Patel (Migration)

[2023] AATA 496

Patel (Migration) [2023] AATA 496 (13 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mayankkumar Mukeshbhai Patel
Mrs Janakibahen Mayankkumar Patel

REPRESENTATIVE:  Mr Nilesh Nandan

CASE NUMBER:  2216459

HOME AFFAIRS REFERENCE(S):          BCC2021/334759

MEMBER:K. Chapman

DATE:13 March 2023

PLACE OF DECISION:  Brisbane

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 13 March 2023 at 4:19pm  

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – incorrect answers in the visa application – bogus English language test result – bogus employ documents – work experience – extensive Departmental investigation – Australian citizen child – best interests of the child – decision under review set aside 

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198, 359
Migration Regulations 1994, r 2.41

CASES

Botha v Minister for Immigration and Border Protection [2017] FCA 362
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, on 9 November 2022, to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa, under s 109(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The delegate cancelled the visa on the basis that the first named applicant had not complied with s 101(b) and s 103 of the Act. The delegate determined, respectively, that the applicant provided incorrect answers in his Subclass 187 visa application pertaining to his work experience and employment, in addition to providing a bogus English language test result and bogus employment related documentation. On 10 November 2022, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with his application.

3. On 14 October 2022, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 187 visa, on the basis that he failed to comply with s 101(b) and s 103 of the Act. The Tribunal notes this NOICC replaced an earlier version dated 14 June 2022. The applicant responded to the earlier version of the NOICC, denying any wrongdoing. The delegate took that as the response for the purposes of the operative NOICC, given no further information was submitted in relation to the latter. On 9 November 2022, the delegate cancelled the applicant’s Subclass 187 visa.

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before it is that with respect to the first named applicant (hereafter ‘the applicant’). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.

5. The Tribunal initially scheduled a review hearing for 17 January 2023. Shortly thereafter, the applicant requested a postponement of the hearing, so as to obtain representation. In due course, the applicant appointed a solicitor (‘the representative) to assist him and the hearing was rescheduled for 8 February 2023. Additionally, on 6 January 2023, the Tribunal wrote to the applicant inviting his comment upon the validity of a non-disclosure certificate, issued pursuant to s 375A of the Act, dated 15 November 2022.

6. In early February 2023, the representative submitted pre-hearing material. This included, inter alia, written submissions (including notification of no challenge to the validity of the non-disclosure certificate), identity documents, an Australian Citizenship certificate for the applicant’s son, unsworn third party statements, an unsworn statement from the applicant and the Indian Birth Certificate for the applicant’s daughter (who resides offshore). All submitted material has been duly considered by the Tribunal.

7. The applicant appeared in person before the Tribunal on 8 February 2023 to give evidence and present arguments. He confirmed that no other person would give evidence at the review hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages, with the applicant confirming he understood the interpreting service. The applicant was represented at the hearing by the representative, who was permitted to make submissions to the Tribunal during the hearing.

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

   ISSUES AND LAW

9. The issues in the present case are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

10. 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.

11. 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.

12. By virtue of s 107A of the Act, the possible non-compliances that may be specified pursuant to s 107 include non-compliances in respect of any previous visa held by a person.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Did the notice comply with the requirements in s 107 of the Act?

13. Section 107 of the Act 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.

14. The Tribunal notes that the NOICC dated 14 October 2022 was properly sent to the applicant. 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. Further, the Tribunal is also satisfied that the delegate had reached the necessary state of mind to engage the provisions of s 107 of the Act. Therefore, in the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 of the Act and that the notice issued under s 107 of the Act complied with the statutory requirements.

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

15. The Tribunal must consider 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(b) and s 103 of the Act.

16. The s 107 notice particularises possible non-compliance with s 101(b) of the Act by the applicant in relation to the following matters. In his Subclass 187 visa application of 14 November 2019, and associated documentation, the applicant falsely declared he was employed as a Software Engineer by RUDRA Computers in India from 10 October 2013 to 22 July 2017. The applicant also falsely declared, in his submitted Form 80, that he commenced working at Sparkle Technologies in Nerang, Queensland from November 2019. The Department conducted investigative activities in both India and Australia that determined the falsity of the applicant’s claims.

17. In an unsworn statement dated 1 February 2023, the applicant conceded to his work experience being ‘misstated’ to the Department. In the view of the Tribunal, such characterisation is a manifest understatement. This is particularly so given the centrality of the applicant’s work experience to the Subclass 187 visa criteria. At the review hearing, the Tribunal canvassed in detail the degree of such ‘misstatement’ with the applicant. He admitted to the Tribunal that he did not perform the declared work with RUDRA Computers in India or Sparkle Technologies in Nerang. He also admitted he maintained these falsehoods when responding to the NOICC.

18. Further, the s 107 notice particularises possible non-compliance with s 103 of the Act by the applicant in relation to the provision of the following documents:

    a.an employment reference letter, dated 22 July 2017, from RUDRA Computers of Ahmedabad, India. The letter states the applicant was employed by this business from 10 October 2013 until the date of the letter, in the position Software Developer – Executive. This document was submitted with the Subclass 187 visa application;

    b.an employment agreement (contract), dated 11 November 2019, with Sparkle Technologies, located in Nerang, Queensland. The employment agreement states the applicant must perform his duties at 2/46 Price Street, Nerang, Queensland and is employed as a Software Engineer. The applicant signed the employment agreement on 11 November 2019. This document was submitted with the Subclass 187 visa application; and

    c.an English language test result, ‘TOEFL iBT – Test Date: 11 March 2017 – Test Centre Country: Kenya - Total Score: 94’. This document was submitted with an application for a prior Subclass 500 Student visa, granted on 12 October 2017, that enabled the applicant and his wife to first travel to Australia.

19. The Tribunal notes the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). This definition includes a document that is ‘counterfeit’. The Tribunal accepts that the ordinary English language meaning of ‘counterfeit’ is recorded in the Cambridge Dictionary (online edition) as:

    ‘made to look like the original of something, usually for dishonest or illegal purposes.[1]

    [1] Cambridge Dictionary (online edition), accessed 9 March 2023.

20. At the review hearing, the Tribunal canvassed with the applicant each of the relevant documents. The applicant admitted each to be a bogus document. Furthermore, the Tribunal canvassed the applicant’s response to the NOICC, whereby he submitted further documents in a dishonest effort to maintain that the original documents were legitimate. Indeed, the Tribunal notes that the Department expended significant resources to determine that the submitted documents were in fact bogus. The applicant admitted he provided false information and bogus documents in response to the NOICC in the manner outlined.

21. The Tribunal notes that a non-disclosure certificate dated 15 November 2022, issued pursuant to s 375A of the Act, is relevant to this review. The public interest grounds indicated in that certificate relate to precluding the disclosure of ‘lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.’ Further, the certificate outlines the ‘in confidence’ nature of informant provided material, where consent to disclose was not given, in circumstances where disclosure might reveal the identity of a confidential source.

22. The Tribunal provided a copy of the certificate dated 15 November 2022 to the applicant prior to the hearing and invited comments upon its validity. The representative confirmed to the Tribunal, in pre-hearing correspondence, there was no contest to the validity of the certificate. Further, the Tribunal discussed the validity of that certificate with the applicant and the representative at the review hearing. The representative indicated there were no concerns with the validity of the non-disclosure certificate dated 15 November 2022. Following careful consideration, the Tribunal finds that this certificate is valid as public interest grounds are properly stated. Accordingly, with respect to the material under cover of the certificate, the Tribunal has not released the material in full to the applicant. Rather, the Tribunal provided ‘the gist’ of this information to the applicant at hearing, utilising the procedure in s 359AA of the Act.

23. Pursuant to the procedure in s 359AA of the Act, the Tribunal raised with the applicant that the Departmental file contains the following information:

    a.‘Dob In’ material regarding false documents being provided with his Subclass 187 visa application;

    b.‘Dob In’ material suggesting he paid a large sum of money to his Subclass 187 visa sponsor to obtain that visa;

    c.a Site Visit Report to the claimed business premises of The Trustee For Enlightened Techniques (T/A Sparkle Technologies) indicating the applicant did not work there;

    d.particulars of investigations undertaken by the Department to confirm the applicant did not work at RUDRA Computers in India; and

    e.enquiries undertaken by the Department regarding his English language ability as a Student visa holder.

24. The Tribunal indicated the above information is relevant to the review as it tends to suggest that the applicant provided incorrect information and bogus documents in relation to his Subclass 187 and Subclass 500 visa applications. The Tribunal informed the applicant that if it was to rely upon this information, it would be the reason, or a part of the reason, to affirm the decision under review to cancel his Subclass 187 visa.

25. The applicant confirmed to the Tribunal he understood why the information is relevant to the review. When asked by the Tribunal if he would like to comment on or respond to the information now, or if he would like additional time to do so, he requested an adjournment which was granted. Following the adjournment, the applicant conceded the provision of incorrect information and bogus documents as alleged. The applicant also confirmed he paid an amount of money to the nominator associated with his Subclass 187 visa application. However, he exercised the privilege against self-incrimination and declined to provide further information, such as the quantum or any further particulars pertaining to his payment facilitating the nomination.

26. The Tribunal observed the applicant provide his evidence in person, regarding the submission of the relevant incorrect information and bogus documents. Contrary to the submissions of the representative, the applicant did not appear contrite, rather he gave the minimum information to admit culpability once the Tribunal canvassed his conduct in detail. The applicant presented to the Tribunal as a person admitting wrongdoing only because he was confronted with overwhelmingly evidence, as opposed to one genuinely exhibiting remorse. Indeed, the applicant only conceded his wrongdoing after the Department went to great lengths to investigate his conduct. For completeness, the Tribunal notes that the applicant also exercised the privilege against self-incrimination, when asked if he was assisted by any person to provide the incorrect information, or bogus documents, in relation to the relevant visa applications.

27. Having regard to the admissions made by the applicant at the review hearing, the Tribunal is satisfied that the answers provided by the applicant as particularised in the s 107 notice are incorrect. Additionally, the Tribunal is satisfied the relevant documents submitted by the applicant are bogus documents. Therefore, the Tribunal finds that there was non-compliance with s 101(b) and s 103 of the Act by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

28. 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).

29. 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 reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information;

    ·     the content of the genuine document (if any);

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

    ·     the circumstances in which the non-compliance occurred;

    ·     the present circumstances of the visa holder;

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

    ·     any other instances of non-compliance by the visa holder known to the Minister;

    ·     the time that has elapsed since the non-compliance;

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches; and

    ·     any contribution made by the holder to the community.

30. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

31. The Tribunal has duly considered the applicant’s response to the NOICC and notes that it seeks to deny the provision of incorrect information or bogus documents. The applicant chose to compound his initial dishonest conduct by acting dishonestly in response to the NOICC. Such dishonesty weighs very strongly in favour of cancelling the applicant’s Subclass 187 visa, given its magnitude and sustained nature.

32. The correct information in relation to the relevant work experience claims made by the applicant in his Subclass 187 visa application is that he never worked for RUDRA Computers of Ahmedabad, India or Sparkle Technologies in Nerang, Queensland. Further, regarding the applicant’s English language test score of 11 March 2017, the correct information is that he did not demonstrate the required English language proficiency to enable him to legitimately obtain the Subclass 500 visa. The expansive and repeatedly dishonest conduct of the applicant, by providing incorrect information during various interactions with the Department, is a very serious matter. The Tribunal finds that the applicant engaged in his dishonest course of conduct knowingly, so as to achieve a migration outcome for himself and his wife. Such circumstances weigh very strongly in favour of cancelling the applicant’s Subclass 187 visa, particularly given the sustained nature of the provision of incorrect information.

33. The Tribunal notes that three bogus documents, as recorded in the NOICC, have been submitted by the applicant. They are two counterfeit employment references and a counterfeit English language test ‘TOEFL iBT – Test Date: 11 March 2017’. There are no genuine documents upon which these bogus documents have been based. Therefore, no weight is given either in favour of, or against, the cancellation of the applicant’s Subclass 187 visa in relation to the prescribed circumstance regarding the content of the genuine document.

1. The Tribunal forms the view that the decision regarding the applicant being granted the Subclass 187 visa was based wholly or partly on incorrect information and bogus documents. That is, the applicant provided incorrect information and bogus documents regarding his work experience in India and Australia. Further, the Tribunal is satisfied that the decisions to grant the applicant the Subclass 500 visa on 12 October 2017, and to immigration clear him, were based wholly or partly on incorrect information and a bogus document pertaining to a counterfeit English language test ‘TOEFL iBT – Test Date: 11 March 2017’.

2. Given that English language proficiency is central to the grant of the Subclass 500 Student visa, had the Department known the applicant was deficient in that requirement it is unlikely he would have been granted this visa and permitted entry into Australia with his wife. Furthermore, as an assessment of the applicant’s employment experience is central to the grant of the Subclass 187 visa, it is apparent he would not have been granted that permanent visa if his true employment experience was known to the Department. Therefore, the Tribunal finds that the decisions to grant the applicant the Subclass 187 and Subclass 500 visas, and to immigration clear him, were based, wholly or partly, on incorrect information or a bogus document as outlined. Following careful consideration, the Tribunal finds that the circumstances in relation to the grant of these visas to the applicant, and his immigration clearance, weigh very strongly in favour of cancelling his Subclass 187 visa.

3. The Tribunal finds that the applicant engaged in a deliberate course of conduct to conceal from the Department his lack of English language proficiency and lack of relevant employment experience, respectively, in relation to the applications for the Subclass 500 and Subclass 187 visas. It is worth pausing to reflect that such matters only came to the knowledge of the Department after receiving ‘dob in’ material, which resulted in an extensive investigation to ascertain the true facts. It is apparent that the applicant deceitfully and knowingly sought to undermine the integrity of the Subclass 500 and 187 visa programs by his actions. After careful consideration, the Tribunal finds that the circumstances in which the non-compliance occurred weigh very strongly in favour of cancelling the applicant’s Subclass 187 visa.

4. The Tribunal has carefully considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act. As outlined above, the applicant persistently maintained to the Department that he had not provided incorrect information in relation to his Subclass 500 and 187 visa applications. Accordingly, the applicant failed to comply with s 105 of the Act, the duty to correct incorrect answers, in a sustained fashion. Therefore, the Tribunal finds that the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act weighs very strongly in favour of cancelling his Subclass 187 visa.

5. The Tribunal has carefully considered whether there are any other instances of non-compliance by the visa holder. On balance, the Tribunal is satisfied there are no other instances of non-compliance by the applicant, aside from the matters outlined in the primary visa cancellation decision. Following careful consideration, the Tribunal finds that the lack of other instances of non-compliance weighs slightly against the cancellation of the applicant’s Subclass 187 visa.

6. The time that has elapsed since the non-compliance with s 101(b) and s 103 has been carefully considered by the Tribunal. Regarding the provision of the bogus English language test result, that was in 2017. Additionally, the provision of incorrect information and bogus documents in relation to the Subclass 187 visa application was in 2019. Further, the applicant conceded to providing incorrect information in response to the NOICC in mid-2022. Given that some time has passed since the earliest provision of incorrect information and bogus documents, this mitigates to a certain degree the adverse weight attributable to the prescribed circumstance regarding the time elapsed since non-compliance. However, as the applicant maintained his dishonesty by providing further incorrect information in response to the NOICC, the degree of mitigation is limited. On balance, the Tribunal finds that the time that has elapsed since the non-compliance weighs moderately in favour of cancelling the applicant’s Subclass 187 visa.

7. The Tribunal has carefully considered whether there have been any breaches of the law by the applicant since his non-compliance and the seriousness of those breaches. The Tribunal does not have material before it to indicate that the applicant has breached Australian law since his non-compliance with s 101(b) and s 103 of the Act. Of note, the applicant has not had any offence proven since his non-compliance to the knowledge of the Tribunal. Following careful consideration, the Tribunal finds that the lack of proven breaches of the law by the applicant since his non-compliance weighs slightly against the cancellation of his Subclass 187 visa. For completeness, the Tribunal notes that the applicant admitted to making payment to facilitate the application for nomination associated with his Subclass 187 visa. This is a matter the Department may wish to explore in the appropriate forum.

8. It is contended on behalf of the applicant that he has made a contribution to the community by way of being currently employed as a truck driver in regional Australia and previously working as a farm hand. Submitted references confirm this employment. The Tribunal accepts the applicant has been employed as a truck driver in recent years. However, there is no persuasive evidence before the Tribunal to suggest the applicant has made any significant contribution to the Australian community. Following careful consideration, the Tribunal finds that the applicant’s contribution to the community weighs slightly against the cancellation of his Subclass 187 visa.

9. The applicant submits that his present circumstances weigh against the cancellation of his visa. It is contended that he has been in Australia since 2017 and established himself in the community and the workforce. He resides with his wife, the second named applicant, and their son in the vicinity of Toowoomba, Queensland. This child was born in January 2022 in Australia, at a point in time when his parents both held Australian permanent residence. By operation of law, the applicant’s son is, and remains, an Australian citizen from birth. The applicant is the primary financial provider for the family, with the second named applicant performing the primary caregiver duties. The applicants’ also have a daughter, who is an Indian national, residing offshore in her country of nationality. She is now of primary school age. The applicant provides remittance income to sustain her living and educational expenses in India. The applicant aspires to bring his daughter to live in Australia in due course.

10. The Tribunal accepts that the applicant is the primary financial provider for his family, including his daughter residing offshore. It is also accepted that he is gainfully employed as a truck driver in regional Australia. Following careful consideration, in relation to the present circumstances of the applicant, the Tribunal affords moderate weight against cancelling his Subclass 187 visa. The Tribunal more fully addresses considerations relating to the applicant’s children and regarding international obligations below. 

11. While the factors prescribed in reg 2.41 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.

12. The Tribunal has considered 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. The Tribunal notes that the mandatory legal consequences of visa cancellation were canvassed with the applicant at the review hearing. If the applicant’s Subclass 187 visa is cancelled and he does not hold a valid visa he will become an unlawful non-citizen and liable to detention under s 189 of the Act and removal under s 198 of the Act. He may also be subject to s 48 of the Act which limits further specific visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. There is no evidence before the Tribunal to suggest that the applicant would be subject to indefinite detention and be unable to be removed to India. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s Subclass 187 visa given they are the intended consequences of the legislation.

13. The Tribunal notes that the visa of the second named applicant would be consequentially cancelled under s 140 of the Act (and the mandatory consequences of visa cancellation applicable to her) if the applicant’s visa is cancelled. On balance, this potential consequential cancellation weighs neither in favour of, nor against, cancellation of the applicant’s Subclass 187 visa. This is because it is the intended consequence of the legislation and it is implausible that the second named applicant was unaware of the applicant’s dishonest conduct in relation to their visa applications.

14. The Tribunal has carefully considered all other relevant matters, including the degree of hardship that may be caused to the applicant (and his immediate family) if his Subclass 187 visa is cancelled. As outlined during the review hearing, the applicant contends he and his family would face hardship in relation to their employment, education, living standards and aspiration to remain in Australia permanently. The Tribunal accepts that the applicant would lose his employment as a truck driver in regional Australia if his visa were to be cancelled. Further, the Tribunal forms the view that if the applicant’s visa is cancelled, his wife and son will, by necessity, depart Australia with him. This would cause a significant degree of hardship to the applicant and his immediate family. In particular, the applicant’s Australian citizen son would face significant hardship in being practically denied the opportunity to reside in his country of nationality for many years. For completeness, the Tribunal notes that the lactose intolerance of the applicant’s son presents only a minor factor for consideration, given there is limited submitted medical evidence suggesting otherwise. On balance, the Tribunal finds that the applicant and his immediate family would face a significant degree of hardship if his visa is cancelled and this weighs strongly against the cancellation of the Subclass 187 visa.

15. The Tribunal has carefully considered whether any of Australia’s international obligations would be breached if the applicant’s Subclass 187 visa is cancelled. The Tribunal notes there is no persuasive evidence before it to suggest any non-refoulement obligations would be breached by cancelling the applicant’s visa. Nor is there any evidence pointing to the applicant and his immediate family being prevented from returning to India.

16. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and as is relevant to the family unit the International Covenant on Civil and Political Rights (ICCPR). The Tribunal acknowledges that ‘the best interests of the child’ must be treated as a primary consideration by administrative decision makers. Accordingly, the Tribunal has done so in this matter and elevates the weight afforded to the evidence, detailed above, which is suggestive of hardship being faced by the applicant and his Australian citizen son, which weighs against cancellation of the visa. With respect to the hardship faced by the applicant’s son if the visa is cancelled, the Tribunal affords strong weight against cancellation of the visa. With respect to the applicant’s daughter, who resides in India, the Tribunal affords moderate weight against cancellation of the visa, given the loss of remittance income that would result from such cancellation. On balance, the Tribunal notes it is satisfied that the family unit would remain intact, even if the applicant’s visa was cancelled. For completeness, the Tribunal also notes that the primary consideration in relation to children may be balanced against other considerations, a matter to which it shall later return. The Tribunal further notes there are no other relevant matters to be considered in this review.

    CONCLUSION

17. The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 187 visa. For reasons previously expressed, the Tribunal finds that the applicant engaged in a sustained dishonest course of conduct to falsify his English language ability and employment history, with respect to his Subclass 500 and Subclass 187 visa applications. The applicant’s deception enabled him and his wife to enter Australia, when they had no genuine right to do so. His conduct is most egregious. Further, the Tribunal is satisfied the second named applicant participated in her portion of the visa applications with knowledge of her husband’s dishonesty.  

18. The Tribunal does not accept the applicant is a contrite person, rather he presents as a person who is sorry his conduct came to light, through the ‘dob in’ material that prompted a thorough Departmental investigation. The persistent dishonesty of the applicant strikes at the heart of the integrity of Australia’s migration program. It is a very serious matter indeed, in the view of the Tribunal.  

19. However, the Tribunal is cognisant that ‘the best interests of the child’ is a primary consideration, which in the applicant’s case weighs strongly against cancelling his visa. In particular, the applicant has an Australian citizen son who was born in this country. Should the applicant’s visa be cancelled this child will, by necessity, need to relocate to India for many years. Practically, the applicant’s Australian citizen son would be denied the opportunity to grow up in his country of nationality if the Subclass 187 visa was cancelled. The Tribunal notes that there are other factors weighing against cancellation of the visa, as previously outlined. However, it is the Australian citizenship of the applicant’s son, in combination with the hardship he would face if removed from his country of birth, that leads the Tribunal not to exercise the discretion to cancel the visa in this very finely balanced review. Therefore, on balance, following much consideration, the Tribunal finds that the circumstances against cancelling the applicant’s visa outweigh those circumstances to the contrary.

20. 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 outlined, the Tribunal concludes that the visa should not be cancelled.

21. For completeness, the Tribunal records its view that the applicant’s sustained dishonest conduct, in relation to Australian migration matters, makes him unsuitable to satisfy the character test for Australian citizenship in the reasonably foreseeable future. Additionally, the Tribunal notes that the applicant admitted to the payment of money, to facilitate the application for nomination associated with his Subclass 187 visa, when he was presented with evidence by way of ‘dob in’ material. The Department may wish to consider these matters further.  

    DECISION

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

23. The Tribunal has no jurisdiction with respect to the other applicant.

    K. Chapman
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.