Sam (Migration)

[2017] AATA 2816

Sam (Migration) [2017] AATA 2816 (22 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ka Chong Sam
Ms Siew Choo Lam
Miss Yi Ling Sam

CASE NUMBER:  1703831

DIBP REFERENCE(S):  BCC2015/2593866

MEMBER:Kira Raif

DATE:22 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 143 (Contributory Parent) visa.

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

Statement made on 22 December 2017 at 3:12pm

CATCHWORDS
Migration – Cancellation – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Incorrect information in application – Failure to declare dependent children – Meaning of “dependent child’ - Child with medical condition requiring full time care – Capacity to give evidence – Memory impairment – Whether breach intentional - Consequential cancellation – Tribunal has no jurisdiction to review consequential cancellations

LEGISLATION
Migration Act 1958, ss 100, 101, 107, 109, 140
Migration Regulations 1994, r 2.41, Schedule 2, cls 143.229, 143.230, 143.324, Schedule 4, PIC 4005

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 143 (Contributory Parent) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicants are nationals of Malaysia. The first named applicant (‘the applicant’) was born in December 1956. They were granted Class CA (Contributory Parent) visas on 15 December 2014. On 14 December 2016 the visa holders were issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicants did not comply with s.101 of the Act. The applicant provided their response to the NOICC and their visas were cancelled on 28 February 2017. The applicants are seeking review of that decision.

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

4. The applicants appeared before the Tribunal on 1 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and children. The applicants were represented in relation to the review by their registered migration agent. In his written submission of 28 November 2017 the applicant through his representative raised concerns at the hearing about the quality of interpreting and the applicant presented a draft transcript of the Tribunal hearing. The Tribunal acknowledges that there appeared to be some errors in the interpretation of the applicant’s evidence (for example, concerning his date of birth) and there may have been some deficiencies throughout the hearing either with the interpreting or with the applicant’s responses. However, if such deficiencies relate to the interpreting, the Tribunal is satisfied that these were minor and did not preclude the applicant from given evidence and presenting his arguments. The Tribunal questioned the applicant thoroughly in relation to matters of significance and gave him an opportunity for detailed answers. The Tribunal is satisfied that the applicant understood the questions posed to him and that his evidence has been conveyed with a high degree of accuracy to the Tribunal. The Tribunal is satisfied the applicant had been given a genuine opportunity to appear and present evidence.

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

   Relevant law

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.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.

7. 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.

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

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

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

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

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

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

    a.On 22 February 2013 the applicant made an application for the Contributory Parent visa. The application included his partner and daughter.

    b.At Question 55 of the application form 47PA the applicant was asked to provide details of his dependent children aged 18 or over and other dependants. The applicant gave details of his daughter and provided no other information.

    c.At Question 58 of the application form 47PA the applicant was asked to provide details of all his other family members. The applicant referred to his two children resident in Australia and his son Che Hong Sam who was resident of Malaysia.

    d.The applicant signed a declaration that all the information he supplied in the application was correct and up to date.

    e.The applicant’s daughter Yi Ling Sam submitted form 47A (Details of child or other dependent family member). No other form 47A was provided with the application to include any other dependent children over 18 years of age.

    f.The applicants were granted the Contributory Parent visas on 15 December 2014. They entered Australia on 17 January 2015.

    g.On 5 February 2015 the applicant’s son Zhi Xiong Sam travelled to Australia holding an Electronic Travel Authority (ETA). Mr Zhi Xiong Sam was not included as a dependant in the applicant’s Contributory Parent visa application.

    h.On 27 February 2015 the applicant’s son Zhi Xiong Sam made an application for a Remaining Relative Class BU visa. In that application, Mr Sam provided the same residential address as the applicant did in his Contributory Parent visa application and stated that he had lived there between August 1990 and February 2015.

    i.Mr Zhi Xiong Sam was required to undertake health checks for his visa application. On 10 June 2015 a Commonwealth Medical Officer formed the view that Mr Sam did not meet the health criteria in Public interest criteria (PIC) 4005. The CMO found that Mr Sam’s condition required care for all daily activities, which would result in a significant cost to the Australian community. Mr Sam’s visa application was refused on 31 August 2015 for failure to meet PIC 4005.

12. The delegate concluded that if Mr Zhi Xiong Sam was included as a dependant in the applicant’s Contributory Parent visa, that application may have been refused because the applicant may not have been able to meet cl.143.229, cl.143.230 and cl.143.324 which require all applicants and members of the family unit to meet the health criteria. The delegate noted that Mr Sam lived with his parents at the same address and, given the nature of his condition, would have been cared for by his parents, so he was a dependant of the applicants. The delegate formed the view that Mr Zhi Xiong Sam was deliberately not included as a dependent child and an applicant in his parents’ Contributory Parent visa application to circumvent that requirement. The delegate concluded that the applicant did not comply with s.101 of the Act.

13. In his written response to the NOICC the applicant agreed that he did not mention his son in his own application but claims it was not his intention to circumvent the law. The applicant claims that the family made the decision for his son to remain in Malaysia but after they travelled to Australia, the son could not cope with the separation and they made the decision to bring the son to Australia. The applicants provided a number of written submissions to the Tribunal in which they reiterated these claims.

14. In oral evidence to the Tribunal the applicant said that since their son was young, he was living with his wife’s sister who had no children. They lived close by and saw each other frequently. The applicant then said that his son has been living with his aunt for about three or four years. The applicant said that about a week before he left Malaysia, he handed over the renovated house to his sister-in-law. The Tribunal is mindful that this is inconsistent with the information given in the visa applications. According to the primary decision record, the son gave the applicant’s address in his own visa application, suggesting he lived with the parents and not with the aunt, and while there is some suggestion that the aunt lived in the same household, the applicant’s evidence is that she lived nearby. The Tribunal also notes that in his written submission to the delegate of 28 September 2016 the applicant stated that his son has been living with him and his wife and they hired domestic help to look after him and it was only later on that the sister-in-law became the carer, contrary to the applicant’s oral evidence that the sister-in-law cared for the son since birth. The applicant subsequently provided to the Tribunal evidence of having transferred money to the domestic help, claiming most of the funds were paid in cash, and the Tribunal accepts that an assistant had been hired to care for the son. The Tribunal does not accept the applicant’s oral evidence that the son has been living with an aunt since a young age. The Tribunal prefers the information the applicant gave in his written response to the NOICC and the fact that the son gave the same address in his own visa application. The Tribunal finds that the applicant’s son was living in his parents’ house until the time the family made plans to migrate to Australia. The Tribunal acknowledges that the wife’s sister may have lived nearby and spent time with the family but the arrangement was for the son to live with the parents and not elsewhere.

15. The applicant claims in written evidence that the decision to bring the son to Australia was made after the son came to Australia to visit. Mr Patrick Sam, who gave oral evidence to the Tribunal, also said that they made various arrangements for his brother to stay in Malaysia, including renovations to the house, paying a carer and getting a car, and it was only later that they decided to apply for the visa in Australia. They claim that initially a migration agent advised them that the son did not have to be included but after Zhi Xiong came to Australia, the same agent advised them that the son could make an application in Australia.

16. The Tribunal finds these submissions unpersuasive. According to the primary decision record, the son’s condition is of such severity as to require care for all daily activities. The Tribunal has formed the view that the son has been living with the family, even if there were others to care for him. In his written evidence the applicant stated that his son lived with his parents but in oral evidence, the applicant said his son lived with an aunt while the parents continued to provide a degree of care. In either case, the parents appear to have played a significant role in the son’s daily life. The Tribunal does not accept that the applicants decided to leave their son in Malaysia, and abandon the care arrangement and the responsibilities towards their son which they fulfilled for many years prior, either on their own or with other family members, and to permanently relocate to Australia without their son. The Tribunal does not accept that it was ever the applicant’s and his wife’s genuine intention to permanently separate from their son while obtaining residence in Australia and leaving their son in Malaysia.

17. The applicant argues that they had made arrangements for an aunt to care for his son and that they had gone to some expense – including house renovations, purchase of a wheelchair, et.c – to enable the son to remain in Malaysia, which they would not have done if the intention was to bring him to Australia. The Tribunal is mindful that the expenses could have been made to enable the son to live in Malaysia when he was in Malaysia with his parents, it does not necessarily establish that there was no intention for the son to come to Australia at a later stage. The decision to renovate the house could have been made for any number of reasons that were irrelevant to the son’s place of residence or the planned duration of his stay in Malaysia. 

18. The Tribunal also does not accept that the applicants were unaware of the effect that separation was likely to cause to their son and that they only became aware of the son’s inability to cope with the separation after their migration to Australia. The Tribunal is mindful that the son has been living with, or at least very near, his parents his entire life. The Tribunal does not consider it plausible that the applicants were unaware that he would be adversely affected by being separated from his parents and the Tribunal does not accept that this only became apparent after the family relocated to Australia. Overall, the Tribunal does not accept that the applicants genuinely intended to be permanently separated from their son by obtaining the Australian visas and by permanently leaving their son in Malaysia in the care of others.

19. According to the primary decision record, the applicant’s wife travelled to Malaysia within a very short time of entering Australia to see her son in Malaysia. Within a few weeks the son applied for, was granted an Australian ETA and had entered Australia and shortly after had made an application for a permanent visa in Australia, having provided whatever paperwork was required for such an application. All of these tasks required time and the speed with which the son was brought to Australia and made the permanent visa application in Australia supports the Tribunal’s view that it was always the intention of the applicant and his wife to bring their son to Australia as soon as their Australian residence was granted. The Tribunal does not accept, therefore, that it was only after they migrated to Australia that the applicants changed their plans and made the decision to bring their son to Australia. 

20. The Tribunal also notes that the application form refers to a dependent child, not necessarily a migrating dependent child. Whether or not there was an intention to bring Zhi Xiong to Australia, and whenever that intention came about, such plans would not affect the son being a dependent child of his parents.

21. The applicants claim in their submissions to the delegate and the Tribunal that Zhi Xiong Sam was not a dependent child because he was not financially dependent on his parents. The applicants claim it was their son in Australia, Patrick, who has been the primary source of financial support for his brother. A number of financial records have been presented to show that Patrick was responsible for mortgage repayments and that he had transferred funds to the family. The Tribunal also received evidence relating to Patrick’s tax returns and evidence that the funds from the sale of the applicant’s restaurant may not have been available until about 2014. Despite some discrepancies in the applicant’s and Patrick’s oral evidence concerning these arrangements, the Tribunal is prepared to accept that Patrick has been providing financial support to the family since 2012 or 2013 and has been paying for the mortgage and helping with other repayments. However, that is not sufficient. The definition of dependent child (and a member of the family unit) includes a child who has turned 18 and who is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. In such cases, it is not necessary to establish that financial dependence on parents was greater than the son’s dependence on any other source, including his brother Patrick. Thus, while the Tribunal accepts that Patrick has been providing financial support to the family, including his brother, that does not necessarily establish that the son was not a dependent child of his parents.

22. The applicant’s oral evidence to the Tribunal is that after he retired, he had some savings and funds from the sale of the restaurant, which he sent to his son in Australia to make arrangements for renovations and other payments. He said that the funds Patrick sent to them in Malaysia were his own funds from the sale of the business but that was not enough, so Patrick contributed from his own funds as well. Patrick’s oral evidence to the Tribunal is that his father had little or no understanding of the financial arrangements and did not know what money was being sent and stated that his father’s evidence is completely unreliable. There is evidence in a post-hearing submission suggesting the money from the sale of the business may not have been available until 2014. The Tribunal considers Patrick’s oral evidence implausible. Firstly, the Tribunal does not accept that the applicant would have so little knowledge and understanding of the family’s financial arrangements. Despite his claimed illiteracy and forgetfulness and diminished capacity, the evidence before the Tribunal is that he did manage a business in Malaysia and in Australia and managed other investments. The Tribunal is not convinced that the applicant is entirely incapable of appreciating financial matters, as his son suggests. Secondly, and more importantly, the Tribunal does not accept that the family would not have had a conversation about the financial arrangements since the issue of the cancellation arose, given that the issue of financial dependence is so central to their claims. As such, the Tribunal does not consider the applicant’s evidence about the family’s finances to be unreliable.

23. As noted above, the Tribunal accepts that Patrick has been sending money to the family in Malaysia and paying for various expenses from about 2012. The Tribunal does not accept, however, that this was the sole or even the predominant source of the family’s income. The applicant’s evidence to the Tribunal is that he retired in 2013 and there was a transition period from about 2012. That is, until 2012 the applicant was engaged in business and drawing income from the business. The Tribunal is not satisfied such income was not sufficient to cover the family’s expenses, even if mortgage repayments were met by the son. That is, the family relied on the applicant, as well as the children in Australia to meet their financial needs. It is not necessary to determine who provided greater level of support because the Tribunal is satisfied that the son was financially dependent on multiple sources, including his parents and his brother Patrick. That is sufficient, in the Tribunal’s view, to meet the definition of dependent child due to incapacity, within the meaning of paragraph (b)(ii). Zhi Xiong was dependent on his father, even if he was also dependent on his brother, and even if his dependence on the father was not greater than his dependence on any other source. For these reasons, the Tribunal finds that at the time the application was made in 2013, Zhi Xiong was a dependent child, and a member of the family unit, of his parents.

1. In their written and oral submissions to the Tribunal the applicants and all children also state that they did not read or speak or understand English and the forms were completed by the sponsor Patrick on advice from a migration agent. In oral evidence to the Tribunal the applicant also said that it was his son and the migration agent who arranged everything and he did not know what was going on. He said he trusted his Australian migration agent and simply did what he was told. There is before the Tribunal a statement from the previous agent who claims he has given advice that the son is not financially dependent and need not be included. The applicant said that he paid a lot of money and is a victim because he was misled by the agent and they referred to the agent being negligent. The Tribunal has also considered the applicant’s request to issue summons to the former migration agent, as he claims he relied on the advice of his agent in making the visa application. The Tribunal has decided not to issue summons because the Tribunal accepts that it is possible such advice was given by the previous agent. That is, it is possible that the applicant relied on the advice that the son was not dependent on them. Whether or not this was the case, the Tribunal notes that for the purpose of establishing the breach, s.100 of the Act provides that an answer to a question is incorrect even though the person who gave or provided the answer did not know it was incorrect.

2. In his post-hearing written submission to the Tribunal the applicant claims there were errors in interpretation that affected his oral evidence at hearing. This issue has been addressed above and the Tribunal is satisfied that the applicant was given a genuine opportunity to appear and present his evidence and arguments and any errors had been minor and insignificant. The Tribunal does not draw any adverse conclusions from the discrepancies or inadequacies of the applicant’s oral evidence at hearing and notes that many of its findings are based on the overall immigration history of the family and not specific oral evidence of the applicant given in the course of the Tribunal hearing.

3. The Tribunal also has concerns about the applicant’s claimed memory impairment. The Tribunal considers it problematic that the applicant raised this issue for the first time at or after the Tribunal hearing and in response to the Tribunal’s concerns discussed at the hearing. In the Tribunal’s view, if the applicant genuinely believed that his claimed memory impairment affected his ability to give evidence, the applicant would have sought medical help before the hearing and would have presented evidence of his medical condition prior to the hearing, rather than in response to what he considered to be problems with his evidence. Nevertheless, the Tribunal acknowledges the medical evidence that has now been presented to the Tribunal concerning the applicant’s medical circumstances and his memory impairment and the Tribunal is prepared to accept that the applicant suffers from memory impairment. However, the presented evidence does not necessary establish that this memory impairment is so pervasive as to render the entirety of the applicant’s evidence unreliable or that every discrepancy and deficiency in the applicant’s oral evidence was the result by his memory impairment.  Some of the applicant’s oral evidence appeared to be confused while other evidence was clear, responsive and satisfactory in every respect. Thus, the Tribunal does not accept that every piece of the applicant’s evidence which he considers would be adverse to his case can be attributable to his medical condition.

4. The Tribunal is also mindful that its findings are not based solely, or even predominantly, on the applicant’s oral evidence at hearing. The Tribunal has considered all the circumstances of this case, including the family’s activities before their travel to Australia and their circumstances since the initial visa application was made. The Tribunal does not consider that such matters are adversely affected by the applicant’s impairment.

5. For the reasons stated above, the Tribunal finds that the applicant’s son Zhi Xiong was a dependent child, and a member of the family unit of his parents. The Tribunal finds that the applicant did not comply with s.101(a) in response to Question 55 of the application form 47PA by failing to mention his son Zhi Xiong Sam as a dependent child. The Tribunal finds that the applicant did not comply with s.101(a) in response to Question 58 of the application form 47PA by failing to mention his son as a family member. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

6. 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).

7. 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.

   The correct information

8. The correct information is that the visa applicants have a dependent child. That child had a medical condition which is likely to have resulted in him being unable to meet PIC 4005.

   The content of the genuine document (if any)

9. This is not relevant in the present case.

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

10. According to the primary decision record, Zhi Xiong Sam was assessed as not meeting the health requirement in PIC 4005 for the purpose of his own Remaining Relative visa application. In the Tribunal’s view, it is very likely that the Medical Officer would have formed the same opinion at the time when the applicants’ Contributory Parent visa application was being processed, as the applicant’s evidence is that his son had the condition since birth. Therefore, it is likely that if Zhi Xiong Sam was included in the visa application, he would not have met PIC 4005.

11. The Tribunal has formed the view that the applicant’s son was a dependent child. He was therefore a member of the family unit of the primary applicant and was required to meet PIC 4005 for the purpose of cl.143.229. If one of the applicants failed to meet the health requirements, all visa applicants would have been unable to obtain the visas. The Tribunal finds that the decision to grant a visa was based, wholly or partly, on incorrect information.

    The circumstances in which the non-compliance occurred

12. The applicant claims in his written response to the NOICC and the written submissions to the Tribunal and his evidence to the Tribunal that they had no intention to bring the son to Australia, that they left the son in the care of his aunt, and the breach was not intentional. For the reasons stated elsewhere, the Tribunal does not accept that evidence. As noted above, the Tribunal does not accept that the applicant and his wife genuinely intended to permanently abandon their son in Malaysia, even in the care of a close family member or a paid carer, and relocate to Australia without him. Even if the applicant’s sister-in-law took up carer responsibilities, the applicant’s own evidence is that they maintained a close relationship with their son, lived in the same household or nearby and always thought Australia had a better health care system that may be of benefit to their son. The Tribunal acknowledges that arrangements had been made for the son to stay in Malaysia but the Tribunal does not accept this was ever meant to be a permanent arrangement. The fact that the applicant’s wife returned to Malaysia within a few days of entering Australia, brought her son to Australia and the son lodged a permanent visa application within five weeks of the applicant being granted the visa, offers a strong indication, in the Tribunal’s view, that the applicant and his wife were well aware that they could not leave the son in Malaysia, that he was always going to come to Australia and live with his parents in Australia.

13. The parties’ evidence to the Tribunal is that after Zhi Xiong travelled to Australia for the Chinese New Year, the agent advised them that the son could make an application for the visa. That is contrary to the advice the parties claim the same agent gave them previously that the son could not meet the visa requirements and should not be included in the visa application. Putting aside the need for the family to consult the migration agent again, given their claimed plans for Zhi Xiong to return to Malaysia, the Tribunal finds it unconvincing that the family would simply follow advice of the agent without any questioning and without trying to understand the reasons for the entirely inconsistent advice that was given to them. The Tribunal considers it more plausible that the family did plan for Zhi Xiong to make an application in Australia; that was the reason they consulted the migration agent again after he entered Australia and that is the reason the application was ultimately made for him to remain in Australia.

14. The Tribunal has also considered the applicant’s claim that there was no intention to mislead, that the breach was unintentional and that he simply relied on advice of others and he is a victim. The applicant claims that it was unreasonable for him and other visa applicants to do anything other than rely on the advice of the agent. The Tribunal is mindful that it is the responsibility of the visa applicants to ensure correct information is given on the application forms and if lack of English proficiency prevented that, it was imperative for the applicants to make alternative arrangements to ensure they understood the questions asked and provided correct information. Lack of English proficiency or knowledge of the law does not excuse non-compliance with the legal requirements. The Tribunal is mindful that the applicants would have been required to sign a statement on the form that the information they gave was correct and complete and they could not have done so without ensuring they understood the information.

15. The Tribunal acknowledges that the applicants may not have been familiar with the statutory requirements and the specific legal definitions, including the definition of dependence. However, in the circumstances of this case (where there is a severely disabled child in the immediate and long-term care of his parents, living with or near the family and being supported in all aspects of daily life), the Tribunal is of the view that it may not have been unreasonable for the applicants to recognise that the child may be deemed to be a dependent child. In the Tribunal’s view, if the applicant wished to ensure correct information was submitted, they would have mentioned their son, rather than exclude all mention of the son. The applicants’ claimed reliance on the others without taking any effort to acquire the understanding of what was required suggests a wilful indifference to their obligation under the migration legislation.

16. The applicants claim in their submission to the Tribunal that a major factor in considering whether to cancel the visa is whether the applicant had an intention to mislead the Department. The Tribunal has formed the view that they did. The Tribunal has formed the view that the applicants always had the intention of bringing their son to Australia once they were granted permanent visas, and had acted in accordance with that plan, and that they were also aware – and were advised by their agent – that if the son was included in their Contributory Parent visa application, that application may not be successful., That is, there was a deliberate attempt to mislead the Department by not providing the information about the son to ensure visa grant.

17. The Tribunal also acknowledges the submission from the applicant’s representative that there was no intention to mislead because the family would not have then made the application for the son to remain in Australia and jeopardise their own application and the son’s future ability to travel to Australia. That shows, the representative submits, that they simply acted on advice of an agent. The Tribunal does not accept this is so. The making of the application for the son may simply imply that he was incapable of living away from his parents and that is the reason the application was made for him to obtain the permanent visa in Australia.

18. The applicant also argues that they would not use their life savings on a visa if they were intentionally not disclosing the information. In the Tribunal’s view, an opposite argument may be equally true – that if the family were to use their life savings on a visa, they would do everything possible to ensure that the visa was granted.

19. The Tribunal has formed the view that the applicant did not refer to the son in his application because he knew the son’s condition could affect his own visa application. The Tribunal finds that the breach was made knowingly and deliberately.

    The present circumstances of the visa holder

20. The applicant provided a number of documents to the delegate concerning the family’s present circumstances and there is additional evidence before the Tribunal. The Tribunal accepts that the family have established significant links to Australia, including employment and study engagements, property ownership, a restaurant business and other assets. The updated information provided to the Tribunal on 30 October 2017 indicates that the restaurant is no longer operating and that the applicants’ daughter would complete her university course at the end of 2017. She should be able to complete her course irrespective of the outcome of this review although she may be unable to engage in future study if the visa is cancelled.

21. The Tribunal accepts the family had made investments in Australia. The applicant claims the family have little money left for Malaysia and that they are in the process of selling their home in Malaysia to pay the various debts in Australia. The applicant refers to high costs associated with the visas. The applicant claims his children may face bankruptcy if the visa is cancelled given their investments in Australia and various debts. The Tribunal accepts that the family had made significant investments associated with the Contributory Parent visas and subsequent to their arrival in Australia. The Tribunal accepts the family may be adversely affected financially as a result of the cancellation of their visas and that considerable financial hardship may result from the cancellation. The Tribunal also accepts that the family has made friendships in Australia and have formed ties and have settled in Australia.

22. The applicant also argues that his cognitive decline should be considered a compassionate and compelling reason for not cancelling the visa. However, the applicant has not satisfied the Tribunal that whatever medical needs he may have as a result of his condition could not be met in his own home country or that the relevant support would only be available to him in Australia. The Tribunal does not consider that the applicant’s ‘cognitive decline’ is a factor in favour of not cancelling the visa. The applicant also refers to his declining cognitive capacity as affecting his capacity to earn in the future. There is little probative and convincing evidence before the Tribunal concerning the visa applicant’s capacity to support himself financially, and to find a job and the Tribunal is not convinced that any decline in cognitive capacity, of any severity, would necessarily affect one’s capacity to earn a living. The Tribunal is also mindful that whether the applicant lives in Australia or in his home country, he would have to find a means of supporting himself, whether through employment, support from others or other forms of income. He would have to find a way to support himself in Australia as well as in his home country, whatever his health. It is unclear to the Tribunal why the applicant believes he would be able to support himself in Australia but not in his home country.

23. The applicant refers to the hardship that his son Patrick would experience as a result of cancellation, including financial hardship and being unable to sponsor his fiancé for a visa in the future. There is little documentary evidence concerning Patrick’s or his fiancé’s capacity to make a visa application or obtain funds from other sources, including through a bank loan or borrowing from third parties, family or friends, to make the future visa application. The Tribunal is also mindful that the costs associated with the present matter are likely to have already been paid, so again, it is unclear how the future visa application by Patrick’s fiancé would be affected by the cancellation of the present visa. The Tribunal is certainly not satisfied on the evidence before it that the present case and the cancellation of the visas contributed to the miscarriage.

24. The Tribunal accepts that the cancellation of the applicant’s visa, and the consequential cancellations for family members, will likely cause significant hardship to the family, including financial and emotional hardship to the former visa holders and family members.

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

25. Nothing adverse is known about the subsequent behaviour of the visa holder concerning his obligations under the Act.

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

26. The Tribunal is not aware of any other instances of non-compliance by the visa holder although the Tribunal is mindful that the applicant does not appear to have informed the Department about the incorrect answers, as he was required to do under s.105 of the Act.

    The time that has elapsed since the non-compliance

27. The applicant and his family made the applications for the Parent visa on 22 February 2013. Nearly five years have passed since the non-compliance.

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

28. There is no evidence to indicate that there have been any breaches of the law since the non-compliance.

    Any contribution made by the holder to the community.

29. In his response to the NOICC the applicant referred to his family operating a business which they plan to expand and employ staff, the financial investments he has made in Australia (and his family debt) and contribution through employment and other links. The applicant’s evidence to the Tribunal is that the business is no longer operating. The applicant said that he pays taxes. The Tribunal acknowledges that evidence.

30. Whilst 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’. This policy requires delegates to also have regard to the following matters.

    Whether the visa would have been granted if the correct information had been given

31. This issue was addressed above. The Tribunal has formed the view that if the applicant declared his dependent son in his application, the son would not have met PIC 4005 and the family would not been entitled to the grant of the visa.

    Whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act

1. The visas held by the applicant’s wife and adult daughter had been cancelled under s.140 of the Act.

   Whether the visa cancellation may result in Australia breaching its international obligations

2. There are no children affected by the cancellation as all of the applicant’s children are over the age of 18. There is nothing to indicate that Australia has protection obligations. The applicant told the Tribunal that if his visa is cancelled, everybody in the village will talk and there will be reputation damage. The Tribunal is not satisfied this gives rise to Australia’s protection obligations. In any case, the Tribunal is mindful that the applicant is entitled to make an application for the protection visa if he believes he is owed protection obligations. The Tribunal finds that the cancellation of the visa will not result in Australia breaching its non-refoulement obligations.

   Whether there are mandatory legal consequences

3. If the applicants’ visas are cancelled and if they do not hold any other visa, the applicants may become unlawful non-citizens and be subject to mandatory detention and removal from Australia. The applicants may be eligible to make a valid visa application for certain visas without the Minister’s intervention although they may be subject to an exclusion period. There is no suggestion that the applicants will be indefinitely detained.

4. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 of the Act. Contrary to the applicant’s claims, the Tribunal has formed the view that the breach was deliberate and was made knowingly. The Tribunal is of the view that the family were aware that by referring to their son, their visas may not be granted so they deliberately withheld information about the son. The Tribunal does not accept they misunderstood the definition of dependence or that they were otherwise mistaken about what was required. The Tribunal has formed the view that it was always the family’s intention to have their son live in Australia but they made arrangements to bring the remainder of the family to Australia first and then bring the son as a remaining relative.

5. The family has been living in Australia for nearly three years and the Tribunal accepts they have formed links in Australia. Two of the applicant’s adult children are Australian citizens or permanent residents. The Tribunal accepts that considerable hardship may be caused to the family if the visa is cancelled, including financial hardship, emotional hardship and separation of family members, and while the Tribunal notes that the applicant’s daughter is about to complete her university course, the Tribunal acknowledges the applicant’s evidence that she wants to continue with her studies, which she may not be able to do if she has no visa. The Tribunal accepts that the family had made investments in Australia although their present financial situation appears to have changed. The Tribunal acknowledges that considerable time has passed since the non-compliance and that the family is well settled in Australia. The Tribunal accepts the cancellation of the visa may adversely affect the Australian citizen adult children and not only the visa holders and that there are significantly adverse repercussions for the entire family if the visas are cancelled. The Tribunal acknowledges there are strong grounds why the visas should not be cancelled.

6. Against these considerations, the Tribunal has formed the view that the non-compliance has been deliberate. The Tribunal does not accept the applicant’s suggestion that he is a victim who relied on the advice of others and had done nothing wrong. The Tribunal is of the view that the family were aware that if the son was mentioned on the application, the entire family would be refused visas because of his medical condition, so they made a deliberate decision not to include the son and later bring him to Australia on a different visa. The Tribunal does not accept that the family made the decisions because the son was financially dependent on his brother rather than his parents. Rather, the Tribunal is of the view that they made the decision not to refer to the son so as not to jeopardise their own visa application and had deliberately and intentionally misled the Department when seeking the visa.

7. The Tribunal places significant weight on the fact that the decision to grant the visa was dependent on each applicant and member of the family unit meeting the statutory criteria, including the health requirements, and if the correct information was given, the family would not have been entitled to be granted the visas that are now subject to cancellation. Even if the Tribunal were to accept the applicants’ evidence that they had been misled and failed to mention the son in the application on advice from the agent and not deliberately, the Tribunal considers the fact that the applicants were not entitled to the visas which they were granted as a result of this information outweighs other considerations. That is, despite several strong factors that suggest that the visa should not be cancelled, the Tribunal has formed the view that the applicants’ ineligibility for the visa outweighs these considerations and means that the visa should be cancelled.

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

   DECISION

9. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 143 (Contributory Parent) visa.

10. The Tribunal has no jurisdiction with respect to the other applicants.

    Kira Raif
    Senior Member