Montalban (Migration)

[2019] AATA 4917

Montalban (Migration) [2019] AATA 4917 (18 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rod Ryan Manuel Montalban

CASE NUMBER:  1802970

DIBP REFERENCE(S):  BCC2017/1084543

MEMBER:Kira Raif

DATE:18 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 18 July 2019 at 12:01pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers – failed to mention children – failed to mention relationship – multiple visa applications – lack of evidence – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 103, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of the Philippines, born in July 1989. He was granted the Subclass 457 visa in August 2009 and a Subclass 857 visa in February 2011. In January 2016 the applicant was granted the Resident Return visa (RRV). On 9 January 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 and s.103 of the Act. The applicant provided his response and his visa was cancelled on 18 December 2018. The applicant seeks review of that decision.

3. The applicant appeared before the Tribunal on 15 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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.

6. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

   Did the notice comply with the requirements in s.107? 

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

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

10. The applicant provided to the Tribunal a copy of the primary decision, which contains the following information:

    a.The applicant applied for the Subclass 457 visa on 26 July 2009 as a member of the family unit of his father, Rodrigo Rivera Montalban.

    b.The applicant completed Form 47A and, in response to Question 16, the applicant stated that he was ‘never married or been in a de facto relationship’.

    c.The applicant was granted the Subclass 457 visa on 18 August 2009.

    d.On 14 January 2010 the applicant applied for the RSMS (Subclass 857) visa as a member of the family unit of his father.

    e.The applicant completed Form 47A and, in response to Question 16, the applicant stated that he was ‘engaged to be married’ to Ms Ivy Rose Concepcion. The applicant did not list any dependent children.

    f.The applicant was granted the Subclass 857 visa on 11 February 2011.

    g.On 17 December 2015 the applicant submitted sponsorship for Ms Ivy Rose Concepcion in relation to a Partner visa application. The sponsorship included the applicant’s children, Rod Railey Montalban (dob 10/3/10) and Elaiza Rhianna Montalban (dob 9/11/11).

    h.On the sponsorship Form 40SP, submitted by the applicant:

    i.Question 24 asks ‘when did you and the visa applicant commit to a shared life together to the exclusion of all others’. The applicant stated 3 March 2009.

    ii.In answer to question 38, the applicant stated that he had been living in Bustos, Bulacan, Philippines between February 1998 and September 2009.

    i.On 17 December 2015 Ms Ivy Rose Concepcion submitted the application for a Partner visa. In her application form, Ms Conception gave the same address as the applicant gave in the sponsorship form, stating that she lived there from June 2009 to December 2014.

    j.Ms Concepcion included in her application the birth certificates for Rod Railey (born 10 March 2010) and Elaiza Rhianna (born 9 November 2011). She also submitted an affidavit from the office of the Municipal Registrar, certifying that Rod Railey could use the same name as his father, that is, Montalban. It is dated 9 March 2011.

11. The delegate concluded that the applicant did not comply with s.101 of the Act by:

    a.   Failing to mention his children in response to Question 16 of Form 47A;

    b.   Stating that he was ‘never married or in a de facto relationship’ on Form 47A. the delegate found that the relationship with Ms Concepcion started in March 2009, prior to the applicant lodging the application for the Subclass 457 visa;

    c.   Failing to declare his son in the Subclass 857 visa application.

12. In his response to the NOICC, the applicant stated that when he applied for the Subclass 457 visa, he was in a casual relationship with Ms Concepcion and they did not live together. The applicant states that he did not appreciate the term ‘de facto relationship’ and did not consider himself to be in one, as he was still dependent on his parents for accommodation and money. At the time his Subclass 457 visa was granted, he did not know he was expecting a child. He made the decision to marry in March 2010 and correctly referred to his engagement when applying for the Subclass 857 visa but his father failed to include his child in that application. The applicant states that he and Ms Concepcion committed to a shared life in 2010 and they incorrectly referred to 3 March 2009 on their forms when applying for the Partner visa. The applicant states that he found it difficult to remember specific dates. In March 2010, the applicant had a child. He did not declare that child in the application.

13. In his submission to the Tribunal dated 7 July 2019 the applicant outlined the background of his applications, noting that he was found to be a member of the family unit of his father in relation to the temporary and permanent business visas. With respect to his relationship with Ms Concepcion, the applicant states that they first met when studying for a Diploma course and became friends and later formed a boyfriend/girlfriend relationship. They then broke up and the applicant started a relationship with another person, which did not last, and the applicant’s relationship with Ms Concepcion was rekindled. After 2008, they did not see each other often but communicated through text messages and phone calls and would spend time together when they could. In 2009 his parents decided to bring him to Australia, and he and Ms Concepcion had a conversation about it and he told her he would care for her and love her. In August 2009 Ms Concepcion discovered she was pregnant and told the applicant’s sister, who later informed the family. Because Ms Concepcion’s family is poor, they decided that she would live at the house of the applicant’s parents which she started doing in August 2009. The applicant and Ms Concepcion considered their relationship as that of boyfriend and girlfriend. They made the decision to marry in March 2010 after the birth of their first child, and became engaged. When the applicant completed the forms for the RSMS visa, he referred to his relationship to Ms Concepcion but did not mention his child.

14. The applicant submits that the question ‘when did you commit to a shared life together’ can be vague and involve different interpretations. In the Partner visa application they referred to 3 March 2009 as the date because that is when the applicant promised Ms Concepcion that he would not forget her but that does not mean they entered a committed de facto relationship. They had no migration agent assisting them and answered the question the way they interpreted it. The applicant notes that in his 457 visa he truthfully answered that he was never married or in a de facto relationship because their relationship was that of boyfriend and girlfriend but he did refer to the relationship in the RSMS application. The applicant referred to the relevant definitions and stated that the evidence provided supports the claim that between March 2009 and February 2011 his relationship with Ms Concepcion was not a de facto one.

15. The applicant states that he never had the intention to mislead the Department to secure a favourable migration outcome. He answered truthfully when completing the Subclass 457 application and the RSMS application. The applicant admits that he did not mention the child in the application but states that it was ‘an error of judgment’ as the child was under his partner’s name and not using his surname, so he assumed it was not essential to include the child’s details. He did not intend to hide the child from the Department and in March 2011 the child’s birth certificate was changed to reflect the applicant as the father. The applicant states that if his intention was to hide that he had a child, he would not have changed the birth certificate. The applicant repeated the same claims in his oral evidence to the Tribunal.

16. The Tribunal finds the applicant’s evidence unconvincing. Both the applicant and Ms Concepcion gave a very different account of their relationship in the Partner visa application, stating that they formed a committed relationship in March 2009. The applicant’s evidence to the Tribunal is that he helped his partner with that application. Even if the applicant had difficulties recalling dates, the Tribunal does not accept that both he and Ms Concepcion would be equally forgetful or that they would both provide the same incorrect date in their respective forms. The applicant explained to the Tribunal that there is no concept of ‘de facto’ in the Philippines but the Tribunal is mindful that by the time the Partner visa application was made in late 2015, the applicant (who helped with the paperwork), had been living in Australia for over five years and the Tribunal does not accept his evidence that he was entirely unfamiliar with the term ‘de facto’.

17. The Tribunal also notes that the March 2009 date of commitment – as opposed to 2010 which the applicant now claims – is consistent with the parties’ evidence that they were living at the same address in the second half of 2009. The applicant now claims that the cohabitation date on the application form was incorrect as he could not recall the exact dates and cohabitation did not start until later. Yet there seems to be no reason to prefer the applicant’s present evidence to the information contained in the Partner visa application.

18. In oral evidence, the applicant also told the Tribunal that by March 2009 he and Ms Concepcion only made promises to each other and they were only in a ‘boyfriend and girlfriend’ relationship, not a de facto one. The applicant states that his partner started living at his family home in August and not in June 2009 and she made an error in her Partner visa application about that date. The applicant states that he did not include the child in the RSMS application because he assumed it was not relevant, as his name was not included on the child’s birth certificate. The Tribunal is mindful that nothing on the application form makes any distinction between ‘relevant’ and ‘not relevant’ children, nor between children whose birth certificates identify him as a father. The application form simply asked the applicant to identify his children, and there were no other limitations on his obligation to notify the existence of the children.

19. The applicant claims that in 2009 he was still pursuing his degree and did not have the relationship, and he has evidence that his relationship with Ms Concepcion started later. However, the applicant also concedes that he provided third party declarations about the relationship with the Partner visa application, which contained an earlier date as to when the commitment was formed. In that case, the Tribunal does not consider that the evidence of the later date of commitment to which the applicant now refers should be given greater weight than the evidence provided with the Partner application which refers to the earlier date the commitment was formed.

20. The applicant states that the date of the relationship and the date cohabitation started stated in the Partner visa application form are erroneous, however, the Tribunal does not accept the applicant’s claim that he misunderstood the term ‘de facto’ or was confused about the dates. In the Tribunal’s view, the combination of several factors – residence at the same address, the birth of the child and the indication of the earlier date in the Partner visa application – all support the finding that the de facto relationship started earlier than the applicant now claims. The Tribunal finds that the applicant and Ms Concepcion formed a committed relationship in March 2009, as stated on the Form 40SP and Ms Concepcion’s Partner visa application.

21. The representative submits that the assessment of the de facto relationship is very subjective and the applicant would not have met the statutory definition of ‘de facto relationship’ when he made the application for the Subclass 457 visa because none of the criteria were met. In the Tribunal’s view, that is not entirely accurate as by the time the Subclass 457 application was made, the couple appear to have formed a mutual commitment to the relationship (with the applicant stating that he promised to be with Ms Concepcion), there was some degree of financial support and at least a possibility of a joint household, if Ms Concepcion was living at the applicant’s home. The Tribunal does not accept the claim that the indicia of a de facto relationship was entirely absent at the time the temporary business visa application was made.

22. The Tribunal finds that the applicant’s child was born in March 2010. At the time when the applicant completed his form for the RSMS visa, the applicant had a child but did not mention that child in the application form 47A. The applicant explains that the child was not using his name, he was not mentioned as the father on the child’s birth certificate and so he did not think he had to mention the child and did not consider this relevant. However, as noted above, the question on the form relates to the existence of dependent children irrespective of the nature of the applicant’s relationship with such children or the applicant’s involvement with the child’s upbringing. The fact that the applicant subsequently changed the child’s birth certificate to include the identity of the father does not in any way detract from the fact that in 2010 the applicant did fail to include that child in the application. The Tribunal finds that the applicant completed that form in a way that not all questions were answered. The Tribunal finds that the applicant did not comply with s.101(1) of the Act.

23. The Tribunal acknowledges the applicant’s evidence that he did not consider it relevant to include the child. His submission to the Tribunal is that he had no intention to mislead but made an ‘error of judgment’ and did not believe he had to mention the child. However the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s.98 of the Act states that if the applicant did not fill in his application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. Section 100 provides that 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. Further, s.111 states that ss.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers or bogus documents.

24. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice in relation to the child. The Tribunal makes no findings, for the purpose of establishing the breach, in relation to when the applicant’s relationship with Ms Concepcion commenced.

    Should the visa be cancelled?

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

26. 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 Migration Regulations 1994. Briefly, they are:

    The correct information

27. The correct information is that the applicant had a child by the time he completed the forms for the RSMS visa and he failed to mention the child in the forms.

    The content of the genuine document (if any)

28. This is not relevant in the present case.

    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

29. The applicant states that when he was granted the visas, he was still dependent on his parents for accommodation, and financially. The applicant refers to the definition of ‘member of the family unit’ and states that having a child would not have precluded him from being dependent on his father. However, that is not sufficient. The applicant made the applications as a member of the family unit and a dependent child of his parents.

1. The Tribunal finds that if the delegate was informed about the child at the time the RSMS application was made, the existence of a child would have resulted in a more thorough assessment as to whether the applicant was in a spousal or de facto relationship with another person and if it was found that the applicant was in a de facto relationship, he may not have met the definition of a member of the family unit. It is not necessary to establish whether the applicant would have been granted the visa, if the correct information was known. The issue is whether the decision to grant the visa was based, even partly, on incorrect information. Information about the existence of the child would have led to an assessment as to whether the applicant was in a relationship, including a de facto relationship, with another person and that was relevant in assessing whether he was a member of the family unit of the primary visa applicant.

2. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information.

   The circumstances in which the non-compliance occurred

3. In relation to not disclosing his child in the RSMS application, the applicant states that he did not think it was relevant. The applicant states that he did not intentionally mislead the Department in order to obtain the visa and he was not represented in that application. However, as noted above, the application form did not distinguish between children who had a father stated on the birth certificate and those who did not. The applicant was aware that he had a child. The application form asked him if he had a child. Whatever the applicant believed was relevant, or whatever his relationship was with the child at the time, the applicant had an obligation to inform the Department about the existence of that child and he failed to do so.

   The present circumstances of the visa holder

4. The applicant told the Tribunal that he has been living in Australia for 10 years and is used to the lifestyle in Australia. The applicant told the Tribunal that he had been working at Coles, first as a night filler and later as a manager. Once his visa was cancelled, he was unemployed for about a year and now he works as a cleaner in hotels and packs fruit and vegetables at night.

5. The applicant states that his children started schooling. His children are in Years 2 and 4 and have many friends in Australia. They can hardly understand Tagalog. The applicant said that his family came to Australia on Tourist visas, obtained an extension and then applied for the Partner visas onshore and had been granted Bridging visas. Their application is awaiting the outcome of his review. The Tribunal is mindful that neither the applicant’s spouse nor his children had been granted a right to remain in Australia on a permanent basis or even a long term temporary basis. They held Tourist visas and then bridging visas. Thus, while the Tribunal is prepared to accept that in the time they had spent in Australia, Ms Concepcion and the children may have formed some links in Australia, the Tribunal is not satisfied they can have any expectation of remaining in Australia until they are granted substantive visas. The Tribunal acknowledges that their chances of obtaining a Partner visa would be diminished as a result of the present cancellation.

6. The applicant told the Tribunal that he is no longer in a relationship with his partner and they separated and he claims to have informed the Department about the relationship breakdown.

7. The applicant told the Tribunal that he had to sell his motorcycle and his car as he could not manage the repayments. He claims he has no other assets. The applicant stated that he is repaying the loan for sponsoring his partner and children and owes about $18,000. If he cannot repay the loan, his parents would have that obligation. The Tribunal accepts that the cancelation of the visa may cause financial hardship to the family.

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

8. Nothing adverse is known about the applicant’s obligations under the Act.

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

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

   The time that has elapsed since the non-compliance

10. The application for the temporary Subclass 457 visa was made in July 2009 and the application for the permanent Subclass 857 visa was made in January 2010. Approximately 10 years have passed since the non-compliance and the Tribunal acknowledges this is a lengthy period.

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

11. There are no known breaches of the law. The applicant told the Tribunal that he considers himself to be a law-abiding citizen but has had a speeding ticket, for which he has paid the fine.

    Any contribution made by the holder to the community

12. The applicant stated that he is engaged in the community and helps people in need. He helped with the Easter egg hunt. He completed fire extinguisher training and first aid training. The Tribunal accepts that the applicant has made some contribution to the community.

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

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

14. If the applicant’s visa is cancelled, unless he is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted other visas, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for him to do so as a result of the cancellation. The applicant may also lose some entitlements he may have acquired as an Australian permanent resident.

15. The Tribunal also acknowledges that if the visa is cancelled, the applicant may be unable to act as a sponsor for his partner and children.

    Whether there would be consequential cancellations under s.140

16. There are no visas subject to consequential cancellations.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

17. The applicant told the Tribunal that he would not be ‘legally prosecuted’ if returned to his home country but there would be financial hardship because unemployment in the Philippines is very high. Given his age and qualifications, he would not be able to find a job and support his children. As noted elsewhere, the Tribunal is not prepared to accept that evidence, in the absence of any supporting documentary evidence of the applicant being unable to find employment or even seeking employment in the Philippines. These claims are unsupported by any probative evidence and the applicant’s own evidence is that he has not sought any employment in the Philippines in the past 10 years. His claims appear to be purely speculative. The Tribunal is not satisfied that the applicant will be unable to support himself, and his family, if he were to return to his home country. The Tribunal does not consider that such claims give rise to Australia’s protection obligations.

18. The applicant told the Tribunal that he has shared custody of the children with his former spouse. He sees them daily and picks them up from school. The applicant did not know if his partner had another relationship but thought that if her visa is refused, she would have to return to the Philippines.

19. The applicant told the Tribunal that the education system and lifestyle are better in Australia for his children. The Tribunal is mindful that the children had spent a fairly short amount of time in Australia and they were born and spent the majority of their lives in the Philippines. Given their young ages, the Tribunal is of the view the interests of the children would be best served by them staying with their parents, irrespective of their country of residence. While the children may now be used to life in Australia, the Tribunal is of the view that they would have no difficulty getting used to life in the Philippines, if they were to return to their home country. As for the applicant’s claims that his children would have a better future in Australia, there is little evidence to support that claim. In particular, there is no probative evidence before the Tribunal to indicate that the children will not have access to adequate education and other support systems in the Philippines.

20. The Tribunal finds that it is in the best interest of the children to remain with their parents. Given the short period of time the children had spent in Australia, and having rejected the applicant’s evidence about the circumstances in the Philippines, the Tribunal does not consider that their best interests require their presence in Australia. The Tribunal finds that the best interests of the children will not be adversely affected as a result of cancellation of the visa.

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

21. The applicant claims that he is afraid to return to the Philippines because he has no trade and no savings. The applicant told the Tribunal that he completed a two year Computer Science course in the Philippines and started a bachelor course but did not complete it. After coming to Australia, he did an English course but he has no other qualifications. The applicant claims that it has been a long time since he completed the computer science degree and this field changes all the time so he cannot get a job in that field. The applicant claims that there are no jobs in the Philippines, given its economic condition, and the unemployment rate is very high. The applicant said that in the past he made many job applications but was rejected, but he has not submitted any job applications since 2009. He claims that more recently, his cousins have not been able to get jobs in their own fields. The Tribunal acknowledges the applicant’s evidence but notes that the applicant has not sought employment in the Philippines in the past 10 years, and has not been refused any jobs. The Tribunal is of the view that his claim that he would be unable to get a job is purely speculative, and the Tribunal does not accept that the applicant would be unable to find employment in the Philippines.

22. The applicant claims that his parents cannot support him financially because they have to repay their own mortgage and other debts relating to sponsoring his three siblings for Student visas. The applicant then said that two of his siblings have been granted permanent residence or citizenship and one has not yet had their visa approved. He claims they also cannot support him financially because of their own obligations. The applicant presented no documentary evidence to support these claims and in the absence of such, the Tribunal is not prepared to accept his claim that the applicant will have no access to financials uport from family members.

23. The Tribunal accepts that the applicant has been living in Australia for over 10 years and that he has strong family and other ties in this country. The Tribunal is prepared to accept that the applicant has few connections to the Philippines, as his parents, siblings and children reside in Australia and that he has no close relatives overseas.

24. The applicant referred to his loans in Australia and states that if he cannot repay his loans, they would fall on his parents, who acted as his guarantors. His income in the Philippines would not be sufficient for him to repay the loans. There is very little documentary evidence before the Tribunal concerning the applicant’s and the family’s finances, loan arrangements and other financial obligations.

25. The applicant told the Tribunal hat he would have nowhere to live as he has lost all connections in the Philippines. The Tribunal is mindful, however, that he is an independent adult. The Tribunal has rejected the applicant’s claim that he would be unable to get a job in the Philippines and the Tribunal does not accept that the applicant would be unable to rent a place and pay for his living expenses.

26. The applicant told the Tribunal that since the cancellation of his visa, he has been suffering from depression and anxiety thinking about his children’s future. The applicant confirmed there was no medical evidence to support these claims as he had no money to see a doctor and has not been diagnosed with any condition. In the absence of any professional diagnosis or opinion, the Tribunal does not accept the applicant’s self-diagnosis.

27. The Tribunal has formed the view that many of the applicant’s claims are not supported by probative documentary evidence. Nevertheless, the Tribunal accepts that hardship would be caused to the applicant and his family if the visa is cancelled. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 of the Act and that there are grounds for cancelling his visa. The Tribunal acknowledges that the applicant has been living in Australia for approximately 10 years and that he is settled in Australia, with his immediate family residing here. The Tribunal accepts that if he returned to the Philippines, the applicant would be required to seek accommodation and employment and he may have to support his children. The Tribunal is prepared to accept that there will be financial implications if the applicant cannot meet his financial obligations in Australia. The Tribunal accepts that considerable hardship may be caused to the applicant and his family if the visa is cancelled and this would include financial hardship to the applicant and his family in Australia. It is also significant that if the visa is cancelled, the applicant cannot act as a sponsor to his partner and children and there is a strong likelihood that their visa applications may be unsuccessful. The cancellation of the visa would also affect the applicant’s future visa applications. The Tribunal has formed the view that hardship would be caused as a result of the cancellation. The Tribunal finds that there are strong reasons why the visa should not be cancelled.

28. There are no other known instances of non-compliance and no significant breaches of the law. The applicant has made some contribution to the community. The Tribunal has formed the view that the best interests of the children would not be affected by the cancellation because, given their young age, the Tribunal is of the view that the children will be able to re-adjust to life in the Philippines, where they have spent the majority of their lives. The Tribunal has rejected the applicant’s evidence that he would be unable to support his children in the Philippines. The Tribunal has found that Australia’s international obligations would not be breached as a result of the cancellation.

29. The Tribunal places significant weight on the circumstances in which the ground for cancellation arose. The Tribunal found that the applicant failed to disclose the existence of his child in his visa application and that information was relevant to the assessment of his eligibility for the visa. The Tribunal considers that such circumstances weigh heavily in favour of cancellation because they were relevant to the assessment of the applicant’s ability to meet the requirements for visa grant. In the Tribunal’s view, such factors outweigh other considerations. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

30. The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

    Kira Raif
    Senior Member