister Ms Lilian Mills and her then husband, Mr Gillard (they have since divorced);
·Mr Mills questioned Mr Gillard about why John and Peter were living with Mr Gillard and Ms Lilian Mills but found it was “futile” trying to seek answers;
·Mr Gillard demanded Mr Mills repay him the costs of obtaining the visas for Mr Mills, Ms Onosolease, their daughter [Child A], John and Peter but Mr Mills refused to pay the costs associated with John and Peter’s visa applications as those costs were incurred without his consent; and
·Mr Mills alleges he is the victim of a fraud perpetrated by Mr Gillard and Mr Kalu.
It is difficult for the Tribunal to assess if Mr Mills’ first explanation is correct in part or full or if his second explanation is correct in part or full or if neither explanation is correct given how different those explanations are. It is also difficult for the Tribunal to discern what state of knowledge Mr Mills may have had about his visa application or who obtained and submitted the bogus birth certificates for John and Peter to the Department.
In the submission on Mr Mills’ behalf dated 6 June 2019, it stated:
In response to Folio 1, we submit and as confirmed by the applicant during the interview that Uchenna Kalu Mills and Peter Iruviere Mills are not his biological children.
…
In response to Folios 31–32, we confirm our instructions that on or about May 2009, the Applicant was contacted by Mr Benjamin Gillard regarding possible migration to Australia. We confirm that Mr Gillard, who is the Applicant’s ex-brother-in-law provided the Applicant with all the necessary steps in order to take to obtain the visa. On or about June and July 2009, on the instruction of Mr Gillard, the applicant arranged for his English test as well as Skill Assessment respectively.
We confirm our instructions that upon obtaining successful outcome for the Skill Assessment on 23 July 2009, the Applicant was again contacted by Mr Gillard who informed him about the prospect of including other family members in the visa application to migrate with the Applicant. We have been instructed that the Applicant submitted all his documents required for the visa application as requested by Mr Gillard but excluding the birth certificate for Uchenna and Peter Mills.
We submit that on 26 November 2009, Mr Gillard submitted the visa application without him being aware of the information provided to the Department of Home Affairs. We further confirm our instructions that without the Applicant’s knowledge, Mr Gillard contacted Mr Chidi Kalu, the father of Uchenna, to organise a new birth certificate for Peter and Uchenna and have the Applicant and his ex-wife listed as the parents. These bogus documents were obtained by Mr Kalu and submitted to the Department by Mr Gillard on 2 February 2010.
We confirm our instructions that the Applicant never provided his consent as to the reproduction of the birth certificates and that he was not aware of this arrangement by Mr Gillard and Mr Kalu. However, we confirm that the Applicant only became aware of this arrangement after the visa was granted and when he was making arrangement to travel to Australia.
It should be emphasis that the cost of the visa application, English test, Skill Assessment and the reproduction of the birth certificate were all paid for by Mr Gillard. This confirms the Applicant’s little involvement in his visa application process.
We submit that whilst the Applicant became aware of such arrangement, it is reasonable to submit that the Applicant’s eligibility to obtain Subclass 176 was unlawfully compromised by the conduct of Mr Gillard and Mr Kalu.
In response to folios 98–100, we submit that the content of the affidavit has not been discussed and as such no instructions has been provided. For that reason, no comment can be made in that regards. However, it is submitted that the parents of Uchenna and Peter Mills is still living in Nigeria and further submit that the John and Peter were living with Mr Gillard and his wife Lilian Mills.
In relation the non-compliance of ss 101(b) and 103 of the Act, we submit that the Applicant did not provide any incorrect answers to his visa application nor provided any bogus documents which contravened s 103 of the Act. We submit that the visa application was submitted by Mr Gillard without the Applicant being aware of the content of the response and documents provided to the Department.
While it may be argued by the Department that the application was lodged for the benefit of the Applicant, however, it should be emphasis that the response provided in the visa application and the birth certificates provided to the Department were without the Applicant’s approval. Furthermore, the reproduction of the birth certificates was an act of which only Mr Gillard would know.
We have further been instructed that when the Applicant arrived in Australia, Mr Gillard requested for all monies spent on the Applicant and his family to obtain the visa. Initially, the Applicant made all payments to Mr Gillard for money spent on him, his ex-wife and his oldest daughter however, refused to make payment for Uchenna and Peter as he argued with Mr Gillard that he did not request them to be included in his visa application. We confirm our instructions that this was one of the reasons why Mr Gillard ended his marriage with his wife Mrs Lilian Mills.
When Uchenna and Peter arrived in Australia, they commenced living with Mr Gillard and his wife of which the Applicant sought an explanation as to why the children were living with them, however, it was futile.
We submit that on the information provided above, the Applicant’s eligibility for the visa was unlawfully compromised by the illegal conduct without the knowledge and consent of the Applicant. We submit that the Applicant had been used as a means to achieve other purposes namely, to obtain a visa for Uchenna and Peter without his consent. It can therefore reasonably be said that the Applicant had not provided incorrect answers or information to his visa application nor knowingly and intentionally provided bogus documents to the Department. (sic) [20]
[20] Submission to the Tribunal dated 6 June 2019, Tribunal file, folios 93 to 96.

As noted in paragraphs 36 and 37 of these reasons, on 15 August 2019 the Tribunal sent Mr Mills a letter in accordance with the procedure set out in s.359(2) of the Act. One of the items on which the Tribunal sought further information was the apparent inconsistencies between Mr Mills’ pre-2019 explanation of the circumstances in which non-compliance occurred and the explanation he provided in his 6 June 2019 submission. The Tribunal particularised those inconsistencies in the letter in the following manner:

Submission dated 6 June 2019

Previous submissions and evidence

1. Mr Kalu procured the false birth certificates for Uchenna (John) and Peter and provided them to Mr Gillard who submitted them to the Department as part of your application for the Subclass 176 visa without your knowledge.

You procured the birth certificates at Mr Gillard’s request but you did not know what they were required for.

2. You only became aware of the above arrangement after the visa was granted when you were making arrangements to travel to Australia.

You included John and Peter in your visa application because you considered them to be your children.

3. John and Peter’s parents remain in Nigeria and are known to them. Therefore, they have not ever been considered Osu and your life has not been in danger and you have not been forced to adopt the boys, by Igbo custom or otherwise. The boys were not ‘cleansed’ and you did not take an oath not to reveal their backgrounds.

John and Peter are not aware of their true circumstances. You have treated John and Peter as your own children since ‘adopting’ them. John and Peter would be considered Osu and treated as outcasts as children born out of wedlock. Their status as Osu would bring great shame to your family within the Igbo community in Nigeria and your life would be in danger if you did not comply with Igbo custom of adopting and raising John and Peter as your own children. John and Peter were ‘cleansed’ from being Osu and you took an oath not to tell anyone about the boys background or previous status as Osu.

4. The parents of John and Peter are still living in Nigeria.

The mother of John and Peter is Vivian and their fathers are unknown and Vivian’s whereabouts are unknown.

5. You have not adopted John and Peter.

You were forced by your family to adopt John and Peter in 2002.

6. John and Peter are not your children, biologically, by custom, by adoption or otherwise.

John and Peter are your and Ms Onosolease’s children by customary or other adoption.

7. John and Peter lived with your sister Lilian Mills and her ex-husband Mr Gillard in Australia.

John and Peter lived with you and your ex-wife and daughters until your marriage breakdown.

8. The visas for John and Peter were obtained without your knowledge or consent.

You included John and Peter in your visa application because you considered them to be your children.

In the submission sent on Mr Mills’ behalf dated 3 September 2019 in response to the Tribunal’s letter dated 15 August 2019, it stated:
In response to the submission provided to the Tribunal, we submit that our client wishes to retract those matters raised by the Tribunal as it does not provide the true account of the matter.
We submit that since our client’s visa was cancelled, we submit that the circumstance that led to the cancellation has change significantly. We submit that the correct information in this matter is that Uchenna Kalu Mills and Peter Iruviere Mills are not our client’s biological children. As previously submitted, the birth certificates were obtained by the initiatives of Mr Gillard who contacted Mr Chidi Kalu to organise a new birth certificates for Peter and Uchenna and have our client and Ms Onosolease listed as the parents. These bogus documents were obtained by Mr Kalu and submitted to the Department by Mr Gillard on 2 February 2010, a date after the original application had been submitted to the Department of Immigration. (sic) [21]
[21] Tribunal file, folios 110 to 113 at folio 110.
The Tribunal notes in the submission dated 6 June 2019 it states in one part “the Applicant submitted all his documents required for the visa application” and in other parts that “Mr Gillard submitted the visa application” and “the visa application was submitted by Mr Gillard”. In his oral evidence to the Tribunal as previously constituted, Mr Mills claimed Mr Gillard completed and submitted his visa application. The Tribunal has not had the benefit of hearing evidence from Mr Gillard.
Mr Mills’ response to the Tribunal’s request does not offer any explanation for the inconsistencies identified by the Tribunal between the submission dated 6 June 2019 and Mr Mills’ previous submissions and evidence. Mr Mills’ response does not explain why he:
·allowed a submission to be made on his behalf to the Department dated 19 October 2015 in response to the s.107 notice that based on his current submissions, contained information Mr Mills knew at the time was incorrect;
·allowed a submission to be made on his behalf to the Tribunal, as previously constituted, dated 22 August 2016, that based on his current submissions, contained information Mr Mills knew at the time was incorrect;
·gave evidence to the Tribunal, as previously constituted, on 23 August 2016, that based on his current submissions, included information that Mr Mills knew at the time was false; and
·did not inform the Tribunal as previously constituted, that John and Peter, who were then 15 and 14 years of age respectively, had given evidence in Mr Mills’ presence to the Tribunal as previously constituted on 23 August 2016, that based on his current submissions, contained information Mr Mills knew at the time was false.
The Tribunal does not accept the submission of Mr Mills’ representative that Mr Mills’ previous submissions and evidence can be “retracted”, if by that submission Mr Mills’ representative intended that they should be ignored by the Tribunal. Those submissions and evidence are part of the record relevant to this review and it is open to the Tribunal to consider all evidence before it.
Based on the inconsistencies in the two explanations provided by Mr Mills of the circumstances that led to the cancellation of Mr Mills’ visa, the Tribunal finds that Mr Mills’ explanations are not reliable. As a result of this finding, the Tribunal is not convinced by Mr Mills’ second explanation of the circumstances that led to the cancellation of his visa that Mr Mills’ was not involved in the enterprise to obtain dependent visas for John and Peter.
The Tribunal accepts a limited number of material submissions made on Mr Mills’ behalf. They are Mr Mills has conceded:
·John and Peter are not his biological children or his children by customary or other adoption or otherwise;
·John and Peter were not abandoned at birth by their mother;
·John’s parents are Mr Mills’ sister Vivian and Mr Chidi Kalu;
·Peter’s parents are Mr Mills’ sister Angela and Mr Kelvin Iruviere;
·John and Peter’s parents have been at all material times in Nigeria and this has been known to Mr Mills;
·John and Peter have not lived with Mr Mills in Australia but instead have lived with Mr Mills’ sister Ms Lilian Mills and (at least initially) Mr Gillard.
The Tribunal accepts these submissions because they are consistent with claims made by Ms Onosolease in her written statutory declaration dated 9 October 2015, made over four years ago.
In that statutory declaration, Ms Onosolease declared, amongst other things:
·John and Peter are not her or Mr Mills’ children;
·John and Peter’s parents are Mr Mills’ sister Vivian and Mr Chidi Kalu and Mr Mills’ sister Angela and Mr Kelvin Iruviere respectively;
·John and Peter’s parents remain in Nigeria and are known to Mr Mills and his family; and
·John and Peter lived with Mr Mills’ sister Ms Lilian Mills and (at least initially) Mr Gillard in Australia and have not lived with Mr Mills or Ms Onosolease.
The third party statutory declaration declared on 8 October 2015 also corroborated Ms Onosolease’s declaration that John and Peter have lived with Ms Lilian Mills and (at least initially) Mr Gillard in Australia and have not lived with Mr Mills or Ms Onosolease.
The Tribunal puts considerable weight on these specific claims made by Ms Onosolease even though the Tribunal has not had the benefit of hearing evidence from Ms Onosolease. This is because these specific claims (and other claims addressed later in this reasons) were made in writing, were made independently as they were made prior to Mr Mills putting either his first explanation or his second explanation in writing and were corroborated in the specific respect noted in the preceding paragraph of these reasons by a third party statutory declaration independently made the preceding day.
In a submission made on Mr Mills’ behalf dated 13 May 2019 it was submitted to the Tribunal that Ms Onosolease provided her statutory declaration because:
… It was always the intention of the ex-wife to prevent the Applicant from seeing or spending time with the children… .[22]
[22] Submission to the Tribunal dated 13 May 2019, Tribunal file, folios 78 to 83 at folio 82.
That submission refers to paragraph 37 of the decision of the Tribunal as previously constituted, where the Tribunal noted:
[Mr Mills] asserted that Ms Onosolease had been trying to bring about a situation whereby he left Australia but she and [Child A] (and [Child B], who is an Australian citizen) would remain here.[23]
[23] Tribunal file for review number 1600467, Tribunal decision, folios 47 to 52 at paragraph 37 of folio 49 (back).
In the submission dated 13 May 2019 it is stated that Ms Onosolease’s alleged intentions to prevent Mr Mills from seeing and spending time with his daughters was made known to the Tribunal as previously constituted but “… it was never properly examined.” Mr Mills’ evidence to the Tribunal as previously constituted was that if his visa was cancelled it is very far from Nigeria to Australia and he would not be able to see his daughters again and this is Ms Onosolease’s plan.
Mr Mills’ submission is, in effect, that Ms Onosolease made her statutory declaration with the intention of preventing Mr Mills from seeing or spending time with their daughters by providing evidence that may contribute to the cancellation of Mr Mills’ visa and therefore, the Tribunal should disregard the key claims made by Ms Onosolease.
Ms Onosolease declared her statutory declaration on 9 October 2015. According to the submission made on Mr Mills’ behalf dated 13 May 2019 an interim parenting order was obtained by Ms Onosolease on 3 November 2015 and the final parenting orders were made on 20 January 2016.[24]
[24] Tribunal file, folios 82 and 83 (back).
The copy of the final parenting order provided by Mr Mills to the Tribunal states the orders were made by consent.[25] The orders provide, amongst other matters, for the children to live with Ms Onosolease and spend time with Mr Mills at different times (including half of all school holidays) and at the times they are not living with a parent, for that parent to be able to contact the children by telephone or Skype communication. The orders specifically state that Mr Mills must pay the costs of the children travelling from and back to Perth to spend time with him (in Melbourne).
[25] Tribunal file, folios 78 and 79.
It seems incongruous to the Tribunal that within just over three months of Ms Onosolease declaring a statutory declaration that Mr Mills says was motivated in part by her desire to ensure Mr Mills could not see or spend time with his children, Ms Onosolease would consent to parenting orders that create a legally enforceable right for Mr Mills to both see and spend time with his daughters.
Mr Mills claims in the submission dated 13 May 2019 that Ms Onosolease has not complied with the orders, “… prompting the Applicant to travel to Perth to spend time with the children.”[26] Mr Mills has not particularised in what respects or on what occasions Ms Onosolease did not comply with the parenting orders and there is no evidence before the Tribunal to support this claim of Ms Onosolease breaching the parenting orders.
[26] Submission to the Tribunal dated 13 May 2019, Tribunal file, folios 78 to 83 at folio 82.
In the submission made on Mr Mills’ behalf dated 26 September 2019 a different explanation of Mr Mills’ reasons for travelling to Perth, rather than his daughters regularly travelling to Melbourne, to spend time together is provided:
We submit that since the Family Court Order in January 2016, the children have travelled to Melbourne to visit Mr Mills once and that was on February 2018. Though the Court Order permits the children to spend time during the school breaks, Mr Mills has considered that due to their and the cost associated for both children to travel, it is more cost effective for him to travel to Perth. We confirm our instructions that despite what has occurred between Mr Godwin Mills and Ms Onosolease, the parties has put their differences aside to ensure the care and well being of their children is well looked after. On many occasions that he has travelled to Perth, Mr Mills resided with Ms Onosolease and the children at their residence. The purpose of this is to ensure the children spend meaningful time with him to develop their relationship with Mr Mills.
Due to his financial restraint, travelling to Perth has not been regular as he would have wished. Insofar since 2017 and the Family Court proceedings was finalised, he has travelled to Perth eight times to see the children and spend time with them. This averages travel interval of approximately four months per year and spend between four to six days with the children whenever he travels there. The most recent travel Perth to visit the children was in July 2019 where he spent 7 days with the children. It is evident that Mr Mills remains part of the children’s life and his continuous travel to Perth and Ms Onosolease’s acceptance him staying at her premises with the children in itself indicates the children’s wishes for Mr Mills to be part of their lives.
In addition to the visits to Perth, Mr Mills has maintained his constant communication with the children whereby he communicate with them every morning at 9:00am Melbourne time and 6:00PM. … (sic) [27]
[27] Written submissions to the Tribunal dated 26 September 2019, Tribunal file, folios 118 and 119.
This explanation is consistent with submissions made on behalf of Mr Mills that he has not worked since September 2016 and has relied on his sister in Australia, Ms Lilian Mills, for financial support.[28]
[28] Submission to the Tribunal dated 3 September 2019, Tribunal file, folios 110 to 113 at folio 110 (back).
The only independent information before the Tribunal to support Mr Mills’ claims of the time he has spent with his daughters recently are travel records for Mr Mills flying to Perth between 25 July and 1 August 2019, 22 and 27 May 2019, 5 and 9 April 2019, 20 and 22 July 2018, 26 to 28 May 2018 and 2 and 4 February 2018.[29] The Tribunal accepts Mr Mills has travelled to and from Perth on these dates.
[29] Tribunal file, folios 120 to 130.
This most recent submission made on Mr Mills’ behalf in the Tribunal’s view undermines his earlier claims of Ms Onosolease not complying with the parental orders and forcing him to fly to Perth to see his children. This most recent submission indicates to the Tribunal that Ms Onosolease has generally complied with and continues to comply with the parenting orders dated 20 January 2016 in so far as allowing Mr Mills’ access to their daughters, including speaking to them on a daily basis. Indeed, it appears from this submission that Ms Onosolease has gone above and beyond her legal obligations under the parenting orders, by allowing Mr Mills to stay with her and their daughters in Perth, to facilitate Mr Mills and the children spending what the submission describes as “meaningful time” together.
The Tribunal does not accept that Ms Onosolease’s statutory declaration was made other than bona fide. The material claims made by Ms Onosolease in her statutory declaration referred to in paragraph 75 of these reasons, have now been conceded – over three years later – by Mr Mills as true.
The relevant claims in Ms Onosolease’s statutory declaration and her actions, as submitted by Mr Mills, since making that declaration do not seem to be, in the Tribunal’s opinion, the actions of someone who is motivated, as Mr Mills’ alleges, to prevent him from seeing and spending time with his daughters.
For these and the reasons referred to earlier in paragraph 77 of these reasons the Tribunal finds that the submissions made on Mr Mills’ behalf do not diminish the weight the Tribunal has given to the material claims Ms Onosolease made in her statutory declaration, identified in paragraph 75 of these reasons, that the Tribunal has accepted.
In the submission made on Mr Mills’ behalf dated 6 June 2019 it is conceded that the birth certificates for John and Peter were bogus documents. The Tribunal finds that the birth certificates for John and Peter were bogus documents as that term is defined in s.5 of the Act because they were either counterfeit or altered by a person without authority to do so or were obtained because of a false or misleading statement.
If, as has been submitted on his behalf, Mr Mills only became aware that John and Peter had been added to his visa application before he arrived in Australia in January 2011 there is no evidence before the Tribunal of Mr Mills objecting to Mr Gillard or to John and Peter’s parents or anyone else about this. According to the submission dated 6 June 2019, Mr Mills only objected after his arrival in Australia when he was allegedly asked to reimburse Mr Gillard for the costs he incurred in submitting Mr Mills’ and the dependent visa applications. This seems a curious potential omission in the submissions made on behalf of Mr Mills. Given Mr Mills subsequent submissions that he knew that John and Peter were not his children the Tribunal would expect that upon learning John and Peter had been added to his visa and that bogus birth certificates had been provided about them to the Department, this information would have caused Mr Mills great concern immediately upon him learning of it.
The evidence before the Tribunal is that from the time Mr Mills submits he became aware that John and Peter had been added to his visa, which at the latest is January 2011, up until the submission made on Mr Mills’ behalf dated 6 June 2019, Mr Mills maintained the elaborate explanation identified as his first explanation in paragraph 63 of these reasons despite knowing the material particulars in that explanation identified in paragraph 73 of these reasons, were each false. In the Tribunal’s view, these were not the actions of a person who is the unwitting victim of a fraud committed by others but are the actions of someone who is acting in a joint enterprise with others to obtain visas for John and Peter.
If Mr Mills only became aware of the incorrect information in his visa application and the providing of bogus documents to the Department after each event, he could also have told the Department or even the Tribunal as previously constituted of his concerns. He chose not to do so. Mr Mills has not addressed why he made this choice. He has provided no explanation at all of why he provided the first explanation to the Department (in 2015) and to the Tribunal as previously constituted (in 2016), even though the Tribunal has found Mr Mills knew at those times that those key material particulars identified in paragraph 73 of these reasons were false. This causes the Tribunal great concern about the overall truthfulness of either explanation offered by Mr Mills.

The submission dated 6 June 2019 quoted in paragraph 66 of these reasons indicates that in 2011 Mr Mills refused to be part of the enterprise that brought John and Peter to Australia, including by refusing to reimburse Mr Gillard for any costs associated with John and Peter’s visa applications.
However, the second last paragraph quoted from the submission dated 6 June 2019 in paragraph 66 of these reasons indicates Mr Mills was concerned that from their arrival in Australia in August 2011 John and Peter were living with his sister Ms Lilian Mills and Mr Gillard. Mr Mills’ application for his visa dated 26 November 2009 stated John and Peter were his children and therefore dependent upon him, with no-one else having any “custody, access or guardianship rights” to John and Peter.
These circumstances indicate to the Tribunal that Mr Mills was part of the enterprise to bring John and Peter to Australia as his dependent children. The Tribunal can discern no other reason why Mr Mills would have been concerned that John and Peter were living with Ms Lilian Mills and Mr Gillard in Australia (rather than with Mr Mills) other than Mr Mills being concerned about being able to maintain what was stated in his visa application that John and Peter were Mr Mills’ children.

100. Considering these circumstances, the Tribunal does not accept that Mr Mills is the unwitting victim of a fraud perpetrated by Mr Gillard and Mr Kalu without Mr Mills’ knowledge or consent as submitted. The Tribunal finds that even if Mr Mills did not complete his visa application himself and even if he did not procure the bogus birth certificates for John and Peter, the circumstances indicate that the application and bogus birth certificates were given or provided on his behalf as that term is used in s.99 of the Act and not without his knowledge as Mr Mills claims in his second explanation.
101. This finding has two effects. Firstly, it means that Mr Mills is responsible for what he allowed to be included in his application which enlivens s.101(b) of the Act as Mr Mills is deemed to have filled in or completed his application form in such a way that it contained incorrect answers. Those incorrect answers are that John and Peter were “Migrating dependents” and that no other person not migrating with Mr Mills had custody, access or guardianship rights to John or Peter. The Tribunal finds that in this context Mr Mills has not complied with s.101(b) of the Act.
102. Secondly, it means the bogus birth certificates were given to the Department on Mr Mills’ behalf. The Tribunal finds that in this context Mr Mills has not complied with s.103 of the Act.
103. For these reasons, the Tribunal finds that there was non-compliance with both ss.101 and 103 of the Act by Mr Mills in the way described in the s.107 notice.
Should the visa be cancelled?
104. As the Tribunal has decided that there was non-compliance in the way described in the notice given to Mr Mills under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1) of the Act. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
105. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. In summary they are:
· the correct information;

· the content of the genuine document (if any);

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

· the circumstances in which the non-compliance occurred;

· the present circumstances of the visa holder;

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

· any other instances of non-compliance by the visa holder known to the Minister;

· the time that has elapsed since the non-compliance;

· any breaches of the law since the non-compliance and the seriousness of those breaches; and

· any contribution made by the holder to the community.

106. 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 section of PAM3 titled ‘General visa cancellation powers (s109, s116, s128, s134B and s140)’, which refers to matters such as the consequences of cancelling the visa, Australia’s international obligations and any other relevant matters.
107. Mr Mills responded to the s.107 notice on 19 October 2015 with a five page written submission from his then representative. That submission is summarised in paragraph 63 of these reasons and where relevant is considered throughout the Tribunal’s consideration of the prescribed circumstances and Departmental policy.
The correct information
108. The correct information is that John and Peter are not Mr Mills’ children, biologically or subsequently by lawful or customary adoption and were not dependent upon him. As noted in paragraph 96 of these reasons, Mr Mills’ has submitted he knew of the correct information since, at the latest, January 2011 but he chose not to tell the Department and chose not to tell the Tribunal as previously constituted. Mr Mills has not provided an explanation for these choices he made. The Tribunal finds this consideration supports the cancellation of Mr Mills’ visa and the Tribunal gives it considerable weight.
The content of the genuine document (if any)
109. The Tribunal was not provided with John and Peter’s genuine birth certificates. This means there is no genuine document before the Tribunal. The Tribunal finds this consideration is neutral and weighs neither in support of nor against the cancellation of Mr Mills’ visa.
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
110. In a submission to the Tribunal as previously constituted dated 22 August 2016 Mr Mills’ representative submitted:
It is understood that under s 109 of the Migration Act as it stands, the Minister may cancel a visa if the visa holder is ‘non-compliant’. A person will be non-compliant if they, inter alia, supply incorrect information or provide ‘bogus documents’ in the course of making an application for a visa. The Minister may cancel a visa under s 109 whether the ‘non-compliance’ was deliberate or inadvertent.
In looking into context of the legislative interpretation, it indicates that it is not targeted at the cancellation of visas granted to persons who were not entitled to them. Nor can it be characterised as being designed to protect members of the Australian community from any risk posed by individual visa-holders. In fact, the stated purpose of the provision is ‘to provide that incorrect information must not be given to the Department at any time.
This reflects the reasonable expectation that noncitizens provide correct information during all of their transactions with the department, and are honest and truthful at all times.’ In other words, it appears that the provision is designed to punish those who supply incorrect information in their dealings with the Department – even where they do not intend to do so. Theoretically, the inherit interpretation is that the incorrect information provided must have bearing to the grant of the visa, which in this situation, it does not appear to be the case. (sic) [30]
[30] Tribunal file for review number 1600467, written submissions dated 22 August 2016, folios 36 to 39 at folio 36.

111. The delegate also considered a similar submission when cancelling Mr Mills’ visa:
22. Although the visa holder appears to have met the primary criteria for the grant of his visa, I consider that had the department been aware of the visa holder’s intention to bring two children to Australia using bogus birth certificates as a means to obtain visas for them, an assessment would have had to have been made as to whether the visa holder’s conduct would result in him passing the character test. While the visa holder may not have any criminal convictions, the character test does provide for the consideration of general conduct that may indicate that the visa applicant is not of good character. Examples of general conduct include engaging in fraud or where a person indicates contempt or disregard for the law.
23.Since the arrival of the two children to Australia they have been schooled at the Australian taxpayers’ expense. According to the Department of Parliamentary Services’ Background Note – Australian Government funding for schools explained: 2013 update*, in 2012 the cost to the Australian government to fund a secondary school student for one year was $12 445 per student. Notwithstanding any other social costs such as Medicare, the children’s education expenses alone total more than $120 000 since their arrival in Australia. I consider that had the Department been aware that the visa holder was intending to impose this expense on the Australian taxpayer in order to educate two children who had no entitlement to this service, an assessment would have had to have been made as to whether the visa holder’s motives for obtaining his visa included obtaining financial advantage in the form of services that the dependent visa holders were not entitled to.
24.I am of the opinion that had the visa holder’s relationship to the two children, their bogus documents, and the potential cost to the taxpayer been known at the time of decision, it is possible that he would have been found not to satisfy the character test and that his application may have been refused. (sic) [31]
[31] Record of Decision of Whether to Cancel under Section 109 of the Migration Act 1958 dated 7 January 2016, Department file, folios 120 to 126 at folio 123. * means a footnote has been omitted by the Tribunal.

112. The matters in the delegate’s decision quoted above were not put to Mr Mills by the Tribunal as previously constituted either during the hearing in accordance with the procedure in s.359AA of the Act or by the Tribunal as previously and presently constituted in accordance with the procedure in s.359A of the Act.
113. In the case of the Tribunal as presently constituted this reflects that the Tribunal does not consider the delegate’s comments and findings in this respect would be the reason, or a part of the reason, to affirm the decision that is under review. The Tribunal finds the delegate’s findings that Mr Mills may not have been granted his visa because he may have been assessed as not satisfying the character test are speculative and the Tribunal has given them no weight.
114. In the Tribunal’s view, the correct approach when considering this policy consideration is that as r.2.41 refers to the decision to grant a visa but then goes on to state “or immigration clear the visa holder” (emphasis added) the Tribunal reads the prescribed criteria as referring to the decision to grant a visa to the visa holder whose visa is liable to cancellation only.
115. On the information currently before the Tribunal the grant of the visa to Mr Mills was not based in whole or part on the incorrect information or bogus documents provided by Mr Mills or on his behalf to the Department.
116. This consideration weighs against the cancellation of Mr Mills’ visa and the Tribunal gives it considerable weight.
The circumstances in which the non-compliance occurred
117. Mr Mills has provided what the Tribunal considers to be two different explanations of the circumstances in which the non-compliance occurred. The first explanation is set out in submissions made in 2015 and 2016 and evidence to the Tribunal as previously constituted in 2016. The second version is contained in the 6 June 2019 and subsequent submissions to the Tribunal as presently constituted.
Mr Mills’ pre-2019 explanation
118. The first explanation provided by Mr Mills is set out in the written submissions submitted on Mr Mills’ behalf to the Department dated 19 October 2015 responding to the s.107 notice and to the Tribunal dated 22 August 2016 and in Mr Mills’ oral evidence to the Tribunal as previously constituted on 23 August 2016. This explanation may be summarised as:
·Mr Mills’ family is part of the Igbo tribe in Nigeria;
·John, born in 2000, and Peter, born in 2001, are the sons of Mr Mills’ sister, Vivian;
·Vivian was never married and moved away from the family after Peter was born, abandoning her sons and her present circumstances are unknown;
·Mr Mills’ family do not know who John and Peter’s biological fathers are;
·Part of Igbo culture and tradition is that children born out of wedlock, particularly where the father is not known, will be treated as outcasts from their village and community, known as ‘Osu’;
·Osu are treated very poorly in Igbo culture, as they are not allowed to marry non-Osu, they cannot own land, are segregated from the rest of their community or village, including when they seek to participate in community life such as going to church;
·Due to the shame that Osu children bring their families in Igbo culture they are either killed by the family or the family comes together and assigns someone, usually a male, from the immediate family to take full responsibility for the child;
·As Mr Mills’ family are Christian they did not consider they could kill John or Peter and so Mr Mills was forced to “stand in” as the father of the boys at the hospital because there was no-one else to do so;
·Mr Mills was forced to adopt the boys by his family in 2002;
·Mr Mills will be “attacked or killed or label as black sheep of the family and regarded as bad person of the family and among the whole community” (sic)[32] if he did not adopt John and Peter;
·Mr Mills does not have documentary evidence of formally adopting John and Peter but that is not required in his culture to become the parent of a child;
·Mr Mills obtained the false birth certificates for John and Peter in 2002 at the request of his Australian brother-in-law, Mr Benjamin Gillard, who is the ex-husband of his sister who lives in Australia, Ms Lilian Mills. Ms Mills is an Australian citizen;
·Mr Gillard completed Mr Mills’ visa application;
·Mr Gillard did not tell Mr Mills why the birth certificates were needed; and
·Mr Mills did not know what his visa application said.
[32] Submission to the Department dated 19 October 2015 in response to the s.107 notice dated 1 October 2015, Tribunal file 1600467, folios 31 to 35 at folio 33.

119. In their respective evidence to the Tribunal as previously constituted in August 2016, John and Peter both said that they lived with Mr Mills who was their father and Ms Onosolease who is their mother and they each also said they did not know the reason they were given the middle names they have, which Mr Mills has now conceded, and the Tribunal accepts, are the last names of their respective fathers in Nigeria.
120. As noted in paragraph 55 of these reasons, the Tribunal as previously constituted put to Mr Mills that Ms Onosolease had told the Department that the mother of John is Mr Mills’ sister, Vivian and his father is Mr Chidi Kalu and that the mother of Peter is Mr Mills’ sister, Angela and that his father is Mr Kelvin Iruviere, all of whom remain in Nigeria. Mr Mills gave evidence in reply that Mr Gillard prepared his visa application and having separated from Ms Onosolease she is now motivated to have Mr Mills’ visa cancelled so he is forced to return to Nigeria and will thereafter not have access to their two daughters. Mr Mills did acknowledge to the Tribunal that his earlier evidence of saying that Angela was married to Kelvin was a reference to Mr Iruviere. During that discussion the Tribunal as previously constituted noted that Mr Mills’ visa application stated that Vivian was married and living in Nigeria. The Tribunal’s decision also noted Mr Mills’ visa application stated Angela is married and living in Nigeria. Mr Mill’s response to this information was again that Mr Gillard prepared his visa application and he had not read the delegate’s decision, which contradicted earlier evidence he gave that he had read the delegate’s decision.
121. The Tribunal as previously constituted told Mr Mills that John’s middle name is the same as the family name of the man who, according to information given to the Department, was his father and that Peter’s middle name is the same as the family name of the man who, according to information given to the Department, was his father. Mr Mills said that he had nothing to say about that.
122. The Tribunal as previously constituted asked Mr Mills how it could be that birth certificates that stated they were issued for John in 2000 and Peter in 2001 would name him and Ms Onosolease as parents when that was before the time he said that his family pressured him to adopt the boys. Mr Mills’ response was that he stood as the father at the hospital because there was nobody else.
123. The Tribunal as previously constituted also noted that Mr Mills’ visa application stated that Mr Mills and Ms Onosolease were married in 2008. However, Ms Onosolease is named as the mother of John and Peter in the birth certificates dated in 2000 and 2001 that Mr Mills said he obtained in 2002. In a submission to the Tribunal as previously constituted dated 22 August 2016 it stated:
… when [Mr Mills] decided to get married, his wife automatically became [the boys’] mother. [33]
[33] Tribunal file for review number 1600467, Tribunal decision, folios 36 to 39 at paragraph 12.

Mr Mills’ explanation in the submission dated 6 June 2019 and subsequent submissions
124. Mr Mills’ second explanation of the circumstances that led to the cancellation of his visa is contained in the submissions to the Tribunal as currently constituted made on his behalf during 2019. These include the explanation in the quoted parts of the submissions dated 6 June 2019 and dated 15 August 2019 in paragraphs 66 and 68 respectively of these reasons. The Tribunal’s summary of the main inconsistencies between Mr Mills’ first and second explanations is set out in paragraph 67 of these reasons.
125. In considering all of the information provided by Mr Mills to the Department and the Tribunal as previously and currently constituted and other relevant information including the October 2015 statutory declarations of Ms Onosolease and a third party, the Tribunal finds, for the reasons set out in paragraphs 73 to 77 of these reasons, that the circumstances in which the non-compliance occurred include a failure by Mr Mills to inform the Department of incorrect information and of the correct answers, potentially in breach of s.105 of the Act, which is reproduced in the attachment to these reasons.
126. Section 105 of the Act provides that if an applicant becomes aware that, amongst other things, an answer given or provided in the applicant’s application form or a response given by the applicant under s.107 of the Act was incorrect, then the applicant must as soon as possible notify the Department of the incorrectness and of the correct answer, and this obligation continues even if the visa has been granted.
127. It was not until the Tribunal provided the statutory declarations of Ms Onosolease and a third party to Mr Mills that Mr Mills’ explanation changed as reflected in the submission dated 6 June 2019 and subsequent submissions to the Tribunal.

207. The Tribunal notes that in the submission dated 19 October 2015 and quoted in paragraph 169 of these reasons, it was claimed that Peter (and John) would suffer “huge emotional damage” were he forced to leave Australia. In considering this submission in paragraphs 171 to 173 of these reasons, the Tribunal concluded in Peter’s present circumstances, at least as they are known to the Tribunal, Peter may experience some short term hardship adjusting to life in Nigeria again, but with the presence of his family in Nigeria it is unlikely Peter will experience significant ongoing emotional or other hardship.
208. The Tribunal finds that the cancellation of Mr Mills’ visa would not cause Australia to contravene the ICCPR or CRC in relation to John, and based on the lack of information before the Tribunal, or in relation to Peter.
209. The Tribunal finds this aspect of this consideration weighs against the cancellation of Mr Mills’ visa because of what the Tribunal has found to be the best interests of [Child A] and [Child B].
210. In relation to Australia’s non-refoulement obligations, Mr Mills gave evidence to the Tribunal as previously constituted that he it would be “terrible” if he had to return to Nigeria because he may be perceived as wealthy after having spent time in Australia and could be kidnapped.[51]
[51] Tribunal file for review number 1600467, Tribunal decision, folios 47 to 52 at paragraph 41.
211. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention),[52] the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT),[53] and the ICCPR.
[52] The Convention Relating to the Status of Refugees was adopted by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, held at Geneva from 2 to 25 July 1951. The Conference was convened pursuant to resolution 429(V), adopted by the General Assembly of the United Nations on 14 December 1950. Entry into force 22 April 1954 in accordance with Article 43 of the convention. Australia agreed to be bound by the Refugees Convention on 22 January 1954 and it came into force on 22 April 1954.
[53] The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984, entry into force 26 June 1987 in accordance with Article 27 of the convention. Australia agreed to be bound by the CAT on 8 August 1989 and it came into force on 7 September 1989.
212. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
213. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in Mr Mills’ circumstances which prevents his claims of harm being canvassed in a protection visa application. There is no suggestion that Mr Mills is prevented from validly applying for a protection visa by s.48A of the Act, or from being granted one because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456.
214. There is no information before the Tribunal that Mr Mills’ circumstances may engage ‘non-refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s.36 of the Act or that Mr Mills makes claims of harm against which a protection visa would not provide protection (see BCR16 and Goundar v MIBP [2016] FCA 1203).
215. The Tribunal finds that the cancellation of Mr Mills’ visa would not cause Australia to be in breach of its international non-refoulement obligations.
216. The Tribunal finds this aspect of this consideration is neutral and weighs neither in support of nor against the cancellation of Mr Mills’ visa.
217. Overall, the Tribunal finds that this consideration weighs against the cancellation of Mr Mills’ visa. As the interests of any children in Australia that would be affected by a visa cancellation is a primary consideration and the Tribunal has found [Child A] and [Child B]’s best interests would be for Mr Mills to remain in Australia with different ameliorating factors, the Tribunal gives this aspect of this consideration significant weight.
Any other relevant matters - the degree of hardship that may be caused to the visa holder and any family members
218. Mr Mills has not provided the Tribunal as presently constituted with any direct information or evidence about the hardship he may suffer if his visa is cancelled, again despite being invited by the Tribunal to do so in its letter to Mr Mills dated 12 September 2019. There is no medical professional or other information before the Tribunal about the hardship Mr Mills may experience. This does not cause the Tribunal to find that Mr Mills will not suffer any hardship.
219. It is apparent to the Tribunal from the efforts Mr Mills claims and has provided supporting evidence of making to maintain his relationship with [Child A] and [Child B] that his relationship with his daughters is very important to him. The Tribunal has found that even if Mr Mills’ visa was cancelled, aspects of this relationship would be able to continue such as through telephone or more probably internet based communication, but that physical contact may be limited or unable to continue at all for an extended period of time, likely to be years. The Tribunal finds in Mr Mills’ circumstances that not being able to have physical contact with his daughters for years could cause him significant emotional hardship, which would be ameliorated to only a small degree by being able to maintain frequent communication such as through internet based communication.
220. In Mr Mills’ evidence to the Tribunal as previously constituted he told the Tribunal that the environment in Australia including the quality education offered here is better for children and you cannot get that back in Nigeria. When asked what would it mean if he had to return to Nigeria Mr Mills responded that it would be terrible because his aged mother is dependent on him, his other siblings in Nigeria are dependent on him, his risk of being kidnapped would be high because of the belief in Nigeria that those returning from overseas have money and life in Nigeria was no good and is better in Australia and that is why Mr Mills came to Australia.
221. Mr Mills also told the Tribunal as previously constituted that his visa was granted on merit, not who came to Australia as part of his application, which at that time he maintained only occurred because of family pressure. Mr Mills told the Tribunal as previously constituted he thinks it is unfair to use this little thing to contaminate the big one that is good already. Mr Mills’ representative at the time submitted that imposing a fine rather than cancelling Mr Mill’s visa would be a fairer outcome with the Tribunal as previously constituted noting the Tribunal does not have the jurisdiction to impose a fine. This informs the Tribunal that part of the hardship Mr Mills is likely to experience if his visa is cancelled includes a sense of lost opportunity to live in Australia and a sense of injustice arising from his visa being cancelled in circumstances where his initial entitlement to that visa is not in question, at least by the Tribunal.
222. Mr Mills’ evidence to the Tribunal as previously constituted also indicates to the Tribunal that if Mr Mills’ visa was cancelled both he and his family would suffer some financial hardship, although the extent of this hardship is difficult for the Tribunal to assess given there is no information before the Tribunal of Mr Mills’ employment opportunities and potential income in Nigeria or any information about how much financial support Mr Mills has provided to his family in Nigeria when he was working in Australia. As Mr Mills has not worked in Australia since September 2016, the Tribunal also finds that any financial hardship Mr Mills’ family may experience is lessened because Mr Mills has not been in a position to provide such support for over three years which means in that time Mr Mills’ family in Nigeria have had to learn to support themselves without relying on Mr Mills’ financial assistance.
223. In relation to the hardship that [Child A] and [Child B] may experience if Mr Mills’ visa is cancelled, in the submission dated 3 September 2019 it stated:
We submit that the cancellation of our client’s visa has brought enormous financial hardship and emotional hardship to our client’s children. Since losing his work right as a result of the visa cancellation, our client has not been able to provide the necessary financial support required for the upkeeping of the children. Further to this, our client’s current situation has effectively deprived him from spending adequate and meaningful time with his children. The effect emotional effect is evident at this early stage of their lives, we submit that, the children have on previous occasions expressed the desire spend time with our client, however, due to his current living arrangement he has not been able to attend to the children’s wishes. We respectfully submit the greater weight is to be put on the degree of hardship the children will endure if our client is forced to leave Australian. (sic) [54]
[54] Applicant’s submission dated 3 September 2019, Tribunal file, folios 110 to 112 at folio 110 (back).

224. The Tribunal also notes that in the submission dated 26 September 2019, quoted in part at paragraph 86 of these reasons, it states that Mr Mills’ regular trips to Perth where he stays with Ms Onosolease and their daughters indicates his daughters wish for him to be a part of their lives.
225. The Tribunal accepts that [Child A] and [Child B] may experience emotional hardship if Mr Mills’ visa is cancelled and he is required to depart Australia, potentially resulting in his long-term physical separation from his daughters, particularly if he is unable to arrange or afford visits either in Nigeria or Australia. The Tribunal has found earlier in these reasons that Mr Mills has made a significant effort to maintain contact with his daughters, including physical contact, since at least 2018.
226. There has been no evidence provided to the Tribunal to support Mr Mills’ claims that the emotional effect of separation is evident on [Child A] and [Child B] at this early stage of their lives or that the children have expressed the desire to spend more time with Mr Mills.
227. There is no independent information before the Tribunal, such as reports of medical professionals, teachers or counsellors or a statement from Ms Onosolease that provides information on [Child A] or [Child B]’s past or present emotional states or the impact ongoing separation from Mr Mills may have on them or their wishes in relation to Mr Mills.
228. The Tribunal finds that the hardship that [Child B] may experience if Mr Mills’ visa is cancelled is ameliorated by the evidence before the Tribunal that even when taking into account Mr Mills’ recent contact with his daughters, [Child B] has had relatively little physical contact with Mr Mills. As the Tribunal found in paragraph 191 of these reasons, [Child B] has only spent only approximately seven months living with Mr Mills. This indicates to the Tribunal that the hardship [Child B] will experience if Mr Mills’ visa is cancelled and physical contact is reduced or unable to continue at all for a significant period of time will be significantly less than if she had lived with Mr Mills for all or most of her life given her experience to this point is that she has not lived with Mr Mills for the past over six of her seven years.
229. By contrast, the Tribunal found in paragraph 190 of these reasons that [Child A] has lived with Mr Mills (and Ms Onosolease) for at least two years and that Mr Mills was [Child A]’s primary carer for a further three years when [Child A] did not live with Ms Onosolease, indicating to the Tribunal that [Child A] has spent more time with or near Mr Mills and therefore, at least for the majority of the first six years of her life, was used to regular physical contact with Mr Mills. Since January 2016 [Child A] has lived with Ms Onosolease and according to Mr Mills’ evidence, physical contact has been limited to short visits on average every four months since 2017. Again, this ameliorates the hardship [Child A] may experience if Mr Mills’ visa is cancelled compared to the hardship she may have experienced if she was living with Mr Mills, for example, up until cancellation. The Tribunal finds that the amelioration of the hardship in [Child A]’s case is significantly less than, by comparison, in [Child B]’s case given the different circumstances of how much physical access they have had to Mr Mills so far.
230. The Tribunal also does not accept the submission made on Mr Mills’ behalf that his daughters will experience “enormous financial hardship” if his visa is cancelled. The submissions made on behalf of Mr Mills are that he was initially the main “breadwinner” for the family but more recently has paid, as stated in the submission dated 3 September 2019, child support in amounts that “can be considered not significant” and he has not been able to pay any child support since November 2018.[55] This indicates to the Tribunal that since separating from Mr Mills and at least since the parenting orders dated 20 January 2016, Ms Onosolease has primarily relied on her own financial and other resources to support and raise [Child A] and [Child B].
[55] As quoted in part in paragraph 196 of these reasons.
231. There is no information before the Tribunal as to Ms Onosolease’s current circumstances and financial situation and therefore the financial circumstances of [Child A] and [Child B]. The most recent information the Tribunal has is that provided in Ms Onosolease’s statutory declaration declared on 9 October 2015 in which Ms Onosolease stated she was employed as a housekeeper. Based on the information before it, the Tribunal is not in a position to make any findings about the current financial circumstances of [Child A] or [Child B] and therefore does not accept that the cancellation of Mr Mills’ visa will cause them financial hardship. This is not a finding that cancellation of Mr Mills’ visa will not cause [Child A] or [Child B] financial hardship. It reflects that there is no evidence before the Tribunal that such hardship will occur and the evidence that is before the Tribunal, of Mr Mills paying only modest child support and being unable to pay any child support since November 2018, indicates that cancellation is unlikely to have a significant financial impact on Ms Onosolease and therefore on [Child A] and [Child B].
232. Mr Mills has now conceded that John and Peter are not his children, he has not legally or by custom adopted them as he previously claimed and their parents remain in Nigeria. John and Peter are part of Mr Mills’ extended family because they are his nephews. PAM3 does not provide any guidance as to the meaning of ‘family members’ for the purpose of this consideration. Reading this consideration at it broadest, the Tribunal needs to consider the potential hardship to all of Mr Mills’ family members.
233. The Tribunal finds that as John has already returned to his family in Nigeria, the cancellation of Mr Mills’ visa will not cause John any hardship.
234. The Tribunal finds for the reasons set out in paragraphs 169 to 173 of these reasons, that the cancellation of Mr Mills’ visa will cause Peter some, but overall not significant, hardship.
235. There is no information about any hardship that the cancellation of Mr Mills’ visa may cause his other family members, such as Ms Lilian Mills.
236. The Tribunal has reduced the weight given to this consideration because of the lack of evidence before the Tribunal about:
·the hardship that Mr Mills may suffer, although the Tribunal has found in his circumstances he will suffer hardship, including emotional hardship due to the probable physical separation from his daughters;
·the financial hardship Mr Mills’ family in Nigeria may suffer and the Tribunal’s finding that such financial hardship that they may experience would be ameliorated by Mr Mills’ having been unable to provide financial support since losing his right to work in Australia in September 2016;
·the emotional hardship [Child A] and [Child B] may suffer due to their probable physical separation from Mr Mills with the Tribunal noting that [Child A] and [Child B] live with their mother interstate, have not lived with Mr Mills for a number of years and in [Child B]’s case for most of her life and it is likely they will be able to maintain their daily internet based communication with Mr Mills if he returns to Nigeria;[56] and
·the financial hardship Mr Mills claims [Child A] and [Child B] will suffer as the Tribunal has not been informed of their financial circumstances living with Ms Onosolease and Mr Mills’ submissions to the Tribunal are he has provided modest child support payments for a period but has not been able to make any payments since November 2018.
[56] This consideration is weighted differently to the consideration of Australia’s international obligations where the presence of Family Court parenting orders and Australia’s ICCPR obligations, including in relation to the primacy of the family unit, and CRC rights including for a child to be cared for by both parents and not be separated from their parents unnecessarily, were significant.

237. This aspect of this consideration weighs against the cancellation of Mr Mills’ visa and the Tribunal gives it considerable weight.
Any other relevant matters
238. Ms Onosolease made numerous claims about Mr Mills and his family in her statutory declaration, including alleged threats Ms Onosolease has received from Mr Mills and members of his family and the danger Ms Onosolease claims members of Mr Mills’ family represent to both Ms Onosolease and her daughters. These claims are separate from the allegations material to the cancellation of Mr Mills’ visa. Some of Ms Onosolease’s separate allegations are consistent with similar allegations made in the third party statutory declaration about members of Mr Mills’ family and the danger they represent to Ms Onosolease and her daughters.
239. It is not necessary for present purposes for the Tribunal to make findings in relation to those allegations that are separate from the allegations material to the circumstances of the cancellation of Mr Mills’ visa. Mr Mills provided a detailed response to those additional allegations in the submission to the Tribunal made on his behalf dated 3 September 2019. Mr Mills contests many of the allegations, including but not limited to the allegations about threats being made against [Ms Onosolease]. Mr Mills also provided alternative explanations of specific circumstances referred to by Ms Onosolease. The Tribunal does not make any findings of fact in relation to those matters and does not make any adverse findings against Mr Mills in relation to these matters.

Conclusion
240. The Tribunal has decided that there was non-compliance by Mr Mills in the way described in the notice given under s.107 of the Act. The Tribunal has considered all of Mr Mills’ circumstances in the context of considering the discretionary considerations that weigh against the cancellation of Mr Mills’ visa and the discretionary considerations that weigh in support of the cancellation of Mr Mills’ visa.
241. The Tribunal has found that those considerations that weigh against the cancellation of Mr Mills’ visa include those listed below, with the weight the Tribunal gave each consideration noted in brackets:
· 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 (considerable weight);

· the present circumstances of the visa holder (significant weight);

· the time that has elapsed since the non-compliance (some weight);

· any breaches of the law since the non-compliance and the seriousness of those breaches (some weight);

· any contribution made by the holder to the community (modest weight);

·mandatory legal consequences (some weight);
·consequential cancellations (little weight);
·international obligations, particularly the rights of Mr Mills’ children (significant weight);
·degree of hardship and any other matters (considerable weight).

242. The Tribunal has found that the two considerations of the content of any genuine document and any other instances of non-compliance by the visa holder known to the Minister are neutral and weigh neither in support of nor against the cancellation of Mr Mills’ visa.
243. The Tribunal has found that those considerations that weigh in support of the cancellation of Mr Mills’ visa include those listed below, with the weight the Tribunal gave each consideration noted in brackets:
· the correct information (considerable weight);

· the circumstances in which the non-compliance occurred (great weight);

· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act (great weight).

244. For the reasons set out above, the Tribunal has found that overall in Mr Mills’ circumstances the discretionary considerations that weigh in support of the cancellation of his visa outweigh the considerations that weigh against the cancellation of his visa. This is primarily because the Tribunal finds the weight given to the circumstances in which the non-compliances occurred and the subsequent behaviour of Mr Mills outweigh the considerations that weigh against cancellation, particularly the best interests of Mr Mills’ children in Australia and the hardship that Mr Mills’ and his family may experience given the ameliorating factors the Tribunal took into account in relation to those considerations and the absence of ameliorating factors in relation to the considerations in support of the cancellation of Mr Mills’ visa. The Tribunal therefore concludes that the visa should be cancelled.
DECISION
245. The Tribunal affirms the decision to cancel the first named applicant’s Skilled (Migrant) (Class VE) (Subclass 176) (Skilled – Sponsored) visa.
246. The Tribunal has no jurisdiction with respect to the other applicants.
Michael Ison
Senior Member

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

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

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
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.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.

105Particulars of incorrect answers to be given
(1)If a non-citizen becomes aware that:
(a)       an answer given or provided in his or her application form; or
(b)       an answer given in his or her passenger card; or
(c)       information given by him or her under section 104 about the form or card; or
(d)  a response given by him or her under section 107;

was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.

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

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

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

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

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

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

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

ATTACHMENT - PAM3 – Section 109 Deciding whether to cancel: Matters that should be taken into account
It is policy that delegates also consider the following four matters, even if not specifically raised by the visa holder in response to the s.107 notice:
·Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 - refer to Act, s.140 - Consequential cancellation;

·Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:
oif there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - refer to:

§ Australia's international obligations; and
§ PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of children;
owhether the cancellation would lead to the person's removal in breach of Australian's non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment - refer to Australia's international obligations;

·Whether there are mandatory legal consequences to a cancellation decision – as three examples:

owhether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations; and

owhether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening (for example, s.46A, s.46B, s.48, s.48A, s.91E, s.91K and s.91P); and

owhether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and is liable to be detained under s.189, and liable for removal under s.198.

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

Emphasis added.

[2019] AATA 6207

26 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Procedural Fairness

Judicial Review

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Submission dated 6 June 2019	Previous submissions and evidence
1. Mr Kalu procured the false birth certificates for Uchenna (John) and Peter and provided them to Mr Gillard who submitted them to the Department as part of your application for the Subclass 176 visa without your knowledge.	You procured the birth certificates at Mr Gillard’s request but you did not know what they were required for.
2. You only became aware of the above arrangement after the visa was granted when you were making arrangements to travel to Australia.	You included John and Peter in your visa application because you considered them to be your children.
3. John and Peter’s parents remain in Nigeria and are known to them. Therefore, they have not ever been considered Osu and your life has not been in danger and you have not been forced to adopt the boys, by Igbo custom or otherwise. The boys were not ‘cleansed’ and you did not take an oath not to reveal their backgrounds.	John and Peter are not aware of their true circumstances. You have treated John and Peter as your own children since ‘adopting’ them. John and Peter would be considered Osu and treated as outcasts as children born out of wedlock. Their status as Osu would bring great shame to your family within the Igbo community in Nigeria and your life would be in danger if you did not comply with Igbo custom of adopting and raising John and Peter as your own children. John and Peter were ‘cleansed’ from being Osu and you took an oath not to tell anyone about the boys background or previous status as Osu.
4. The parents of John and Peter are still living in Nigeria.	The mother of John and Peter is Vivian and their fathers are unknown and Vivian’s whereabouts are unknown.
5. You have not adopted John and Peter.	You were forced by your family to adopt John and Peter in 2002.
6. John and Peter are not your children, biologically, by custom, by adoption or otherwise.	John and Peter are your and Ms Onosolease’s children by customary or other adoption.
7. John and Peter lived with your sister Lilian Mills and her ex-husband Mr Gillard in Australia.	John and Peter lived with you and your ex-wife and daughters until your marriage breakdown.
8. The visas for John and Peter were obtained without your knowledge or consent.	You included John and Peter in your visa application because you considered them to be your children.