Nallasamy (Migration)

[2021] AATA 1246

Nallasamy (Migration) [2021] AATA 1246 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ramesh Nallasamy

CASE NUMBER:  2015331

HOME AFFAIRS REFERENCE(S):          BCC2019/1470273

MEMBER:Kira Raif

DATE:28 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 28 April 2021 at 6:26pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – change of circumstance not notified to department – religious wedding and child with sponsor’s sister not declared – brief sexual relationship, but no de facto relationship or legal marriage or relationship with child – religious wedding to appease partner – no initial relationship with child – discretion to cancel visa – existence of relationship not a change of circumstance, but birth of child one – now divorced from sponsor and married to sister – best interests of child – potential hardship if cancellation affirmed – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 107A, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant was granted a Resident Return visa (RRV) in March 2019. Prior to that the applicant held a Partner visa for which he made the application in March 2008. In August 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s. 104 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 8 October 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

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

6. Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of the currently held visa.

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

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

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

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 104 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  he made an application for a Partner (Subclass 309) visa on 15 March 2006 and he was sponsored in that application by his then spouse Thanaledchumi Selvarasa. The applicant completed the application form 47SP. On that form,

    a.In response to Question 22 ‘have you been married before’ the applicant stated ‘no’.

    b.In response to Question 23 ‘have you ever been in a de facto spouse relationship before’ the applicant stated ‘no’.

    c.In response to Question 39 requiring the applicant to list his children, the applicant stated ‘n/a’

11. The applicant signed a declaration at Question 103 that the information he supplied in the application was correct and up to date. He also undertook to inform the department of any changes in his personal circumstances while the application was being considered.

12. The applicant was granted the Provisional Partner Subclass 309 visa on 17 March 2008 and the permanent Subclass 100 visa on 3 March 2009. The applicant entered Australia on 3 April 2008.

13. The primary decision record indicates that in January 2016 the applicant sponsored Sivahamy Ramesh for a Partner visa. Ms Sivahamy Ramesh is the sister of the applicant’s sponsor and former spouse Thanaledchumi Selvarasa. The primary decision record indicates that there was a child from the applicant’s relationship with Sivahamy Ramesh, born in July 2007 and that the applicant’s marriage with Sivahamy Ramesh was registered with the Sri Lankan Register of Marriages on 12 December 2014 and that a cultural wedding ceremony was held on 25 August 2006.

14. The primary decision record indicates that the applicant and the sponsor Ms Thanaledchumi Selvarasa travelled to Sri Lanka on multiple occasions but not together or at the same time. Following the grant of the permanent Partner visa and before the divorce in 2014, it is stated that the applicant returned to Sri Lanka every year and stayed there for at least 3 months and on one occasion for six months. The delegate noted that this may suggest that the applicant’s relationship with Ms Sivahamy Ramesh continued since he initially married the sponsor and during the processing of the Partner visa application. The delegate notes that on 31 December 2008 the applicant signed a declaration that his relationship with the sponsor was a committed and genuine one and to the exclusion of all others but it may be that he was not in a mutually committed relationship with the sponsor to the exclusion of all others if he maintained a relationship with Ms Sivahamy Ramesh. The delegate concluded that the applicant did not comply with s. 104 of the Act, given his previous marriage to Sivahamy Ramesh and the birth of the child.

15. In his response to the NOICC and evidence to the Tribunal the applicant states that he was not married or in a de facto relationship before and did not have any children he was able to claim or identify as his, so he did not provide incorrect answers. Nor was there a change in his circumstances. The applicant denies that he was in a spousal or de facto relationship with Sivahamy prior to the grant of the Provisional visa in March 2008 and states that the religious ceremony held in August 2006 did not have the effect of a legal marriage but was held to simply give her comfort and ‘retain her reputation’ given her pregnancy. In his submission to the Tribunal of 20 April 2021 the applicant also states that there was nothing but sexual intercourse between him and Sivahamy and that the religious ceremony was of out of his partner’s religious conviction, as she was distraught and unable to declare the relationship to others, and he went through the religious ceremony “to appease her religious sentiments”. The applicant states that it was a ‘pseudo arrangement’ for the sake of Sivahamy whom he had ‘unwittingly abused’ and he did not wish to undermine his committed relationship with the sponsor. The applicant states that there was no cultural or religious marriage and there was no committed relationship between him and Sivahamy but her pregnancy was a result of their circumstances. The applicant notes that the delegate relied on his attendance at the temple to conclude there was a relationship and marriage. The applicant refers to the requirements for a religious marriage to be conducted and notes that in his case, it was not done. The applicant also refers to the legal requirements for a valid marriage, stating that these were not met. The applicant submits that the prayer was merely to give relief to Sivahamy and did not result in a valid marriage but later both he and Sivahamy considered the religious attendance as an auspicious act.

16. The applicant refers to the definition of a de facto relationship and states that the sexual intercourse did not meet the requirements for the existence of a de facto relationship. The applicant submits he did not give incorrect answers when he claimed he had no prior marriages or de facto relationships. The applicant states that he was fully committed to his marriage to Thanaledchumi which broke after she learned the circumstances. The applicant refers to his own difficult circumstances and the unstable situation around him during the process and states that he married his wife with a hope of starting a new life but the lengthy period of waiting left him struggling and disappointed and the wait to re-join his wife has also had an impact on him.

17. With respect to the birth of the child, the applicant submits that Sivahamy did not wish to acknowledge or reveal him as the father of the child and the child lived without the care of the father until their marriage, as a result of which she had experienced discrimination and anxiety affecting her mental health. The applicant refers to his daughter’s rights under ICCPR, stating that she cannot be denied her rights due to her parents’ actions.  

18. The Tribunal finds the applicant’s claims unpersuasive and for the reasons set out below, has formed the view that the applicant has not been truthful about the circumstances of his relationship with his present partner, Sivahamy Ramesh. However, it is significant that if the applicant’s relationship with Sivahamy existed prior to his application being made, there was no change in the applicant’s circumstances once he had completed the application form. The circumstances had not changed because the relationship was already in existence. The existence of the relationship with Sivahamy would be indicative of an incorrect answer given on the application form (as the applicant claimed he had no other relationships) and a breach of s. 101 of the Act. However, this is not the basis set out in the NOICC. The NOICC refers to a breach of 104 and a change in circumstances and if the applicant was in a relationship with another person prior to making his application for the Partner visa, the Tribunal does not consider this could be classified as a change in his circumstances. The Tribunal has formed the view that s. 104 cannot apply to that circumstance. As the Tribunal must consider whether there was non-compliance in the way described in the Notice, the Tribunal has formed the view that the applicant’s relationship with Sivahamy cannot form the basis of the cancellation under s. 104.

19. The applicant accepts in his evidence to the delegate and the Tribunal that there was a child born in July 2007. The applicant states that the child’s mother has not allowed any interactions and he had limited knowledge of the child, so he did not treat the child as his. The applicant claims that the child’s mother made it clear from the start that he would not claim the child as his and would have no links with the child after his migration to Australia. The applicant states that there was no likelihood of any relationship with the child and he did not make any identification with the child. However, the Tribunal is of the view that the applicant’s connections with, or his attitude towards the child are irrelevant. The applicant is the biological father of the child. That is not in dispute. There is no evidence of any adoption or any other event that  would have severed the applicant’s relationship with the child. Thus, the applicant had a child and was required to disclose that information, once the child was born and the applicant’s circumstances had changed. The question on the form is about the basic parent – child relationships, not the applicant’s parental role or feelings towards the child.

20. The Tribunal finds that the applicant had a child born in July 2007. When the applicant completed the application form, he stated ‘n/a’ when asked to refer to the children at Question 39. Once the child was born, the applicant’s circumstances had changed so that his answer on the application form became incorrect. Under s. 104 of the Act, the applicant was required to inform the Department of the change of his circumstances in writing. He had not done that. The Tribunal finds that for that reason, the applicant had not complied with s. 104 of the Act.

21. For these reasons, the Tribunal finds that there was non-compliance with s. 104 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

22. 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).

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

    The correct information

24. The correct information is that the applicant had a child with a person other than his visa sponsor before he was granted the visa and that his circumstances changed with the birth of the child so that the answer on the form became incorrect.

    The content of the genuine document (if any)

25. This is not relevant in the present case.

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

26. In his submission to the Tribunal of 20 April 2021 the applicant refers to another Tribunal decision where incorrect answers were said to be irrelevant to the visa grant and the applicant submits that in his case, the ‘confusion on the truth to the biological father’ or sexual activity cannot affect his spouse visa application. The Tribunal does not accept that claim.

27. An assessment of the applicant’s relationship with the sponsor was central to a finding that the applicant is the spouse of the sponsor. The applicant’s relationship, or interactions (as he denies that anything other than a sexual relationship existed) with another person were relevant to that assessment and very significant to an assessment whether the applicant’s relationship with the sponsor was to the exclusion of all others. Even if the applicant claims he did not have a spousal or de facto relationship prior to his marriage with the sponsor and his relationship with Sivahamy was purely sexual, the fact that there was a child born from that relationship was at least relevant to the assessment of the applicant’s relationship with the sponsor and the exclusivity of that relationship. It is not necessary for the Tribunal to determine whether the delegate would have made the same decision, and whether the visa would have been granted, if the correct information was known. It is sufficient that the presence of the child with another person would have been relevant to the assessment of the applicant’s relationship with the sponsor. That is, the decision to grant the visa was based, in part, on incorrect information.

28. Further, if it was known that the applicant had a child, there may have been additional requirements with respect to the child, such as health requirements. Again, the Tribunal finds that the decision to grant the visa was based on incorrect information.

    The circumstances in which the non-compliance occurred

29. In his response to the NOICC the applicant submits that he had not tried to withhold information about the first relationship and circumvent the immigration laws. Rather, there was no relationship and nothing to declare.

30. The Tribunal has considered the applicant’s evidence. Essentially, the applicant states that he had a brief sexual relationship with his present partner, which did not amount to a marital or de facto one. It resulted in the birth of the child but he was denied any dealings with the child by her mother. The applicant states that he was always in a committed relationship with the sponsor and his contact with the sponsor’s sister did not amount to anything of significance.

31. The Tribunal has formed the view that the applicant has not been truthful in these claims. The applicant’s evidence to the Tribunal is that he had provided financial support to Sivahamy following the birth of the child, he states that they had not lived together but he visited her sometimes and, importantly, he told the Tribunal that they held the religious ceremony so that she would be protected from the community as she was otherwise seen as an unwed pregnant woman, which was unacceptable. That would suggest the purpose of the ceremony was to ensure the relationship was socially recognised and Sivahamy would not be perceived as an unwed or single pregnant woman and that  implies there was social recognition of the relationship. These factors are the indicia of a relationship and suggests there was more than the mere brief sexual relationship between the applicant and Sivahamy.

32. The applicant’s oral evidence about the purpose of the ceremony in August 2006 also contradicts the applicant’s written submission that the ceremony was to ‘appease her religious views’. The Tribunal has formed the view that the applicant had misrepresented and minimised the significance of the ceremony so as to misrepresent the nature of his relationship with Sivahamy.

33. The Tribunal also notes the applicant’s response to the NOICC in which he states that the religious ceremony was held to ‘cover the pregnancy’ and this was also the applicant’s evidence to the Tribunal as he claimed the ceremony was held because Sivahamy was pregnant and would need protection from society as she was unwed. However, the ceremony was held in August 2006 and the child was born in July 2007, so Sivahamy could not have been pregnant at the time of the ceremony. That supports the Tribunal’s view that the applicant misrepresented the reason for the ceremony. In the Tribunal’s view, it is more likely that the ceremony was held to demonstrate the applicant’s and Sivahamy commitment to the relationship and not because of her pregnancy.

34. The Tribunal has formed the view that the applicant has not been truthful in his evidence concerning the nature of his relationship with Sivahamy before his migration to Australia. The Tribunal finds that he did have a de facto relationship with Sivahamy prior to his migration to Australia and that the applicant had deliberately withheld information about the relationship, and significantly, about the birth of the child, because he did not wish to jeopardise his visa application and was keen to emigrate due to the civil unrest in the country. The Tribunal finds that the applicant had deliberately failed to inform the Department about the changes in his circumstances (the birth of the child) and he did so in order to obtain the Australian visa and not because he had no connection with the child.

1. The applicant refers to the civil war at the time of the application and states that he was facing death unless he left the country. The applicant states that he is not well educated and did not know what was expected of him. The Tribunal accepts that the applicant may have been desperate to leave Sri Lanka but does not consider that this justifies his non-compliance with the requirements of the Migration Act.

   The present circumstances of the visa holder

2. The applicant told the Tribunal that since his visa was cancelled, he has been depressed as he had been unable to work and has only recently been given permission to work. The applicant states that before his visa was cancelled, he worked as a forklift driver and he has recently found a job as a forklift driver in another company. The Tribunal accepts that the applicant has been gainfully employed.

3. The applicant states that he is depressed about his situation but he confirmed he had not sought help from a health professional and has not been diagnosed with depression. The Tribunal accepts that the applicant is upset about his circumstances and anxious about his future but does not accept, in the absence of the medical evidence, that he is depressed.

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

4. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

5. For the reasons stated above, the Tribunal has formed the view that the applicant did have a relationship with Sivahamy prior to his migration to Australia. The applicant stated on the application form that he never had a relationship previously and the primary decision record indicates that in December 2008 the applicant signed a declaration stating his relationship with the sponsor was to the exclusion of all others. The Tribunal has formed the view that these answers were incorrect and may indicate non-compliance with s. 101 of the Act.

   The time that has elapsed since the non-compliance

6. The child was born in July 2007 and that is when the applicant’s circumstances had changed. Nearly 14 years passed since the non-compliance with s.104 and the Tribunal acknowledges it is a lengthy period.

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

7. There are no known breaches of the law and the applicant told the Tribunal he has been living in Australia for 13 years and had no issues with the law.

   Any contribution made by the holder to the community.

8. The applicant states that Australia has given a lot and he wants to contribute to the community in the future but has not done that in the past. The Tribunal acknowledges that the applicant may have contributed through the payment of taxes.

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

   Whether there would be consequential cancellations under s.140.

10. There are no persons subject to the consequential 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.

11. The applicant states that the situation in unsafe for women and he is concerned about his child’s safety, and the safety of his partner. The Tribunal is mindful, however, that the applicant had the opportunity to sponsor his child as soon as he was granted a permanent visa in 2009.  When asked why he did not sponsor his child earlier, the applicant said that he did not know that he could, he did not seek advice and ‘did not think about it’. In the Tribunal’s view, if he was genuinely concerned about the safety and well-being of his daughter, the applicant would have thought about sponsoring the child for the visa much earlier and he would have sought advice about the possibility of doing so. The applicant told the Tribunal that the child needed the care of her mother and he could not sponsor the mother before his relationship with the sponsored broke down and it was only after that breakdown in 2014 that he married his present wife and sponsored her and the child but as noted above, the applicant could have sponsored the child without sponsoring the child’s mother if the applicant was genuinely concerned about her safety and well-being.

12. The Tribunal found the applicant’s evidence to be vague. He refers to the broad country information and refers to the war in Sri Lanka (which, the Tribunal is mindful, ended several years earlier) and he has not provided evidence that his partner and child had in fact been subjected to any form of harm or persecution. The Tribunal is not satisfied on the evidence before it that they have been. The applicant states that Australia is a multicultural country and they would have better opportunities in Australia but again, he failed to identify the opportunities which his partner and child have been denied in Sri Lanka.

13. The applicant states that as a child without a father, his daughter had no protection and had been subjected to discrimination and the applicant refers to the various Conventions and the interests of his child. The Tribunal is mindful that should the applicant decide to return to Sri Lanka, the child will have the support of a father and will be able to enjoy the care of both parents. While the Tribunal accepts that  it may be preferable for the child to be in the care of both parents, the Tribunal does not consider that this must only happen in Australia. On the evidence before it, the Tribunal is not satisfied that the child’s best interests require her presence in Australia. The Tribunal has formed the view that the best interests of the child would be best served by the presence of both parents irrespective of her country of residence. The Tribunal finds that the best interests of the child would not be adversely affected by the cancellation of the visa.

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

14. The applicant states that he is a Tamil and the cancellation of his visa would have a significant effect on him due to the conflict in his home country and the recent elections in November 2019. As noted above, the Tribunal finds such evidence vague and too generalised, noting that the civil war ended some years earlier. The applicant refers to kidnappings and states that it is known locally that he has been living overseas and he may be targeted, kidnapped or even killed for ransom. The Tribunal notes that according to the primary decision record, the applicant has returned to Sri Lanka several times with no suggestion that anything happened to him. The applicant states that in the past he claimed to be an Australian citizen and people may have thought he had protection of another country but if he lives there permanently he will no longer have such protection. If that is the case, the applicant may have the opportunity to live in another part of the country where his residence in Australia is not known and thus avoid the risk of kidnapping. The Tribunal is also mindful that the applicant is eligible to seek a protection visa in Australia and if it is determined that Australia’s non-refoulement obligations arise in this case, the applicant would not be removed from Australia.

15. On the limited evidence before it, the Tribunal is not satisfied the applicant would be subjected to harm or persecution in Sri Lanka and the Tribunal finds that the cancellation of the visa would not lead to the applicant’s removal in breach of Australia’s non-refoulement obligations. His family reside overseas and the family unity obligations would not be breached.

    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.

16. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas and would have limited opportunities to make an application onshore. The cancellation of a permanent visa would result in the applicant losing the benefits that he may have been entitled to as a permanent resident of Australia. If the applicant is no longer a holder of a permanent visa, he may be unable to sponsor his wife and child for a visa.

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

17. In his written submission to the Tribunal the applicant refers to a number of other Tribunal decisions. The Tribunal considers such references unhelpful because each case must be determined on its own merits and with regard to its own specific circumstances and it is for this Tribunal to determine how much weight to give to each consideration.

18. The applicant told the Tribunal that he earns money and supports his wife and child but if his visa is cancelled, he cannot support them and it would affect them. When asked if he could get a job in Sri Lanka, the applicant stated that the situation is still not settled and unsafe and people try to leave the country as people cannot lead normal lives. The applicant told the Tribunal that he has been out of the country for many years and they do not have the same forklifts, so he does not know if he could get the same job. The Tribunal accepts that the applicant may not be able to find the same work as he has done in Australia but does not accept that he would be unable to find employment, either because of his familiarity with a particular equipment or his absence from the country or the situation in the country. The applicant does not suggest that he has sought employment and had been denied employment. The Tribunal does not accept on the evidence before it that the applicant would be unable to find a job in Sri Lanka and continue to support his family, even if such support may not be at the same level.

19. The applicant states that he did try to correct his mistake and told the Department about his wife and child when he sponsored them for visas. The applicant states that if he had the intention to withhold the information, he would not have come forward to sponsor his wife and child for the visa. The Tribunal does not accept that submission. The applicant disclosed the relationship and the existence of the child when he sought a benefit (an Australian visa for his family) and not at any other time. In such circumstances the Tribunal does not accept that the sponsorship of the wife and child can be considered as the applicant ‘coming forward’ and correcting his mistake.

20. The applicant states that he did not intentionally mislead the Department because he had no relationship and he did not make any mistakes purposely. He refers to his low level of education, his state of mind at the time and the risk to his life. However, as noted above, the basis for the cancellation arises because of the existence of the child – and the change in the applicant’s circumstances following the birth of the child – and not because of his relationship. Whether the child was born as a result of a one night stand, or from a loving and mutually committed relationship, is irrelevant as the very existence of that child gave rise to the applicant’s obligations under s. 104 of the Act.

21. The applicant submits that no other member of the community had been affected and the applicant has not been part of any ‘system’. The Tribunal does not consider that cancellation can only occur in circumstances where the breach affects the community or has been systematic. The representative submits that there was no other non-compliance by the applicant who has been living in Australia for many years and settled in the community. The Tribunal accepts that the cancelation of the visa would cause considerable hardship to the applicant and his family, including the loss of financial support at the level that the applicant has been able to provide while working in Australia.

22. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there is a ground for cancelling the visa because the applicant had not complied with s. 104 of the Act by failing to inform about the birth of his child. The Tribunal accepts that the applicant has been residing in Australia for a lengthy period, he had been employed and made a contribution to the community through employment. The Tribunal accepts that considerable hardship may be caused to the applicant and his family if the visa is cancelled, particularly as it may lead to the applicant’s departure from Australia and loss of employment, which is used to support his family in Sri Lanka. These are reasons that do not favour cancellation.

23. The Tribunal has formed the view that the cancellation of the visa would not be in breach of Australia’s international obligations and would not be contrary to the best interests of the child.

24. The Tribunal has decided to place greater weight on the circumstances in which the ground for cancellation arose and the fact that  the decision to grant the visa was based on incorrect information. The Tribunal has formed the view that the applicant did have a relationship with a person other than his sponsor at the time he made the application for the Partner visa and the existence of that  relationship was central to the assessment of his eligibility for the visa. Even if the applicant did not have the de facto relationship with Sivahamy at that time, the existence of a child with another person would have been highly relevant to the assessment of the applicant’s relationship with the sponsor. There is a possibility that the applicant would not have been granted the visa, if the correct information was known. The Tribunal has formed the view that the applicant had deliberately withheld information about the child because he wanted to leave the country and avoid the risks of the civil war and he did not wish to jeopardise his visa application. that  is, the breach was intentional and committed knowingly. The Tribunal places greater weight on these factors which favour the cancellation.

25. 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

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

    Kira Raif
    Senior Member