Nyata (Migration)

[2019] AATA 6230

Nyata (Migration) [2019] AATA 6230 (10 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Deng Nyata

CASE NUMBER:  1800428

DIBP REFERENCE(S):  BCC2017/1899026

MEMBER:Kira Raif

DATE:10 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2019 at 7:27am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in visa application – biological child of the applicant – child by African traditions – applicant’s wife’s previously used name – application forms completed by former spouse – further children in Australia and South Sudan – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 98, 100-101, 107-109
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant is a national of Sudan, born in January 1971. He was included in the application for the Class XB Global Special Humanitarian visa made by his then partner and the visas were granted in April 2009. In October 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (the notice, or NOICC) as the delegate formed the view that the applicant did not comply with s.101 of the Act. The applicant provided his response on 22 November 2017 and his visa was cancelled on 28 December 2017. The applicant seeks review of the delegate’s decision.

3. The applicant provided a number of documents to the Tribunal on the afternoon of 23 September 2019.  As the hearing was scheduled 8.30 am on 24 September 2019, the late provision of evidence and supporting material was less than helpful. No explanation is offered by the applicant’s representative for the extremely late submission of documents or for failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The Tribunal is mindful that the application for review was lodged with the Tribunal in early January 2018 and the applicant was represented by the same firm, MyVisa Lawyers, since the application was lodged.

4. The applicant appeared before the Tribunal on 24 September 2019 to give evidence and present arguments. 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

5. 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.

6. 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.

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

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

8. 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.

9. 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?

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

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

    a.On 6 December 2006 the applicant’s then partner, Yom Mading Ater made the application for a Class XB visa and the applicant was included as a member of the family unit and Ms Ater’s spouse.

    b.Ms Ater included three children: Kolo Daniel Deng Nyata (dob 20/8/97), Nyanagar Daniel Deng Nyata (dob 1/10/99) and Monydit Daniel Deng Nyata (dob 20/11/04).

    c.Question 10 asked whether any of the children included in the application were not the biological children of the main applicant or spouse. The answer provided was ‘no’.

    d.On 11 September 2008 the applicant and Ms Ater were interviewed by UNHCR and confirmed the three children as their biological children. They also advised there was another child, Patrick Daniel Deng Nyata, born on 16 September 2007, who was their biological child and this child was added as a secondary applicant in the application.

    e.The applicant completed Form 80 in which he identified his spouse as Yom Mading Ater and left blank the response to the question whether she has been known by, or used, other names before. 

    f.The applicant was granted the visa on 8 April 2009 as a member of the family unit of Ms Ater.

    g.On 22 January 2010 Ms Ater submitted to the Department a request to change the dates of birth of the three children included in her application. She provided different dates of birth for Kolo Daniel, Nyanagar Daniel and Monydit Daniel. She provided a declaration stating that the children’s dates of birth were recorded incorrectly in the refugee camp.

    h.On 14 June 2011 Ms Emelia Timotia Ataya lodged an application for an Offshore Humanitarian visa sponsored by Ms Ater. Ms Ater stated that Ms Ataya was her mother and provided a copy of the change of name certificate issued in November 2010, confirming her legal change of name from Yom Mading Ater to Lona Seluwa Morris Tombek.

    i.In November 2014 Ms Ater lodged another request to amend personal records, requesting that the names and dates of birth of two of the children included in her own visa application be changed, stating these were incorrectly recorded on their travel documents. She requested that the name of Nyanagar Daniel Deng Nyata be changed to Hellen Nyanagar Daniel Nyata (dob 12/5/01) and the name of Monydit Daniel Deng Nyata be changed to John Sulieman Daniel Nyata (dob 21/9/03). Ms Ater provided the children’s birth certificates issued in Sudan in July 2014 showing their mother as Lona Salawa Tombe Jada.

    j.On 2 July 2012 Ms Ater provided a written statement to the Department. In that statement, she claimed she left Sudan with her sister’s baby, and later met her husband in a refugee camp and they had three children. She stated that her husband filled in the application to come to Australia and listed four children, including her sister’s child, whom they considered as their own child.

    k.On 2 July 2012 three children applied for the Class AH Child visas, sponsored by Ms Ater and provided DNA test results showing the biological relationship with Ms Ater. In these applications, they identified Kolo Daniel Dent Nyata as their cousin.

12. The delegate found that the applicant did not comply with s.101(b) of the Act when making the application for the Global Special Humanitarian visa by:

    a.Stating that he and Ms Ater had three children together, Monydit, Nyanagar and Kolo.

    Ms Ater’s subsequent requests to change records indicate that the children’s dates of births were incorrectly recorded on the application form.

    Ms Ater’s request of 22 January 2010 also suggests that the children’s names were incorrectly recorded on the forms, as Nyanagar was known as Hellen Nyanagar and Monydit was known as John Sulieman.

    The delegate found that the children’s names were never as recorded on the application form and that their correct names were those subsequently provided to the Department by Ms Ater.

    b.Stating ‘no’ in response to Question 10 as to whether any of the children were not the biological children of the main applicant or spouse.

    The delegate considered that information to be incorrect because the applicant and Ms Ater claimed to have four children, Kolo, Nyanagar, Monydit and Patrick. However, in her written statement to the Department of 2 July 2012, Ms Ater stated that she and the applicant had three children together and that they considered her sister’s child as their own. The delegate concluded that Nyanagar Daniel Deng Nyata was not the biological child of the applicant and Ms Ater.

    c.Stating that Kolo Daniel Deng Nyata was the applicant’s and Ms Ater’s biological son. The subsequent visa application made by Ms Ater’s elder children stated that Kolo Daniel Deng Nyata was their cousin and not a sibling. The delegate notes that no independent evidence has been submitted to show that this child is the biological child of the applicant and Ms Ater.

    d.Stating that his wife’s name was Yom Mading Ater and that she has not been known by any other name. The delegate noted that there was no evidence to show that this was her name and in her subsequent submission made in support of the Child visa applications made in July 2012, Ms Ater stated that her father’s name was Morris Tombek and mother’s name was Emelia Timotia Ataya, neither of which is reflected in Ms Ater’s name, as is traditional in South Sudan. Ms Ater provided evidence of having legally changed her name to Lona Seluwa Morris Tombek, which includes her father’s name and may indicate that this was her true name.

    Ms Ater also provided documents to the Department in November 2014, including the birth certificates for her younger children, which identify their mother’s name as Lona Salawa Tombe Jada, which may also indicate that this was her genuine name and a name she was previously known by. 

13. In his communication with the delegate of 22 November 2017, which appears to be a response to the NOICC, the applicant stated that he is against the decision to cancel his visa. The applicant states that he had separated from his wife eight years earlier and has been living on his own. He states that Nyanagar, Monydit and Patrick are his biological children and he is ready to do the DNA test if required. He states that Kolo is not his biological son but he was living with his wife when they met and based on African traditions, he considered him to be his son. The applicant states that the children’s names and dates of birth should remain as they are on the travel documents and he does not want any alterations. The applicant states that his wife was known as Yom Mading Ater and she did not tell him if she was known by any other names. The applicant states that war is still going on in his country and he does not want his visa and those included in the application to be cancelled and any issues should be settled with Ms Ater. He notes that he has not changed anything since he came to Australia and never breached any immigration laws.

14. In his written submission to the Tribunal of 23 September 2019, the applicant states that he is a law abiding person who respects the law and believes he is innocent and has not violated any Australian immigration laws. The applicant states that his wife changed the children’s names without his knowledge and may have forged his signature.

15. In oral evidence to the Tribunal, the applicant said that when he met the children’s mother, she came with the child, Kolo, so, culturally, the child became his child and he considered this child to be his child. The applicant states that he raised this child and could not separate the children and leave him behind. However, the question on the form was not whether the child was the applicant’s child or his wife’s child. Rather, the question was whether the child was a biological child of the applicant or his wife. The applicant states that when he met his wife, he believed Kolo to be her child because she was still breastfeeding him. However, the applicant concedes that Kolo was not his biological child or his wife’s biological child. This is consistent with the information set out in the primary decision record showing that the other children identified Kolo as their cousin rather than their sibling. The Tribunal finds that by stating ‘no’ in response to Question 10 of the application form, the applicant gave an answer that was incorrect.

16. In relation to the children’s names and dates of birth, the applicant stated that he and his wife had separated and he does not know what happened. The applicant states that there were no birth certificates issued at the time of birth and the names and dates of births were correct on the application form. His ex-wife travelled to Sudan to change the children’s records and he cannot comment on what she did. The applicant’s representative suggested that reliance cannot be placed on untested evidence provided by the applicant’s wife.

17. The applicant states, in relation to his wife’s name, that his wife had two names, one given at birth and one given when she was an adult, which is common in their culture. The applicant said that he could not read or write English and the person helping with the forms may not have put that question to him.

18. The Tribunal has given due regard to the applicant’s evidence. The Tribunal finds that the applicant did not comply with s.101(a) of the Act by not providing information about his wife’s previously used name and by failing to answer the question whether she has been known by another name. The Tribunal also finds that the applicant did not comply with s.101(b) of the Act by providing an incorrect answer about being the biological parent of Kolo Daniel Deng Nyata when neither he nor his wife were the biological parents of that child. The Tribunal makes no findings in relation to whether the applicant gave incorrect answers about the other children’s names and dates of births on the forms.

19. In oral evidence to the Tribunal, the applicant concedes that there are grounds for cancelling the visa because Kolo was not his biological child and also because his ex-wife’s former name was not given on the form.

20. The applicant told the Tribunal that it was his wife who completed the forms and he was not involved. In the Tribunal’s view, it is irrelevant who filled in the forms. Thus, s.98 of the Act states that if the applicant did not fill in his application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. Section 100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further, s.111 states that sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers or bogus documents and whether it was the applicant or another person who completed the forms.

21. The Tribunal finds that there was non-compliance with s.101 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 Migration Regulations 1994. Briefly, they are:

    The correct information

24. The correct information is one of the children, who is recorded on the application form as a biological child of the applicant and his wife, was not the biological child. The applicant told the Tribunal that he claimed Kolo to be his child because he considered him to be his child and he could not leave this child behind. In his post-hearing submission the applicant also states that Kolo was his son.  While the Tribunal acknowledges that evidence, and accepts that the applicant may have treated Kolo as his child, it is not in dispute that this child was not the applicant’s biological child. The applicant’s desire to bring the child to Australia does not render that child the biological child. Notably, Question 10 of the form, as noted above, referred to the children being biological children and not adopted children, step-children or any other form of relationship. Kolo was not the applicant’s biological child and neither was he the biological child of his then partner. The applicant concedes that his answer to this question was incorrect.

25. In addition, the correct information is that the primary visa applicant was known by another name.

26. The applicant claims in his submission to the Tribunal that the information about the other children, including their names and dates of birth, was correct and that he did not wish any changes to be made to the children’s personal details.

    The content of the genuine document (if any)

27. 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

28. Identities of every visa applicant are important considerations when assessing applications for the visa. If the identity of the applicant, or his partner who was the primary visa applicant, were different to those specified on the application forms, or if the primary visa applicant was known by another name, that would have been relevant to assessing her identity and eligibility for the visa.

29. Further, as children were included in the application, it was relevant to assess, in relation to each child, whether they were able to leave their home country and migrate to Australia, for the purpose of PIC 4015 and 4016. In particular, one of the children was not the biological child of the applicant and his then wife would have to establish the relationship with the child and whether he was a child of the applicants, including an adopted child. If that relationship was not established, the applicants may have been required to show parental consent for the child to migrate.

30. The applicant submits that the visa would have been granted whether or not the correct information was known. The Tribunal does not necessarily accept that would have been the case. The Tribunal is mindful that as the child was claimed to be the biological child, there was no assessment of the child’s relationship with the applicants. The applicants would need to establish that the child was an adopted child, which they may or may not have been able to do. It cannot be said that the applicants would have been able to meet those requirements, as it cannot be said that the visas would not have been granted if the correct information was known. There is insufficient evidence before the Tribunal to make that assessment and it is not necessary for the Tribunal to determine whether the visas would have been granted if the correct information was known.

1. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

   The circumstances in which the non-compliance occurred

2. The applicant states in his submissions to the delegate and the Tribunal that it was his wife who may have provided incorrect information and that he has never breached the Australian laws.

3. In oral evidence, the applicant stated that one of the children was not his biological child but he treated this child as his own and did not want to separate the children and he could not leave the child behind. The applicant told the Tribunal that initially he believed the child to be his ex-wife’s child and it was not until later that his ex-wife disclosed to the children that Kolo was not their biological sibling but a cousin. The applicant claims that his ex-wife was breastfeeding Kolo and he believed her to be the biological mother.

4. The Tribunal is mindful that the applicant may not have been necessarily required to “leave this child behind” if this child was not identified as the biological child. The legislation does allow for the inclusion of adopted children but there would have been additional requirements to be met to establish adoption or the relationship with this child and, if necessary, parental consent for the child’s migration.

5. The applicant submits that when the forms were completed, he was illiterate and could not read and write in English, so this was a mistake made by the person who completed the forms. The applicant repeatedly told the Tribunal that it was his wife’s doing and he was not involved and it was his wife who had done things without his knowledge. The Tribunal does not accept that evidence. The Tribunal is of the view that the applicant would have known at the time the forms were completed that Kolo was not his biological child (whether or not he believed this child to be his wife’s biological child). He also told the Tribunal that it is traditional in his culture to have one name at birth and another name as an adult, so he is likely to have known that his wife was known by a different name previously. To the extent the applicant claims he was not involved in the completion of the forms, as noted above, the Tribunal considers the applicant to be responsible for the content of the forms, whether he was the primary applicant or the secondary applicant. The applicant would have been required to sign the application form and, in the Tribunal’s view, if he was unaware of the content of the forms, he had the obligation to find out in order to ensure the information he supplied was correct and accurate.

   The present circumstances of the visa holder

6. In his written submission to the Tribunal of 23 September 2019, the applicant states that he is mentally unstable and seeking professional counselling and community support. The applicant told the Tribunal that when his visa was cancelled, he approached the community and received counselling and he feels better now. There is no evidence that the applicant is presently receiving treatment for any mental health issues. The applicant told the Tribunal that he is taking medication for high blood pressure and other medication daily. The Tribunal is mindful that the applicant has not presented any medical evidence, however, the Tribunal is prepared to accept that the applicant is receiving medication for his health.

7. The applicant states that after the breakdown of his relationship with his ex-wife, he returned to South Sudan and married another wife and they have two boys. The applicant told the Tribunal that he started the divorce proceeding but his ex-wife refused to sign the divorce papers and his relationship with his second wife is a de facto one and they had not registered the marriage. The applicant told the Tribunal that he has not sponsored his second wife for the Australian visa because he is waiting for the divorce and he was told he could not sponsor her until the divorce is complete. The Tribunal is mindful that the sponsorship could have been done on de facto grounds, which does not require the applicant’s divorce.

8. The applicant told the Tribunal that he travelled to Sudan five times, although he is not certain. He would spend three to four months at a time when he travels. The primary decision record outlines the applicant’s travel overseas and indicates that the applicant made yearly trips between 2011 and 2017 and spent between five and eight months overseas.

9. The applicant states that in 2017 there was an attempt to kill him. Since that time his visa was cancelled and he did not have a chance to travel again. If his visa is reinstated, he plans to go again. The applicant states that Australia is his home where he can live without fear and he refers to his brother in law being killed in South Sudan. The applicant states that if he returns to South Sudan, he would be killed.

10. The applicant told the Tribunal that he has two children overseas. One is seven years old and the second is about 17 months old. He states that he sends money to them and he calls them up to four times a day. He also plans to visit them again but the security situation in their hometown is very poor.

11. The applicant states in his written evidence that his older son, born in 2012, has been battling a skull fracture, which is the reason he has travelled to South Sudan to seek medical attention. The applicant presented to the Tribunal a number of medical certificates dated early 2018 relating to his son. The Tribunal accepts that the applicant’s son has received medical treatment, although there is no documentary evidence to indicate that such treatment is ongoing.

12. The applicant provided to the Tribunal confirmation of his employment, dated 2018, and a copy of his tax return for the 2018 financial year. The applicant told the Tribunal that he worked for Costa for eight years but he has not been able to work since his visa was cancelled. The Tribunal accepts that the applicant has been previously employed but is not employed at present. The Tribunal notes, however, that the visa was cancelled in December 2017 and the applicant’s employment reference is dated November 2018, and he also provided the tax return for 2018, so it appears that the applicant continued to be employed after he was granted a Bridging visa with work limitations.

13. The applicant states that his situation in Australia is better than his situation in any other country, including Sudan. The Tribunal accepts that this may be the case.

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

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

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

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

    The time that has elapsed since the non-compliance

16. The application for the visa was made in December 2006. Close to 13 years has passed since the non-compliance and the Tribunal acknowledges it is a lengthy period.

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

17. There are no known breaches of the law and in his submission to the Tribunal the applicant refers to being a law-abiding citizen.

    Any contribution made by the holder to the community

18. The applicant provided to the Tribunal a statement indicating that he is a member of the South Sudanese Community in Coffs Harbour and supports his family and the community. The applicant told the Tribunal that he makes financial contributions to the community. Although there is little documentary evidence to support these claims, the Tribunal is prepared to accept that the applicant has made a contribution to the community. The applicant refers to his employment and the payment of taxes and the Tribunal accepts that evidence.

19. 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 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.

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

20. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. If the visa is cancelled, the applicant may also lose the entitlements he had acquired as a permanent resident of Australia. If no longer a permanent resident, the applicant may not be able to sponsor his partner and children for the Australian visas. The Tribunal acknowledges that the mandatory legal consequences may result in some hardship to the applicant. 

    Whether there would be consequential cancellations under s.140

21. There are no visas subject to consequential cancellation under s.140. The Tribunal is mindful that if there are any consequential cancellations, these would arise from the cancellation of the visa of the primary visa applicant and not of the applicant’s visa.

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

22. The applicant refers to the unsafe situation in South Sudan and the death of a relative. The applicant told the Tribunal that in 2017 there was an attempt to kill him. The applicant presented no evidence to support that claim, for example, in the form of a police report, community statements or media reporting. The applicant made no mention of that incident prior to his oral evidence to the Tribunal. The Tribunal is not prepared to accept the applicant’s assertion without probative evidence.

23. The Tribunal places weight on the fact that, according to the primary decision record, between 2011 and 2017 the applicant made six trips to Sudan for periods of between five and eight months’ duration. The primary decision record indicates that the applicant indicated he travelled in order to visit friends or relatives or for holidays. When questioned about his visits, the applicant told the Tribunal that he lived in hiding and in different areas and he did not stay in the same place. The Tribunal does not accept that evidence. Given the frequency of travel (six times in six years), the length of time the applicant had spent in Sudan (five to eight months at a time, with only one of the trips being to a different country) and the stated purpose of the visit (holiday or visiting friends), the Tribunal does not accept that the applicant would be travelling to Sudan in order to spend the time in hiding. While the Tribunal accepts that part of the reason for at least some of the applicant’s trips may have been to seek medical help for his son, the applicant’s stated other reasons do not support his claim that he was in hiding or fearful for his safety. The Tribunal does not consider it plausible that since 2011 the applicant would spend nearly half of his time in Sudan, on occasions identifying the purpose of his trips as ‘holidays’, in order to live in hiding and live in an area where he claims there is a risk to his life and safety.

24. The Tribunal also notes that these claims of living in hiding, specific harm to his life (rather than a general reference to the situation in Sudan) and the applicant’s reference to an attempt to kill him in 2017 were made for the first time in his oral evidence to the Tribunal. The applicant explained to the Tribunal that he did not know he had to refer to this information. The Tribunal does not accept that explanation. The applicant provided a written submission in response to the NOICC and a written submission to the Tribunal shortly before the hearing. The applicant was represented by an experienced migration agent throughout this review, for a period of close to two years. The Tribunal is of the view that the applicant would have been well aware of the possibility and the desirability of providing detailed information as early possible, particularly in relation to something as significant as an attempt on his life and the need to live in hiding for many months at a time. In his written statement dated 5 September 2019, the applicant claimed that he may be killed in Sudan but made no reference to living in hiding and not staying in the same place whenever he visited Sudan, and he made no reference to an attempt on his life. These claims were made for the first time in his oral evidence to the Tribunal. The Tribunal is of the view that if these claims were true, they would have been mentioned earlier.

25. The Tribunal has formed the view that the applicant has not been truthful in his evidence to the Tribunal concerning his time in Sudan and the risks he faces there. The Tribunal does not accept the applicant’s claim that he has been threatened or that he had spent time in hiding whenever he visits Sudan or that he would be subjected to harm or killed if he returns to Sudan. The Tribunal has formed the view that these claims are a recent invention. The Tribunal does not consider that the applicant would be subjected to harm if he was to return to Sudan.

26. The Tribunal reaches this conclusion while acknowledging the country information the applicant presented and his claims about the general situation in Sudan, as well as his reference to the murder of his relative. Having regard to the amount of time the applicant had spent in Sudan since 2011, the Tribunal has formed the view that any such harm to which the applicant refers would not apply in relation to the applicant.

27. The Tribunal is also mindful that the applicant is entitled to seek a protection visa where his claims would be considered and assessed. The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

28. The Tribunal has considered the best interests of the applicant’s children. The applicant has children with his first partner who live in Australia and who are aged 22, 19, 14 and 11. He told the Tribunal that he speaks to his children in Australia several times a week and supports them financially and emotionally. The applicant states that he used to pay child support (he presented no documentary evidence of such payments) but not since he lost his job. There is very little evidence before the Tribunal concerning the applicant’s relationship with his children, other than the applicant’s own evidence. For example, there is no photographic evidence of the applicant’s interactions with the children, no phone records showing their communication, no documentary evidence of financial support and no statements in support of this application from the children. In such circumstances, the Tribunal has formed the view that the nature of the applicant’s claimed relationship with his children has been exaggerated, at best. The Tribunal is not prepared to accept the applicant’s own evidence. In the absence of probative evidence of the applicant’s interactions with his children, the Tribunal does not accept that the applicant’s relationship with the children in Australia is as close as the applicant claims.

29. In his submission to the Tribunal of 1 October 2019 the applicant indicated that he has another child to an Australian citizen partner. It is not clear to the Tribunal why the applicant chose not to mention this child in any of his earlier evidence to the delegate or the Tribunal. Nevertheless, the Tribunal accepts, for the purpose of this review, that the applicant has another child who may be an Australian citizen. There is little evidence before the Tribunal concerning the applicant’s interactions with his child. Following the hearing, the applicant provided three photographs of himself with the child and the child’s mother. There is no other evidence of the applicant’s interactions with the child or of the applicant’s involvement with the child. On the limited evidence before it, Tribunal does not accept on the evidence before it that the applicant plays a meaningful role in this child’s life. As such, the Tribunal finds that the best interests of this child do not require the applicant’s presence in Australia. The Tribunal finds that such interests would not be adversely affected by the cancellation of the visa.

30. The applicant has two children overseas, aged six and 18 months. He told the Tribunal that he talks to them several times a day and has provided financial support to these children.

31. The applicant told the Tribunal that he is the biological father and nothing can separate him from the children. It is unclear to the Tribunal why the applicant believes that applies to his children in Australia but not his children overseas. As noted above, the applicant claims to have been in a de facto relationship with the children’s mother for some time, yet he made no attempt to sponsor his partner and children to travel to Australia. While the applicant claims he was waiting for the formal divorce, the Tribunal is mindful that the applicant would have been able to sponsor his second partner on de facto grounds whether or not he had divorced his former partner.

32. The Tribunal finds that the applicant has two minor children in Australia and two minor children overseas and his claim is that he has ongoing relationships with all of his children. The Tribunal is prepared to accept that the applicant has provided financial and other support to his children and attends various functions. The applicant claims that the best interest of the children is for him to remain in Australia to work and support the children financially. However, the applicant has not satisfied the Tribunal that he would be unable to obtain employment in another country, including Sudan. In particular, the Tribunal has rejected the applicant’s claim that he has been living in hiding in Sudan. The Tribunal is not satisfied that the applicant would be unable to find gainful employment if his visa is cancelled and if he has to leave the country. The Tribunal is also mindful of the applicant’s evidence that he had limited capacity to provide financial support to his children since his visa was cancelled and he was unable to work.

33. The Tribunal acknowledges that the cancelation of the visa may affect the applicant’s capacity to work in Australia and provide financial support to his children. If the applicant remains in Australia, he may maintain some contact with his children in Australia, although they live on opposite sides of the continent and have not lived in close proximity for a number of years. If the applicant was to leave Australia, he may be able to live in much closer proximity to his children overseas and provide physical support to his partner in raising these children, who are still very young. In the Tribunal’s view, if may be in the best interests of the overseas children if the applicant was to live with them. As noted above, the Tribunal does not accept the applicant’s evidence that he could not find a job if he was to leave Australia and even if his income is reduced, the applicant has not satisfied the Tribunal that he would not earn enough to support his family overseas. Even if it is in the best interests of the Australian children for the applicant to remain in Australia (and the Tribunal has not accepted the applicant’s evidence that he has a close relationship with these children, given the lack of any documentary evidence of his interactions with the children), the Tribunal is of the view that the interests of these children are balanced by the interests of the children overseas who may benefit from having their father nearby.

1. The Tribunal has formed the view that the best interests of the children are neutral in relation to the exercise of discretion.

2. The Tribunal has also considered the principles of family unity. The applicant’s former partner and children reside in Australia. His current partner and children reside overseas. The principles of family unit would be equally served if the applicant was to remain in Australia or to depart Australia.

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

3. The applicant presented to the Tribunal a number of supporting statements. These include statements from the community members and a confirmation of his employment (dated November 2018). The Tribunal accepts that the applicant is well regarded within the community and that he had previously been employed.

4. The applicant also refers to his poor mental health and professional help. As noted above, the Tribunal accepts that the applicant is receiving treatment. His evidence to the Tribunal is that he must always take medication or he may die. The applicant presented a certificate from Dr Ahmed which refers to the applicant suffering from hypertension and GORD and being prescribed medication. The Tribunal accepts that the applicant must take medication but the applicant has not satisfied the Tribunal that the medication would not be available to him outside of Australia. The applicant told the Tribunal that he continued to take medication when he travels overseas and the Tribunal notes that he had spent considerable periods overseas during each of his trips since 2011. The Tribunal is of the view that the applicant would be able to access treatment, whether or not his visa is cancelled.

5. The applicant told the Tribunal that he has been relying on Centrelink payments and he has not told Centrelink about the cancellation of the visa, thinking that Immigration would tell Centrelink but he also made an undertaking to rectify the situation with Centrelink after the hearing, which would suggest that he had not done so earlier (as does the ongoing receipt of the payment when the applicant was no longer a permanent resident of Australia). Following the hearing, the applicant provided evidence of having written to Centrelink in September 2019 (but no evidence of having informed Centrelink of visa cancellation previously) and a Centrelink statement of his income, indicating ongoing payments. The applicant also told the Tribunal that he did not inform his employer once his visa was cancelled because he had to work to support himself and his employer allowed him to work. The applicant’s representative notes that the breach of the ‘no work’ condition on the Bridging visa has been ‘fixed’ as the applicant has stopped working. The Tribunal accepts that the applicant has stopped working, but it appears that it took several months for the applicant to comply with the conditions of his bridging visa.

6. The applicant appears to believe that he has no responsibilities to ensure compliance with the Australian laws and that it is the responsibility of others to ensure such compliance on his behalf.

7. The applicant states that his situation in Australia is better than in Sudan and he would be able to earn money and support his children if he is allowed to remain in Australia. As noted above, the Tribunal is prepared to accept that if the applicant was required to leave Australia as a result of the cancellation of his visa, that may adversely affect his financial position and his ability to financially support the children and that may result in financial and other hardship.

8. The applicant submits that there was no deliberate deception or fraud when completing the application form and that the purpose of s.101 or s.109 is directed at deliberate fraud which has not occurred in this case. The Tribunal does not accept that argument, given the grounds for cancellation may be established even when the provision of incorrect answers was not deliberate or done unknowingly. The Tribunal does not consider that the legislation intended to limit the cancellation only to circumstances of deliberate fraud.

9. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had not complied with s.101 of the Act and that there are grounds for cancelling the visa. The Tribunal acknowledges that there are strong reasons why the visa should not be cancelled. The applicant has lived in Australia for over ten years and is settled in Australia. His children live in this country and although there is little documentary evidence of the applicant’s interactions with his children in Australia, the Tribunal accepts that such interactions exist. The applicant’s presence in Australia has enabled him to work and support his two families in Australia and in Sudan. The applicant claims that he intended to sponsor his de facto partner and children and he would not be able to do so if he does not hold an Australian visa. The Tribunal accepts that considerable hardship may be caused by the cancellation. The Tribunal also accepts that the applicant has made contribution to the Australian community.

10. The Tribunal has rejected the applicant’s claim that he would be harmed in Sudan and has formed the view that the applicant’s evidence on this issue has been fabricated. While the applicant claims that he considers Australia his home and cannot live elsewhere, the Tribunal places weight on the fact that the applicant has spent a considerable period overseas since 2011 and since that time he had travelled yearly. The Tribunal rejected the applicant’s claim that he had been subjected to harm during these trips and finds that the applicant has spent considerable time establishing another residence in his home country where his partner and two children live.

11. The applicant concedes that he has provided incorrect answers on the form, or failed to provide an answer, but submits that little weight should be given to the breach, given its nature and that it was unintentional. The applicant notes that he was the secondary applicant, was not responsible for the completion of the forms and did not understand the questions. The Tribunal acknowledges this evidence but does not consider the breach to be insignificant. Issues of an applicant’s identity and relationships between applicants are quite significant in determining issues such as character and, in relation to the children, parental consent. The applicant’s claimed non-involvement in the completion of the forms or his claimed lack of understanding do not absolve the applicant from the responsibility to provide correct answers in response to questions and to answer all questions. The Tribunal therefore does place considerable weight on such matters.

12. The Tribunal also places weight on the fact that the applicant has not complied with the Australian laws. He concedes that he worked when he had no permission to work and it had taken several months for the applicant to ‘rectify’ this problem. He also appears to have been untruthful with Centrelink. The Tribunal has formed the view that the applicant has little regard for the Australian laws and the Tribunal considers it problematic that the applicant appears to have accepted no responsibility for his conduct, suggesting it was the responsibility of others to ensure his compliance. Similarly, in relation to the application form, the applicant’s evidence is that it was his wife or the person who filled in the forms who was responsible, while the applicant himself does not appear to appreciate the fact that as an applicant and a person who would have signed the application forms, he had responsibility for ensuring the answers on the forms were correct.

13. The Tribunal acknowledges there are strong reasons why the visa should not be cancelled. However, the Tribunal places greater weight on the circumstances in which the non-compliance occurred, the applicant’s other instances of non-compliance or breaches of the law, his lack of candour in dealing with the Tribunal and other authorities and lack of remorse. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member