SALEH (Migration)

[2018] AATA 1495

SALEH (Migration) [2018] AATA 1495 (10 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUSHER SALEH

CASE NUMBER:  1718831

DIBP REFERENCE(S):  BCC2017/96415 CLF2017/60907

MEMBER:Kira Raif

DATE:10 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 10 April 2018 at 8:56am

CATCHWORDS
Migration – Cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Relationship with another woman – Child outside marriage – Lived in same address – Breakdown of relationship with sponsor – Claimed family violence by sponsor – Child’s best interest – Inconsistent information

LEGISLATION
Migration Act 1958, ss 104, 107, 109

CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was born in April 1982. He entered Australia in April 2001 holding a business visa and made several applications for other visas in Australia. In February 2011 the applicant made an application for a partner visa and he was granted the permanent visa. In May 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of the visa and the applicant’s visa was cancelled on the basis that he did not comply with s.104 of the Act.

3. The applicant appeared before the Tribunal on 1 March 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who withdrew his representation during the hearing.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

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

7. 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.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104.The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

   a.The applicant entered Australia in April 2001 holding a business visa and made several applications for other visas in Australia.

   b.The applicant married Ms Eman Miski in March 2010 and in February 2011 he made an application for a partner visa.

   c.The applicant completed Form 47SP. In response to Question 71 on the form the applicant answered ‘yes’ to whether he and his partner intend to maintain a lasting relationship. In response to Question 73 the applicant answered ‘no’ to whether he entered this relationship with his partner solely to gain permanent residence in Australia. In response to Question 77 the applicant answered ‘no’ to question whether the relationship ceased.

   d.The applicant also submitted Sponsorship Form 40SP. In response to Question 40 the sponsor stated ‘no’ when asked if she was in a married or de facto relationship with a person other than the person she was sponsoring.

   e.The applicant signed a declaration on Form 47SP that the information he supplied in the application was correct, complete and up to date.

   f.The applicant also provided with his application a statutory declaration sworn on 9 March 2011 in which he stated that after seeing her regularly at her house, he realised that they belong to each other and he decided to propose to her.

   g.Having assessed the application, the applicant was granted the permanent partner visa on 24 May 2013.

   h.In August 2016 the Department received information that before the applicant was granted the permanent visa, he commenced relationship with Ranad Fayez Alhasani with whom he has three children, born in Australia in 2012, 2013 and 2014 respectively. The information indicates that the applicant had religiously married Ms Alhasani. The decision record refers to a newspaper article and photograph dated 9 July 2014 ( which identifies the applicant and his family as comprising of Ranad and his children Rimah, Ahmad and Ayshe.

   i.In March 2017 the Department received birth certificates for the children issued by the NSW Registry of Births Deaths and Marriages which indicate that the applicant has registered the births of the children and is listed as the father of the children Rimah Alhasani (born 22 January 2012) and Ahmad Alhasani (12 July 2013). The mother is listed as Ranad Fayez Alhasani.

   j.According to the Departmental records, Ranad Fayez Alhasani, who is a national of Norway, arrived in Australia in April 2011 holding a visitor visa and made an application for a student visa on 20 July 2011. In that application she declared her residential address at Holroyd NSW. The applicant made an application for Australian citizenship on 30 June 2015 and completed Form 80 in support of his citizenship application. In that form the applicant listed the same address at Holroyd NSW as his place of residence from April 2011 to December 2013. That is also the address the couple listed on the birth certificate of their child Rimah Alhasani. The applicant stated in his citizenship application that he had no partner.

   k.The applicant’s Facebook pages between 23 January 2012 and 24 February 2017 identify the applicant as the father of Rimah Saleh and state that his partner is Renad Alhasani and confirm the family relationship, including through comments and photographs from both of them.

   l.In February 2017 the Department received further (unidentified) information indicating the applicant notified another government agency that his relationship with the sponsoring spouse Eman Miski ended on 16 November 2010 and he declared his status as ‘separated’ from 17 November 2010.

9. Having regard to all that information, the delegate found that the applicant married the sponsor Eman Miski to obtain Australian permanent residence and that he was not in a committed and exclusive relationship with her when the visa was granted. The delegate found that the applicant was separated from Ms Miski before he was granted the visa and was in fact in a relationship with Ranad Alhasani with whom he had three children, the eldest born in 2012. The delegate noted that the applicant did not inform the Department of the change in his circumstances, being the breakdown of his relationship with Ms Miski and his relationship with Ms Alhasani, with whom he had a child, before he was granted the visa.

10. The applicant was previously issued with a NOICC on the basis that the applicant failed to comply with s.104 of the Act because the delegate formed the view that the applicant’s relationship with the sponsor ended before he was granted the visa. In his written response to the first NOICC the applicant essentially claimed that his relationship with Ms Eman Miski had ‘problems’ like any other relationship but they loved each other and the relationship ended after July 2013 when she left him. The applicant stated that he did not provide incorrect answers on the application form. The applicant provided a declaration from Ms Eman Miski who claims her relationship with the applicant was ‘on and off’ and that she was in another relationship and left Australia in June 2013. That is, in response to the first NOICC the applicant claims he did not breach s.104 because his relationship with the sponsor did not end until after the grant of the permanent visa. (The Tribunal discussed this information with the applicant in accordance with s.359AA of the Act.) That response was substantially different to the information the applicant now presents.

11. In May 2017 the applicant was again issued with the NOICC. The applicant’s response to the second NOICC, which formed the basis of the present cancellation, was considerably different. The applicant claims that during his relationship with the sponsoring spouse he was subjected to family violence and was regularly manipulated emotionally and financially. The applicant calms he developed a relationship with Ms Alhasani around March or April 2011. With respect to his obligation under s.104, the applicant claims that he contacted the Department about April or May 2017 and gave reasons for the non-compliance that he was scared of his ex-wife and scared of being deported. The applicant acknowledged that he failed to comply with s.104 of the Act.

12. The applicant told the Tribunal in oral evidence that his relationship with the sponsor ended in 2013 but he could not remember in which month. He initially suggested it was around June 2013. He then said it was in early 2013 but he was not sure. The applicant said his relationship with the sponsor was ‘on and off’ and she sometimes left home to stay with her mother. The applicant confirmed that his first child was born in 2012 and the second in July 2013, so by the time of visa grant, he had one child with his current partner (Ms Alhasani) and she was pregnant with their second child. In such circumstances, the Tribunal does not accept that the applicant was just ‘having an affair’ and that he maintained a spousal relationship with the sponsor. The applicant told the Tribunal the sponsor also had a child with another man. In the Tribunal’s view, having children with another person is strong evidence that the applicant’s relationship with the sponsor was not genuine, mutually committed or to the exclusion of all others. The applicant then told the Tribunal his relationship with the sponsor ‘really ended’ by late 2012 or early 2013 before he was granted the visa. The applicant conceded that he did not inform the Department about this change in his circumstances. His evidence subsequently changed again when the applicant suggested he provided truthful information in response to the first NOICC and the relationship ended in June or July 2013, which contradicts the applicant’s earlier evidence, as well as his written submissions. The applicant ultimately agreed that the relationship ended before he was granted the visa.

13. The Tribunal notes that both the applicant and the sponsor had children outside of marriage. The fact that the applicant had three children born from another relationship, between 2012 and 2014, offers strong evidence that the applicant was in committed relationship with another person and not with the sponsor and that the relationship started at least by the time his first child was born or the second child was conceived, even if the applicant claims it was initially just an affair. The provision of the same address by the applicant and Ms Alhasani and their indication that they had lived at that address from 2011, in addition the public representation of the applicant and Ms Alhasani as a couple (for example, through Facebook and the media) suggest that the applicant was in a relationship with Ms Alhasani well before he was granted the visa in May 2013. Having regard to the totality of this evidence, as well as the applicant’s written and oral concessions, the Tribunal finds that the applicant ceased to be in a relationship with Ms Miski before his permanent visa was granted. 

14. The Tribunal has formed the view that the applicant commenced the relationship with his current partner by the time his first child was born or, at the latest, by the time his second child was conceived in late 2012. The Tribunal finds that from that time, the applicant was no longer the spouse of Ms Miski and his relationship with the sponsor was not to the exclusion of all others, so that his circumstances changed. The applicant concedes this in his written response to the NOICC and his oral evidence to the Tribunal and admits that his relationship with Ms Alhasani started by 2013 and that he did not inform the Department about it until 2017. In his written submission to the Tribunal of 23 February 2018 the applicant acknowledged that he did not inform the Department about the changes in his circumstances arising from the breakdown of his relationship with the sponsor.

15. The Tribunal finds that the applicant failed to inform the Department about the changes in his circumstances, as required by s.104, before his visa was granted. The Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does arise.

    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: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994. Briefly, they are:

    The correct information

18. The applicant claims in his written response to the NOICC that he developed a relationship with Ms Alhasani in early 2011. From that time he was no longer in an exclusive relationship with the sponsor. The applicant told the Tribunal that it was initially ‘just an affair’ but the Tribunal is of the view that at least by the time the second child was conceived, the relationship was more serious. The applicant concedes that his relationship with the sponsor ended before May 2013 and before he was granted the visa. By the time of the visa grant, the applicant was no longer the spouse of the sponsor.

    The content of the genuine document (if any)

19. This is not relevant in this case.

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

20. It is a requirement for the grant of the partner visa that a person must be the spouse of the sponsoring partner. There are exceptions to that requirement and the applicant notes in his response to the second NOICC that suffered family violence. The applicant suggests that if he did raise the claim of family violence, he and his children could be permanent residents irrespective of the sponsorship. However, there is no suggestion that the applicant did rely on any of these exceptions, including family violence, to be granted the visa. While the applicant now claims he was the victim of family violence, the applicant has not presented prescribed evidence of family violence and little to show that he could have obtained such evidence prior to the visa grant. The applicant’s oral evidence to the Tribunal is that he could not obtain the prescribed evidence because he did not want the community to know about it.

21. It is not sufficient, in the Tribunal’s view, to state that if the family violence was mentioned, the applicant would have been granted permanent residence irrespective of the breakdown of the relationship. That claim of family violence was never assessed because it was never presented and presenting the claim of family violence now, many years after the relationship ended, without offering the prescribed evidence or establishing that such evidence was available prior to visa grant, is unhelpful. The applicant may or may not have been able to provide prescribed evidence of family violence. (He claims in oral evidence to the Tribunal that he could not.) His claims may or may not have been accepted by the delegate or the independent expert. His visa may or may not have been granted. Ultimately it does not matter because the applicant had not relied on the family violence exception to be granted the partner visa. Rather, he relied on having a genuine and mutually committed relationship with the sponsor to be granted the visa and that relationship ceased to exist.

22. The Tribunal has formed the view that the applicant had deliberately withheld information about his relationship with the current partner and provided false information to the Department by claiming he continued to be the spouse of the sponsor after that relationship ended in order to obtain the visa. It was central to the definition of ‘spouse’ is that the applicant’s relationship with the sponsor must have been genuine, mutually committed and to the exclusion of all others.

23. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information.

    The circumstances in which the non-compliance occurred

24. The applicant offered several explanations in his written submissions to the delegate and the Tribunal, although in oral evidence to the Tribunal, the applicant said that he did not inform the Department about the relationship breakdown because he was scared that his visa would be cancelled and that he and his children would be deported. The applicant said he did not wish to rely on other reasons.

25. The Tribunal does not consider that the applicant’s desire to remain in Australia, for whatever reason, justifies the provision of false information (by claiming an ongoing relationship) when that information was central to his eligibility for the visa. Effectively, the applicant is suggesting that because he wanted to stay in Australia rather than being returned to his home country, it was justifiable for him not to provide truthful information to the Department in relation to his visa application. The Tribunal does not consider this to be the case.

26. The Tribunal is also mindful that the applicant claims to have suffered family violence. If that was the case, the applicant could have informed the Department about the cessation of his relationship with the sponsor and raised the claim of family violence. That is, notifying the Department about the changes in his circumstances did not need to lead to the applicant and his family being removed from Australia. The Tribunal does not accept that the fear of being removed from Australia was the applicant’s motivation.

27. In his written response to the second NOICC and his submission to the Tribunal the applicant has made other claims, which he decided not to pursue in oral evidence. These are addressed below.

28. The applicant claims he was subjected to family violence and was fearful of his partner and that is the reason he failed to comply with s.104. The applicant provided a declaration in which he outlined the stress and pressure he suffered a result of his ‘toxic’ relationship with the sponsor. The applicant also presented a psychological report in relation to the fear he claims to have experienced and referred to research on the issue. He claims that he did not raise these matters earlier because he thought he would not be believed and he was fearful of being deported. The Tribunal does not accept that evidence.

1. Firstly, as noted above, the applicant presented little probative evidence and no prescribed evidence of family violence. A statement that is made years after the claimed event and in response to the possibility of the visa being cancelled, which seeks to address the applicant’s failure to abide by the requirements of the Act, is self-serving and designed to meet the applicant’s interest in maintaining his visa. It is of little probative value in the Tribunal’s view. 

2. Secondly, the Tribunal places significant weight on the information the applicant provided in response to the first NOICC. (The Tribunal discussed this information with the applicant pursuant to s.359AA of the Act). In his submissions, which included a statutory declaration signed by the applicant, he claims the relationship was ongoing until mid-2013, despite problems. The applicant denied there was a change in his circumstances and denied having breached s.104 of the Act. The applicant made no reference whatsoever of the family violence which he now claims was the most significant factor affecting his behaviour. The Tribunal is mindful that at the time, the applicant was represented by an experienced migration agent – the same agent who until the hearing represented him on review – so the applicant would be fully aware of the need to provide truthful information and, if relevant, make reference to family violence. The two versions the applicant presented in response to the two NOICC are entirely inconsistent and the Tribunal has formed the view that the applicant is not a person of credibility. It appears that he is willing to create whatever version of events he believes would better suit his needs.

3. Thirdly, even if the applicant was subjected to family violence (a claim the Tribunal does not accept), he was still under an obligation to provide to the decision-maker truthful information and to inform of the changes in his circumstances. Any fear that the applicant claims to have had of the sponsor, whether it related to himself or his children, does not outweigh his obligations under the Act and does not justify the non-compliance, particularly in relation to information that was so central to the grant of the visa.

4. Neither is it appropriate to state that the applicant did not inform the Department about family violence because he did not think he would be believed. The applicant appears to suggest that even though he was no longer in a committed or exclusive relationship with the sponsor, he nevertheless claimed the existence of such a relationship because he thought he had a better chance of being believed, and of being granted the visa, than if he relied on alternative grounds which he now claims was more truthful. The applicant’s evidence is that he had deliberately and knowingly provided incorrect information to the Department because he thought doing so would improve his chances of getting the visa and staying in Australia.

5. The Tribunal has considered the applicant’s medical evidence; however, the Tribunal does not accept on the basis of presented evidence that the applicant’s claimed anxiety and depression prevented his dealings with the Department. The Tribunal is mindful that his claimed illness did not prevent the applicant from his dealings with the Department when seeking the visa on the basis of the non-existent relationship, nor his ability to function in daily life, successfully operate several businesses over a number of years, maintain a relationship with a new partner and take care of young children. The Tribunal does not accept the applicant’s claim that he was incapable of informing the Department about the breakdown of his relationship with the sponsor when he appears to have been capable of engaging in all other activities without any apparent difficulty. Rather, the Tribunal is of the view that the applicant deliberately withheld that information from the Department in order to obtain the visa. The Tribunal makes these observations while acknowledging the medical evidence presented by the applicant.

6. The applicant notes in his written response to the NOICC that he made contact with the Department around April or May 2017 to advise about his failure to comply with s.104. The Tribunal considers it extraordinary that the only time the applicant chose to make contact with the Department was four years after he was granted the visa (as a result of what now appears to be fraudulent representations about his relationship with the sponsor) and three years after he was issued with the first NOICC and was aware of the possibility of his visa being cancelled. The applicant explained to the Tribunal that he wanted to send his child to school, so the applicant took steps to contact the Department because he was seeking some paperwork and not because of any remorse for the breach of the migration provisions.

   The present circumstances of the visa holder

7. The applicant has been living in Australia since 2001 for over sixteen years and claims to have been ‘deeply imbedded’ in the local community and the Australian community in general. The applicant presented a variety of documents concerning his present activities. The Tribunal accepts that the applicant has been living in Australia for a long time and is settled in Australia, although the Tribunal is mindful that for the majority of this time the applicant did not have a permanent visa and was living in Australia as a holder of predominantly bridging visas or other temporary visas. It was not until May 2013, four years before the applicant was issued with the NOICC, that he was granted a permanent visa. Nevertheless, the Tribunal accepts that the applicant has been settled in Australia and participates in community functions.

8. The applicant refers to having a number of mental health issues since 2009, including PTSD, depression and phobic anxiety and he presented in response to the NOICC medical evidence. The applicant presented to the delegate and the Tribunal psychological evidence which indicates he had been under observation since 2013. The applicant told the Tribunal he sees a health professional regularly and takes medication. The Tribunal acknowledges that evidence and accepts the applicant needs treatment and has been receiving treatment. There is little probative evidence to satisfy the Tribunal that the applicant will be unable to obtain relevant medical help in any other country.

9. The applicant claims in his response to the NOICC that if he informed the Department about the family violence and if he had complied with s.104, his children would be permanent residents. The Tribunal accepts that if the applicant had complied with s.104 and other provisions, his visa is unlikely to have been cancelled. In his subsequent submission to the Tribunal the applicant claims that two of his children are Australian citizens. The applicant states that his three children were born in Australia and consider themselves to be Australian. His partner is now pregnant with another child. The Tribunal accepts that evidence.

10. The applicant claims that the decision to cancel his visa would cause him and the children financial, emotional and psychological hardship and leave his family homeless and stateless as neither he nor the children have a right to return to Palestine. The applicant presented various papers concerning his ability to return to Palestine. He told the Tribunal that a few years ago the Department tried to remove him but no country would accept him. The Tribunal is prepared to accept that it may be difficult, if not impossible, for the applicant to return to Gaza. However, the Tribunal is not satisfied the applicant could not establish residence in Norway where his partner and eldest child have citizenship.

11. The applicant’s evidence to the Tribunal is that his partner cannot sponsor him for the partner visa until she has lived and worked in Norway for at least two years. The applicant claims that even though his partner and children could move to Norway, he cannot.  He said his two Australian citizen children will have to give up their Australian citizenship to acquire Norwegian citizenship. The Tribunal obtained country advice concerning migration options that would be relevant to the applicant and the family (Norway CI180301153135792) and the applicant was invited to comment on this information. That information indicates that the applicant’s partner and children can migrate to Norway and will be able sponsor the applicant for a visa, although there are some prerequisites to such sponsorship, including a period of employment and certain income. The applicant’s evidence is that his partner is presently pregnant and has carer responsibilities towards children and will be unable to find employment; however, the Tribunal is mindful that on the applicant’s own evidence, she has no visa to remain in Australia and if she were to make the decision to abide by the Australian laws, she would be required to leave Australia and re-establish herself in Norway and that may enable future sponsorship of the applicant. The Tribunal acknowledges there may be a delay before such a sponsorship can be made and accepts that this may cause the parties to be separated for a period of time and that is likely to cause hardship to the family but the Tribunal does not accept the applicant’s evidence that he would be unable to migrate to Norway if sponsored by his partner.

12. The Tribunal is also mindful that there may be other visas that the applicant may be able to apply for before he can apply for a partner visa. The applicant told the Tribunal that as a holder of a Palestinian passport, nobody will accept him but he also said that he has not made inquiries and has not explored his options because he prefers to live in Australia. The Tribunal is mindful that the first NOICC was issued in 2014 and the second in May 2017. The applicant was put on notice that there was a risk of his visa being cancelled, yet he has done little to explore his options. The applicant has not satisfied the Tribunal that he has no options of travelling to Norway and eventually obtaining the partner visa.

13. However, even if the applicant’s claims were accepted and if the Tribunal were to accept that his partner will have to live in Norway for two years immediately before sponsoring him for a visa, that means that the family would be separated for that period before the applicant can relocate to Norway. The Tribunal accepts that separation would be difficult, particularly as they have young children, but it is neither uncommon nor impossible.

14. The applicant provided to the Tribunal information about the cost of living in Norway noting that it is more expensive compared to Australia. The Tribunal accepts that it may be expensive to live in Norway but does not accept that the family would find it difficult to settle there. The applicant’s partner had lived in Norway long enough to be granted citizenship. The applicant’s evidence is that her aunts and uncles live in Norway so there will be some degree of family support. It is unclear where they may be entitled to any government benefits. The applicant also told the Tribunal that his partner used to hold a student visa and that she received financial support from her father – who is ‘well off’ in his own country – to pay for her studies. There may be some financial support from family outside of Norway. The applicant himself told the Tribunal that he always had a business and he must work, so the applicant and his partner may both work to contribute to the family budget. The applicant presented to the Tribunal evidence of financial hardship in Australia but the applicant has not satisfied the Tribunal that the family would not have the financial means to live in Norway.

15. The applicant claims he does not speak the language and would have little prospect of employment. The Tribunal does not accept the applicant’s evidence. The Tribunal is mindful that the applicant made the decision to relocate to Australia, where he had limited language and limited opportunities. He has been able to support himself through employment and various businesses, acquired language skills and settled in Australia. He told the Tribunal he always had a business and had been successful in his business dealings. The Tribunal is not convinced that the applicant would be incapable of doing the same if he were to live in Norway, even if it takes time to establish himself. The applicant’s English skills may be useful and certainly his experience in running businesses in Australia may help him settle in. The applicant and his partner have family in Norway who may be able to assist them settle in, as might his partner herself. The Tribunal does not accept the applicant would be unable to settle in a new country. It is also meaningless, in the Tribunal’s view, to refer to the cost of living without addressing the applicant’s or the family’s financial affairs or their capacity to access funds, for example, if they have assets in Australia or family support in Norway. The cost of living may be high in Norway but there is not enough evidence to establish that such costs cannot be met by the family in their particular circumstances.

16. The applicant claims that if the family were forced to relocate to Norway, the penalty would be disproportionate to the nature of the offence. The Tribunal is of the view, however, that the relevant provisions are not concerned with penalties or the proportionality of the punishment. If it is determined that there are grounds for cancelling the visa, the Tribunal must consider, having regard to all the circumstances, whether the visa should be cancelled, whether or not the applicant believes it is disproportionate or unfair. 

17. The applicant gave evidence about his business arrangements. He said that he had a jewellery store until 2013 or 2014 when he lost the store because of finances. He has recently bought a chicken shop franchise and paid $50,000 to be in a partnership. The applicant said that he paid for the goodwill but it is worth nothing now because the business has not been operating for long and has no profit yet, although it is doing well. The applicant referred to employing students and Australian residents. He provided a number of papers concerning his business operations. The Tribunal considers it odd that the applicant made the decision to invest a substantial sum in a business – when he claims financial hardship – after his visa was cancelled. The applicant explained to the Tribunal that he bought the business because he does not earn enough if he works for someone else. The Tribunal accepts that the applicant operates a business and has made a significant investment around October 2017 but the Tribunal is mindful that the applicant was aware at the time that he had no visa, no right to remain in Australia permanently and he took the risk of purchasing the business despite these considerations because he wanted to earn more.

18. The applicant’s partner and three children reside in Australia and his partner is presently pregnant. The applicant’s evidence to the Tribunal is that his partner has no visa and is in Australia as an unlawful non-citizen. She has been living in Australia unlawfully for a couple of years. The applicant said that his eldest child does not have a visa and is also an unlawful non-citizen. The Tribunal is mindful that the applicant held a permanent visa until it was cancelled in August 2017 and since his relationship with his partner started before 2013, the applicant had ample time to sponsor his partner and dependent child for a partner visa. The Tribunal acknowledges that the applicant may have been subject to the sponsorship limitation, although the provision could be waived. However, the applicant’s evidence is that he did not sponsor his partner not because of the sponsorship limitation or any other legal impediment but because he was advised not to inform the Department about the relationship to avoid the cancellation of the visa and he was waiting to be granted Australian citizenship. That is, the applicant simply chose to be untruthful in his dealings with the Department and conceal his relationship with his partner in order to obtain a benefit. The applicant and his partner appear to have made the decision to remain in Australia at any cost and with complete disregard for the immigration laws.

19. The applicant refers in his written submission to his medical condition and claims that his mental health can only be stabilised if he is able to remain in Australia. The applicant provided a number of medical reports. However, the applicant has not provided convincing evidence to the Tribunal that he would be unable to access adequate medical support in any other country, including Norway. The applicant has not satisfied the Tribunal that appropriate medical care would not be available to him and the Tribunal does not accept the applicant’s assertion that his health needs can only be met in Australia.

20. The applicant told the Tribunal that he must work and cannot survive without working. That may be the case but the Tribunal is not convinced that the applicant can only work in Australia. The applicant subsequently provided evidence of financial hardship and of several expenses. The Tribunal acknowledges that evidence.

21. The applicant refers to his children’s circumstances and these are addressed below. Essentially, the applicant claims that the children were all born in Australia and have not lived anywhere else and have no other language skills and would find it difficult to relocate. The Tribunal is of the view that the children, at the age of six and below, would have no difficulty learning another language and adapting to a new environment.

22. The applicant refers to the length of time he has spent in Australia and his settlement in Australia. He refers to friends and community involvement. The Tribunal accepts that the applicant has been living in Australia since 2001 and that he is settled in Australia and is known in the community; although as noted above, the Tribunal is mindful that for much of that time the applicant held temporary or bridging visas.

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

23. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations.

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

24. The applicant confirmed to the Tribunal that his eldest child was born in 2012, before he was granted the visa, and he said he did not inform the Department. That was a change in the applicant’s circumstances and his failure to inform the Department may be in breach of s.104 of the Act.

25. The applicant’s response to the first NOICC is that his relationship with the sponsor continued until 2013 after he was granted the permanent visa and the applicant insisted that he did not breach s.104 of the Act. In his current written evidence to the Tribunal the applicant concedes that he did breach that provision and that his relationship ended before he was granted the visa. In his submission to the Tribunal of 4 April 2018 the applicant claims that his recollection was unreliable because of his mental state. The Tribunal does not accept that evidence. Firstly, the applicant appeared to have no difficulties recalling events and dates in response to most of the questions posed to him and the Tribunal does not accept that the applicant’s mental state affected his recall. Secondly, the applicant, who was represented by an experienced migration agent, provided a number of written statements or declarations, in which he offered an inconsistent account of his relationship with Ms Miski. Presumably, if the applicant’s mental state was so poor that he was incapable of recalling the circumstances of the relationship break up, this would be reflected in the declarations.

1. The applicant also states in his declaration of 29 March 2018 that he was unable to response to the Tribunal’s questions because he “did not understand” that he would be asked questions at the Tribunal hearing. The Tribunal considers that explanation utterly implausible and untruthful. The applicant was represented by an experienced migration agent up until the hearing and who attended the hearing with the applicant and the Tribunal considers that the purpose of the hearing was to enable the applicant to give evidence and present arguments and that entailed responding to questions. The Tribunal is of the view that the applicant’s declaration is another example of the applicant’s lack of candour when dealing with the Tribunal. Further, as noted above, the Tribunal’s concern is with the applicant’s written responses to the two NOICC, which are entirely inconsistent, and the Tribunal does not accept the applicant lacked capacity when preparing those responses.

2. The Tribunal finds that the applicant had deliberately provided false information to the Department in response to the first NOICC and breached s.107(2) of the Act.

   The time that has elapsed since the non-compliance

3. The obligation to inform of a change of circumstances exists until, relevantly, the visa grant. The applicant was granted the visa in May 2013 and over close to five years passed since the non-compliance.

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

4. The Tribunal is not aware of any other breaches of the law since the non-compliance.

   Any contribution made by the holder to the community.

5. The applicant refers to his employment in Australia and contribution through employment. He refers to being engaged in community affairs in Lakemba and more generally and says he is a well-known person in the community. The applicant refers to having a license and to operating a business in the past, which has won awards and was mentioned in the local media. It is not entirely clear how mention of the applicant in various media constitutes a contribution to the community but the Tribunal accepts that the applicant operated a successful business and has contributed to the community by various means. He provided evidence of his current business activities, noting that he has four employees.

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

   Whether there are mandatory legal consequences

7. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia and he may be subject to an exclusion period. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

8. The applicant claims in his written response to the second NOICC that if his visa was not cancelled, he plans to sponsor his children for a child visa. His subsequent evidence is that two of his children are Australian citizens and as for his eldest child and his partner, the Tribunal notes that the applicant did have the opportunity to sponsor them since 2013 but had not done so because he decided it was better not to disclose their existence to the Department.

9. The Tribunal acknowledges that if the applicant does not have a permanent visa, he will be unable to sponsor his partner and child in the future. 

   Whether there would be consequential cancellations under s.140

10. There are no persons in Australia whose visas may be cancelled under s.140 of the Act.

    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.   

11. The applicant provided in his submission to the delegate a number of country reports and other country information about the situation for the Palestinians in Gaza. The Tribunal considers the broad country reports unhelpful because it must consider the applicant’s personal circumstances. The applicant’s written submission in response to the NOICC state that he cannot return to Gaza because of movement restrictions and he said he cannot be removed to any other country. In his submission to the Tribunal the applicant claims that removing the family to Gaza would be in breach of the Convention on the Rights of the Child (CROC) and International Covenant on Civil and Political Rights (ICCPR). The applicant also claims that if he cannot go to Norway, he would be subject to indefinite detention because he cannot go to Gaza.

12. The Tribunal is prepared to accept that it would be difficult for the applicant to return to Gaza but as noted above, the Tribunal is of the view that the applicant will have an opportunity to move to Norway.

13. The applicant also told the Tribunal that he cannot return to Gaza because he used to have issues with Hamas. His evidence concerning these issues, and the possibility of future harm, is very limited and while the Tribunal acknowledges general country information, the applicant has provided very little evidence about his personal circumstances and the Tribunal is mindful that the applicant has had ample time throughout the review process, including after the hearing, to adduce evidence relating to his claimed past activities and issues in Gaza.

14. The applicant confirmed in his evidence to the Tribunal that he previously sought [another] visa. [Details deleted].

15. Significantly, the Tribunal is not satisfied the applicant cannot relocate to Norway, given that his partner and eldest child are Norwegian citizens. While the applicant claims he cannot move to that country, he also told the Tribunal he has not explored his options to obtain a temporary visa while awaiting the opportunity to obtain the permanent visa. The applicant’s written evidence to the Tribunal is that he cannot make an application for Norwegian residence independently of the children’s mother and cannot force her to make an application. The applicant does not claim, however, that his partner has refused to make such an application or would not assist the applicant in making the application, given the nature and the length of their relationship. His evidence to the Tribunal is that such an application may be delayed, rather than that his partner would refuse to sponsor him.

16. The Tribunal does not accept the applicant would return to Gaza if his visa is cancelled. The Tribunal does not accept on the evidence before it that Australia’s [obligations] would be breached if the visa is cancelled.

17. The Tribunal has considered the best interests of the children. Two of the applicant’s children are Australian citizens while his eldest child is a Norwegian citizen. Following the hearing the applicant informed the Tribunal that another child is in the process of obtaining Australian citizenship and the Tribunal accepts that evidence.

18. The applicant claims that the children cannot simultaneously have Norwegian citizenship and Australian citizenship, but the applicant has not satisfied the Tribunal that Norwegian citizenship or right of residence cannot be reinstated or acquired where one of the parents is a citizen of Norway. The applicant claims that he does not want to deny his children from holding Australian citizenship and make the decision for them but given the children’s young age, the Tribunal is of the view that it is the applicant’s responsibility (or his partner’s) to make such decisions on behalf of their children. The Tribunal accepts that residence in Norway may result in the two children losing Australian citizenship although the Tribunal is also mindful that it would maintain the family unit and enable all the children to live with their mother, noting that the oldest child is a Norwegian citizen, as is the children’s mother. 

19. The Tribunal accepts that the applicant and his two Australian children may not presently have a right to reside in Norway, but the Tribunal is not satisfied that such right cannot be acquired – with reasonable effort – and would enable the family to reside in Norway. In such circumstances, the Tribunal does not accept that the relocation to Norway and the loss of Australian citizenship by the two children would be in breach of CROC or ICCPR or any other Australian international obligation.

20. The applicant states that his three children were born in Australia and have lived their entire lives in Australia. He is expecting another child. The Tribunal is mindful, however, that their mother is not a permanent resident of Australia and on the applicant’s own evidence, she has no visa to remain in Australia. There was always an expectation that unless she is granted a permanent visa, the mother would have to leave Australia. Given the children’s age, presumably she would leave with the children. The applicant had the opportunity since acquiring permanent residence to sponsor his partner and children for a visa, which may have resulted in them being permanent residents and possibly citizens by now, but he has not done that. There is no guarantee that he will do that in the future, given the applicant’s apparent unwillingness to sponsor his family in the past, when he had time and opportunity to do so. The consequence of the applicant’s decision is that his partner and eldest child have no visas and no right to remain in Australia.

21. In his response to the second NOICC the applicant refers to hardship if the children were forced to relocate to Gaza and in his written submissions to the Tribunal the applicant claims that requiring the children to leave Australia would be contrary to Australia’s international obligations. However, the applicant’s evidence is that the children’s mother is a national of Norway and has no right to reside in Australia. Under the Migration Act she must be detained and removed from Australia as she has not been granted another visa and that may necessitate the departure of the children as well as it would not be in the best interests of the children to be separated from their mother.

22. Further, there is nothing to suggest that the children do not have, or cannot acquire, a right to reside in Norway with their mother. The applicant claims the younger children have no right to live in Norway but he has not presented adequate evidence to satisfy the Tribunal that they cannot acquire such rights, given their mother’s status, or why that had not been done to date. The Tribunal is not satisfied the children would be forced to live in Gaza if they do not wish to, irrespective of the cancellation of the applicant’s visa. The Tribunal does not accept the applicant’s claim that the children will suffer physical, emotional and psychological hardship if they were to live in Gaza because the Tribunal does not consider that the children are likely to live in Gaza and the Tribunal does not consider that the children will be subjected to any form of harm if they were to reside in Norway. While the Tribunal acknowledges that the children were born and have always lived in Australia, given their young age, the Tribunal is of the view that they would have no difficulty adapting to any other country, particularly if they were to live in another country with both parents.

23. The applicant claims in his response to the second NOICC that the children can claim [a visa] in Australia and that Australia’s [obligations] are engaged as the cancellation of the visa would lead them to the loss of the opportunity for permanent residence and may lead to potential deportation. (As two of the children are Australian citizens, this argument does not apply to them.) The Tribunal is not convinced that [obligations] are engaged simply by virtue of the fact that the children prefer to live in Australia and not in any other country or due to the loss of an opportunity to live in particular country of their choice. [Sentences deleted.] They are able to make such an application irrespective of the outcome of this review and whether or not the applicant holds a permanent visa.

24. The applicant refers to adverse effect of the separation of the children with their parents and the need for the children to be in the presence of both parents. However, since Ms Alhasani is not a holder of an Australian visa and has been living in Australia as an unlawful non-citizen for a number of years, she is required to leave Australia. Thus, the family is less likely to be separated if the applicant is to leave Australia with his partner, who is obliged to leave Australia as an unlawful non-citizen. The Tribunal accepts the applicant’s evidence that the best interests of the children may be best served if the children remain in the presence of both parents. It is not necessary for that to occur in Australia. The Tribunal does not consider the children are likely to live in Gaza and has formed the view that they would have no difficulties living in Norway where their mother has permanent residence or citizenship status and the applicant’s oral evidence to the Tribunal is that all of his children can move to Norway. The Tribunal accepts that the children may experience a degree of hardship as a result of the cancellation but will also benefit from the presence of both parents and of the family unit living together. The Tribunal finds that the best interests of the children do not require their presence in Australia.

25. In his submission to the Tribunal the applicant notes that his younger children are Australian citizens and their best interests would be to remain in Australia where they were born and have lived their whole lives. The Tribunal is mindful, however, that all the children are quite young and the Tribunal is not satisfied they would have any difficulty resettling in any country outside of Australia, particularly if they do so with their parents. The Tribunal is of the view that the best interests of the children require them to be with their parents, rather than in any particular country such as Australia. The applicant argues that it is in the best interest of the children to have the stability to remain in Australia with their father and while the Tribunal accepts that it would be in the best interest of the children to remain with their parents, it is unclear why that must be in Australia. The applicant also argues that the children’s stability is linked to his mental health but as noted above, the applicant has not satisfied the Tribunal that he would not have adequate access to medical help outside of Australia, so the Tribunal does not accept that the applicant’s mental health would be adversely affected as a result of his departure from Australia.

26. The applicant claims that his children were born in Australia and the younger children have a legitimate expectation that they will be allowed to grow up with their elder siblings. Putting aside the fact that the cancellation of the applicant’s visa does not affect the children’s right of residence in Australia if they are Australian citizens, the Tribunal does not accept there is a legitimate expectation of residence in any country. It is not unusual for families to relocate to different countries for any number of reasons. It is a common occurrence and both the applicant and his partner made the decision to leave their respective families and relocate to Australia, despite having always lived in different countries, having a different citizenship and language and cultural experiences. The Tribunal accepts that it may be preferable for the family to be together but the Tribunal does not accept it can only occur in Australia. The applicant claims that relocation to Norway would be contrary to CROC but that is not established. As noted above, the Tribunal does not accept that the mere fact of the family being relocated to another country constitutes a breach of Australia’s obligations. The applicant refers to the negative effects of being separated from the children. The Tribunal is not convinced that if the applicant’s visa is cancelled, the family would be separated if the applicant can accompany his family to Norway but even if that takes a few years before his partner can sponsor him for a visa, the Tribunal is not satisfied that a separation for a relatively short term would have an adverse effect on the family or the children. the Tribunal notes that if the family chose to comply with Australia’s immigration requirements, they would have been separated as the children’s mother  has no right to remain in Australia.

27. The applicant claims that immigration to Norway is not readily available to him and if his visa is cancelled, he would be rendered stateless as he is unable to return to Gaza. The applicant claims he may be subjected to indefinite detention. For the reasons stated above, the Tribunal does not accept that claim. Firstly, the Tribunal places weight on the earlier determination that the applicant is not [granted another visa]. Secondly, and more importantly, the applicant has not satisfied the Tribunal that would be unable to acquire Norwegian residence through his relationship with his current partner, even though the Tribunal acknowledges the parties are not formally married and the applicant has no present right to live in Norway and even if gaining residence may take a few years. While there can be no guarantee that the applicant will be granted a Norwegian visa, there is equally no guarantee that his partner will be granted an Australian visa.

28. Overall, the Tribunal finds that the best interests of the children would be best served by maintaining the family unit together and that need not happen in Australia.

29. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant and the family. The Tribunal accepts that the applicant has been living in Australia for many years and is settled in Australia. He has established business and social networks, has business investments and has made a contribution to the Australian community. The Tribunal accepts that there is at least a possibility that if the visa is cancelled, there may be a period of separation between the applicant, his partner and children although the Tribunal is of the view that the applicant will be able to establish residence in Norway through his relationship with his partner. The Tribunal accepts that if the applicant’s visa is cancelled, and unless he is granted another visa, he may be subject to detention, although the applicant may be eligible to apply for other visas. The Tribunal accepts that hardship will be caused to the family by the cancellation, including if the family were to relocate to Norway. The Tribunal has formed the view that the best interests of the children do not require their presence in Australia but rather their closeness to, and support of both parents. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.

30. The Tribunal finds that there are strong and significant reasons why the visa should not be cancelled.

31. Against these considerations, the Tribunal has formed the view that the applicant has consistently been untruthful in his dealings with the Department. He relied on the false information about the existence of the relationship to obtain the partner visa. He did not inform the Department about his new relationship or about the birth of his child in 2012, despite the significance of these events to his ongoing partner visa application. The applicant preferred for his partner and eldest child to live in Australia as unlawful non-citizens rather than sponsor them for a visa because he did not want to bring their existence to the attention of the Department. He provided what he now claims to be false information in response to the first NOICC by denying the relationship ended. These were deliberate falsehoods that the applicant perpetrated throughout his dealings with the Department in order to achieve his goal of obtaining Australian residence and citizenship. The applicant’s interactions with the Department have been dictated by what he desired to gain and not by what his obligations required him to do. The applicant appears to have very little remorse about his actions.

1. The Tribunal has formed the view that the applicant would not have been granted the visa if he informed the Department about the changes in his circumstances and that his relationship with the sponsor ended. Contrary to the applicant’s submission that he could have still obtained the visa on the basis of the family violence claims, these claims had not been raised, were not assessed and the applicant’s evidence to the Tribunal is that he was  unwilling or unable to obtain the prescribed evidence of family violence. If the applicant was no longer the spouse of the sponsor at the time of the decision and there is no evidence in relation to any of the exceptions, the applicant was simply not entitled to be granted the partner visa. In the Tribunal’s view, that fact, as well as the applicant’s persistent lack of candour in relation to visa matters for himself and his family, outweighs other considerations.

2. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

   Kira Raif
   Senior Member