Munta (Migration) - [2024] ARTA 498

Munta (Migration) [2024] ARTA 498 (22 November 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Charinrat Munta
Respondent:  Minister for Home Affairs
Tribunal Number:  2423851

Tribunal:General Member C Kannis
Place:Perth
Date: 22 November 2024
Decision: The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 22 November 2024 at 6:53am
CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – incorrect information provided in visa application – genuine and continuing relationship and mutual commitment when application made and visa granted – relationship registered – information received by department – sponsor married and in continuing relationship with wife in another country – sponsor’s abusive behaviour and applicant’s physical and mental health and treatment – discretion to cancel visa – applicant not aware of sponsor’s marriage until cancellation notice received – relationship now ceased – length of residence and extent of work in Australia and financial support for children in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 98, 100, 101(b), 107, 109(1), 349(1), 359A, 375A
Administrative Review Tribunal Act 2024 (Cth), s 105(c)(ii)
Migration Regulations 1994 (Cth), Schedule 2, 2.41, cls 820.211(1)(a), 820,221
CASE
MIAC v Khadji (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s 101(b) of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 12 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant was represented in relation to the review. The representative attended the hearing by MS Teams.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant and the representative requested that the Tribunal consider the applicant’s review under the family violence provisions. The decision for review before the Tribunal is a cancellation decision. A decision under the family violence provisions is a decision in relation to whether criteria for the grant of a visa are met.
The Tribunal’s powers on review are set out in s 105 of the Administrative Review Tribunal Act 2024 (ART Act) , as modified by s 349(1) of the Act. The effect of those sections is that on the review of a decision to cancel a visa, the Tribunal may affirm (s 105(a) or vary the decision (s 105(b)), or set it aside and substitute a new decision (s 105(c)(i)). The power to remit the matter to the decision‑maker for reconsideration in accordance with any orders or recommendations of the Tribunal (s 105(c)(ii)) does not apply by reason of s 349(1) of the Act and because a decision to cancel a visa is not a prescribed matter for the purpose of s 349 of the Act. In conducting the review, the Tribunal may exercise all the powers and discretions conferred by the Act on the primary decision-maker: s 54 of the ART Act.
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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?
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.
Background
In her Application for migration to Australia by a partner lodged on 11 March 2021, on page 12, under the heading Sponsor, the applicant provided the following information:
Family name: TOLLEY
Given names: Matthew
Sex: Male
[Date of birth]
In her Application for migration to Australia by a partner lodged on 11 March 2021, on pages 18 and 19, under the heading Relationship, the applicant provided the following answers (in bold):
Relationship status: De Facto
Date committed de facto relationship began: 11 Nov 2015
Is the relationship between the applicant and the sponsor genuine and continuing?: Yes
Do the applicant and the sponsor have a mutual commitment to a shared life as a married couple, or as de facto partners to the exclusion of all others?: Yes
At the time of application the applicant was required to meet cl 820.211 which included that the applicant is the spouse or de facto partner of person who is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen. At the time of the decision she needed to meet the requirements of subclause 820.221, which relevantly required that she continued to meet cl 820.211.
'De facto partner' is defined in s 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).
The delegate assessing the visa application determined that the applicant was a de facto partner of the sponsoring partner and satisfied the requirements of subclause 820.221(1)(a) because she was in a genuine and continuing relationship to the exclusion of all others with her sponsoring partner.
On the basis of the above information, as well as meeting all other relevant criteria, the applicant was granted a Partner (Temporary) (subclass 820) visa on 30 September 2021.
The Department received information indicating that the applicant was not in a mutually exclusive relationship with her sponsoring partner at the time she lodged her application for a Partner (Temporary) visa, nor at the time the visa was granted. The information indicated that Mr Tolley had been married to another person since 7 November 2014 and that he continued to be in a genuine and continuing married relationship with that other person up until at least the grant of the applicant’s Partner (Temporary) visa.
Given the inconsistencies in the information provided by the applicant in her application and the information received by the Department, the non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act in the following respects:
Alleged non-compliance with s 101(b)
Section 101 provides that visa applications are to be correct, and paragraph (b) specifically requires that no incorrect answers are given or provided. The non-compliance identified as non-compliance with s 101(b) was:
- The applicant provided incorrect answers in her Application for migration to Australia by a partner when she provided details on page 12, 18 and 19 of the visa application form, under the headings Sponsor and Relationship, indicating she had been in a de facto relationship with Matthew Tolley since 11 November 2015, that the relationship was genuine and continuing and that she and Matthew Tolley had a mutual commitment to a shared life as a married couple, or as de facto partners to the exclusion of all others.
Section 99 of the Act provides that any information 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 s.101, paragraphs 101(b) and 102(b) and ss. 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.
Section 100 of the Act 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.
The information was considered to be incorrect because information was received by the Department was that Mr Tolley had been married to another person since 7 November 2014 and that he continued to be in a genuine and continuing married relationship with the other person up until at least the grant of the applicant’s Partner (Temporary) visa. Therefore, the information the applicant provided that she had been in a de facto relationship Matthew Tully since 11 November 2015 and that they had a mutual commitment to a shared life as a married couple, or as de facto partners to the exclusion of all others was incorrect.
On 3 May 2024, the Department issued the applicant with a s 107 Notice of Intention to Consider Cancellation (NOICC) because she had provided incorrect information in her Application for migration to Australia by a partner.
Response to the s 107 notice
On 17 May 2024, the applicant responded and provided the following information:
- She was shocked by the NOICC and immediately asked Mr Tolley about the alleged affair with another party and said she believed their relationship to be to the exclusion of all others. In the following days they had arguments regarding this matter, over which he did not acknowledge or deny the existence of the alleged marriage certificate involving another party. On 6 May 2024, she asked him in his car when he picked her up from work and he was quiet and suddenly shouted at her and said he would not give her any information and asked her to stop asking about his marriage in Thailand.
- She was confused and when they returned home Mr Tolley ate his food and tried to do everything as usual, like nothing had happened. He ignored her when she tried to talk and discuss this, even on the phone, by text, or face-to-face.
- Their story of love began in 2013 in Sydney. She trusted him. They live, they travel, and have done a lot of things. They used to live together in Sydney and Tasmania. He always flew to see her and they lived like an average couple for many years before he decided to register for a relationship certificate in NSW.
- Even in 2020, Mr Tolley had to move to Tasmania and commit to settling his job as soon as possible so that he could live with her together again.
- In November 2023, Mr Tolley told her he was moving to Perth and let her prepare. He sent her photos of apartments in Perth and let her help him choose.
- On 5 April 2024, Mr Tolley moved to Perth and she followed him arriving in Perth on 9 April, 2024. He picked her up at the airport and took her to dinner before going to their apartment. Everything looked normal and he talked and cared for her. He asked her to move to Perth to start a new life and she trusted him.
- After they fought Mr Tolley didn't want to talk to her about her visa and she had no other friends in Perth. She went to a Family Counsellor on 13 May 2024. She was crying and confused and the counsellor gave her a lot of tissues.
- She still lives with Mr Tolley but she moved out of their bedroom and slept in the living room because she had nowhere else to go. He still picks her up from work but he still ignores her problem and is moody when she tries to discuss it.
- She is stressed and hopes the marriage counselling can help her. She never believed this would happen in their life.
- She feels scared of Mr Tolley and doesn’t want to discuss her visa anymore.
- She never felt something was wrong with their relationship until the letter from immigration.
- As such, she believes the ground for the cancellation does not exist as they are still seeking marriage counselling services. She believes the relationship was to the exclusion of all others, which Mr Tolley made her believe.
At the time of responding to the NOICC the applicant provided:
· SMS screenshots between her and Matthew Tolley in relation to finding an apartment in Perth, arrangements to pick her up at Perth airport and trying to discuss the Marriage Certificate; and
· Evidence of the applicant’s payment for appointment with Health Sense Psychology & Wellness on 13 May 2024.
Evidence provided prior to the hearing
Document evidencing the applicant’s appointment with Health Sense Psychology & Wellness on 13 May 2024.
Letter dated 10 October 2024 from Counselling Psychologist, Ms Mary-Anne Wallace of Health Sense Psychology & Wellness stating the applicant attended appointments on 13, 22 and 29 May 2024, 24 June 2024, 3,15 and 29 July 2024 ,12 and 26 August 2024 and 7 October.2024 and that she was referred by her GP for assistance with stress, anxiety and depression. Ms Wallace noted the applicant reported her visa had been cancelled because her partner of ten years was married and she did not know about the marriage. Ms Wallace noted the applicant reported that her partner refused to discuss the matter and became angry and used abusive language which frightened her. Ms Wallace noted at the time of her first appointment the applicant had only been in Western Australia for two weeks and was financially dependent on her partner and reported not sleeping, not eating and struggling to get to work.
Letter dated 14 October 2024 from Dr Michael Khalil of Nollamara Medical Centre stating he is the applicant’s general practitioner and first saw her on 29 May 2024 when she was distressed about her long-term partner being married to someone else. He said she had severe anxiety and depression and had seen a psychologist. He said he had seen the applicant for 7 consultations since May 2024 for her mental state and found she developed high blood pressure.
Form 1022 Notification of changes in circumstances dated 30 October 2024 indicating that the applicant’s de facto relationship with Matthew Tolley ended on 3 May 2024.
Written statement dated 31 October 2024 from Mr Giuseppe Arrigo stating that from 13 September 2024 the applicant has been living temporarily with he and his wife. He stated that the applicant has relationship issues, health problems and mental state issues.
Applicant’s written personal statement dated 3 November 2024 in which she said:
·Her relationship with Mr Tolley was genuine, exclusive, and intended to be lifelong.
·She met Mr Tolley in August 2013. At the end of 2015 she moved closer to Sydney and they started living together as a couple.
·From 2015 to 2024 they maintained a committed relationship despite work commitments in different states. Mr Tolley worked in Tasmania and she worked in Sydney. They rented apartments in both places and visited each other frequently, splitting time between the two locations. Through these years they shared their lives and finances. Throughout their years together they shared a vision for their future including discussing purchasing a home and a car using their mutual funds. She saw Mr Tolley as her life partner and had no indication he was involved with anyone else.
·On 3 May 2024 she was devastated to learn from the Department of Home Affairs that Mr Tolley was married to a woman residing in Thailand. This was the first time she became aware of the relationship. She was shocked and confused.
·Mr Tolley denied the marriage, became verbally aggressive and tried to silence her questions. His response deepened her sense of isolation and confusion.
·Mr Tolley’s behaviour changed significantly and he frequently yelled at her both in public and private. He used her visa status to threaten and control her. He threatened to cancel their lease or inform the apartment owner that she was a “trespasser” whenever she could not meet his demands. He would drive recklessly during arguments to intimidate her.
·Mr Tolley’s behaviour left her feeling isolated and emotionally drained as he manipulated her reliance on him and her immigration status to maintain control. These actions sometimes put her in fear of imminent harm, left her feeling threatened and insecure in their shared living arrangements. His behaviour after 3 May 2024 reflected a deliberate pattern of intimidation and manipulation.
·Due to the deterioration of the relationship and the abuse, she sought medical assistance. On 13 May 2024, she saw a GP and psychologist who diagnosed her with anxiety and depression.
·Since this period she has suffered from insomnia, anxiety, and depression. She has found herself unable to trust others and the betrayal she experienced has left lasting emotional scars.
·She applied for the Partner visa with the honest intention of building a life with Mr Tolley in Australia. His undisclosed marriage and subsequent abusive behaviour left her vulnerable and struggling to protect her status in Australia.
·She acted in good faith and the circumstances of her situation merit compassionate consideration.
Applicant’s Form 1410 statutory declaration for a family violence claim dated 4 November 2024 in which she states that Mr Tolley kept his marriage to another person from her during their relationship and that he was verbally abusive when she raised it with him. She stated she moved out of the apartment they shared on 13 September 2024 and set out incidents of family violence she experienced on 18 May 2024 and other occasions (dates not specified).
Messaging described to be in relation to the applicant trying to discuss the Marriage Certificate in May (year not indicated).
Evidence in support of genuine relationship prior to separation:
·Correspondence addressed to the applicant and to Mr Tolley (individually and jointly) at addresses in Burwood NSW 2134 in 2023 and at West Leederville WA 6007 in 2024.
·Photographs of the applicant and Mr Tolley together alone dated in 2022 and 2023 and with other people dated in 2023.
·Evidence of joint travel in 2023 and gift vouchers from Mr Tolley to the applicant dated 24 June 2022, 13 May 2023 and 15 December 2023.
·Messaging described to be in relation to discussion with respect to choosing an apartment dated in February (year not indicated) and Mr Tolley picking the applicant up form Peth airport dated in April (year not indicated).
·ANZ statements for an account in the joint names of the applicant and Mr Tolley for 2 October 2023 to 14 November 2023. The transactions were all identified as transfers.
·ANZ statements for an account in the joint names of the applicant and Mr Tolley for 1 December 2022 to 1 February 2023. The credit transactions were all identified as transfers and the debit transaction included restaurant and fast food payments.
·ANZ statements for an account in the joint names of the applicant and Mr Tolley for 1 June 2023 to 1 August 2023. The credit transactions were all identified as transfers and the debit transaction included a petrol payment.
·ANZ statements for an account in the joint names of the applicant and Mr Tolley for 3 April 2023 to 1 June 2023. The credit transactions were all identified as transfers and the debit transactions included restaurant, fast food and taxi payments.
·ANZ statements for an account in the joint names of the applicant and Mr Tolley for 3 February 2023 to 4 April 2023. The credit transactions were all identified as transfers and the debit transactions included restaurant, fast food and transport payments.
·ANZ statements for an account in the joint names of the applicant and Mr Tolley for 1 August 2023 to 2 October 2023. The credit transactions were all identified as transfers and the debit transactions included restaurant, fast food, hotel and Vodafone payments.
Evidence provided at hearing

The applicant told the Tribunal she disagreed that the ground for cancellation exists and provided several reasons for this including that the government sent them a Relationship Certificate when she was living with Mr Tolley and that there was nothing which caused her to be suspicious about him having another relationship.
The representative submitted that relevant to the lack of exclusivity is Mr Tolley’s understanding of the nature of his marriage in another jurisdiction. The representative submitted that there is no evidence of Mr Tolley’s frequent travel to or communication with Thailand which would demonstrate this and the applicant cannot recall such travel or communication.
In response to the Tribunal asking about her NOICC response regarding a conversation in the car on 6 May 2024, the applicant said she asked Mr Tolley whether he was married to another woman and in response he shouted and said he wasn’t married to someone else in Australia and to stop asking about his marriage in Thailand.
In response to the Tribunal asking about her NOICC response regarding moving out of the bedroom she shared with Mr Tolley, the applicant initially said she moved out on 31 May 2024. The Tribunal pointed out that the NOICC response was dated 17 May 2024. The applicant then said she moved out of the bedroom on 5 May 2024.
The applicant told the Tribunal that Mr Tolley would not discuss his marriage with her and said he remained still and silent and ignored her or yelled at her when she raised the matter.
Noting the Form 1022 indicated the date her relationship with Mr Tolley ended on 3 May 2024, the Tribunal asked the reason it ended on that date. In response the applicant explained that Mr Tolley had betrayed her and that was the date she found out he was married to someone else and her relationship with him no longer felt stable. She also said she did not feel safe and Mr Tolley used vulgar language when speaking to her.
The Tribunal referred the applicant to her written personal statement dated 3 November 2024 and asked about her statement that Mr Tolley’s behaviour after 3 May 2024 reflected a deliberate pattern of intimidation and manipulation. In response she said every time she asked about his other relationship he would shout and make reference to cancellation of her visa or threaten to tell the landlord she was trespassing because her name was not on the lease. She said she did not move out of the apartment they shared after 3 May 2024 because she could not afford to pay rent. She said Mr Tolley refused to give her half of the bond money she had paid. She said her reason for remaining at the apartment from 3 May 2024 to 13 September 2024 was due to financial difficulty.
The Tribunal referred the applicant to the Form 1040 in which she referred to incidents of family violence she experienced on 18 May 2024 and other occasions (dates not specified). She said on 18 May 2024 Mr Tolley lifted his foot as if he was about to kick her and removed his belt as if he was about to hit her and only said the word ‘remember’. She said the reference in the Form 1040 to the sponsor driving aggressively occurred on 5 May 2024. When asked about the other incidents of family violence the applicant clearly stated that the family violence started after she went to the doctor/counsellor on 13 May 2024.
Non-disclosure certificate
At the hearing the Tribunal told the applicant that a non-disclosure certificate had been issued by the delegate under s 375A of the Act.
The reason disclosure of the material would be contrary to public interest was stated to be because it would disclose, or enable a person to ascertain the existence or identity of, a confidential source of information and was provided ‘in confidence’, the provider of the information has not consented to disclosure of the information to the review applicant. The Tribunal provided the applicant with a copy of the s 375A certificate. The Tribunal decided the certificate contains a valid ground of public interest immunity not to disclose the information. The Tribunal asked the applicant and the representative whether they wished to comment on the validity of the certificate. The representative said the validity of the certificate was accepted.
The Tribunal informed the applicant that it would let her know the ‘gist’ of the information the subject of the certificate. Given the information was adverse, the Tribunal put the information to the applicant under s 359A of the Act at the hearing. The Tribunal put to her that the information included a Marriage Certificate evidencing the sponsor’s marriage to Miss Suthathip Polyeam on 7 November 2014 in Bangkok, letters of support from Mr Tolley stating he would provide financial support and cover the travel expenses of his wife, Ms Suthathip Polyeam, for periods in 2015 and 2016 and that he had been in a relationship with her for 4 years and 5 years respectively and had travelled to Thailand many times and met her family.
The Tribunal put to the applicant that the information the subject of the s 375A certificate included a letter of support dated 13 January 2022 from Mr Tolley stating that he would provide financial support and cover the travel expenses of his wife, Ms Suthathip Polyeam, and her two daughters for a period from 9 to 17 April 2022.
The Tribunal put to the applicant that the information the subject of the s 375A certificate also covered a Relationship Certificate dated 13 March 2021 issued by the Registry Births Deaths and Marriages (NSW) and the Application for migration to Australia by a partner and Sponsorship for a partner to migrate to Australia lodged in support of her Partner visa application.
In response to the above information the applicant said she did not know about Mr Tolley’s relationship with another person until 3 May 2024.
The Tribunal places significant weight on the Marriage Certificate evidencing the sponsor’s marriage to Miss Suthathip Polyeam on 7 November 2014 and the letters of support from Mr Tolley stating that he would provide financial support and cover her travel expenses for periods in 2015, 2016 and 2022. This evidence indicates that Mr Tolley was in an ongoing relationship with his wife during the period he was in a relationship with the applicant. Therefore, in the partner relationship with the applicant there was not a mutual commitment to a shared life as de facto partners to the exclusion of all others.
Conclusion on non-compliance
On the evidence before it, the Tribunal finds that the applicant’s answers on her visa application form that she and Mr Tolley committed de facto relationship on 11 November 2015, that the relationship is genuine and continuing and that they have a mutual commitment to a shared life as a married couple, or as de facto partners to the exclusion of all others were incorrect.
The Tribunal accepts that the applicant was not aware that the answers were incorrect at the time of application. However, the Tribunal is mindful that ss 98 and 100 of the Act make it clear that it is not necessary for the applicant to be personally involved in the fraud, nor even to be aware of it, for the grounds for cancellation to be established.
The Tribunal does not accept the representative’s submissions that the ground for cancellation does not exist because of Mr Tolley’s understanding of the nature of his marriage in another jurisdiction and the lack of evidence of Mr Tolley’s frequent travel to or communication with Thailand. There was nothing before the Tribunal to indicate that Mr Tolley was not aware of the nature of his marriage and even if he were mistaken, this would not mean that the ground for cancellation does not exist. Regarding the lack of evidence of frequent travel to or communication, as noted, the Tribunal places significant weight on the information covered by the s 375A certificate. Further there was nothing before the Tribunal to indicate that Mr Tolley’s relationship with his wife in Thailand was not genuine and continuing at the time the application was made. The applicant’s evidence was that he refused to discuss the relationship with her.
Accordingly, the applicant has not complied with s 101(b) as described in the s 107 notice.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
In exercising this power, the Tribunal must consider the applicant’s response to the s 107 notice and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (the Regulations).
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are relevant in any given case: MIAC v Khadji (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has taken the reg 2.41 prescribed circumstances as well as any other relevant facts and matters, including the applicant’s responses to the s 107 notice into account when considering the discretion.
Prescribed circumstances
The correct information
The correct information is that the applicant ‘s sponsoring partner married another person on 7 November 2014 and that he continued to be in a genuine and continuing married relationship with that other person up until at least the grant of the visa holder’s Partner (Temporary) visa.
The Tribunal gives this some weight in favour of exercising its discretion to cancel the visa.
The content of the genuine document (if any)
This consideration does not apply in this 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
The decision to grant the visa was based partly on the information that the applicant and Mr Tolley committed de facto relationship on 11 November 2015, that the relationship was genuine and continuing and that they had a mutual commitment to a shared life as a married couple, or as de facto partners to the exclusion of all others. The Tribunal has found that these were incorrect answers and therefore they constituted incorrect information. The information about the applicant’s relationship with Mr Tolley’s, including that he was married to another woman and that the relationship was genuine and continuing at least until to the grant of the applicant’s Partner (Temporary) visa was very significant to the assessment of her eligibility for the visa.
The Tribunal finds that the decision to grant the visa was based on incorrect information being that the applicant and Mr Tolley committed de facto relationship on 11 November 2015, that the relationship was genuine and continuing and that they had a mutual commitment to a shared life as a married couple, or as de facto partners to the exclusion of all others
The Tribunal gives this factor some weight in favour of its discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant’s explanation for the incorrect information is that she was not aware of Mr Tolley’s marriage and ongoing relationship to a woman in Thailand. She told the Tribunal that her attempts to discuss the marriage with Mr Tolley were met with a refusal to discuss the matter or alternatively he shouted at her about other issues.
The Tribunal accepts that the applicant was unaware of Mr Tolley’s marriage and relationship with another woman at the time she lodged her application and at the time her Partner (Temporary) visa was granted. The Tribunal accepts the applicant’s evidence that she became aware of the relationship with the other woman when she received the NOICC following which she attempted to discuss the matter with Mr Tolley. However as noted, it is not necessary for the applicant to be personally involved in the fraud, nor even to be aware of it, for the grounds for cancellation to be established.
The Tribunal gives this factor some weight against cancellation.
The present circumstances of the visa holder
The applicant told the Tribunal she works in a massage shop on a part-time basis and generally works 10 to 15 hours per week. She said she lives with friends and is not required to pay rent because they are aware of her difficult financial circumstances. She said these friends (Mr Arrigo and his wife) are the only friends she has in Perth. She has no family in Australia and her daughters aged 15 years and 14 years live in Thailand with their father (her ex-husband).
In response to the Tribunal asking whether she is attending counselling, the applicant said she has no appointments booked at the present time because of the costs involved. She said she would like to continue counselling because of her mental health issues. She said she cannot sleep deeply because she is worried. In response to the Tribunal asking about the reasons she is worried the applicant said she is concerned about not trusting others in the future and Mr Tolley’s betrayal has caused her to lose her confidence.
Letters dated in October 2024 from Counselling Psychologist, Ms Mary-Anne Wallace and from Dr Michael Khalil were provided. Ms Wallace said the applicant attended several appointments between May and October 2024 and said she was referred for assistance with stress, anxiety and depression. Ms Wallace noted at the time of her first appointment the applicant had only been in Western Australia for two weeks and was financially dependent on her partner and reported not sleeping, not eating and struggling to get to work. Ms Wallace did not refer to the applicant’s present circumstances. Nevertheless, the Tribunal accepts the applicant’s evidence that she currently has difficulty sleeping which, in the Tribunal’s view, is likely to be due to her partner’s betrayal and also the visa cancellation decision. Dr Khalil said he first saw the applicant on 29 May 2024 when she was distressed about her long-term partner being married to someone else. He said she had severe anxiety and depression and he saw her for 7 consultations since May 2024 for her mental state and found she developed high blood pressure. The Tribunal accepts that the applicant has developed high blood pressure however Dr Khalil did not state the cause of her high blood pressure. Nevertheless, the Tribunal is prepared to accept it may be due to the worry the applicant claims causes her sleep difficulties.
The Tribunal gives this factor some weight against cancellation.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations.
The Tribunal gives this consideration a little weight against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance.
The Tribunal gives this consideration a little weight against cancelling the visa.
The time that has elapsed since the non-compliance
The applicant provided the incorrect answers on her application form submitted to the Department on 11 March 2021. The Tribunal accepts that it is 3. 5 years since the events of non-compliance occurred however does not consider this to be a significant amount of time.
The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined.
The Tribunal gives this consideration a little weight against cancelling the visa.
Any contribution made by the holder to the community
In response to the Tribunal asking about any contributions she makes to the community, the applicant said she attends temple and festivals in her village in Thailand. When asked about any contribution to the community in Australia the applicant said she donates to charity when asked to do so.
The Tribunal gives this consideration a little weight against cancelling the visa.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.
Other considerations
As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered the following additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and the Tribunal gives this factor no weight in its considerations.
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.
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s 189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a 3 year exclusion period unless she meets the relevant Public Interest Criterion. Whilst these are serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation.
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.
There are no children who would be affected by the cancellation. The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The applicant is a citizen of Thailand and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations or family unity obligations. The Tribunal gives this factor no weight either in favour of its discretion to cancel or not cancel the visa.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member
The applicant told the Tribunal that living in Australia would be difficult if her visa is cancelled. She said cancellation would adversely affect her future and the future of her daughters. The applicant said she loves living in Australia and if her visa is cancelled everything will become difficult and her life would be unstable.
In relation to her daughters the applicant said when she was with Mr Tolley her plan was to have a stable family life here. She said if she cannot live in Australia it will affect her employment and finances and will have consequences for her daughters’ education. She told the Tribunal that she provides financial support for all her daughters’ living expenses. She said her ex-husband only drops off and picks up her daughters from school and only provides their accommodation. The Tribunal asked the applicant whether she was claiming that she pays for her daughters’ education expenses, food, clothing, utilities and all other living expenses apart from the cost of their accommodation. The applicant told the Tribunal she paid for these expenses. Noting that the applicant’s evidence was that she cannot afford to pay her own rent, the Tribunal asked her how she was able to provide such significant financial support to her daughters. In response she said she has savings and borrows money. There was no documentary evidence to support the applicant’s contention that she supports all of her daughters’ living expenses apart from the cost of their accommodation. The Tribunal accepts that the applicant provides some financial support however in the absence of probative evidence it does not accept the extent of the financial support claimed.

The representative told the Tribunal that the applicant has established her life in Australia in terms of profession and her contribution to the community. No evidence to demonstrate these matters was provided.
The Tribunal accepts that the applicant will be disappointed if the visa is cancelled and may experience emotional hardship as a result. The Tribunal accepts that the applicant’s ability to provide financial support to her daughters may be adversely affected.
The Tribunal gives this some weight against exercising its discretion to cancel the visa.
Conclusion on the exercise of the discretion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101(b) of the Act.
The Tribunal accepts that the applicant was not aware of the non-compliance until she received the NOICC. The Tribunal accepts that there are no other known breaches of the law. The Tribunal accepts that hardship may be caused to the applicant and her daughters if the visa is cancelled. The Tribunal accepts that the applicant has been living in Australia for many years. The Tribunal accepts the applicant’s evidence that she has sleep difficulties which she said were due to worry. These are factors that suggest that the visa should not be cancelled.
Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was made without the correct information because the applicant provided incorrect information and that information was central to the grant of her visa.
There are no consequential cancellations. The Tribunal accepts that if the applicant’svisa is cancelled, and unless she is granted another visa, she may be subject to detention, although the applicant may be eligible to apply for othervisas.
The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.
As noted, the Tribunal accepts that hardship may be caused to the applicant and her daughters however the Tribunal considers the applicant’s provision of incorrect information is not outweighed by the considerations before the Tribunal. The Tribunal places greater weight on the fact that the decision to grant the visa was based on incorrect information about the applicant’s relationship with the sponsor which was central to the decision to grant her the visa.

100. 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
101. The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
Date(s) of hearing: 12 November 2024
Representative for the Applicant: Mr Weizi Zhu (MARN: 1462875)

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.

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.