Salama (Migration)

[2024] AATA 3833

Salama (Migration) [2024] AATA 3833 (25 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahmoud Mahdy Salama

REPRESENTATIVE:  Mr Mark Edward Northam

CASE NUMBER:  2215853

HOME AFFAIRS REFERENCE(S):          BCC2013/1671622

MEMBER:Deputy President Justin Owen

DATE:25 September 2024

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 25 September 2024 at 11:30am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – Federal Court remittal – incorrect answers in the previous Partner visa application – exclusive relationship – family composition – intentionally polygamous marriage – genuine relationship – substantial change of circumstances not reported – subsequent divorce and remarriage – contrived relationship – previous undisclosed marriage in Egypt – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 111, 140, 189, 198
Migration Regulations 1994, rr 1.15, 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 and Border Protection on 28 August 2014 to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a male Egyptian national who is 53 years of age at the time of decision. The applicant originally arrived in Australia on 17 March 2003 on a Subclass 300 Prospective Partner visa.  The applicant married Ms Lynda Britz, an Australian citizen, on 4 May 2003.  On 14 May 2003 he applied for an onshore Partner visa. On 3 June 2003 he was granted a Subclass 820 Partner (provisional) visa. The applicant was granted a Subclass 801 Partner (permanent) visa on 6 June 2006. On 26 June 2006, the applicant departed Australia, returning on 6 June 2011.  On 3 December 2012, the applicant was granted a Subclass 155 Resident Return visa.  The applicant left Australia on 13 December 2012 and returned on 19 October 2013.  On 10 February 2013 Ms Waafa Fouad Mohammed Ahmed Halawa applied for an offshore Partner visa on the basis that she was married to the applicant.  Her application stated she had married the applicant on 28 August 2004 and they had a daughter together, born 19 July 2005.  On 8 August 2014, the Department sent the applicant a notice of intention to cancel his visa under s 107 of the Act.  The applicant responded to the notice, which was taken into account by the delegate.

3. On 28 August 2014, the delegate cancelled the visa on the basis that the applicant had not complied with s 101 of the Act, which states: “A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.”  

4. The delegate also cancelled the visa on the basis that the applicant had not complied with s 104 of the Act, which states:

   (1)  If circumstances change so that an answer to a question on a non - citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2)  If the applicant is in Australia at the time the visa is granted, subsection   (1) only applies to changes in circumstance before the visa is granted.

   (3)  If the applicant is outside Australia at the time the visa is granted, subsection   (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

   (4)  Subsection (1) applies despite the grant of any visa.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. The delegate’s decision was affirmed by the then Migration Review Tribunal (MRT) on 24 February 2015. The applicant applied for review with the Federal Court, which upheld the MRT’s decision on 18 March 2016. The applicant appealed to the Full Bench of the Federal Court, which remitted the matter to the AAT for reconsideration on 9 January 2017.  On 1 July 2019, the Tribunal affirmed the delegate’s decision.  An application for review was lodged with the Federal Court on 5 August 2019.  On 24 October 2022, the Federal Court remitted the matter to the Tribunal for reconsideration according to law after the Minister withdrew from the case. 

7. The applicant appeared before the Tribunal on 12 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Lynda Morris Britz.  

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements. The Tribunal notes that s 107A provides that non-compliance in connection with a previous visa may be grounds for the cancellation of the current visa.

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

13. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 and s 104 in the following respects, as outlined in the copy of the delegate’s decision the applicant provided the Tribunal:  

    Non-compliance with s 104

    ·The applicant made an application for a Partner visa on 14 May 2003 on the basis of his relationship with Ms Lynda Morris Britz. The applicant included in his application a Departmental form 47SP dated 7 May 2003 where at Question 34, when asked to provide details of ALL his family, including all children, the applicant failed to record any details in response.

    ·On 10 February 2013 Ms Wafaa Fouad Mohammed Ahmed Halawa applied for a Partner visa with the applicant as her sponsor.  In Ms Halawa’s application form, it stated the applicant married Ms Halawa on 28 August 2004.  A daughter of the family, Miss Malak Mahmoud Salama, is recorded as being born on 19 July 2005.  With the application a birth registration document was provided to the delegate that lists the applicant as the father of Miss Malak Mahmoud Salama.

    ·The delegate noted that the birth of Miss Malak Mahmoud Salama constituted a change in the applicant’s circumstances, given his response at Question 34, where no family and children were recorded.  The delegate noted that there was no record of the applicant informing the Department about the birth of Miss Malak Mahmoud Salama before he was interviewed by the delegate concerning his sponsorship of Miss Halawa’s Partner visa application.

    Non-compliance with s 101

    ·The applicant applied for a Return (residence) (Class BB) visa on 15 November 2012, in which he stated his relationship status was divorced.  The delegate considered, given he was married to Ms Halawa at the time he lodged the application, his statement about his relationship status was incorrect.

14. The Tribunal notes that in his original response to the NOICC, received by the Department on 22 August 2014, the applicant stated he was unaware that he was required to inform the Department of all changes in his circumstances, and if he had known he would have done so.  He noted the information he had provided in his visa application of 7 May 2003 was correct because at that time he was childless. He stated he had visited the Lee St offices in Sydney of the Department several times in 2006 and 2012 to enquire about bringing family members to Australia, including his daughter.  He stated he was provided forms but did not submit them.  He claims he was never advised on his visits to notify the Department of any changes in his circumstances. The applicant did not agree he did not comply with s 101 of the Act but agreed there was non-compliance with s 104.   The applicant’s original response to the s 107 notice has been taken into account by the Tribunal in its deliberations following.

15. On 9 February 2024, the applicant, through his representative, made written submissions to this constituted Tribunal concerning the purported non-compliance.  In the applicant’s response to the claims of non-compliance pertaining to s 104, the applicant made the following written submissions through his representative.  In relation to the failure to inform the Department of his change in circumstances, being the birth of Miss Malak Mahmoud Salama on 19 July 2005, the applicant has submitted:

    The religious customs of Islam and the laws of Mr Salama’s home country of Egypt permit a man to take a second wife if his first wife is unable to conceive a child, but only with the consent of his first wife. Mr Salama and Ms Britz both agree that Mr Salama had such permission.

    For further details on this, we attach as Annexure 1 the commentary of Islamic scholar Abeera:

    “Infertility of the first wife: If a man’s first wife cannot have children due to infertility issues, he can marry a second wife. In Islam, having children is a blessing and a means of increasing the Muslim ummah (community).”

    -- Commentary by Abeera (Annexure 1)

    The applicant notes that his second marriage to Ms Wafaa Halawa in Egypt would be considered void in Australia as he was already married to Ms Britz at the time he married Ms Halawa in Egypt in order for Ms Halawa to conceive a child for him. However as his primary marriage to Ms Britz was ongoing during this time (2003-2004), Mr Salam was not seeking to have his marriage to Ms Halawa recognised by Australia or the immigration department.

    We include as Annexure 2 the statement of Lynda Britz regarding her understanding and expectations regarding Mr Salama taking a second wife in order to have children:

    “I invited Mahmoud to Australia in 2002 and he arrived in 2003. I filled in the forms for his partner visa and he trusted me to handle this and all other paper work. At the time I was 51 and had no expectation or wish for children from the relationship. We married in 2003 to fulfil the conditions of his visa. I was always aware that his parents expected him to marry and have children, and that a second wife was likely in due course. His religion and Egyptian law permit a second wife if the first is infertile.

    I was aware when he left Australia in 2004 that he would be marrying Wafaa Fouad and would start a family with her, to fulfil family expectation. I did not expect this to affect my own relationship with Mahmoud, and indeed when he returned we were happy to be together.”

    -- Statement of Ms Lynda Britz (Annexure 2)

    Ms Britz advises that she handled all of Mr Salama’s Australian visa paperwork and applications, and honestly didn’t see why the birth of overseas children with the full knowledge and consent of Ms Britz herself would have relevance to, or worse yet a negative impact, on her partner visa with Mr Salama as the birth of the children was with the full knowledge and consent of Ms Britz:

    “Mahmoud and I lived together for more than 10 years over the years 2003-2022, firstly in Maroubra and later in Port Stephens. His Egyptian marriage did not affect me in any way, although I did tell him he should get established before starting a family.

    He had my consent to the marriage, and I expected that his children would not affect our life together. I didn’t see why this should affect his visa conditions, as I thought this focused on the relationship between Mahmoud and myself. I never included the children in any paperwork, as they had no connection to Australia.”

    -- Statement of Ms Lynda Britz (Annexure 2)

    We submit that the choice of Mr Salama and Ms Britz for Mr Salama to return to his home country temporarily in order to follow the teachings of his religion and take a second wife solely for the purposes of having children as his first wife was unable to conceive a child was a decision the couple made together that was not indicative in any way of a breakdown or weakening of their married partner relationship.

    The birth of Malak Mahmoud Salama on 19 July 2005 was a blessed event in the family of Mr Salama, Ms Halawa and Ms Britz. It was the culmination of Mr Salama’s wishes to have a child, Ms Britz’s to allow him to have a child via a second wife, and Ms Halawa. Additionally, the applicant reports it relieved a great deal of stress he had been receiving from his parents and family to have a child for religious and cultural reasons in his home country.

    We submit it is critically important to distinguish the birth of a child to someone other than an applicant’s legal wife in Australia in the circumstances of Mr Salama where the act of conceiving a child through a second marriage in an Islamic country is absolutely legal and done only with the consent of the first wife as a way of strengthening the family via having children, to a scenario where a child is conceived outside of marriage to someone an applicant had an “affair” with and represents disloyalty, infidelity and lack of character. In the case of an affair, the act of conceiving a child could certainly be seen as an indicator of a non-genuine partner relationship. However in the case of Mr Salama, the act of conceiving a child was done not as a way of secretly “cheating” on his wife, but was done with the full knowledge, support and approval of his wife. We submit in the case of Mr Salama, the act of Ms Britz allowing him to go to Egypt to conceive a child is a matter of great trust by Ms Britz, and represents evidence of the strength of the relationship she had with Mr Salama, not the weakness of it.

    Mr Salama concedes that both he and Ms Britz failed to notify the Department of the birth of his child Malak overseas, however we submit that it is central to the decision regarding cancellation to consider the reasons why they did not report the birth. From Ms Britz’s point of view, the birth of the overseas child was not relevant to her partner relationship with Ms Salama because the child “had no connection to Australia” and was not a negative factor in the relationship as opposed to a birth that resulted from an “affair” or “one night stand” might be in other circumstances.

    The laws regarding marriage in Egypt are vastly different to those in Australia, and the religious culture and traditions of Islam and the way religion is interlaced and in many ways instructs civil law in Egypt and other Islamic countries is profoundly different than the way religion and law are separate entities in Australia. We submit that the circumstances of Mr Salama and Ms Britz, specifically the circumstances of the birth of the child Malak overseas to Ms Halawa, are such that the birth of the child was a blessing to the family, not an indication of any rupture or breakdown of the partner relationship between Mr Salama and Ms Britz, and as such Ms Britz’s position and belief that the birth of a child overseas with no connection to Australia was not something that represented such a substantial change of circumstances that it warranted special notification to the Department is a reasonable position for her given all the circumstances that existed at the time.

16. The applicant and Ms Britz both spoke to the submissions at the Tribunal’s hearing.  Both submitted that Ms Britz had taken full responsibility for the preparation and submission of the Partner visa application. 

17. At the Tribunal’s hearing the applicant stated he was unaware he was required to inform the Department of his change of circumstances, being the birth of his daughter.  He subsequently stated in oral evidence that he had told the Department anyway, but they had made no record of him doing this.  He stated that he had told the Department “every time” he visited them.

18. The Tribunal noted at the hearing the electronic record held from 27 June 2012, as outlined in the delegate’s decision record, where the applicant enquired about the likelihood of a Class BB, Subclass 155 visa application being approved.  The record stated “asked client (the applicant) if he has any children or is married.  RA’s response was no.”  The applicant claimed the record was false and he had not made such a response.  In response to the Tribunal’s assertion that he had in fact married Ms Halawa in 2004 and sponsored her as his wife in 2013 in a visa application, he stated, “officially yes”. 

19. The applicant stated he was not aware of the obligation to inform the Department of changes to his circumstances  He said he didn’t read the contents of any correspondence from the Department or the forms, relying on Ms Britz to look after such matters.  The Tribunal noted to the applicant that in the Form 47SP he had signed, it stated: ‘I will inform the Department of any changes to my personal circumstances while my application is being considered’.  The applicant stated he had no idea he had done so and again attributed responsibility to Ms Britz.  He stated he did not know what he was signing. 

20. The Tribunal has considered the evidence before it pertaining to his failure to inform the Department of his change in circumstances, being the birth of Miss Malak Mahmoud Salama on 19 July 2005 and the subsequent non-compliance with s 104. 

21. The Tribunal considers the applicant has attempted to obfuscate what the Tribunal would consider is a very clear and relatively straightforward responsibility all applicants are required to fulfil whilst their applications are being processed, that being the updating of the Department of any changes in their circumstances. 

22. The Tribunal accepts the applicant did visit the Department on several occasions to make enquiries about matters such as lodging a Class BB, Subclass 155 visa application and bringing family members to Australia. There is no record as such of the applicant, however, ever informing the Department of his change of circumstances pertaining to the birth of his daughter.

23. The Tribunal notes that the applicant has previously stated that he did not inform the Department of his change of circumstances, claiming he was unaware of such obligations and passing off responsibility to Ms Britz.  At the Tribunal’s hearing, the applicant commenced claiming he had in fact informed Departmental officers of the birth of his daughter, but the officers failed to record this.  The Tribunal rejects the applicant’s sudden claims at the Tribunal’s hearing he did inform the Department as false, contrived and self-serving.  The Tribunal prefers his earlier evidence that he in fact failed to inform the Department.  The Tribunal notes, furthermore, that Departmental officers did in fact record that the applicant in 2012 was directly asked whether he had children and was married, and the applicant replied in the negative to this question.  The Tribunal considers this misleading response speaks to the credibility of the applicant’s evidence.      

1. The Tribunal has considered the applicant’s detailed written explanation as to why the circumstance of Miss Malak Mahmoud Salama’s birth was never reported to the Department. The Tribunal considers the submissions are an attempt to, quite frankly, obfuscate what was a relatively direct and straightforward responsibility. The Tribunal acknowledges the detailed submissions about Islamic marriage and children in Egypt, but notes its responsibility – and the obligation of the applicant – is to ensure the requirements of the Act and the Migration Regulations 1994 (Cth) are met with any visa application. The Tribunal notes that Ms Britz, who the applicant has attempted to sheet home all responsibility for his administrative failures, has stated in the written submission provided to the Tribunal: “I didn’t see why this should affect his visa conditions, as I thought this focused on the relationship between Mahmoud and myself. I never included the children in any paperwork, as they had no connection to Australia.”

2. The Tribunal notes Ms Britz in her own oral testimony has essentially taken total and full responsibility for the lodgement of the application – and the failure to inform the delegate as to the change of circumstances.  She has stated in her written submission that the fact the applicant’s child, Miss Malak Mahmoud Salama, had “no connection to Australia” meant it was her honest belief that there was no need to report the birth.  The applicant’s written submission states that Ms Britz’s belief that the birth of a child overseas with no connection to Australia was not a “substantial change of circumstances” that “warranted special notification to the Department” was reasonable given the circumstances at the time.

3. The Tribunal rejects the applicant’s assertions that the birth of the applicant’s child, Miss Malak Mahmoud Salama, did not represent a change of circumstances that required the applicant to notify the Department.

4. The Tribunal notes the applicant signed the Form 47SP, which includes a declaration that states: “I will inform the Department of Immigration and Citizenship of any changes to my personal circumstances (including change of address) while my application is being considered.  I understand this also applies to my permanent migration/residence visa application.” The applicant has clearly signed the declaration and is taking responsibility for undertaking these actions.  The Tribunal does not accept the applicant’s oral and written submissions that he was unaware of what he was signing, and the consequences as to what he was signing in the Form 47SP. The Tribunal has taken into account his claims his knowledge of English was limited, but notes his claims his then sponsor Ms Britz, an Australian-born citizen, was purportedly assisting him and indeed completing the application. 

5. The Tribunal has taken into account the testimony and submissions of the applicant and Ms Britz that she took total responsibility for the application, including the paperwork such as the Form 47SP.

6. The operation of ss 98 to 100 of the Act emphasise that the non-compliance of the applicant, such as with the failure to notify the delegate as to his change in circumstances, is not limited to circumstances where the failure was intentional or deliberate.

7. Section 98 states: “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”. In the circumstances of this matter, the applicant and Ms Britz have each claimed that Ms Britz has filled out his application form on his behalf.  Even if the Tribunal were to accept that was the case, the applicant is still responsible for, and is taken by the Tribunal, to have both filled out the form and failed to notify the Department as to his change in circumstances. 

8. The Tribunal notes s 99 of the Act relevantly states:

   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.

9. The Tribunal furthermore notes s 100 of the Act, which states:

   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.

10. Finally, the Tribunal notes s 111 of the Act, which states, relevantly:

    To avoid doubt, sections 107, 108 and 109 apply whether the non - compliance was deliberate or inadvertent.

11. The Tribunal subsequently finds that it is irrelevant whether the applicant was aware that he was obliged to notify the Department of his change in circumstances, being the birth of Miss Malak Mahmoud Salama.  Whether the applicant’s non-compliance was deliberate (as the Tribunal believes) or inadvertent is of no relevance when establishing the ground for cancellation under s 107.  Even if the Tribunal were to accept the submissions Ms Britz was responsible for the application, and the applicant had no idea as to the declaration he signed on his Form 47SP, and his subsequent obligations to inform the Department of changes in his circumstances, that does not impact the ground for cancellation. 

12. The Tribunal has taken into account the applicant’s and Ms Britz’s submissions that the child of the applicant was somehow of no relevance, and did not represent a change in circumstances, triggering the obligation.  The Tribunal has considered the submissions that Ms Britz was aware of the child and the applicant’s marriage to Ms Halawa, as well as Egyptian and Islamic custom.  The Tribunal considers the submissions an attempt to distract from what is the substantive issue: namely, did the applicant fail to notify the Department of changes in his circumstances when failing to report the birth of his child. The answer to that question is clearly in the affirmative.  Whether he was aware of the obligation, or whether he (or Ms Britz) held a genuine belief it was not relevant to the assessment of the visa, is irrelevant. 

13. The evidence before the Tribunal is that on 19 July 2005, the applicant’s wife in Egypt, Ms Halawa, gave birth to their child, Miss Malak Mahmoud Salama.  The applicant had married Ms Halawa in Egypt on 28 August 2004.  He had lodged his Partner visa application, sponsored by Ms Britz, who he had married on 4 May 2003, on 14 May 2003.  At the time of the birth of Miss Malak Mahmoud Salama, the applicant had a change in circumstances.  That change in circumstances meant that his response at Question 32 in his Form 47SP that he had no children became incorrect.  The applicant had a subsequent obligation to inform the Department of this clear change in his circumstances.  He had signed a declaration that specifically stated he would inform the Department of any changes in his personal circumstances.  The applicant failed to do so.  The Tribunal does not accept the claims now made at the Tribunal’s hearing by the applicant that he “told” Departmental officials when he visited their offices.  There is no evidence before the Tribunal that the applicant notified the Department of his change in circumstances and provided the delegate with the correct answer for Question 32 as he was required to.  Given the applicant had not been granted a permanent stage Partner visa at this time, the obligation remained with the applicant.  The Tribunal subsequently finds that the applicant did not comply with s 104 of the Act due to his failure to inform the Department of his change of circumstances, those being the birth of his child Miss Malak Mahmoud Salama. 

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

15. Given the Tribunal has found that that the applicant has not complied with s 104 of the Act in the way described in the s 107 notice, it is not necessary for the Tribunal to make a finding as to the purported s 101 non-compliance with the response in his Subclass 155 visa application of 15 November 2012, which stated his relationship status was ‘divorced’. The Tribunal discussed this matter with the applicant in considerable detail at the Tribunal’s hearing of 12 February 2024.  The Tribunal acknowledges the finding of the Full Bench of the Federal Court that the online form itself required an applicant who is married under the law of a foreign State to reach a view as to whether or not their marriage is recognised under the Marriage Act1961 (Cth), and the applicant’s marriage to Ms Halawa would not be regarded as a valid marriage as he was married to Ms Britz at the time of his marriage in Egypt in 2004. The Tribunal acknowledges the applicant’s submissions that the applicant’s marriage to Ms Halawa would be regarded under Australian law as void ab initio, and the divorce from Ms Britz occurred on 9 December 2007, meaning ‘divorced’ could potentially have been the most accurate selection available on an online Departmental application system, which only permitted one selection.  The Tribunal subsequently makes no finding in relation to the purported s 101 non-compliance.

    Should the visa be cancelled?

16. 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).

17. 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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. They are:

    ·     the correct information;

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

    ·     the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

    ·     the circumstances in which the non-compliance occurred;

    ·     the present circumstances of the visa holder;

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

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

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

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

    ·     any contribution made by the holder to the community.

18. 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.

    The correct information

19. The applicant claims in his written submissions that the “correct information” is that he became the father of Miss Malak Mahmoud Salama through a second marriage with the full approval, consent and knowledge of his Australian wife Ms Britz. 

20. The Tribunal notes the claim, but considers the correct information for the purposes of the prescribed circumstances as to whether the visa should be cancelled, is that the applicant’s circumstances changed on 19 July 2005 when Ms Halawa gave birth to their child, Miss Malak Mahmoud Salama.  The correct information became that the applicant had a daughter from another relationship.  This event occurred prior to the applicant being granted a permanent visa. 

21. The Tribunal has taken into account the applicant and Ms Britz’s submissions they did not consider this information relevant to the applicant’s application. Such submissions are given little weight by the Tribunal for the purpose of consideration of this prescribed circumstance.  The correct information quite simply was the applicant had a child in another relationship prior to the grant of his permanent Partner visa.  He failed to inform the Department of this significant change in his circumstances. 

22. On the evidence before it concerning the correct information, the Tribunal weighs this factor in favour of cancelling the visa. 

    The content of any genuine document

23. This prescribed circumstance is not relevant to the Tribunal’s considerations.  The Tribunal subsequently weighs this consideration neither in favour nor against cancellation. 

    The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document

24. In the applicant’s written submission to the Tribunal through his representative, he stated:

    We submit that full recognition understanding of Mr Salama’s religious and cultural traditions which specifically allow for him to take a second wife in his home country, only if his first wife approves and where his first wife is unable to conceive a child for him, would make holding the birth of his child Malak against Mr Salama or as somehow indicative of a breakdown or cessation of the genuine married partner relationship with Ms Britz as unreasonable and inappropriate.

    Just as the fact that in some countries adherence to religious or cultural traditions and norms result in marriages that are arranged by the parents of a couple where the couple has very little time together prior to marriage is understood and not considered as indicative of a non-genuine married relationship in partner visa decisions by the Department for applicants from those countries, we submit that the religious and cultural traditions and circumstances of Mr Salama with regard to the taking of a second wife and the birth of an offshore child to a second wife should also not be considered as indicative of a non-genuine married relationship between Mr Salama and Ms Britz.

25. The applicant has submitted that his spousal relationship with Ms Britz remained genuine and ongoing in spite of the fact he had fathered a child with Ms Halawa less than two years after his marriage to Ms Britz.  Ms Britz’s oral testimony to the Tribunal, and her previous evidence, was consistent with this claim.  Ms Britz has claimed she had full knowledge of the applicant’s child and accepted it. The applicant stated this was an accepted part of his culture.  He stated at the Tribunal’s hearing that he didn’t think his marriage to Ms Halawa under Egyptian law had anything to do with Australia. 

26. The Tribunal firmly rejects the applicant’s interpretation of the relevance of the information pertaining to his daughter to Ms Halawa, and the likely effect the provision of this information would have on the decision to grant him a Partner visa. 

27. The Tribunal accepts that Ms Britz was aware of the applicant’s relationship with Ms Halawa in Egypt, and consented to him fathering a child (the first of four) with her.  The religious and cultural traditions the applicant relies on here to explain the taking of a second wife, and his failure to report the birth of his child to the Department (on the basis it was considered irrelevant), do not, however, in the Tribunal’s opinion, lead to the conclusion that this information is irrelevant to the decision to grant the applicant a Partner visa. 

28. At the Tribunal’s hearing the Tribunal noted that spouse was defined in reg 1.15A of the Regulations as the parties having a mutual commitment to a shared life as husband and wife to the exclusion of all others.      

29. The applicant replied in the affirmative when the Tribunal asked at the hearing whether he considered the information that he had a daughter born to another woman may have influenced the Department’s consideration of his claim to be in a spousal relationship with Ms Britz. 

30. The Tribunal considers the information the applicant had fathered a child with Ms Halawa was particularly relevant to the Department’s assessment as to whether the applicant was in a genuine and ongoing spousal relationship with Ms Britz, as defined in reg 1.15A.  To meet the definition of a spousal relationship, the relationship with Ms Britz must be to the exclusion of all others, as well as being genuine and being a mutual commitment.  This was clearly not the case on the evidence before the Tribunal.

31. At the Tribunal’s hearing the applicant repeatedly stated Ms Britz encouraged him to father a child with Ms Halawa.  He stated his father had placed significant pressure on him to do so given Ms Britz was unable to provide him with children.  The Tribunal acknowledges the claims, but notes the applicant’s relationship with Ms Halawa is directly relevant to any assessment by the delegate as to whether he was in a genuine and ongoing spousal relationship with Ms Britz.  The delegate is required to be satisfied that the applicant met the requirements as set out in the Regulations for the grant of the Partner visa, including the requirement that the partner relationship is genuine, ongoing and to the exclusion of all others.  The Tribunal is of the very firm opinion that information before it that the applicant has just fathered a child to another woman would be entirely relevant to the delegate’s assessment that the applicant met the requirements for the grant of a Partner visa sponsored by Ms Britz.  

32. The Tribunal noted at the Tribunal’s hearing that just 20 days after the applicant was granted his Subclass 801 permanent stage Partner visa, he departed for Egypt, where he remained for almost 5 years, only returning in June 2011. The applicant had further children with Ms Halawa in 2008 and 2009.  The applicant stated that Ms Britz did visit him in Egypt, though Ms Britz in her own evidence stated she would have preferred the applicant remained with her in Australia.  The Tribunal considers the fact the applicant departed for almost five years during which he fathered more children with Ms Halawa further demonstrates that the information concerning the birth of Miss Malak Mahmoud Salama in July 2005 was very relevant to the delegate’s assessment of his relationship with Ms Britz for the purposes of a permanent stage Partner visa, even taking into account Egyptian and Islamic cultural norms and traditions. 

33. On the evidence before it concerning the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document, the Tribunal weighs this matter heavily in favour of cancelling the applicant’s visa.

    The circumstances in which the non-compliance occurred

34. In his written submissions to the Tribunal the applicant stated, in relation to the circumstances in which the non-compliance occurred:

    The marriage to Ms Halawa and the birth of his child Malak Salami overseas occurred in the course of Mr Salama following the teachings and practice of Islam and the laws of his home country, with the full knowledge and consent of his Australian wife Ms Britz. We submit there is nothing non-genuine or untoward about these circumstances.

35. The Tribunal has outlined the evidence pertaining to the circumstances in which the non-compliance occurred earlier in this decision record.  In summary, the applicant failed to inform the Department of changes to his circumstances, namely the birth of his daughter, Miss Malak Mahmoud Salama, in July 2005. The applicant has claimed variously: that his then sponsor Ms Britz was responsible for his Partner visa application; that he was unaware of an obligation to advise the Department of changes in his circumstances; that he considered the birth of a child to Ms Halawa in Egypt as irrelevant to his Partner application in Australia with Ms Britz due to Egyptian and Islamic religious and cultural traditions; and, at the Tribunal’s hearing, that he did in fact inform Departmental officers in Sydney but they failed to record this information on his file.

1. The Tribunal notes the applicant’s claim in his oral testimony at the 12 February 2024 hearing that he did in fact inform Departmental officers of the birth of Miss Malak Mahmoud Salama in July 2005.  The Tribunal does not accept the claim and considers it entirely inconsistent with his evidence not only to previously constituted Tribunals, but also his evidence in this remitted matter.  Whilst the Tribunal has accepted he did attend the Departmental offices on a number of occasions, the Tribunal does not accept that he updated the Department on his change in circumstances, namely the birth of his daughter, as he was required to do so.  The Tribunal considers the applicant has contrived this claim for the purposes of this review.  The Tribunal furthermore gives weight to the evidence, as discussed at the hearing, that in 2012, when the applicant was directly asked by Departmental officers in person whether he had children and was married, he in fact responded in the negative, despite at this stage having several children to Ms Halawa in Egypt. The Tribunal considers the applicant’s demonstrably false claim he did in fact inform the delegate of his change in circumstances as evidence of his lack of credibility as a witness.

2. The applicant claimed that Ms Britz was responsible for his Partner visa application, and she essentially took all responsibility for the submission and oversight of the application.  The applicant has submitted that he is lacking in culpability for the failure to inform the Department of his change in circumstances, namely the birth of his daughter, Miss Malak Mahmoud Salama, in July 2005. Ms Britz has provided evidence supporting this claim.  The Tribunal accepts that Ms Britz provided significant assistance with the preparation of the applicant’s Partner visa application.  The Tribunal accepts Ms Britz was also providing ongoing oversight of the application in conjunction with the applicant himself.  Nevertheless, the Tribunal does not accept that this ongoing assistance Ms Britz provided adequately either explains or justifies the applicant’s failure to inform the Department about a change in his circumstances.

3. The Tribunal puts significant weight on the fact the applicant signed the declaration on his Form 47SP, which states: ‘I will inform the Department of any changes to my personal circumstances while my application is being considered’.  The applicant variously stated he did not know what he was signing, did not read it, and he had no idea as to what he had in fact signed.  The Tribunal does not accept the applicant’s claims.  The Tribunal considers the applicant was aware of his obligation to inform the Department of any change to his circumstances.  The Tribunal is of the opinion the applicant had in fact read the legally binding declaration he signed. The Tribunal considers the applicant has obfuscated on this issue in an attempt to mitigate his responsibilities.  The Tribunal would again note ss 98 to 100 of the Act and the clear fact the applicant is still responsible for filling out the form, and is taken by the Tribunal to have done so, even if Ms Britz filled it out on his behalf.  The Tribunal, for the record, does not accept this was the situation; rather, the Tribunal is of the opinion the applicant signed his own declaration, was aware of his obligations as an applicant, which included a requirement to notify the Department as to a change in circumstances such as the birth of a child, and simply failed to do so.  The Tribunal considers the likely reason for this failure was the fact it would undermine his claim to be in a genuine and ongoing spousal relationship with his sponsor Ms Britz to the exclusion of all others, notwithstanding the validity of the applicant’s marriage under Australian law.

4. The Tribunal notes Ms Britz attended the hearing and provided fulsome oral testimony in support of the assertion that she and the applicant were previously in a genuine spousal relationship together.  The applicant married Ms Britz on 4 May 2003 with a Partner visa application being lodged a few weeks later.  The applicant signed his declaration on his Form 47SP several days later, before lodging his Partner visa application on 14 May 2003.  On 3 June 2003, the applicant was granted a Subclass 820 Partner (temporary) visa.  The applicant was ultimately granted a Subclass 801 Partner (permanent) visa on 6 June 2006, following the then MRT remitting the Department’s refusal of the visa.  Twenty days later, having received his permanent visa, the applicant departed Australia.  On 9 December 2007, the applicant and Ms Britz divorced. The applicant, on the evidence, fathered several children with Ms Halawa in Egypt before finally returning to Australia on 6 June 2011. 

5. The Tribunal has considered the evidence before it as to the purported relationship between Ms Britz and the applicant and considers it was in all likelihood contrived by the parties for migration purposes. 

6. The Tribunal discussed the circumstances of the applicant’s purported relationship with Ms Britz at the Tribunal’s hearing.  The Tribunal noted that the applicant departed Australia almost immediately after he was granted his permanent stage Partner visa, only to remain offshore for almost five years where, with Ms Halawa, he had three children.  The applicant stated that it was not his intention to depart Australia for such a lengthy period, and it was only meant to be a short trip but he could not return due to his daughter’s situation.  The Tribunal does not accept the applicant only intended a brief trip to Egypt and he only remained due to his daughter.  The Tribunal considers the more likely scenario is, having secured his own permanent visa and right to return to Australia permanently, he was satisfied to remain in Egypt and build his ongoing relationship with Ms Halawa, a relationship that then produced multiple children, despite the applicant’s claims (which the Tribunal again gives very limited weight to) that he was only doing so because of the demands of his father and a sense of obligation.

7. The Tribunal is of the opinion the applicant was carrying on an ongoing, long-term and genuine partner relationship in Egypt with Ms Halawa.  The Tribunal does not accept the applicant’s claims he was not living with Ms Halawa, placing considerably more weight on the reality that the relationship produced three children during this time.  The Tribunal accepts Ms Britz did visit Egypt during this period and may have visited the applicant.  Given that the Tribunal considers both the applicant and Ms Britz have contrived a relationship for the purposes of the applicant’s Partner visa, the Tribunal gives this fact limited weight as evidence of the genuine and ongoing nature of the applicant’s purported spousal relationship with Ms Britz.

8. The very fact the applicant did not report to the Department his change of circumstances after the birth of his daughter in July 2005 – and in fact neither did Ms Britz, who the applicant has claimed was responsible for his application and ensuring he was meeting his obligations – speaks to the genuineness of the parties’ claim to have been in a genuine and ongoing spousal relationship.  The fathering by the applicant of a daughter with another woman he was purportedly married to – whatever the cultural or religious circumstances claimed – was of direct relevance to the delegate’s assessment as to whether the applicant met the criteria for the grant of a permanent Partner visa.  The updating by the applicant of his circumstances with the Department and his disclosure he had fathered a child with a woman other than his sponsor, Ms Britz, would obviously have been of direct relevance to the time of decision criteria for the grant of a permanent Partner visa.  This information was directly pertinent to criteria such as the applicant being in a relationship with Ms Britz to the exclusion of all others.  The fact the applicant had at least technically married (whilst not recognised by Australian law) another woman and fathered a child to her – all the while his permanent stage Partner visa was being assessed by the delegate – would have obviously been of relevance to the Department.  The Tribunal considers the applicant’s relationship with Ms Halawa and his child with her would be of direct relevance to the delegate and impacted upon their ultimate decision as to whether the applicant was in a genuine and ongoing relationship with his sponsor to the exclusion of all others at the time of decision. 

9. The Tribunal raised a number of other matters of concern with the applicant that have been ventilated at differently constituted Tribunal hearings.  These matters speak, in the Tribunal’s opinion, to the genuineness of the applicant’s claim to have been in a genuine spousal relationship with Ms Britz, and to the wider credibility of his evidence to the Tribunal.  The applicant’s claims that the relationship with Ms Halawa was only for child-rearing purposes, was part of his culture and faith, and did not in any way impact the genuineness of his spousal relationship with Ms Britz is completely rejected by the Tribunal as a self-serving attempt to obfuscate this issue. The fact he clearly remained with Ms Halawa for many years and they have produced multiple children together suggests to the Tribunal the relationship was much broader than the applicant has claimed and once again speaks to his credibility as a witness of truth.

10. The Tribunal noted, as was discussed in the delegate’s decision record he provided the Tribunal, that in June 2012 the applicant attended the Department concerning a Subclass 155 Resident Return visa, at which time he is recorded as stating, in response to the delegate’s questions, that he did not have any children and was not married. The applicant claimed at the Tribunal’s hearing that he did not remember this event.  The applicant discussed at the Tribunal’s hearing that in 2012 Ms Halawa gave birth to their fourth child, their children together having been born in 2005, 2008, 2009 and 2012.  The Tribunal finds the applicant’s explanation for the provision of incorrect information to the Department – that he did not remember doing so – misleading, even taking into account the duration of time that has now occurred since the visit.  The Tribunal considers this event once again speaks to the credibility of the applicant’s evidence as well as the genuineness of his claim to have been in a genuine spousal relationship with Ms Britz.

11. The Tribunal noted from the applicant’s written submissions to a previously constituted Tribunal that there was evidence that he had previously applied for a Prospective Marriage visa in 2002, at which time he had stated that he had never been in any prior married or de facto relationship.  This was contrary to evidence in Ms Halawa’s partner visa application of 2013 where she stated the applicant had been married in 2000 and divorced in 2001.  The Tribunal discussed the matter with the applicant at its hearing, and he claimed he had married the woman in question, Ms Hassan, in order to share accommodation together.  He stated that in Egypt a man and woman living and sharing accommodation together unmarried would get into trouble with the police and could be imprisoned.  The Tribunal is not satisfied with the applicant’s explanation.  The applicant was asked whether he had been in a married or de facto relationship previously.  The quality of the relationship, or its duration, was irrelevant.  The question was plainly asked in his Prospective Marriage visa application and the applicant provided a response which, given his response at the Tribunal’s hearing, was clearly false.  The Tribunal considers, despite the duration of time that has elapsed since this event, this speaks to a pattern of information whereby the applicant is prepared to provide false or misleading information as part of his applications.  The Tribunal considers this speaks again to the credibility of his evidence. 

12. As was discussed in a previously constituted Tribunal, the Tribunal noted at its hearing that there was no evidence that the applicant had ever informed the Department, whilst his Partner visa application was being assessed between 2003 and 2006, of his relationship with Ms Halawa in Egypt.  The applicant married Ms Halawa under Egyptian law on 28 August 2004, just 15 months after his marriage to Ms Britz in Australia and whilst his permanent stage Partner visa application was being considered by the delegate.  On 19 July 2005, Ms Halawa gave birth to the applicant’s daughter whilst the permanent stage Partner visa application was still being considered, with the visa not being granted until June 2006. The various reasons the applicant has provided for not keeping the Department informed of this, namely the relationship with Ms Halawa was due to the purported inability of Ms Britz to conceive a child and the various demands of his father, are, quite frankly, irrelevant.  The applicant had a clear obligation to inform the Department of the change in circumstances, namely, since lodging the application in May 2003 the applicant had signed an Egyptian marriage certificate with Ms Halawa and had conceived a child with her.  The background to his marriage to Ms Halawa is essentially irrelevant, as is the fact that Ms Britz was aware and supportive of the applicant’s actions as both parties have stated.  The applicant had a simple obligation to inform the Department of his change in circumstances given his relationship with Ms Halawa, and he failed to do so.  When the Tribunal raised this matter at its hearing, the applicant again repeated that he relied on Ms Britz to take responsibility for all these obligations.  The Tribunal would again note that the responsibility remains with the applicant (ss 98 to 100 of the Act), and the Tribunal furthermore does not accept the submission that the applicant believed he was not required to impart such a significant change in his circumstances to the delegate. 

13. The Tribunal raised with the applicant a statement he provided to the initial Tribunal review from a Ms Christina Flanagan, who had stated she had met the applicant in December 2013 and after developing a relationship, held a religious marriage service with him in April 2014.  Ms Flanagan provided oral testimony at the earlier differently constituted Tribunal hearing. The Tribunal noted the statement had said she was in a genuine spousal relationship with the applicant, and their relationship enjoyed social recognition.  The applicant, at the Tribunal’s hearing of 12 February 2024, responded that he was simply trying to get his children out of Egypt at that time.  This leads the Tribunal to question the purpose of his sponsorship of Ms Halawa in 2013.   The Tribunal asked the applicant why he didn’t withdraw his 2013 sponsorship of Ms Halawa if, by early 2014, he was in a genuine partner relationship with Ms Flanagan. The Tribunal also asked the applicant if he had informed the Department, as the sponsor of Ms Halawa’s Partner visa application, that he was in a relationship with Ms Flanagan in 2014.  The applicant responded that his visa by then had been cancelled.  The Tribunal is troubled by the evidence pertaining to Ms Flanagan and again considers it demonstrates a willingness of the applicant to be evasive and unreliable when it comes to his responsibilities to the Department as either an applicant or a sponsor.  The Tribunal noted the applicant’s previous submissions that his marriage with Ms Halawa was over at the time, and he simply desired her to travel to Australia so he and Ms Halawa could co-parent their children with no emotional attachment to each other.  The Tribunal considers the applicant’s evidence perplexing, and finds that it demonstrates a willingness simply to manufacture scenarios to justify his past actions.  The Tribunal noted to the applicant that he had sponsored Ms Halawa in 2013 based upon a purported genuine spousal partner relationship.  By the applicant’s own evidence, there was no longer a genuine partner relationship, to the exclusion of all others, between the applicant and Ms Halawa in 2014; rather, he sought to continue to sponsor and support the granting of Ms Halawa’s Partner visa application on the basis that it would enable their children to come to Australia.  This was not, the Tribunal noted, the purpose of a Partner visa.              

14. At the Tribunal’s hearing of 12 February 2024, the Tribunal stated to the applicant that it had great concerns as to the credibility of his evidence given he was providing such contradictory evidence.  The applicant sponsored Ms Halawa, the mother of his four children, for a Partner visa in late 2013 on the basis of being in a genuine spousal relationship.  The evidence before the Tribunal, previously provided by the applicant, however, is that the applicant was in a relationship with Ms Flanagan from early 2014, and they held a religious marriage ceremony in 2014. The applicant admitted at the Tribunal’s hearing that he did not inform the Department, as he was obliged to do as the visa sponsor, that his relationship with Ms Halawa had ended and he was now with Ms Flanagan. The Tribunal, quite frankly, cannot be certain what the genuine state of affairs was in relation to the applicant’s relationship with Ms Halawa and Ms Flanagan at that time.  The evidence does, however, strongly suggest the applicant is both economical with the truth and deliberately evasive when it comes to providing evidence either to the Department or to the Tribunal.  

15. At the Tribunal’s hearing of 12 February 2024, the applicant’s representative suggested the 2013 Partner visa application of Ms Halawa – sponsored by the applicant – may have in fact been withdrawn, and any claims that the applicant was in a genuine and ongoing spousal partner relationship from this period should be given limited, if any weight, by the Tribunal.  Post-hearing the Tribunal, on 13 February 2024, invited the applicant to comment on this information in writing under s 359A, noting in his oral testimony at the hearing and in his submissions he claimed he was not in a spousal or de facto relationship with Ms Halawa.  The Tribunal noted this information was again relevant to his credibility as a witness, and the credibility of his evidence.  The Tribunal stated the information was relevant because it suggested he had contrived claims concerning his true personal and relationship status for migration purposes. The applicant, through his representative, requested details of the refusal of Ms Halawa’s Partner application so that the refusal and any impact on the sponsor and his credibility could be properly examined and considered.  The Tribunal subsequently issued a summons to the Department for a copy of the delegate’s decision record of 7 September 2014 in relation to Ms Halawa’s Partner visa application.  In response to the summons, the Department advised that they could not locate the Partner visa refusal decision record for this visa application. The Tribunal, in its correspondence to the applicant, noted that it could, however, confirm from the Department’s database, that Ms Halawa’s Partner visa was refused (rather than withdrawn as was suggested) on 7 September 2014. The Tribunal granted an extension to the applicant to respond to the information contained in the Tribunal’s invitation of 13 February 2024.

16. In response, the applicant’s representative requested all case notes from Ms Halawa’s visa refusal.  The applicant’s representative stated: “As the Department has “lost” the decision record for this application, we submit it is reasonable to request that any available data regarding the nature of the refusal be produced, especially given the years Mr Salama has spent trying to regain his visa and the grave consequences to Mr Salama should his visa cancellation be affirmed by the Tribunal.” The applicant stated that the refusal did not indicate the role of the applicant in the refusal, and whether the visa was refused on the basis that the purported partner relationship between Ms Halawa and the applicant was genuine or not. Without such information, the applicant claimed it was unfair and unreasonable to use any aspect of the visa application and its refusal against the interests of the applicant, especially as he did not complete the forms or application package for Ms Halawa’s application. The Tribunal explained to the applicant’s representative in response that it was not authorised to share the content of the Department’s case notes pertaining to Ms Halawa’s application with him, and to access those he would need to direct any request to the Department.

1. On 6 March 2024, the applicant submitted his s 359A response concerning Ms Halawa’s 2013 Partner visa application.  He claims neither he nor Ms Halawa had a copy of the decision record, but having discussed the matter with her she had stated her answers concerning the relationship with the applicant “were given out of modesty and embarrassment, and to protect the children.” It is submitted that Ms Halawa considered their matrimonial issues “private issues” and making any declaration would shame their children in Australia.  The applicant stated that traditional customs meant that making any “open declaration of our failure to live together in peace” would damage the character of their children.    

2. The Tribunal considers the response disingenuous and an attempt to again obfuscate the issues before it concerning the relationship and the application of which he was the sponsor. The submission has been essentially made that Ms Halawa was dishonest in her 2013 Partner visa application concerning her relationship with the applicant, and had been so in order to protect the interests of their young children.  The inference the Tribunal takes here, is that the applicant himself was telling the truth in his evidence that he was no longer in a spousal or de facto relationship with Ms Halawa.  The Tribunal considers the response an attempt to absolve the applicant himself as sponsor from any responsibility for any information contained in the refused application, as well as an attempt to support his testimony that he was in a relationship with Ms Flanagan at the time Ms Halawa’s Partner visa was being considered by the Department.     

3. Even if the Tribunal were to accept the applicant’s (and purportedly Ms Halawa’s) explanation, this would mean that the applicant continued to sponsor Ms Halawa’s visa when he was fully aware that there was no longer a genuine and ongoing relationship (as he was by then in a relationship with Ms Flanagan) and the purpose for his sponsorship – the genuine and continuing partner relationship with Ms Halawa – had ended.  The Tribunal, as previously stated, does not accept the applicant’s claim he had no understanding of his responsibilities in visa applications, either as the applicant or in this case, the sponsor.

4. The Tribunal does not accept the applicant’s response and considers it a further attempt to find excuses for previous contradictory evidence he provided. The Tribunal notes the applicant’s representative’s submission that the Tribunal should not make findings of credibility given the lack of the decision record refusing Ms Halawa’s Partner visa.  The Tribunal would note its findings pertaining to the credibility of the applicant’s evidence extend considerably beyond the details surrounding Ms Halawa’s refused 2013 Partner visa application and the applicant’s relationship with Ms Flanagan.

5. The Tribunal also raised at its 12 February 2024 hearing, from a previously constituted Tribunal hearing, information that was contained in the delegate’s decision, and the initial Tribunal hearing, that the applicant did not live in Egypt with Ms Halawa when he resided in Egypt.  The Tribunal notes the applicant resided in Egypt between 2006 and 2011. The Tribunal notes the applicant previously provided documentation that he stated indicated he did not live with Ms Halawa, and supported his claims he only lived with her for periods of no more than a few days.  The Tribunal raised with the applicant evidence that Ms Halawa had stated, in her interview with the Department in relation to her own Partner visa application in 2013, that she had been living with the applicant for almost 7 years.  In Ms Halawa’s interview held in October 2013, she stated that she was living with the applicant and their children, with the applicant returning to Australia for employment-related purposes.  In response to the Tribunal’s questions as to whether he considered Ms Halawa had been dishonest with her answers, the applicant disputed the evidence, stating that the relationship with Ms Halawa was “how I described” and his relationship with her was very toxic.  The Tribunal does not accept the applicant’s evidence as reliable.  The Tribunal again notes the clear inconsistencies and the applicant’s preparedness to change his evidence to support his narrative. 

6. The Tribunal also raised with the applicant the applications he had previously made for Resident Return visas in 2012 where he failed to record either Ms Halawa or his children.  No plausible explanation was made for the failure to provide such basic information.  The applicant has submitted that this application was made by Ms Britz, who he had, by then,  divorced three years earlier.  The applicant stated that Ms Britz answered questions “correctly by Australian law,” and since his marriage to Ms Halawa was not valid under Australian law, the correct answer was to state he was divorced.  The Tribunal notes that the applicant has not supplied a response as to why he failed to record his children in the application.  The Tribunal would also note the evidence recorded by the Department that when the applicant attended the Department and was asked whether he had children, he responded in the negative.  The Tribunal considers the failure to provide the genuine information, that he did in fact have children, speaks to his desire again to obfuscate, mislead and be economical with the truth in his dealings with the Department.  This matter again speaks to his credibility, and the Tribunal does not accept Ms Britz is responsible for his 2012 application (as she has also claimed).  Even if she did fill out the application, for reasons outlined earlier (ss 98 to 100 of the Act), the responsibility remained with the applicant.

7. The applicant also told the Tribunal’s hearing that he didn’t think he had an obligation to tell the Department of changes to his circumstances following the cancellation of his visa in August 2014. The Tribunal has considered this claim but considers it again false and self-serving.  The applicant arrived in Australia in 2003 and was experienced with the requirements of the Australian migration system.

8. The Tribunal has considered the considerable evidence before it concerning the circumstances in which the non-compliance occurred.  The Tribunal is of the firm view the non-compliance occurred due to the applicant’s willingness to be deliberately evasive, disingenuous and, quite frankly, dishonest in his dealings with the Department. 

9. The Tribunal considers the applicant has been untruthful on multiple occasions in relation to his dealings with the Department. In relation to his failure to provide the correct information to the Department regarding his Partner visa sponsored by Ms Britz, the Tribunal considers the applicant deliberately omitted information concerning the birth of his daughter in Egypt as he considered it would have an adverse impact on the likelihood that he would be granted a Partner (permanent) visa.  For the same reason, the applicant failed to provide the correct information to the Department concerning his marriage to Ms Halawa in Egypt.  The applicant subsequently failed to also provide information to the Department about the birth of further children to himself and Ms Halawa in 2008, 2009 and 2012 in relation to other visa subclasses. The Tribunal rejects the applicant’s submissions that he was unaware of his obligations, and they were usually the responsibility of Ms Britz, as again self-serving and a disingenuous attempt to avoid responsibility for his own multiple dishonest actions.

10. The applicant unfortunately has demonstrated a propensity to omit important information and make dishonest claims in a range of other migration situations, the most obvious being his sponsorship of Ms Halawa for a Partner visa in December 2013 and his failure to update the Department just a few months later to declare his partner relationship with Ms Flanagan.  The explanations provided in response to the Tribunal’s questions on the contradictory evidence before it are not credible.    

11. The Tribunal finds, based upon his behaviour as summarised above on multiple occasions over a considerable number of years, that the applicant has serious credibility issues as a witness. The Tribunal does not consider his evidence reliable.  The Tribunal considers the failure of the applicant to update the Department as to the birth of his daughter Miss Malak Mahmoud Salama was entirely deliberate, deliberately disingenuous, and the omission occurred as the applicant considered such information may have an adverse impact on his permanent stage Partner visa application sponsored by Ms Britz. The Tribunal completely rejects the applicant’s submission that he was unaware of his obligations to the Department. The Tribunal is also not satisfied the applicant held a genuine belief the sponsor, Ms Britz, was responsible for his Partner visa application and the information contained therein. 

12. The Tribunal considers that the multiple examples of further withholding of information in the years since his Partner visa application sponsored by Ms Britz suggest a propensity of the applicant to deliberately mislead and deceive the Department in order to secure a migration outcome.

13. On the evidence before it concerning the circumstances in which the non-compliance occurred, the Tribunal weighs this factor very heavily in favour of cancelling the applicant’s visa.

    The present circumstances of the visa holder

14. The applicant’s submission to the Tribunal pertaining to his present circumstances states:

    The visa holder has been in Australia for many years and is fully integrated into the Australian community. We submit that cancellation of his visa would be extremely disruptive to Mr Salama personally and would essentially destroy the life he has spent the last 20+ years building for himself in Australia. Furthermore, the dangerous conditions in his home country Egypt currently given the expanding Israel/Hamas war would represent a danger to him should he be forced to return there.

15. At the Tribunal’s hearing the applicant stated he has a full-time role as a subcontractor working with an Airbnb property.  He states he is living alone.  He states he supports his family and children financially, and speaks to his children in Egypt every day.  The Tribunal accepts the applicant is working as he has stated and remains in regular contact with his children.

16. The applicant enquired as to his relationship today with Ms Flanagan, who he married in April 2014.  He stated that she had been diagnosed with cancer but provided little insight into any personal relationship today beyond stating, in response to the Tribunal’s question, that Ms Flanagan “is like family to me.”   

17. The Tribunal notes the applicant has submitted to previously constituted Tribunals supporting statements from friends attesting to his good character and his relationship with Ms Flanagan. Whilst he may still be acquaintances with Ms Flanagan, the Tribunal is not satisfied the applicant is in a relationship with Ms Flanagan today. In relation to the statements as to the applicant’s character, the Tribunal does accept the applicant has established some genuine friendships in his over two decades in Australia.  The Tribunal takes all these into account.   

18. The Tribunal accepts there is some integration of the applicant into the Australian community.  Nevertheless, the Tribunal notes that the applicant’s children and much of his family remain in Egypt.  The applicant furthermore departed Australia for almost five years after he was granted a permanent stage Partner visa.  The Tribunal accepts the applicant has developed some ties to Australia, but does not ultimately consider that these ties are greater than his ties with family and friends in Egypt.

19. The Tribunal has taken into account the oral evidence and written statements of his former sponsor Ms Britz, who claims to have met the applicant in Cairo in 1997 travelling and has been associated with him since.   The applicant provided Ms Britz’s submission to the Tribunal. Ms Britz claims to have married the applicant under Egyptian law in 2000.  She stated she filled out his Partner visa application in 2003 and she was fully aware and supportive of his intentions to have children with Ms Halawa. Ms Britz claims to have lived with the applicant for over 10 years between 2003 and 2022.  She stated that she had met Ms Halawa on two occasions.  Ms Britz claims the applicant was financially dependent on her whilst he studied between 2012 and 2014.  She states she helped the applicant with living expenses in Australia, loaned him money for legal fees, and loaned him money to raise and educate his children in Egypt. This was on the understanding that the applicant would repay her as soon as he was able to, a situation that has not occurred.  Ms Britz submitted to the Tribunal that she had used up all her savings, superannuation and money in an investment property on the applicant and is currently in debt. 

20. The Tribunal accepts that the applicant has a long-term friendship with Ms Britz and accepts they met originally in Egypt.  The Tribunal accepts Ms Britz has financially supported the applicant over many years.  The Tribunal nevertheless is not satisfied the parties were previously in a genuine and ongoing spousal relationship as they claimed.  The Tribunal considers both the applicant and Ms Britz have ultimately facilitated their evidence over many years in a fashion to assist the applicant obtain a permanent migration outcome.  The Tribunal nevertheless accepts that the applicant and Ms Britz do enjoy a cordial and long-term friendship, and gives this some weight in the applicant’s favour.  The Tribunal accepts that cancellation of the applicant’s visa would have an adverse impact on the applicant and Ms Britz given the long duration of their friendship.

21. The Tribunal notes that the applicant provided to the previously constituted Tribunal a report from a clinical psychologist, Dr Pullin, that had been prepared on the suggestion of Ms Flanagan’s solicitor and for the purposes of the visa cancellation process.  The report discusses the applicant’s relationship with Ms Flanagan and the adverse impact the applicant’s departure would have upon her.  Given the Tribunal is not satisfied the applicant is currently in a partner relationship with Ms Flanagan, it gives the report very little weight in the applicant’s favour. The Tribunal, furthermore, notes the report appears to have reached its conclusions through self-reporting.

22. The Tribunal accepts the applicant has some ties to Australia, including a long-term friendship with Ms Britz.  The Tribunal, however, considers the applicant ultimately retains stronger ties in Egypt through his children and his family.

23. The issue, which was also raised by Ms Britz, that the applicant will face danger if he returns to Egypt, including arrest and incarceration by the Egyptian government, is dealt with more fulsomely elsewhere in this decision record. However, the Tribunal notes that if the applicant has harboured genuine fears of danger in returning to Egypt, then he has had ample opportunity over many years to lodge an application for a Protection visa, including since his visa was cancelled a decade ago.  He has not done so.  The Tribunal gives the claim very limited weight.   

24. On the evidence before it concerning the present circumstances of the applicant, the Tribunal weighs this factor against cancelling the applicant’s visa.

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

25. The Tribunal has considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act. 

100.   The Tribunal notes that the decision record the applicant provided indicates the applicant did respond to the Notice of Intention to Consider Cancellation (NOICC) and has engaged in the cancellation consideration process. 

101.   On the evidence before it, the Tribunal weighs this factor slightly against cancelling the visa. 

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

102.   The applicant has submitted there are no other instances of non-compliance.

103.   The Tribunal finds there are no other instances of non-compliance known to the Tribunal. 

104.   The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

The time that has elapsed since the non-compliance

105.   On the evidence before the Tribunal, the applicant’s non-compliance was over 19 years ago when he failed to notify the Department about the birth of his daughter to Ms Halawa.

106.   The Tribunal agrees with the applicant that the time that has elapsed since the non-compliance is substantial.

107.   The Tribunal has considered the time that has elapsed since the non-compliance and weighs this matter against cancelling the applicant’s visa. 

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

108.   There is no evidence of any breaches of the law since the non-compliance over 19 years ago.  The Tribunal is satisfied on the evidence before it that the applicant has not breached Australian criminal law.

109.   The Tribunal weighs this factor against cancelling the applicant’s visa.

Any contribution made by the holder to the community

110.   The applicant stated at the Tribunal’s hearing of 12 February 2024 that he had been assisting the Arabic Islamic community to follow the laws of Australia.  He claimed to have talked to the leaders of mosques.  The Tribunal asked the applicant which organisations he had been assisting, but the applicant provided no real insight.  The applicant stated he had talked to Imams around Lakemba and Belmore and was raising awareness.  The Tribunal notes the applicant’s testimony, but in the absence of any corroborative evidence gives these claims regarding a contribution to the Australian community little weight. 

111.   The applicant stated in his written submissions that he had integrated himself into the Australian community over the last two decades.  The Tribunal does not consider the applicant’s mere presence in Australia represents any meaningful contribution to the local community.  The Tribunal notes the evidence that he was largely financially supported by Ms Britz during this period. Since the applicant’s arrival in Australia, he has spent some years offshore in Egypt after finally being granted a permanent Partner visa.

112.   The Tribunal has considered the contribution made to the community and weighs this matter neither in favour nor against cancelling the applicant’s visa.

Consequential cancellations

113.   At the hearing, the applicant confirmed there will be no consequential cancellations as a result of the cancellation of the applicant’s visa under s 140.  The Tribunal weighs this matter neither in favour nor against cancelling the applicant’s visa.  

Best interests of children

114.   The Tribunal has considered if there are children whose interests would be affected by cancellation, or consequential cancellation.  The Tribunal acknowledges the applicant has four children to Ms Halawa.  The children are Egyptian nationals, reside in Egypt and have no legal right to reside in Australia.  Cancellation of the applicant’s visa would not affect their best interests. 

115.   On the evidence before it, the Tribunal weighs the best interests of the applicant’s children neither in favour nor against cancelling the applicant’s visa.      

Mandatory legal consequences of a decision to cancel the visa

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

1. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia.  The applicant will also be subject to a s 48 bar which will limit his options in applying for further visas in Australia.  Depending on the visa applied for, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from the date of cancellation except in certain circumstances.  The Tribunal notes the applicant’s obvious desire for his children to come to Australia, and notes he would not be able to sponsor his partner (if he were in a genuine spousal relationship) and children should he no longer be the holder of a permanent stage visa.

118.   The Tribunal has considered the mandatory legal consequences of a decision to cancel the applicant’s visa and weighs the matter neither in favour nor against cancelling the applicant’s visa.

International obligations – non-refoulment

119.   The Tribunal notes that in the applicant’s original submission to the first-constituted Tribunal in November 2014 he stated he had been arrested and detained in Egypt for about six weeks for protesting against the Muslim Brotherhood.  No evidence was submitted to support his claims of persecution, his protest, his arrest or of his detention. The second-constituted Tribunal in 2019 similarly noted a lack of evidence to support such claims.  No evidence to support such claims has been presented since this time.  The Tribunal questioned the applicant about his claims at its hearing of 12 February 2024.  Little insight was provided by the applicant into his original claims.

120.   In her current submissions, Ms Britz states:

I also fear that his political views will be held against him if he returns to Egypt, and he will be imprisoned as he was in 2012. Several people, even those holding Australian passports, have been imprisoned for extended periods for expressing political views. Conditions in Egyptian jails are appalling. I feel sick and afraid that this will happen to such a close and dear friend.

121.   Whilst the Tribunal concedes the inferior conditions in Egyptian gaols, no evidence has been submitted to support Ms Britz’s claims as to why the applicant would specifically be of interest to the authorities in Egypt, and why he would be arrested and detained should he return. The Tribunal gives Ms Britz’s claims, and the applicant’s earlier claims in such circumstances limited, if any, weight.  The Tribunal would note the applicant has in fact travelled to Egypt after acquiring permanent residency in Australia. 

122.   At the Tribunal’s hearing of 12 February 2024, the Tribunal asked the applicant if, given these earlier expressed fears, he had lodged a claim for protection.  The applicant stated that he had not.  The Tribunal notes that since the cancellation of his visa in August 2014, he has had now more than a decide to lodge a protection application, if he has held a genuine fear of persecution on return to Egypt.  The Tribunal holds significant concerns as to the authenticity of any concerns he may have given his continued lack of action.

123.   The Tribunal would furthermore note that the applicant nevertheless retains the ability to make any claims for protection in a valid protection visa application.  Such applications are not prohibited by the bar that exists under s 48A of the Act.  Furthermore, there is no evidence before the Tribunal that the applicant would be prohibited from making such an application due to any character issues. The Tribunal finds the applicant would still be able to lodge a protection visa application even if the Tribunal were to affirm the delegate’s decision to cancel his Subclass 155 Resident Return visa. 

124.   The Tribunal has taken into account the applicant’s claims that he fears he will be persecuted should he return to Egypt.  The Tribunal ultimately gives these largely unsubstantiated claims little weight, noting the applicant nevertheless retains the right to lodge a protection application.  The Tribunal would note that the applicant has not made an application for protection now for over a decade in spite of his earlier pronounced concerns.  Little, if any, evidence has been provided to support these claims.  The Tribunal would furthermore note that it has found that the applicant is not a credible witness. The Tribunal considers his evidence to be both unsatisfactory and unreliable. The Tribunal finds the applicant’s circumstances will not engage non-refoulment obligations.  The Tribunal finds Australia’s international obligations will not be breached should the applicant’s visa be cancelled.

125.   The Tribunal has considered Australia’s international obligations and weighs the matter in favour of cancelling the applicant’s visa.  

Hardship

126.   The Tribunal enquired of the applicant whether there were any issues of hardship he wished to raise that would result from the cancellation of his visa.  The applicant stated it would be devastating if he had to return to Egypt.  He stated he was a different person to the person who first came to Australia in 2003.  He stated he had been through trauma and had needed psychological assistance. 

127.   The Tribunal accepts the applicant will face some hardship should his visa be cancelled and he had to return to Egypt given his long-term friendship with Ms Britz.  The Tribunal accepts the applicant may have developed other friendships in Australia during this period. The Tribunal also recognises the applicant has a familiarity with Australia and Australian life.  The Tribunal considers this hardship is nevertheless mitigated by the fact his children and family are in Egypt.  In relation to the psychological hardship claimed, there is no corroborative evidence before the Tribunal to suggest any recent treatment of the applicant, or to suggest the applicant will face any significant psychological trauma or harm should his visa be cancelled.

128.   The Tribunal has also taken into account hardship faced by any family members.  Whilst the Tribunal does not accept the applicant was in a genuine spousal relationship with Ms Britz and considers the claimed spousal relationship was contrived, it does accept the parties enjoy an ongoing enduring friendship over a significant period of time. The Tribunal notes Ms Britz’s concerns that she will face financial hardship should the applicant’s visa be cancelled, given that he owes her a significant amount of money that she provided him over many years for various expenses.  The Tribunal accepts there may be some hardship if the applicant’s visa is cancelled and he is no longer in gainful employment in Australia.  The Tribunal also accepts there will be a degree of personal hardship by the physical separation of the parties.  

129.   The Tribunal has considered any hardship the applicant and any family member will face and weighs this slightly against cancelling the applicant’s visa.     

Conclusion

130.   The Tribunal notes that the applicant’s visa was cancelled over a decade ago.  This matter has travelled through the courts and multiple constituted Tribunals.

131.   The Tribunal is satisfied there was clear non-compliance with s 104 by the applicant in the way described in the s 107 notice.  The Tribunal rejects the applicant’s claims that he was not responsible for his partner visa application. The operation of ss 98 to 100 of the Act emphasise that the non-compliance of the applicant, including the failure to notify the delegate as to his change in circumstances as has been the case with this review, is not limited to circumstances where the failure was intentional or deliberate.  In this case, the Tribunal in fact is satisfied that the applicant’s failure to inform the Department of his change in circumstances, being the birth of a daughter to a woman other than the sponsor of his partner visa, was intentional or deliberate.  The Tribunal is satisfied that the applicant is not a credible witness, that he has provided misleading evidence on a number of occasions, and that he has been untruthful in multiple dealings with the Department, as well as in his evidence to the Tribunal.

132. The Tribunal has subsequently considered whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary. The Tribunal has considered the applicant’s response to the s 107 notice about the non-compliance, and has had regard to any prescribed circumstances as set out in reg 2.41 of the Regulations and other circumstances considered relevant. The Tribunal has also had regard to lawful policy as set out in the Department’s Procedures Advice Manual (PAM3).

133.   Having considered the totality of the applicant’s circumstances, the Tribunal finds that the visa should be cancelled.  The Tribunal considers the evidence overwhelmingly suggests that the applicant’s purported spousal relationship with his sponsor Ms Britz was contrived, and was established for migration purposes.  The evidence clearly suggests that the applicant was not in a genuine, ongoing and exclusive spousal relationship with his sponsor Ms Britz, but rather was in a relationship with Ms Halawa, with whom he has had four children. 

134.   The Tribunal accepts that the applicant does have a genuine long-term friendship with Ms Britz, and cancellation may cause them both a degree of hardship.  The Tribunal acknowledges there are no known breaches of law by the applicant and no other instances of non-compliance.  The Tribunal also acknowledges the significant period of time that has elapsed since the non-compliance.  These considerations have been weighed in his favour but the Tribunal finds they are considerably outweighed by the significant non-compliance by the applicant.

135.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Justin Owen
Deputy President

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.

104Changes in circumstances to be notified

(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4)Subsection (1) applies despite the grant of any visa.

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.