Salama (Migration)

[2019] AATA 2902

Salama (Migration) [2019] AATA 2902 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahmoud Mahdy Salama

CASE NUMBER:  1702860

DIBP REFERENCE(S):  BCC2013/1671622

MEMBER:Kira Raif

DATE:1 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2019 at 7:29am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Federal Court remittal – s 359A invitation – request for extension of time granted – late submissions – ground for cancellation – incorrect information in previous visa application – relationship status – notification of change in circumstances – Question 32 of form 47SP – family details – child born after completion of form – unaware of obligation to report – consideration of discretion – information relevant to correct assessment of spousal relationship – credibility issues – deliberately provided an incorrect answer to Departmental staff – untruthful in previous visa application – non-refoulement obligations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 104, 107, 107A, 109, 111, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.41

CASES
BCR16 and Goundar v MIBP [2016] FCA 1203
BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148
Hasran v MIAC [2010] FCAFC 40
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2.    The applicant is a national of Egypt, born in January 1971. He was granted a Partner (Migrant) visa in June 2006 and a Resident Return Visa (RRV) in December 2012. In August 2014 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 and s.104 of the Act. The applicant provided his response and his visa was cancelled in August 2014.

3.    The applicant sought review of the delegate’s decision. In February 2015 the Tribunal (the First Tribunal) affirmed the decision to cancel the applicant’s visa. The applicant sought judicial review and in January 2017 the Full Federal Court ordered that the matter be reconsidered. The case is now before the Tribunal pursuant to the Order of the Court.

4.    The applicant appeared before the Tribunal (as previously constituted) on 3 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Christina Flanagan, who is the applicant's Partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent.

1. On 23 April 2019 the Tribunal (as presently constituted) wrote to the applicant pursuant to s. 359A seeking his comments or response to the information that it considered would be part of the reason for affirming the decision under review in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 7 May 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

2. The review applicant sought an extension of time to provide comments, which was granted. The applicant was given until 5 June 2019 to provide his comments or response. The applicant provided his comments and response on 24 June 2019. No explanation is offered by the applicant for the lateness of his submission. The Tribunal finds that s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

Relevant law

8. 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.

9.    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.

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

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

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

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

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

4. 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 of the Act in a way specified below.

5. The applicant provided to the Tribunal a copy of the primary decision which contains the following information.

   a.The applicant made the application for a Partner visa on 14 May 2003 on the basis of his relationship with Ms Lynda Britz.

   b.The applicant completed Form 47SP, dated 7 May 2003. At Question 34 of the form the applicant was asked to give details of all his family, including all his children. The applicant did not record any details in response to that question.

   c.In February 2013 Ms Wafaa Halawa applied for a Partner visa, sponsored by the applicant. Ms Halawa stated in her application that she and the applicant married in August 2004 and that their daughter Malak Mahmoud Salama was born in July 2005. Ms Halawa included with the application a birth certificate for the child naming the applicant as the father of Malak.

   d.In November 2012 the applicant made the application for the RRV visa. He stated in that application that his relationship status was ‘divorced’.

   e.The delegate states in the NOICC that given the applicant’s marriage to Ms Halawa in 2004, the answer indicating the applicant’s status as ‘divorced’ was incorrect.

6. The applicant provided his response to the NOICC on 13 August 2014. The applicant states that Australia is his country and his closest friends are in Australia and he hopes to apply for the Australian citizenship. The applicant refers to his study in the field of hotel and business management and operating a business. He states that he invested his savings and borrowed money to have it started. With respect to the alleged breach, the applicant states that he was not aware of the requirement to inform of the changes in circumstances under s.104 and would have informed if he was aware of that requirement. The applicant states that when he gave the information in 2003, he was childless and the answer was correct. When he applied for the RRV in November 2012, his marital status was correctly described as divorced. The applicant states that his first and only marriage recognised in the Australian law was to Ms Britz and that ended in divorce in December 2007. The applicant states that he inquired with the Department in 2006 and 2012 about bringing family members to Australia but he never submitted the forms and he was never advised on these occasions to notify the Department of the changes in his circumstances. The applicant included with his response a statement from Ms Britz who stated that she did most of the applicant’s paperwork and did not tell him that he needed to report the change in circumstances to the Department as she was not aware of it herself.

7. In his submission to the first Tribunal dated 13 November 2014 the applicant stated that his marriage to Ms Halawa was not recognised under the Australian law and he mentioned that he was ‘divorced’ in his RRV application on the basis of his divorce from Ms Britz. With respect to s.104, the applicant stated that when he completed the form, he did not have any children. The applicant stated that his partner filled in the form because of his difficulties with English and she did not tell him about the requirement to notify the Department about the changes of circumstances. The applicant states that he failed to inform about changes in circumstances out of ignorance of the requirement and not to deliberately hide the information. The applicant notes that he sponsored Ms Halawa and his children before he was granted the citizenship, which shows that he was not deliberately trying to deceive the Department.

8. The Tribunal does not accept the applicant’s evidence. Firstly, the Tribunal notes that the approved form 47SP, which the applicant would have signed when applying for the Partner visa, includes a Declaration and Consent. Part of that declaration 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.” Even if the applicant was assisted by his then partner in completing the form, the applicant would have been required to sign the Declaration and would have been expected to read the declaration and ensure his understanding of its content before signing. Thus, the Tribunal does not accept that the applicant (or Ms Britz) was not aware of the obligation to inform of any changes to the circumstances and that such obligation continued in relation to the permanent visa application. The Tribunal has formed the view that by signing the declaration, the applicant was aware of the obligation to inform.

9. Secondly, the Tribunal does not accept that the applicant’s claimed problems with English would have prevented him from understanding the information on the application forms. The applicant’s English was sufficient for him to have formed what he claims was a committed relationship with the sponsor. The applicant had already gone through the process of applying for the Prospective Marriage visa and had some exposure to the migration processes and application forms. He has been living in Australia, in an English environment, when he applied for the Partner visa. The Tribunal does not accept that the applicant had problems completing or understanding the questions on the forms due to his limited English and considers this explanation to have been untruthful.

10. The applicant also states in his submission to the Tribunal of 11 February 2015 that Egyptians do not take forms as seriously as it is done in Australia and normally rely on others to do the paperwork. Whether or not that was the case, the Tribunal is mindful that the applicant would have been required to sign the forms and, as such, he had the responsibility to acquaint himself with the information on the forms if he wanted to ensure that no incorrect answers were given.

11. The Tribunal acknowledges the applicant’s evidence that he visited the offices of the Department on multiple occasions and was not advised of the need to inform about the changes in his circumstances. The Tribunal does not consider there is any obligation upon Departmental staff to inform visitors of their obligations under the Act, particularly when that advice has already been given to each applicant who has completed an application form.

12. The Tribunal also notes that the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s.98 of the Act states that if the applicant did not fill in his application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. Section 100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further, s.111 states that sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of his obligations under s.104 or of the information that his partner gave on the application form on his behalf.

13. The Tribunal finds that the applicant had a child born in July 2005. At that time, his circumstances changed so that his response to Question 32 of the application form 47SP became incorrect. The obligation to inform of the change in circumstances continued until the applicant was granted the Partner (Migrant) Class 801 visa. There is no evidence that the applicant informed an officer in writing of the new circumstances and of the correct answer. The Tribunal finds that the applicant did not comply with s.104 of the Act.

14. As the ground for cancellation is established, it is not necessary for the Tribunal to consider whether the applicant also failed to comply with s.101 of the Act. The Tribunal finds that there was non-compliance with s.104 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

15. 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).

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

    The correct information

17. The correct information is that the applicant’s circumstances changed and he had a child from a different relationship before he was granted his permanent visa.

    The content of the genuine document (if any)

18. This is not relevant in the present case.

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

19. The applicant states in his submission to the first Tribunal that he and the sponsor, Ms Britz had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that Ms Britz was aware of his relationship with Ms Halawa and consented to the arrangement. However, the Tribunal is of the view that the applicant’s relationship with Ms Halawa was highly relevant to assessing the applicant’s relationship with Ms Britz as the definition of the term ‘spouse’ under the Migration Act requires an assessment of whether the applicant’s relationship with the sponsor was genuine, mutually committed and to the exclusion of all others. It is not sufficient to state that Ms Britz was aware of, and approved of the relationship. It was for the delegate to be satisfied that their relationship met the statutory requirements for the grant of the Partner visa and having a religious marriage in another country to another person, and a child from that relationship, would have been significant to that assessment. In the Tribunal’s view, there is at least a reasonable probability that if the correct information was known, it may have adversely affected the assessment of the applicant’s relationship with Ms Britz.

20. The applicant also stated in his submission to the Tribunal that while he was in Egypt, he was not living with Ms Halawa and the children. Having regard to the fact that the applicant and Ms Halawa had three children together, born in 2005, 2008 and 2009, the Tribunal considers it more likely that the applicant and Ms Halawa did live together at least during some of the periods of the applicant’s residence in Egypt.

    The circumstances in which the non-compliance occurred

21. The applicant claims that he was unaware of the obligation to inform the Department of the changes in his circumstances. The applicant claims that his partner helped him with the forms and did not inform him of that obligation. As noted above, the Tribunal does not accept these claims because the applicant signed the declaration on the application form which expressly informed him of the requirement to inform of the changes in circumstances. In the Tribunal’s view, it is more plausible that the applicant did read the declaration before signing it and he certainly had an obligation to do so.

22. Further, the Tribunal has considerable concerns about the applicant’s relationship with Ms Britz. During the processing of his Partner application on the basis of sponsorship by Ms Britz, the applicant travelled to Egypt and married Ms Halawa, with whom he had three children. The applicant left Australia immediately after being granted his permanent visa and spent several years overseas and while he claims he did not live with Ms Halawa, they had three children together between 2005 and 2009. The applicant divorced Ms Britz in November 2007, which implies separation no later than November 2006, within five months of the applicant being granted the permanent visa. It appears that the applicant’s relationship with Ms Britz ended as soon as he was granted the permanent visa. These facts offer a strong indication, in the Tribunal’s view, that the applicant’s relationship with Ms Britz was never a genuine one, that it was arranged for the sole purpose of enabling the applicant to obtain the Partner visa and that while going through the immigration process, the applicant maintained a genuine spousal or de facto relationship with Ms Halawa.

23. The applicant’s failure to inform the Department about the birth of his child must be viewed in light of these circumstances. The applicant’s relationship with Ms Britz was central to the applicant’s eligibility for the Partner visa. It was necessary for him to establish that his relationship with Ms Britz was to the exclusion of all others. The presence of another apparent partner overseas (whether or not the marriage was valid under the Australian law) would have been significant to the assessment of the applicant’s relationship with Ms Britz. So was the birth of a child from another relationship. It is inevitable that if the information about the applicant’s relationship with Ms Halawa and the birth of their child was known to the decision-maker, it may have affected the assessment of the applicant’s relationship with Ms Britz.

1. There are other issues that raise the Tribunal’s concerns in relation to the applicant’s credibility. For example,

   a.The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in June 2012 the applicant spoke to a Departmental officer in relation to a Resident Return Visa. The applicant was asked if he had any children and the applicant stated ‘no’. The Tribunal notes that the applicant’s children were born in 2005, 2008 and 2009. By 2012 the applicant had three children. In his submission to the Tribunal of 24 June 2019 the applicant claims that his partner did the interpreting for him when he made the application and also made the application online for him. As noted elsewhere, the Tribunal does not consider that reliance on another person to complete the paperwork, even if the applicant did rely on his partner, absolves the applicant from his responsibility to ensure that his answers were correct. Neither does the Tribunal accept that if the applicant was in a genuine relationship with Ms Britz, as he now claims, she would be unaware of the existence of three children. The Tribunal has formed the view that the applicant had deliberately provided an incorrect answer in his interview with the Immigration staff.

   b.When the applicant made the application for the Prospective Marriage visa in September 2002, he stated on the application form that he had never previously been married or in a de facto or interdependent relationship before. In October 2013 Ms Halawa was interviewed by the Department in relation to her Partner visa application and stated that the applicant had married Ms Hassan in September 2000 and divorced her in 2001. 

   In his submission to the Tribunal the applicant states that in 2000 he wanted to share a house with Ms Hassan, for convenience only, and to avoid police harassment and judgemental neighbours, Ms Hassan asked him to go through a marriage ceremony, to which he agreed but they were never lovers or affectionate. They divorced after three months. The applicant states it was an informal marriage and was not expected to last, it was not a true marriage and was expected by both parties to be temporary. The Tribunal finds the applicant’s evidence problematic. Firstly, the information on the application form was not limited to marriages which the applicant considered to be genuine, long-term or significant. The question on the application form was whether the applicant was previously married or in a de facto relationship. His present evidence is that he did enter a marriage that was recognised in Muslim countries and although it was short one and an unaffectionate one, it was nonetheless a marriage. It was not for the applicant to determine the significance of that marriage. If the applicant did marry another person, no matter in what circumstances and for what purpose, that marriage had to be declared. In failing to declare that marriage, the Tribunal finds that the applicant had been untruthful in his Prospective Marriage visa application.

   c.There is no evidence that the applicant had ever informed the Department during the processing of his Partner visa application on the basis of sponsorship by Ms Britz about registering marriage, or his relationship with Ms Halawa.

   In his submission to the Tribunal of 25 June 2019 the applicant states that his father wanted him to marry Ms Halawa and stay in Egypt but he did not want this marriage. He married Ms Halawa on his return to Egypt at the urging of his father. The Tribunal makes no findings here on the veracity of this claim because the Tribunal finds that the applicant had an obligation to inform the Department about any changes in his circumstances no matter how the marriage was arranged and for what purpose. The applicant also states that Ms Britz was his interpreter on most occasions and she did not make it clear to the applicant that he should notify Immigration about such matters. He claims that Ms Britz was aware of this marriage and supported it and he also knew that his marriage to Ms Halawa would not be recognised in Australia. These claims have been addressed elsewhere and the Tribunal has set out its reasons why these claims are not accepted.

   d.The applicant provided to the first Tribunal a statement from Ms Christian Flanagan. Ms Flanagan claims that she and the applicant met in December 2013 and developed a relationship and that they held a religious marriage ceremony in April 2014. Ms Flanagan states that she and the applicant have a genuine spousal relationship which is socially recognised.  Ms Halawa made the application for the Partner visa in February 2013. There is no evidence before the Tribunal that at any time during the processing of this application the applicant’s relationship with Ms Flanagan was mentioned. The applicant told the first Tribunal that he did not withdraw the sponsorship of Ms Halawa despite his relationship with Ms Flanagan.

   In his written submission to the Tribunal the applicant states that he did not trust or rely on Ms Halawa as she broke their agreement about the number of children the family would have. His marriage to Ms Halawa was over and their link was only through the children. The applicant states that he did not know Ms Flanagan at the time he made the visa application as he met her in December 2013. The applicant states that he wanted his children to live in Australia and because young children cannot be separated from their mother, he thought she should travel with them and he believed they could co-parent without the emotional involvement. The Tribunal does not accept the applicant’s evidence. The applicant sponsored Ms Halawa for a Partner visa. He did not sponsor her for a parent visa or a skilled visa or any other visa. It is a central requirement of a Partner visa that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. It is not the type of visa that should be granted merely on the basis that the parties have children together but have no commitment to each other. Thus, the applicant’s present evidence suggests either that he and Ms Halawa falsified their claims in Ms Halawa’s Partner visa application by claiming to be in a relationship when such relationship did not exist, or that the applicant is being untruthful now by claiming his relationship with Ms Halawa was no longer in existence at the time her application was made. In either case, the applicant’s evidence supports the Tribunal’s view that the applicant is not a person of credibility and that he is willing to provide untruthful information in order to obtain a desired migration outcome.

   e.The applicant made applications for the Resident Return visas in June 2012 and in December 2012. The applicant did not mention his relationship to Ms Halawa and failed to declare his children in these applications. The applicant stated that the purpose of his visit to Egypt was because his father was sick. The applicant made no mention of having a partner and children in Egypt.

   The applicant claims in his submission to the Tribunal that the High Court considered the application for RRV made by Ms Britz on his behalf and the decision was made that he was not at fault as there was no option in the online application to describe his status. The applicant states that his Egyptian marriage was made after his marriage to Ms Britz and would therefore not be valid in Australia. The Tribunal is mindful that the court decision related to the provision of specific information in the context of the cancellation decision. It did not exonerate the applicant in relation to the past applications he had made. In particular, the Tribunal does not accept that the applicant had no opportunity to declare his children in Egypt when applying for the RRV visa. It would have also been easy for the applicant to explain, if not on the form then in a covering letter, the existence of partner and children in Egypt, whether or not that marriage was legally recognised in Australia. While that failure cannot form a ground for cancellation, it does reflect, in the Tribunal’s view, on the applicant’s credibility.

   f.The applicant told the first Tribunal that he was receiving Centrelink benefits at the single rate and that for Centrelink purposes, he and Ms Flanagan were friends. This appears to contradict the evidence to the Tribunal that he and Ms Flanagan are in a mutually committed de facto relationship which is socially recognised and that they held a religious ceremony and consider themselves to be partners. The applicant provided a statement to the Tribunal on 20 October 2014. The applicant stated that he divorced Ms Halawa three months after their relationship began. The applicant stated that his attempts to live happily with Ms Halawa ended badly each time. The applicant stated that he had no intention of living with Ms Halawa as husband and wife in the future. Ms Halawa applied for the Partner visa in 2012 and was sponsored by the applicant in that application. In that application both Ms Halawa and the applicant claimed that they were in a genuine and ongoing relationship. Ms Halawa told the immigration officer in her interview that she was pregnant and due in February 2014.

   g.The applicant stated in his evidence to the delegate and the first Tribunal that he did not live with Ms Halawa during his residence in Egypt. The applicant stated that his intention was only to visit Egypt for a short time but for a variety of reasons, he could not leave Egypt and he had to postpone his arrival in Australia. Ms Halawa stated in her interview of 2 October 2013 in relation to her Partner visa that she and the applicant had been living together while the applicant was in Egypt and that they had been living together for nearly seven years. Ms Halawa stated that she continued to live with the applicant and his family. She stated that the applicant returned to Australia in order to work.

   In his submission to the Tribunal the applicant claims that he and Ms Halawa lived separately and he provided a number of documents which, he claims, showed different addresses. He claims that they never lived together for periods exceeding a few days. The Tribunal is mindful that this evidence is inconsistent with the information given by Ms Halawa in her Partner visa application. Again, the Tribunal is of the view that either Ms Halawa’s evidence is untruthful or the applicant’s evidence is untruthful. Given the existence of multiple children between the applicant and Ms Halawa, the Tribunal prefers Ms Halawa’s evidence.

2. The Tribunal acknowledges the applicant’s evidence that some of these matters had been the subject of judicial review and that the court found in his favour. However, the Tribunal’s concerns are not with establishing the ground for cancellation but with the applicant’s overall credibility.

3. The Tribunal has formed the view that the applicant has been deliberately and consistently untruthful in his dealings with Immigration. The Tribunal has formed the view that he intentionally chose not to mention Ms Halawa and the children in Egypt in his own visa application so as not to jeopardise his Australian application. He also chose not to mention his claimed relationship with Ms Flanagan in order to obtain the visa for Ms Halawa and the children. Whether or not the application forms allowed the applicant to specify his marital status, the applicant could have easily disclosed that information, and his various relationships, in communication with the Department. The Tribunal finds that the applicant is a person who completely lacks credibility.

4. In such circumstances, the Tribunal is of the view that the applicant deliberately withheld information about the birth of his child during the processing of his permanent visa application so as to ensure he could be granted the visa. The Tribunal does not accept that the breach occurred due to the applicant’s lack of knowledge. The Tribunal is of the view that the breach was deliberate and intentional to enable the applicant to be granted the visa.

   The present circumstances of the visa holder

5. The applicant provided to the delegate in response to the NOICC, evidence of having undertaken a TAFE diploma course and evidence of business registration with his former partner. The applicant gave to the first Tribunal evidence from Ms Flanagan dated 1 November 2014 who refers to having a relationship with the applicant and their marriage in April 2014. The applicant provided additional evidence of his relationship with Ms Flanagan to the present Tribunal.

6. In his written submission to the first Tribunal of 20 October 2014 the applicant states that he considers Australia to be his country and his closet friends are in Australia and he hopes to apply for Australian citizenship. The Tribunal notes, however, that the applicant has spent the majority of his life outside of Australia and even after he was granted the permanent visa, the applicant left Australia almost immediately and did not return to Australia until his visa was about to expire. The applicant also has extensive family in Egypt – including three children – and very little family in Australia. While the applicant claims there were reasons that he delayed his return to Australia, the Tribunal does not accept the applicant has close links to Australia or that his links to Australia are greater than his links to Egypt.

7. The applicant presented to the Tribunal a number of supporting statements from members of the community. The Tribunal accepts that they believe the applicant to be a good person deserving of an Australian visa although it is not necessarily apparent that they are aware of the applicant’s failure to comply with the requirements of the Act. There are also statements that refer to the applicant’s relationship with Ms Flanagan. The Tribunal is mindful that while they refer to the applicant’s relationship with Ms Flanagan, it is not apparent from the presented evidence that they are aware of all the circumstances of the applicant’s past relationships or the applicant’s relationship with Ms Halawa which appears to be contemporaneous to his relationship with Ms Flanagan. As such, the Tribunal gives this evidence limited weight.

8. The applicant presented to the Tribunal a report from Dr Pullin, a clinical psychologist. The report indicates that it was prepared on the recommendation of Ms Flanagan’s solicitor and it appears it was prepared for the benefit of the visa cancellation process. In the Tribunal’s view, a report prepared for the purpose of the visa cancellation proceedings and arranged by the applicant’s migration representative is of limited value if it relies on self-reporting. Nevertheless, the Tribunal acknowledges Dr Pullin’s evidence about the applicant’s relationship with Ms Flanagan and the effect on Ms Flanagan if the applicant was to depart Australia. It is unfortunate that the report does not address the applicant’s relationship with Ms Halawa, the ongoing sponsorship of her visa by the applicant (or the lack of withdrawal of such sponsorship) and the effect of such relationship on the applicant’s relationship with Ms Flanagan. As the report does not address such relevant details, the Tribunal considers it of limited value.

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

9. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the above provisions.

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

10. There are no known instances of non-compliance. The delegate notes that the applicant gave an incorrect answer in his interview in June 2012 by stating he had no children but the Tribunal notes that this interview was not in relation to any visa application as the applicant decided not to proceed with the application.

    The time that has elapsed since the non-compliance

11. The obligation to inform about the changes in circumstances continued, relevantly, until the applicant was granted his Subclass 801 visa. This occurred in June 2006. About 13 years has passed since the non-compliance.

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

12. There are no known breaches of the law.

    Any contribution made by the holder to the community

13. The applicant refers to having a business with his former partner. There is no evidence before this Tribunal about the ongoing operations of the business or the applicant’s contribution to the business or his contribution to the community through the business. The Tribunal gives this evidence limited weight.

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

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

15. If the applicant’s visa is cancelled, unless he is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted other visas, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. The applicant will not be able to sponsor his partner and children if he is not the holder of a permanent visa. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for him to do so as a result of the cancellation. The applicant may also lose some entitlements he may have acquired as an Australian permanent resident.

    Whether there would be consequential cancellations under s.140

16. There are no persons who would be the subject of consequential cancellation.

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

17. There are no children in Australia who would be affected by the cancellation. There is no probative evidence before the Tribunal concerning the best interests of any other children, including the applicant’s children overseas. On the evidence before it, the Tribunal finds that the best interests of any children would not be affected by the cancellation of the visa.

18. The applicant claims to have a partner in Australia. However, there is also strong evidence that he has a partner in Egypt, despite the applicant’s claim that he and Ms Halawa are not in a relationship. The applicant’s children and his immediate family live overseas. The family unit principles may be best served by the applicant returning to his home country where the majority of his family resides.

19. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

1. The applicant states in his submission to the Tribunal of 9 November 2014 that when he travelled to Egypt, he was arrested and detained because he protested against the Muslim Brotherhood and he was detained for about a month and a half. The applicant presented no evidence of the arrest or of his detention. The applicant presented no supporting evidence about this claimed persecution. The applicant presented no evidence of his claimed protest against the Muslim Brotherhood. The applicant has not explained why he was then released and permitted to continue with his normal life. The applicant has not presented any evidence that he is or will be, of any adverse interest to anyone in Egypt. The Tribunal is also mindful that the applicant has voluntarily travelled to Egypt on multiple occasions and spent considerable time in Egypt even when he had the right to reside in Australia. Given the paucity of the applicant’s claim, coupled with the lack of any supporting evidence, the Tribunal’s adverse finding concerning the applicant’s overall credibility and the fact that the applicant chose to live in Egypt rather than Australia, the Tribunal has formed the view that the applicant has not been truthful in his evidence. The Tribunal does not accept these claims. The Tribunal does not accept that the applicant is, has ever been, or will be of any adverse interest to anyone in Egypt.

2. The Tribunal is also mindful that if the applicant was genuine in his claims, he had the opportunity to seek protection since his visa was cancelled in August 2014, close to five years ago, and it is not apparent that he has done that.

3. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

4. Further, there is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for a protection visa by s.48A of the Act, or from being granted one because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456.

5. The Tribunal has considered whether the applicant’s circumstances may engage ‘non-refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s.36 of the Act. It has also considered claims of harm against which a protection visa would not provide protection (see BCR16 and Goundar v MIBP [2016] FCA 1203). As noted above, the Tribunal has found the view that the applicant’s claims vague and unsubstantiated and the Tribunal has formed the view that the applicant is not a credible witness. The Tribunal does not accept the applicant’s evidence and finds that Australia’s international obligations would not be breached if the visa is cancelled.

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

6. The Tribunal is mindful that the applicant has spent considerable periods outside of Australia since his first entry. Indeed, the applicant left Australia as soon as he was granted his permanent visa and lived in Egypt for a number years, which may have been the maximum period of overseas residence allowed by his visa. After returning to Australia in June 2011, the applicant obtained an RRV and again left for Egypt. The length of time the applicant had spent in Egypt, when he had the opportunity to live in Australia, may suggest that his preference is to live in Egypt rather than Australia.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant failed to comply with s.104 of the Act and that there are grounds for cancelling his visa. The Tribunal has considerable concerns about the genuine and exclusive nature of the applicant’s relationship with the sponsor, which resulted in the applicant being granted the visa, and considers it more likely that the applicant formed a relationship with Ms Halawa and used his relationship in Australia for the purpose of obtaining the visa. In particular, the Tribunal rejected the applicant’s claim that the breach was unintentional. The Tribunal has formed the view that the applicant is a person who lacks credibility and that he has been untruthful in his dealings with the Department.

8. There are no other known instances of non-compliance and no known breaches of the law. The Tribunal has found that the cancellation would not be in breach of Australia’s international obligations. The Tribunal acknowledges that some hardship may be caused as a result of the visa being cancelled because the applicant may be unable to remain in Australia and sponsor his children and, to the extent that the applicant continues to be in a relationship with Ms Flanagan, that relationship may also be affected. The Tribunal has given due regard to the medical evidence that has been submitted. The Tribunal also acknowledges that considerable time has passed since the non-compliance.

9. The Tribunal gives greater weight to the circumstances in which the non-compliance occurred. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

    Kira Raif
    Senior Member