Muca (Migration)

[2021] AATA 1387

Muca (Migration) [2021] AATA 1387 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ksandros Muca

CASE NUMBER:  2011768

HOME AFFAIRS REFERENCE(S):          BCC2019/5232107

MEMBER:John Cipolla

DATE:29 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

Statement made on 29 January 2021 at 8:19am

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – incorrect information in previous visa application – place of birth – citizenship – Kosovo – Albania – bogus document – British certificate of registration – British passport – genuinely issued documents – obtained because of a false or misleading statement lodged by the applicant’s parents – consideration of discretion – present circumstances of the visa holder – long term relationship with an Australian citizen – highly valued skills – time elapsed since the non-compliance – significant contribution to the community – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109

Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided both incorrect information and a bogus document in previous visa applications namely in a Subclass 417 Working Holiday visa application on 12 November 2012, in a further application for a Subclass 417 visa extension on 7 January 2014 and in a Regional Sponsored Migration Scheme, Subclass 187 visa on 6 January 2015. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The delegate noted that in the November 2012 application the applicant stated that he was born in Prishtine, Kosovo, and that his country of birth was Kosovo. That in his January 2014 application he stated that he was born in Prishtine, Albania, and that his country of birth was Albania.  In his January 2015 application he stated that he was born in Prishtine, Kosovo, and that his country of birth was Kosovo.

4. These discrepancies were picked up by the Department when the applicant was applying for conferral of Australian citizenship. The evidence indicates that during the time the applicant was applying for Australian citizenship he mentioned to a Departmental officer that his birth place was Kosovo and Albania which led to suspicion and a call for documents and evidence to verify his place of birth.  The applicant in response to this issue raised in the NOICC stated that “due to this discrepancy my application for citizenship was refused and the documents I had supplied were not returned as they had previously been confirmed they would. I understand that my birthplace should have been rectified beforehand. I chose to maintain the consistent information to protect my family.”

5. As a result of these discrepancies the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his visa dated 16 June 2020. The NOICC provided details of how the applicants responses in his previous visa applications and citizenship application suggested that he had provided both incorrect information and bogus documents to the Department in support of those applications.

6. In response to the NOICC the applicant provided a statement dated 14 October 2019 in which he states that he was in fact born in Elbasan in Albania. He advised that the information about him being born in Prishtine, Kosovo, in his application for Australian citizenship was incorrect, that the information that he gave in previous visa applications regarding his birthplace was incorrect and that the statutory declaration provided with his citizenship application advising that he could not provide an original birth certificate from Kosovo was incorrect. The applicant, by way of explanation stated that he, along with his family fled Albania and travelled to the United Kingdom in 1997 because of a risk to the safety of the applicant’s father and family if they remained in Albania. The applicant advised that he was a minor at the time, being 9 years old. The applicant stated that his parents made an application for protection in the United Kingdom. The applicant stated that although the family were at risk from harm in Albania, his parents were advised to state they were from Prishtine Kosovo in their protection application. The applicant stated that “as my birthplace was stated as Prishtine, Kosovo in my applications for residence and citizenship in the United Kingdom, I have continued to usually state this as my birthplace. On occasions, such as my second Working Holiday visa application and to obtain a UK Drivers Licence. I have stated my country of birth as Albania. As I was nine years of age when I left Albania and went to the United Kingdom, I was too young and did not make the decision to state Prishtine, Kosovo. I have felt that I have needed to maintain this information.”

7. Prior to the hearing the applicant provided the Tribunal with a number of statutory declarations from his partner (an Australian citizen), sisters, work colleagues and friends attesting to his character, personal attributes and contribution to the Port Macquarie community. These statutory declarations have been duly considered.

8. The applicant also provided a statutory declaration dated 14 October 2019 provided to the Department after anomalies in his citizenship application were picked up by the Department. The applicant advised he was born in Elbasan in Albania on 2 February 1988. The applicant advised that a copy of his Albanian birth certificate would be submitted to the Department with his citizenship application. The applicant advised that he was not born in Prishtine, Kosovo, and that this information previously provided was incorrect. The applicant outlined the circumstances in which his family fled Albania for the United Kingdom when he was only 9 years old. The applicant stated that the family fled because his father had formed a view that his life and the life of his family members were at risk. The applicant advised that at this time in 1997 there was an uprising known as the Albanian rebellion and that his father who worked for the Albanian government believed there was a real chance of persecution. The family were then given protection by the United Kingdom. The applicant stated that to his understanding the family’s protection application in the United Kingdom was predicated on the family being from Prishtine, Kosovo. The applicant stated that as a minor he had no part in this, but has going forward maintained that his place of birth was Prishtine, Kosovo, to maintain consistency.

9. In the response to the NOICC the applicant provided further detail about his family’s migration to the United Kingdom. The applicant advised that both of his parents worked for the Albanian government, his father as a criminal investigator/government prosecutor and his mother as a Chief Financial Officer, managing a number of hospitals. The applicant stated that the family decided to immigrate to the United Kingdom as a result of his father’s occupation and the risk to the family as a result of this occupation during the civil war of 1997 in Albania. The applicant made reference to some of the direct threats that his father faced during this time in Albania.

10. The applicant provided details of his family’s escape from Albania and their arrival in London and how his father met an Albanian interpreter who worked for a law firm. The interpreter spoke to a lawyer from the law firm who advised that Albanians from Kosovo were given priority in applying for protection in the United Kingdom. Based on this advice the family pursued the line that they were Albanians from Prishtine, Kosovo, the applicant advised from that time that his father directed that the family maintain the line that they were Albanians from Prishtine. Kosovo, a burden that the applicant states that he maintained for 23 years.

11. The applicant appeared before the Tribunal on 2 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Jane Whalen, Jenelle Rosendahl, Jye Van Der Zee, Kalray Menezes, Mark Van Der Zee, Martin Randall, Matthew Theodore Rullis, Monica Porte, Nerissa Muca, Nick Kross, Paul Fenlon, Sarah Curry, Sean Whalen, Simon Mansell.  

12. At the outset of the review hearing the Tribunal went into considerable detail about the respective issues in review. Firstly whether the grounds for cancellation of the applicant’s visa under s.109 of the migration act existed, namely whether the applicant did provide incorrect information to the Department in support of the visa application and  whether the applicant provided a bogus document in support of a visa application. The Tribunal noted that if the ground for cancellation existed the Tribunal needed to determine whether or not the applicant’s visa should be cancelled having regard to a range of discretionary factors.

13. The applicant provided his name and date of birth. The applicant advised that he was born in Elbasan, Albania, in 1988. The applicant stated that in 1997, when he was nine years old his family fled the Balkans crisis by boat to the United Kingdom. The applicant advised that his parents were still alive and both residing in the United Kingdom. The applicant advised that he had two sisters, Kleodora and Nerissa who are both resident in Australia and both Australian citizens.

14. The Tribunal enquired about the applicant’s sister’s pathway to citizenship in Australia. The applicant stated that his sister Kleodora met an Australian in the United Kingdom whom she married, and there are four children of that relationship.  The applicant stated that Kleodora came to Australia before 2006. The applicant advised that his sister Nerissa was a linguist and was teaching at a high school in Lennox Head NSW. The applicant advised that Nerissa came to Australia around 2008 or 2009.

15. The applicant advised that his mother had worked as an accountant in Albania and that his father had worked as Detective and jurist in Albania. The applicant advised that as a consequence of the civil war between Albania and Kosovo that his father had to prosecute a lot of people during this period, and that because of his position in Albania and the prevailing circumstances at the time his father made a decision that the family needed to flee the country and apply for protection. The applicant stated that the family fled to the United Kingdom where they sought asylum. The applicant stated that a representative that his father engaged with advised his father that they should advise they were born in Kosovo and not Albania as it would give them a better chance of obtaining protection.

16. The applicant stated that as a consequence of his family fleeing to the United Kingdom and successfully applying for protection, that he held British citizenship, that officially he held Albanian citizenship, that he travelled to Australia on a British passport, and that the British passport was seized as a consequence of the cancellation of his visa on the basis that it had been classified as a bogus document.

17. The Tribunal asked the applicant about his immigration history. The applicant advised that he travelled to Australia in 2012 as the holder of a working holiday visa. The applicant stated that during the period that he held this visa that he worked in a remote location on a farm in Gatton in Queensland. The applicant stated that he also travelled around Australia. The applicant met up with his sister Narissa and ended up living in Port Macquarie.

18. The applicant stated that he obtained his subclass 187 visa on the basis of being nominated by a school in Port Macquarie run by the Seventh-day Adventist’s. The applicant stated that his qualifications are in biomechanics and exercise physiology. He advised that there were behavioural management issues within the school and that he proposed a plan to address these issues and was employed by the school. The applicant stated that he worked for his nominating employer for three years. The applicant noted that part of the conditions of the grant of his subclass 187 visa was that he was obliged to stay with his employer for two years but he was extended for a third year after which funding for the position ran out. The applicant stated that after he ceased working in this role he established the business in Port Macquarie called Back to Basics, which was an exercise physiology business. The applicant stated that Port Macquarie had a large ageing population as well is a substantial young population. The applicant advised that he was given a range of referrals from both the private hospital in Port Macquarie and the public hospital. The applicant stated that he worked with children and did considerable work for elderly/victims to assist with their rehabilitations.

19. The Tribunal asked the applicants about his current circumstances. The applicant stated that he was in a relationship with an Australian citizen of two years duration. He advised that his partner’s name was Jane Whalen and that she was studying to be a physiotherapist in Port Macquarie at Charles Sturt University, a degree of four years duration.

20. The Tribunal asked the applicant about his contribution to the community in Port Macquarie. The applicant stated that in 2015 he commenced a youth group for disconnected young people in Port Macquarie. The applicant stated the objective was to get young people together to engage in positive activities. The applicant advised that he came up with an idea to build a gym located in a local school in Port Macquarie and that he ran exercise physiology sessions for students for the last five years with the objective of encouraging young people to do something positive. The applicant stated that his exercise classes were well attended.

21. The Tribunal took evidence from Jane Whalen, the applicant’s partner. She advised the Tribunal that she and the applicant had been in an ongoing relationship since February 2019 almost 2 years. She advised that she was a Port Macquarie local and that she was currently studying a physiotherapy degree at Charles Sturt University in Port Macquarie. She advised that she has two years remaining in her degree. The Tribunal asked the witness what impact the cancellation of the applicant’s visa would have on her. The witness advised that there would be a significant emotional impact and that she would struggle to live without the applicant. She advised that their relationship was close and that the applicant had been embraced by her family, which included her parents and brother. She advised that both she and the applicant had discussed working together in the future applying their exercise physiology and physiotherapy backgrounds. The witness stated that there was no option for her to live in the United Kingdom with the applicant because of the fact that she was committed to completing her studies in Australia, she was very close to her family and an additional consideration was the poor control of the COVID 19 outbreak in the United Kingdom. The witness advised that she and the applicant were now engaged and wants his immigration issues had been finalised were looking for a date to set down their wedding.

22. The Tribunal took evidence from the applicant’s sister, Nerissa Muca. The witness advised that she came to Australia in 2009 for study purposes and undertook studies in teaching whilst holding a student visa. She advised that she had a postgraduate degree from Australia in distance education. She advised that she obtained her permanent residence on the basis of her educational qualifications and skills. She advised that she was an Australian citizen having obtained citizenship in 2013. The Tribunal asked the witness whether she had a lot of interaction with the applicant. The witness advised that she lived in Lennox had in the applicant in Port Macquarie and that they saw each other on a regular basis and contacted each other on a regular basis. The Tribunal asked the witness what impact the cancellation of her brother’s visa would have on her. The witness stated that everything that happened in the United Kingdom was outside both her and her brother’s control. She advised that her parents were fleeing a violent civil war and sought protection in the United Kingdom and that both she and her siblings were minors at that time. The witness stated that she had a close relationship to the applicant. She implored the Tribunal to give careful consideration to discretionary factors not to cancel the applicant’s visa. She advised that her brother was a very hard-working and honest person who had always tried to do his best and that he was an asset to the community in Port Macquarie.

23. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. 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.

25. 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.

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

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

27. 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 and s.103 in so far as the Department determined that the applicant had provided incorrect information and a bogus document in previous visa applications as has been discussed above.

28. The evidence before the Tribunal indicates that in a Subclass 417 visa application lodged on 12 November 2012 the applicant claimed he was born in Kosovo. On 4 July 2019 the government of Kosovo verified the applicant was not born in Kosovo, further to this that he was not a citizen of Kosovo. On 14 October 2019 the applicant advised that he was born in Elbasan in Albania and he provided a copy of his Albanian birth certificate.

29. In his Subclass 417 visa lodged on 7 January 2014 the applicant, when asked about his citizenship, advised he was a British citizen. When asked whether he was a citizen of any other country he advised that he was not. The existence of the applicant’s Albanian birth certificate negated this suggesting that the applicant also held Albanian citizenship.

1. In his Subclass 187 visa lodged on 6 January 2015, the applicant advised that he was born in Kosovo, which based on verification checks with the government of Kosovo is incorrect.

2. In a Form 80 Character Assessment the applicant advised he was born in Kosovo and obtained British citizenship on 4 October 2003. Further to this that he did not hold any other citizenship, however, the Albanian birth certificate provided by the applicant suggests he held Albanian citizenship.

3. As a consequence of this information the Department concluded that the applicant’s British certificate of registration stating that his place of birth was Kosovo was a bogus document, as was his British passport indicating that he was born in Prishtine in Kosovo.

4. The Tribunal has considered the evidence before it pertaining to the provision of both incorrect information and the provision of a bogus document. The Tribunal notes that the provision of this information dates back to events that occurred in the late 1990’s when the applicant was a 9 year old minor and he along with his parents and siblings fled the civil war being waged between Kosovo and Albania during the protracted conflict in the Balkans.  The applicant has provided evidence, corroborated by his siblings that in order to affect refugee protection in the United Kingdom, his parents were advised that they should advise that they were born in Prishtine, Kosovo, and the family have maintained this fiction over time. The Tribunal is cognisant of the fact that the applicant was a minor at the time.

5. Despite this, the evidence before the Tribunal indicates that the applicant in his Subclass 417 applications and in his form 80 and in his Subclass 187 visa application provided incorrect information with regard to his place of birth, and that the information he provided was incorrect.

6. The Department found that the information contained in the applicant’s British certificate of registration and in his British passport pertaining to his place of birth as Kosovo rendered these documents bogus as that term is defined in s.5(1) of the Migration Act. The Tribunal finds that the documents are genuinely issued documents on the basis of the applicants family obtaining British citizenship as the result of a successful protection visa application in the late 1990’s but that the information contained in those documents pertaining to the applicant’s place of birth is incorrect.

7. A bogus document as defined in the Migration Act means a document that the Minister reasonably suspects is a document that purports to have been, but was not issued in respect of the person or is counterfeit or has been altered by a person who does not have the authority to do so or was obtained because of false or misleading statement, whether or not made knowingly.

8. The British certificate of registration along with the British passport has been issued in relation to the applicant by the British government on the basis that his parents applied for and were granted protection by the United Kingdom and were in due course conferred with British citizenship.  These documents were invariably issued by the British government on this basis and in the view of the Tribunal do not fall into the category of a document that purports to have been but was not issued in respect of that person.  The evidence indicates that these documents were issued by the British government to the applicant on the basis that his parents had included him a dependent member of their family unit in their application for protection in the late 1990’s and as a result of this process and the later conferral of citizenship the applicant was  issued with these documents by the British authorities.

9. There is no evidence that the British certificate of registration or the British passport are counterfeit documents or indeed altered documents bringing them within the purview of s.5(1) ‘bogus documents.’

10. The consideration of a person’s claims for protection and whether they are owed protection obligations are multi-faceted and require consideration of a range of factors.  The Tribunal does not have any information pertaining to the historic protection visa application that the applicant’s parents made to the British government and what was contained in that application.  However, the Tribunal has evidence before it that the applicant, due to his parent’s protection visa application, has continued to claim he was born in Prishtine, Kosovo, and this is information that is contained in the British registration document and in the British passport.  The final part of the definition of what constitutes a bogus document is that the document was obtained because of a false or misleading statement whether or not made knowingly. 

11. The Tribunal finds that the British certificate of registration and the British passport that was provided may have been obtained because of a false or misleading statement, The Tribunal notes in this respect that there is no evidence before it with regard to the application for asylum lodged with the British government in the late 1990’s. The evidence indicates however, that it was submitted on the basis that the family were from Prishtine, Kosovo, and the information before the Tribunal indicates that this was not the case as they were from Elbasan Albania. On the basis of the evidence before the Tribunal it appears that the British certificate of registration and the British passport provided by the applicant comes within the realm of something that was obtained because of a false or misleading statement whether or not made knowingly.

12. For these reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 of the Migration Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

13. The Tribunal has decided that there was no non-compliance in the way described in the notice given to the applicant under s.107 of the Act. However in the event that the Tribunal did decide that there was non-compliance by the applicant in the way described by the notice given to the applicant this would be a case where the Tribunal would have exercised discretion.

14. The Tribunal notes that if it had to exercise it’s discretionary powers that 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. Briefly, 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

    ·     any contribution made by the holder to the community.

15. 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.

16. The Tribunal would be also required to have regard to any matters raised by the applicant in response to the s.107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:

    ·whether there would be consequential cancellations under s.140.

    ·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

    ·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

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

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

    The correct information

17. The applicant lodged a Subclass 417 visa on 12 November 2012. The applicant was a British citizen and held a UK passport.  The applicant and his family, Albanian national, had fled the Balkans in the late 1990’s and his parents had applied for and were eventually granted asylum in the United Kingdom. The applicant was 9 at the time his family fled. In his parent’s application for protection they listed their place of birth as Prishtine, Kosovo, despite the family being nationals of Albania. The applicant in his Subclass 417 visa application listed his place of birth as Prishtine, Kosovo. This information was clearly incorrect as the applicant was in fact born in Elbasan in Albania. 

18. The applicant lodged an application for a second 417 visa on 7 January 2014. In that application the applicant stated that he was born in Prishtine, Albania. This information was partially incorrect as the applicant had been born in Elbasan Albania.

19. On 6 January 2015 the applicant lodged an application for a Subclass 187 visa. The applicant listed his place of birth as Prishtine, Kosovo. This information was incorrect as the applicant was born in Elbasan in Albania.

20. In the form 80 that he submitted with his Subclass 187 visa application the applicant advised that his place of birth was Prishtine, Kosovo. This information was incorrect as the applicant’s place of birth is Elbasan Albania.

21. It appears that the applicant at the time of applying for the Subclass 417 visas and the Subclass 187 visa met the relevant criteria for the grant of the visa. The fact remains that his passport was issued to him by the British Government on the basis of his parent’s successful asylum claims and the conferral of British citizenship on the applicant in 2003 led to his access to a British passport.  The place of birth noted in this passport was not a factor that would have led to the applicant being refused a Subclass 417 visa or a Subclass 187 visa. There is no evidence that the UK authorities have revoked the applicant’s British citizenship and such a revocation would feed into prospective character issues for the Australian government and not negate the applicant meeting the relevant criteria for the grant of a Subclass 417 visa or a Subclass 187 visa.

22. The claims made by the applicant pertaining to the genesis of this incorrect information are corroborated by his sister Nerissa Muca, an Australian citizen, who in a statement provided to the Tribunal at review dated 8 December 2020 states that:

    In this statement, I regrettably confirm that during the time of my initial application for the Student visa, my birthplace has been incorrectly provided as Pristine, Kosovo instead of Elbasan, Albania due to the following reasons.

    My father worked as a Government Prosecutor in the Criminal Investigation Department of Durrës. My father’s primary role was to investigate and prosecute illegal border-crossing which was frequently conducted by organised syndicates. He was a well-known figure across this unit and our district.

    January of 1997 began with the Albanian Rebellion which escalated into a Civil War. This era created rioting, insurrection and civil disorder across the country resulting in many prisons being opened along with looting of weapons and ammunition depots. During this period, it became extremely unsafe for my siblings and I to attend school unaccompanied. A few of my father’s co-workers were assassinated and on one particular occasion I remember my father had his life threatened when he was followed by a mob who intentionally tried to hit his car towards a gorge. Following these events, further death threats were made to my father and our family which led to my father’s decision to flee Albania to protect both his family and himself.

    My family and I arrived in the UK in June of 1997 with the intention of seeking political asylum. We were approached by a few Albanians who directed us to the Immigration Office and were able to translate to us as our English was very limited. We were then represented by a legal team who advised us that the only way of obtaining political asylum was through a Kosovan decent. Non-compliance meant that we would be deported and face the life-threatening dangers we experienced in Albania. During this time, I was only a minor and had no understanding of the asylum-seeking process

23. Following this decision, I have had to carry my incorrect birthplace in all my official documentation with everything else being correct. I always had to make sure that consistency of this information was maintained at all times, despite of its inaccuracy due to the fear factor of jeopardising the safety of my family, especially my father’s.That said the evidence indicates that in his failure to declare his actual place of birth as being Elbasan, Albania, in his Subclass 417 applications, in his Subclass 187 application, and in his Form 80 character assessment, the applicant did knowingly provide incorrect information, and the Tribunal gives this consideration some weight in cancelling the applicants visa.

    The content of the genuine document

24. On 18 October 2018 the applicant lodged an application for citizenship in which he listed his place of birth as Prishtine, Kosovo. This information was incorrect as he was born in Elbasan, Albania. The evidence indicates that on 17 April 2019 a Departmental officer wrote to the applicant inviting the applicant to furnish the Department with original identity documents.

25. The applicant in response provided a statutory declaration advising that due to the war in Kosovo, public records had been destroyed, and the applicant submitted a British Certificate of Registration which indicated his country of birth was Kosovo and he submitted a British Drivers licence which indicated that his country of birth was Albania. The Department wrote to the applicant inviting comment about this anomaly in the following.

    “On 17 April 2019 the departmental officer assessing the visa holder’s application wrote to him requesting original identity documents that may assist in verifying his identity. As part of the visa holder’s response he provided a statutory declaration dated 14 May 2019 outlining his purported inability to provide an original birth certificate, stating:

    ‘In 1999 civil war broke out in Kosovo, and as a result many public records were destroyed. In 2001 an application for my UK citizenship was made while I was still a minor and attempts were made to obtain the documents back then, unfortunately, we were unable to obtain the birth certificates for any of our family. My sisters who are both Australian citizens have applied with the same difficulties.’

    The visa holder also provided a British Certificate of Registration as a British Citizen which indicated his country of birth was Kosovo and a United Kingdom driver’s licence which indicated his country of birth was Albania.

    To clarify the above information about his country of birth and citizenship, the Department subsequently conducted checks with the Ministry of Internal Affairs in Prishtine, Kosovo and on 4 July 2019, it was verified that the visa holder’s birth on 2 February 1988 was not registered in Prishtine, he was not born in Kosovo and he is not a citizen of Kosovo.

    The applicant was invited to comment on this in October 2019. On 14 October 2019 the visa holder provided a response which included a statutory declaration dated the same date in which he stated (in part):

    I was born on 2 February 1988, in Elbasan, Albania.

    The information that I gave in my application for Australian Citizenship, that I was born in Prishtine, Kosovo, is incorrect.

    The information that I gave in previous applications, including my applications for two Working Holiday (subclass 417) visas and a Regional Sponsored Migration Scheme (subclass 187) visa, regarding my birthplace is incorrect.

    The information that I gave in a Statutory Declaration submitted in support of my application for Australian Citizenship, signed on 14 May 2019, regarding my inability to provide an original birth certificate from Kosovo is incorrect.

    My family fled from Albania and went to the United Kingdom in 1997, because of a risk to the safety of my father and our family.

    My family applied for and were granted refugee status in the United Kingdom. Although we were at risk of harm in Albania, it was stated in the application for refugee status that we were from Kosovo. My birthplace was stated as Prishtine, Kosovo.

    As my birthplace was stated as Prishtine, Kosovo in my applications for residence and citizenship in the United Kingdom, I have continued to usually state this as my birthplace. On occasions, such as in my second Working Holiday visa application and to obtain a UK Drivers Licence, I have stated my country of birth as Albania.

    As I was nine years of age when I left Albania and went to the United Kingdom, I was too young and did not make the decision to state Prishtine, Kosovo as my birthplace. Because my identity in the UK stated that I was born in Prishtine, Kosovo, I have felt that I have needed to maintain this information.

26. The Departmental delegate having regard to the response provided by the applicant concluded as follows:

    On the basis of the above information, it appears that the visa holder’s British passport (passport number [redacted]) was obtained because of a false or misleading statement, namely that he claimed to have been born in Prishtine, Kosovo, and therefore it appears that this passport is a bogus document in accordance with section 5(1)(c). As such, it appears that the visa holder has not complied with section 103 of the Act because he provided a bogus document, namely his British passport (passport number [redacted]), in his Working Holiday visa application, his Working Holiday (Extension) visa application and his RSMS visa application and therefore the visa holder’s RSMS (subclass 187) visa is liable for cancellation under section 109 of the Migration Act.

27. As part of the visa holder’s response and as evidence that he was born in Albania, he provided a copy of his Albanian birth certificate. This certificate was issued 6 September 2019 and confirms he was born Ksandros Muca on 2 February 1988 in Elbasan, Albania.

28. The evidence before the Tribunal indicates that the applicant’s British Certificate of Registration and his British Passport are genuinely issued documents based on the asylum claim (and subsequent grant of protection) that was lodged by his parents when the applicant was a minor ( 9 years old) and therefore something over which the applicant had no control. The applicant claims that he later learned of the anomaly, but, he and his family have persisted in going forward for consistencies sake, that the entire family were born in Prishtine, Kosovo, when in fact they were born in Albania.

1. As has been noted above the consideration of a person’s claims for protection and whether they are owed protection obligations are multi-faceted and require consideration of a range of factors.  There is no information pertaining to the historic protection visa application that the applicant’s parents made to the British government and what was contained in that application. 

2. The Tribunal finds that the British certificate of registration and the British passport that was provided may have been obtained because of a false or misleading statement. The evidence indicates that these documents were submitted to the Department on the basis that the family were from Prishtine, Kosovo, and the information before the Tribunal indicates that this was not the case as they were from Elbasan, Albania. On the basis of the evidence before the Tribunal, it appears that the British Certificate of Registration and the British passport provided by the applicant was obtained because of a false or misleading statement whether or not made knowingly as that term is defined in the Migration Act at s.5(1). The Tribunal gives this consideration some weight in favour of cancelling the applicant’s 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

3. As has been said the applicant’s family fled the Balkans region from Albania in 1997 to the United Kingdom. The applicant was 9 at the time and the evidence indicates that his parents applied for Asylum which was duly granted, there is no evidence of what was contained in the asylum application, although there is evidence that the applicants parents were advised by persons in the United Kingdom to state they were from Prishtine, Kosovo, to strengthen their claims and circumvent the risk of removal back to Albania. In addition to, there is evidence from the applicant that his father was in the government prosecutor and involved in many prosecutions in Albania and it appears that there were prospective grounds to lodge a protection application, having regard to the prevailing conditions that existed in that country at the time the family fled.  The successful asylum claims led to the conferral of British citizenship on the applicant’s family in 2003.

4. As a consequence, the applicant travelled to Australia as the holder of a British passport, and successfully applied for two Subclass 417 Working Holiday visas, which were duly granted. The grant of the visas are contingent on specific criteria being met.  The reference to the applicant’s place of birth as being Prishtine, Kosovo, in his British passport or in the application for the visa would not have impeded the grant of the visa.  In addition to this the grant of a second Working Holiday visa is contingent on the applicant having complied with the conditions of the first Working Holiday visa, which requires the applicant to have undertaken a defined period of work in remote rural Australia, which the applicant did in Gatton, in Queensland. The grant of this visa would not have been impeded by the applicant’s incorrect place of birth. 

5. Further to this the grant of a Subclass 187 visa is contingent on the applicant being sponsored for this permanent visa by an Australian business or company.  That business or company is required to have their nomination application approved and the outcome of the applicant’s visa is contingent on a nomination approval.

6. This nomination application is the domain of the nominating business and it requires the nominating business to provide a whole lot of documentary evidence to the Department to convince the Department that they satisfy all of the requirements found in regulation 5.19 of the Migration Regulations relevant to the approval of the nomination. The applicant was nominated by the Seventh Day Adventist School in Port Macquarie to work for the school as an Exercise Physiologist for which the applicant had tertiary qualifications from the United Kingdom. It is in the purview of the nominating business to provide evidence that they satisfy the r.5.19 requirements and they clearly were able to this as their nomination of the applicant was approved and the applicants 187 application as the nominee of the school was consequently approved. The grant of this visa would not have been impacted upon by the applicant’s incorrect place of birth being Prishtine Kosovo rather than Elbasan, Albania. It was granted on the basis of an approved nomination application by the Seventh Day Adventist School in Port Macquarie of the position being genuine, and the applicant having the requisite skills and abilities to work in the nominated position, which he clearly did.

7. The Tribunal gives some weight to this consideration in the applicant’s favour.

   The circumstances in which the non-compliance occurred

8. As has been extensively referred to, the applicant’s family are Albanian nationals. The applicant’s family fled the Balkans in 1997 to the United Kingdom, where they lodged asylum claims that were accepted by the British government and the family was granted asylum.  The applicant was 9 at the time his family fled the Balkans.  The applicant was educated in the United Kingdom and completed tertiary studies in Exercise Physiology.  The applicant obtained a British passport in 2003 and the applicant applied for and was granted a Subclass 417 visa which was duly granted, and the applicant travelled to Australia in 2012 and has been residing in Australia since that time.

9. The applicant then applied for a second Subclass 417 visa which was duly granted, and the issue of this visa is contingent on the applicant having complied with the conditions of his first held Subclass 417 visa which he clearly did. At hearing before the Tribunal the applicant confirmed that he had undertaken the requisite period of rural work in Gatton in Queensland.

10. The applicant was then approached by the Seventh Day Adventist Church School in Port Macquarie to work as an exercise physiologist, and, develop a range of exercise programmes for the pupils of the school. The school lodged a nomination application which was duly approved by the Department and the applicant as nominee was granted a Subclass 187 visa where he was employed for a total of 3 years.  The applicant advised that he complied with the requirements of that visa.

11. In October 2018 the applicant having held permanent residence in Australia for the requisite period, applied for conferral of citizenship, something that his two sisters had done in the past without incident.

12. When lodging information required by the Department assessing the applicant’s citizenship application, the applicant provided inconsistent evidence pertaining to his place of birth. In his British Certificate of Registration document the applicant’s place of birth was noted as being Prishtine, Kosovo, in his British drivers licence his place of birth was noted as being Prishtine, Albania. As a consequence of this inconsistency being brought to the applicant’s attention along with a request for additional information to corroborate his place of birth the applicant advised that his actual place of birth was Elbasan in Albania.  Further to this that his parents when applying for asylum had noted the family’s place of birth as being Prishtine, Kosovo, and on this basis going forward the applicant stated in various applications that his place of birth was Prishtine, Kosovo.

13. Having regard to the circumstances in which this incorrect information was provided by the applicant, the Tribunal gives some weight to this consideration in favour of cancelling the applicant’s visa.

    The present circumstances of the visa holder

14. The applicant has continued to reside in Port Macquarie New South Wales and continues to work in Port Macquarie as an exercise physiologist and providing exercise groups to youth groups in Parkour in the Port Macquarie area. The applicant is running his own exercise physiology business called Back to Basics Parkour and his business and skills are directed at both the youth population but also at Port Macquarie’s ageing population as the area houses a large number of retirees.  The applicant noted that Port Macquarie has a public and a private hospital and that he receives referrals from both of these institutions.  The evidence before the Tribunal indicates that the applicant and his business is registered as a sole trader in NSW. The applicant advised the Tribunal that he has worked with elderly stroke victims in Port Macquarie. 

15. The applicant advised the Tribunal that he is in a long-term relationship of two years duration with an Australian citizen, Jane Whalen. He advised that Ms Whalen is currently studying physiotherapy at Charles Sturt University in Port Macquarie. They are engaged to be married.

16. The Tribunal took evidence from Ms Whalen at the review hearing who confirmed the relationship with the applicant and advised that the she and the applicant are engaged and are planning a wedding.  They have also spoken about working together when she has completed her studies because of their complementary skills and that they also share an interest in fitness and would like to engage in a personal trainer course.

17. Ms Whalen advised that she is a Port Macquarie local and that she is close to her parents and only brother. When the Tribunal discussed the impact of the cancellation of the applicant’s visa on her, she advised that as she is midway through her tertiary studies, is very close to the applicant from who she derives emotional support, and she is also close to her family and that the ongoing cancellation would have a profound impact on her. Ms Whalen advised that life would be a struggle without the support of the applicant. Ms Whalen advised that she and the applicant had discussed having children in future. Ms Whalen advised that the applicant is well liked by her family and they have established close bonds.

18. The applicants only siblings, two sisters are Australian citizens by conferral, and one is married to an Australian, and has 4 Australian citizen children, the other is an educator, living and working in northern New South Wales.

19. The Tribunal has received a number of references and endorsements both professional and personal, from a range of people who attest to the applicant good character and skills and who state that the applicant is a valued member of the Port Macquarie community.

20. In light of the evidence pertaining to the current circumstances of the applicant, particularly the fact that he is in a long term relationship with an Australian citizen, whom he is planning to marry and start a family with along with the fact that as an exercise physiologist who provides services to the residents of Port Macquarie and whose skills are highly valued the Tribunal gives this consideration significant weight in the visa holder’s favour.

    The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958

21. The applicant provided a comprehensive response to the NOICC and has co-operated with the Department throughout the cancellation process. 

22. The Tribunal gives this consideration some weight in the applicant’s favour.

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

23. There are no other instances of non-compliance known to the Minister.

24. The Tribunal gives this consideration some weight in the visa holder’s favour.

    The time that has elapsed since the non-compliance

25. The non-compliance occurred when the applicant provided incorrect information in his Subclass 417 visa application’s lodged with the Department on 12 November 2012 over 8 years ago, in his subsequent Subclass 417 application made in January 2014 over 6 years ago and in his Subclass 187 visa application lodged on 6 January 2015 over 5 years ago. As has been noted, the non-compliance that existed in all of these applications has been pertaining to incorrect information about his place of birth.

26. It is now in excess of 8 years that has elapsed since the first incidence of non-compliance. The evidence indicates that the applicant has been in Australia continuously since 2012. The evidence indicates that the applicant has worked as an Exercise Physiologist in Australia and prior to the cancellation of his visa was working in his own business providing exercise physiology and teaching parkour to predominantly youth groups in Port Macquarie.  The evidence indicates that the applicant was a highly valued employee by the Port Macquarie Seventh Day Adventist school whilst employed by the school as the holder of a Subclass 187 visa.

27. The Tribunal gives this consideration significant weight in the visa holder’s favour.

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

28. There is no evidence before the Tribunal that indicates any breaches of the law by the visa holder and the Tribunal gives this consideration some weight in the visa holder’s favour.

    Any contribution made by the holder to the community

29. The applicant as has been stated has worked as an exercise physiologist and personal trainer in Port Macquarie and here have been a number of endorsements of the applicant’s contributions to the Port Macquarie community in the time that he has resided there.

30. The applicant, in evidence provided to the Tribunal at review, advised that he has established a number of initiatives aimed at disconnected youth in Port Macquarie to deal with drug and alcohol abuse by engaging youth in physical fitness programmes. The applicant established a gym at the Seventh Day Adventist Church in Port Macquarie which is able to be accessed by youth groups and where he has run twice weekly sessions for the past 5 years.The applicant gave evidence that this was an attempt to get young people involved in something positive and that the sessions had been well attended.

31. The Tribunal received a statement from Ms Hayley McEwen, a solicitor in Port Macquarie who advised that:

    Since I met Mr Muca as a teacher at Port Macquarie Adventist School, I have been impressed with his maturity, enthusiasm and integrity. He has often brought groups of young teens and adults together for fitness and fellowship and expended large amounts of his personal time and resources in hosting these opportunities for the benefit of others.

    I have been the Secretary of the Port Macquarie Adventist Primary School Home Committee since 2019 and parent representative on the School Advisory Council which reports to the Northern New South Wales Conference Board. During meetings of the Advisory Council Mr Muca's volunteer activities have been considered a valuable resource for bringing together the school and wider community. On each occasion that his activities were mentioned, he was held in high esteem and the Committee has expressed their gratitude for his continued support of the school and church which has continued beyond his teaching appointment.

    In my role as Senior Solicitor with the Mid North Coast Community Legal Centre I have also heard Mr Muca mentioned with high regard by young people and service providers with whom we worked to support young people transitioning from out of home care, through a pilot project "Level Up" funded by the Law and Justice Foundation of New South Wales. Some of these young people who were otherwise disengaged and at risk took part in Mr Muca's exercise sessions from time to time where they would find a non-judgmental, supportive social outlet.

    Over the last 12 months, my eight year-old son has also taken part in parkour instruction with Mr Muca and I have always found him to be trustworthy, reliable and honest in his communications.

    If Mr Muca's application for citizenship is granted, I have no doubt that he will continue to have a positive influence on young people and adults in the Port Macquarie community.

32. The Tribunal received a statement from Latasha Penate, a youth leader with her local church in Port Macquarie who had known the applicant for a number of years and advised the following:

    I have known Ksandros Muca as a casual acquaintance since 2014, and more closely since mid-2015 when we began working together in youth leadership at our local church. From 2016 we also worked together in the same school.

    As youth leaders, Ksandros and I had a vision to provide a service to our local community of Port Macquarie that was not currently on offer in any form. This vision was to create a community gym with a difference. We wanted to offer a free service as well as an opportunity for community members to connect in ways that built meaningful relationships and support networks; and provided a safe space for questions to be asked and discussed. In addition, we envisaged the gym as a place for young people to connect with good role models and mentors, particularly as they transitioned from primary school into high school. Ksandros was passionate to see young people develop good life-style practices, and through his work in the school had already connected positively with many young people and their families, who were keen to see their children have continued access to a nurturing and positive environment.

    Throughout the process of applying for grant money and planning our project, there were many discouragements, but Ksandros’ attitude was always one of perseverance and commitment to our vision. Ksandros was always passionate and ever committed to seeing this dream become a reality. From 2016 to the present time this gym has been providing a service to the Port Macquarie young adults (aged between 16 to 40) that is not elsewhere provided. Each week, small groups gather for an interactive discussion time, followed by a professionally trained gym session, run by Ksandros. Despite him being a fully qualified and professional trainer, Ksandros has never sought financial compensation, rather his attitude is one of inclusivity for all, irrespective of any financial benefit to himself.

    Having worked alongside Ksandros for many years (2015-2019), it became evident that he has a genuine care for people and their wellbeing, he happily makes connections with anybody and warmly welcomes them along to any training session he runs. As a teacher, I have appreciated his ability to connect with young people across all ages, and the positive influence he exerts. As a youth leader I have benefited from his optimism and commitment and have valued the mutual trust and respect he shares with others. Many young people in Port Macquarie can testify to the welcoming, warm and caring personality of Ksandros, and his presence in the community would be sorely missed if the services he provides ceased to exist.

33. The Tribunal received a statement from Dr Erik Carrasco, a psychologist, who provided an endorsement of the applicants work in the community.  Dr Carrasco noted the following with regard to the applicant:

    I am a Doctor of Clinical Psychology that has worked in Government and Private Schools for the past 30 years. I have been working in Private Practice and own my own medical Practice since 2018. I worked as the Senior Psychologist in Public schools in Port Macquarie for 7 years between 2012-2019.

    I have known Ksandros for approximately 7 years and he has shown to be of good character, well respected, and admired by his peers. He is polite, friendly, and very considerate of others. He is a deeply spiritual person with high integrity and sound self-reflection and self-regulation. He has been punctual, reliable and industrious with his time and work. Ksandros has the tenacity, charisma, and determination to initiate work projects that have had great success. He comes from a well disciplined and educated family of high standing. I have known his two sisters and their family for 7 years and they are all stable, well-educated and respected members of the community.

    Ksandros has been involved in the Port Macquarie local community as a personal trainer and working in schools as a personal trainer and fitness-wellbeing gym instructor. He has been a much sought-after personal trainer and gym instructor in local dance groups, school groups and church community groups. He is also much sought after by elite athletes.

    Ksandros presents with unique skills in personal fitness-gymnastics training, with a humble but confident personality that is contagious, inspiring and highly motivational. He is an amazing gymnast with unbelievable strength for his size and build. He has a healthy and very disciplined nutritious diet that exemplifies how one can eat well and maintain peak performance. Unlike many other personal trainers, Ksandros demonstrates a more balanced aerobic and anaerobic exercise regime.

    It will be an enormous loss if Ksandros does not gain permanent citizenship. He has a positive contagious influence for our young people in the community. He has demonstrated time and time again what individuals can achieve if they use their energy in a positive and constructive manner. He has modelled what persistence and consistency can achieve and the personal satisfaction of sustained determination.

    Ksandros is in a steady relationship with a partner that is studying Physiotherapy. She has been inspired by Ksandros’s personal and spiritual discipline and endurance. My own three young adult children have enjoyed the regular workouts and the lifestyle choices that Ksandros has inspired.

    Ksandros is a man of his word with great integrity and he does not need to lie to prove himself as he leads by example. He is genuine and secure within himself so he does not have to pretend he is something he is not.

1. The Tribunal received an endorsement of the applicant from Dr Naomi Reeves an Emergency Medicine Specialist in Port Macquarie, dated 14 December 2021, who stated that the applicant though his expertise in exercise physiology, running physical education classes at the Seventh Day Adventist School and with youth groups and private clients was well known and liked in the Port Macquarie community and provided an invaluable range of community services in the area.

2. The Tribunal received a statement from Pastor Obed Soire with the Seventh Day Adventist Church in Port Macquarie which strongly endorsed the applicant’s contribution to the Port Macquarie community in the following terms:

   This is to inform you that I as Pastor and leader of a faith based community has known Mr. Ksandros Muca for the last 5 years. He not only is a well known part of the Port Macquarie Seventh-Day Adventist Church, but has also played some key valuable roles in leadership that have made a tremendous contribution to the wider Port Macquarie community.

   He has been running a gym where young  people come not only for their physical fitness but also Bible studies sessions along with it. He has been running these sessions for the last  4 years on a regular basis and they have proven to be a useful vehicle to train young people on life skills.

   Ksandros has demonstrated the fact that he is not one to easily replace. His upright, dependable character combined with his social and professional skills has made not only our faith community richer, but I believe the wider community too.

3. The Tribunal received an endorsement of the applicant from Sarah Curry, a physiotherapist in Port Macquarie, dated 10 December 2020 which states that the applicant has made a significant contribution to the Port Macquarie community as follows:

   I have been a friend and colleague of Ksandros for nearly 7 years, whilst living in Port Macquarie. I can honestly say, he is one of the most genuine, giving, kind and hardest working people I know.

   With his ability to chat to everyone and make them feel at ease, he has brought together people from every background, into a community. Ksandros regularly organises and runs group fitness sessions in his community, to which everyone is made feel welcome. His passion and expertise in coaching is second to none and he knows just how to inspire people to be the best versions of themselves.

   I also share some mutual patients with Ksandros. The feedback I get from both students and parents is always positive, with everyone who comes in contact with him admiring his personable nature. He is a great role model for the younger generation in Port Macquarie as a respectful, health conscious, confident leader.

   Port Macquarie is definitely a better place for having Ksandros in it, for his work in health and fitness as well as being an active member of community and a great friend to many.

4. The Tribunal also received an endorsement of the applicant from Terry Power, a Chiropractor in Port Macquarie dated 4 December 2020 pertaining to the applicant contribution to the local community in the following way:

   I have known Ksandros for many years, at least ten.

   In that time, I have witnessed Ksandros giving his time to youth for their exercise meetings freely, to develop the youth in healthy ways. Most of the time these exercise groups have been given regularly without any financial benefit whatsoever. Ksandros cares about the healthy development of teen's character and health. But he also gave to the not so young in the same way. So he simply gave enormous hours to support this cause. I know he would meet them at various parks and also down near Flynns beach for healthy exercise regimes that developed their body and their character. He would freely give his time to anyone that was struggling emotionally.

   Ksandros is always a smiling face with an uplifting attitude. He is liked and respected by all that I know.

   If Ksandros was not in this community it will create a void that only he has filled. To many people it just will not be the same with his gifts and his attitude.

   He is kind, considerate, respectful and a strongly ethical young man.

   Ksandros I know has helped to exercise and get in shape stars from around the world including Chris Hemsworth for his role in Thor. This Ksandros does not talk about himself, as he is very humble and real.

   Ksandros also formed an exercise group at the Seventh Day Adventist school and helped to create an entire Gym at their school that was very well equipped.

   These are skills we really need and to apply them to our own citizens in healthy ways is only a great benefit to our community.

5. The evidence before the Tribunal indicates that the applicant provides a wide range of community services in the Port Macquarie area aimed at physical fitness, positive engagement with youth and human movement. The applicant has provided a wide range of endorsements attesting to the significant contribution that he has made to the community in Port Macquarie and the fact that he is seen as a a highly valued member of that community.

6. The Tribunal apportions significant weight to this consideration in the applicant’s favour.

   Whether there are persons in Australia whose visas would, or may, be cancelled consequentially

7. There are no persons whose visas would be cancelled consequentially as a result of the cancellation of the applicant’s visa.

8. The Tribunal gives this consideration no weight in the applicant’s favour.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

9. There is no evidence before the Tribunal that Australia will be in breach of any international agreements or obligations as a result of the cancellation of his visa and the Tribunal gives this consideration no weight in the applicant’s favour.

   Whether there are mandatory legal consequences to a cancellation decision

100. If the applicant’s visa is cancelled the applicant will become an unlawful noncitizen and will be liable to be detained in immigration detention under section 189 of the Migration Act or removed from Australia under section 198 of the Migration Act in the event that the applicant did not arrange his own departure from Australia. Further to this the applicant would be precluded from making an application for a further visa for a period of 3 years pursuant to Public Interest Criterion.

101.   The Tribunal gives these considerations some weight in the applicant’s favour.

Any other relevant matters

102.   As has been discussed the evidence before the Tribunal indicates that the applicant was born in Albania and that he along with his family fled that country when the applicant was 9 years old. The family travelled by boat to the United Kingdom and sought asylum in that country and were in due course found to be owed protection obligations.

103.   The applicant and his family were conferred with British citizenship in 2003. The evidence before the Tribunal indicates that the applicant and his sister were predominantly educated in the United Kingdom and the applicant completed undergraduate studies in the United Kingdom in exercise physiology.

104.   The applicant has two sisters who both migrated to Australia and both obtained permanent residence and are both Australian citizens.  The applicant’s sister Kleodora is married to an Australian and has 4 Australian citizen children. The applicant’s sister Nerissa is an educator and works in the field in Northern New South Wales. The applicant is close to both of his sisters.

105.   The evidence indicates that the applicant’s parents, on the basis of advice they received at the time they arrived in the United Kingdom, apparently stated in their claims for protection that the family were born in Prishtine, Kosovo. The evidence indicates they were advised to state this in their application for protection to give it weight and to avoid being repatriated to Albania. The place of birth recorded in the application and which is fundamental to a claim for protection was clearly wrong as the family were from Albania.  The evidence before the Tribunal also indicates that the applicant’s father had an adverse profile in Albania due to his role as a prosecutor and that the family appeared to have a well-founded fear of persecution on this basis. As stated, the Tribunal has had no information before it pertaining to the claims that the applicant’s parents submitted to the British government to support their claims for protection.

106.   The evidence indicates that the applicants place of birth became an issue when the applicant in his application to the Australian government for the conferral of citizenship provided conflicting documents requested during the processing of that application. One document which stated he was born in Prishtine, Kosovo, and another, his British drivers licence, stating that he was born in Prishtine, Albania. The evidence is such that the applicant was born in Elbasan in Albania. 

107.   As noted the applicant was 9 years old when his parents applied for asylum in the United Kingdom, and a 9 year old could not be held culpable for the contents of the protection application lodged by his parents with him being included as a member of their family unit. However, as an adult the applicant was required to and should have been cognisant of the fact that Australian visa applications require information to be correct.

108.   The applicant along with his two sisters (now, as noted Australian citizens) have maintained this fiction in order to maintain a consistent narrative to that provided by their parents at the time they lodged an application for asylum. It was the sharp eye of the citizenship conferral processing officer that picked up this inconsistency and this has led to the cancellation of the applicant’s visa.

109.   The Tribunal finds, as has been noted, that the applicant’s two Subclass 417 visas were both issued to him on the basis that he met the criteria relevant to the grant of those visas. The applicant’s Subclass 187 visa was also granted to the applicant on the basis that he was the subject of an approved nomination by his nominating employer and that the applicant had the requisite skills to work in the nominated occupation. The evidence indicates that the applicant worked for his nominating employer for 3 years and that he was a valued employee.

110.   The evidence also indicates that the applicant has been continually resident in Australia since 2012. The applicant has worked as an exercise physiologist in Port Macquarie and has set up a gym for young people and runs training and gym sessions for the residents of that rural city.  The evidence indicates that the applicant has established his own business and that in the time that he has been resident in Port Macquarie he has been a highly valued community Member and is someone of integrity.  This is clearly evidenced in the multiple endorsements and references provided on behalf of the applicant, during the course of this review, from a very wide range of sources.

111.   The applicant is now in a long-term relationship and indeed engaged to an Australian citizen and is a respected member of her family unit.

112.   The applicant’s two sister’s, his only siblings, are both Australian citizens and he is close to them and his sister, Kleodora’s 4 children.

113.   The evidence further indicates that the applicant is strongly involved in the Port Macquarie community and a valued member of that community for the reasons that have been outlined extensively in this decision record.

114.   The Tribunal has considered all of the relevant factors as to whether or not the applicant’s visa should be cancelled, both singularly and cumulatively and has determined having regard to those considerations that the applicant’s visa should not be cancelled.

DECISION

115.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

John Cipolla
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).

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.