Semaan (Migration)

[2019] AATA 904

Semaan (Migration) [2019] AATA 904 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jean Semaan

CASE NUMBER:  1820709

DIBP REFERENCE(S):  BCC2018/2153959

MEMBER:Kira Raif

DATE:8 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 882 (Skilled — Designated Area-sponsored Overseas Student) visa.

Statement made on 08 February 2019 at 1:59pm

CATCHWORDS
MIGRATION – cancellation – Skilled — Australian-sponsored Overseas Student (Residence) (Class DE) visa – Subclass 882 (Skilled — Designated Area-sponsored Overseas Student) – ground for cancellation – incorrect information on Incoming Passenger Card – changes in circumstances not notified – criminal conviction before grant of visa – consideration of discretion – incorrect information relevant to grant of visa – genuine mistake or tiredness – psychological report – lived in Australia for more than 15 years – relationship with sister’s children –– decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 99, 102, 104, 107, 109, 166
Migration Regulations 1994 (Cth), r 3.02

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 14
Jalal v MIMIA (2000) 60 ALD 779
Jalal v MIMIA (2000) 102 FCR 63
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 882 (Skilled — Designated Area-sponsored Overseas Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Lebanon, born in August 1979. The applicant was granted the Skilled – Designated Area-sponsored Overseas Student visa on 16 April 2013. On 14 June 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with ss.102 and 104 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 17 July 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from three witnesses nominated by the applicant. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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 of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. 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? 

6. 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.

7. 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?

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 ss.102 and 104 of the Act.

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

   a.    The applicant made the application for the Skilled visa on 14 March 2007.

   b.    In response to Question 49 of the application form ‘have you, or any other person included in this application ever been convicted of a crime or offence in any country?’ The applicant stated ‘no’.

   c.    In response to Question 124 the applicant signed a declaration:

   i.that the information he supplied in the application was complete, correct and up to date,

   ii.affirming his understanding that if he gives false or misleading information, his application may be refused or any visa granted may be cancelled,

   iii.that he will inform the Department of any changes in his personal circumstances while his application was being considered.

   d.    The applicant was granted the Skilled visa on 16 April 2013.

   e.    The Department received information that the applicant has been convicted of two offences in Australia:

   16/10/12indecently assault a person   

   6 months imprisonment; suspended sentence, bond $500

   10/09/14fail to comply with reporting obligations         

   Bond S10 – 12 months

   f.   The delegate noted that the first conviction occurred before the applicant was granted the visa and there is no evidence that the applicant had informed the Department about the changes in his circumstances.

   g.    The applicant departed Australia on 30 July 2014 and returned on 18 August 2014. The applicant completed an Incoming Passenger Card (IPC). He stated ‘no’ in response to a question of whether he has any criminal convictions. The applicant declared on the IPC that the information he gave was true and complete.

10. In his written response to the NOICC the applicant states that he did not intend to provide false information to the Department but he made a mistake in relation to the visa application and the IPC. The applicant states that he had personal issues to resolve during the processing of his application and did not think about contacting the Department to advise of his conviction. He also felt embarrassed about the conviction and there were other circumstances. The applicant states that he made a mistake in relation to the IPC, maybe because of long hours of travelling, and since then he has answered ‘yes’ on the IPCs. The applicant repeated these claims in his written submission to the Tribunal of 9 January 2019.

11. At the conclusion of the hearing, the applicant’s representative Mr Turner made a submission that there is no evidence of non-compliance because the relevant form and the IPCs are not before the Tribunal. Putting aside the Tribunal’s concern that this argument was put forward, for the first time, at the conclusion of a lengthy hearing, the Tribunal does not accept the representative’s submission. Firstly, in his written response to the NOICC, the applicant concedes that he did not inform Immigration about his conviction before he was granted the visa and also that he did not mention the conviction in the IPC. The applicant appears to accept that the breach occurred, contrary to Mr Turner’s argument. Secondly, the applicant admitted in his oral evidence to the Tribunal that he did not inform Immigration about the changes in his circumstances and did not mention the conviction on the IPC. Thirdly, where the issue is the applicant’s failure to inform the Department, which establishes the breach of s.104, it is difficult to see what Departmental documents could be obtained to establish such a failure. This is not a case where the applicant gave incorrect information in his visa application. It is a case where the applicant failed to provide information. Fourthly, and significantly, that information is contained in the primary decision record which the applicant presented to the Tribunal. Contrary to the representative’s submission, the Tribunal does not consider such evidence to be unreliable. The Tribunal does not accept that the information in the primary decision cannot be considered as evidence of the matters contained therein. The Tribunal is also mindful that in the seven months since the applicant was issued with the NOICC, the applicant had ample time and opportunity to obtain relevant papers if he believes the information in the primary decision was inaccurate or incorrect. The applicant has not done that and has not otherwise established that the information in the primary decision was incorrect or unreliable. There appears to be no probative basis for the representative’s submission. The Tribunal has formed the view that the primary decision record is a reliable source of information. Taken together with the applicant’s own evidence, such as his written response to the NOICC and his oral evidence to the Tribunal, the Tribunal finds that the applicant did not mention the change of his circumstances to Immigration in writing before he was granted the visa and also that he did not mention the two convictions in his IPC in August 2014.

12. Following the hearing, the Tribunal obtained the relevant papers from the Department. Upon the receipt of the application forms and IPCs from the Department, the Tribunal wrote to the applicant pursuant to s.359A of the Act on 24 January 2019. The applicant’s representative replied on 25 January 2019 by stating that the applicant was interviewed upon his arrival in Australia and disclosed the convictions during that interview. The applicant states that by operation of s.99, an answer given at an interview is taken to be an answer on the form and therefore the disclosure of the conviction at the airport interview means he did not provide incorrect information on the IPCs. With respect to Form 47SK, the applicant states that the answer was correct when given and, insofar as s.104 is concerned, the applicant states that by disclosing his convictions at the airport interview, the applicant complied with s.104.

13. The Tribunal does not accept the applicant’s argument. In relation to his obligation under s.104, the Tribunal notes that this section expressly provides that the notification must occur in writing. Disclosure of information at an interview, even if it occurred, would not be sufficient to meet the obligations imposed by s.104.

14. In relation to s.102 and the applicant’s claimed provision of correct information at the airport interview, the Tribunal notes the reasoning in Jalal v MIMIA (2000) 60 ALD 779 where Finkelstein J stated at [17]:

    Whether a non-citizen has given an incorrect answer in his or her application form, or has given incorrect information which is deemed to be an incorrect answer in the application form, is to be determined at the moment the answer is given or the information is provided. Thus, if a question on an application form has been incorrectly answered there will be non-compliance with s101 immediately upon the lodgement of the application form. In the case of incorrect information that is deemed to be an incorrect answer by operation of s99, there will be non-compliance with s101 at the instant the information is given. The fact that the correct answer is given some time later does not alter the character of what had previously occurred.

15. On appeal, the Full Federal Court observed that ‘[i]t may be, although it is not self evident, that, if the non-citizen corrects any incorrect information in accordance with s.105 before the grant of the relevant visa, then the visa may not be subject to cancellation under Subdivision C on the ground of the prior incorrect statement’; however the question did not arise, and the Court found it unnecessary to express any view about it: (2000) 102 FCR 63 at [19].

16. In the Tribunal’s view, the same reasoning applies in relation to the obligations imposed by s.102. The applicant gave an incorrect answer on his IPC. At that time, the applicant was in breach of s.102, even if he subsequently provided correct information in his airport interview. Further, the Tribunal does not consider that s. 99 operates to render information given at an interview as information that has been given on the Incoming Passenger Card, so the information on the IPC was incorrect irrespective of the applicant’s answers at the interview.

17. The Tribunal finds, having regard to the information in the primary decision record, the applicant’s written response to the NOICC and oral evidence to the Tribunal, that the applicant has been convicted of two offences, one in 2012 and one in 2014. The Tribunal finds that the applicant stated on the application form that he had not been convicted of any crime. Following his conviction in 2012, the applicant’s circumstances had changed so that an answer to a question on the application form became incorrect. The Tribunal finds that the applicant has not informed an officer in writing of the new circumstances and of the correct answer. The Tribunal finds that the applicant did not comply with s.104 of the Act.

18. The Tribunal further finds that in August 2014 when the applicant completed the IPC, he had a conviction for indecent assault. The Tribunal finds that when stating that he had no criminal convictions, the applicant gave an answer on the IPC that was incorrect. The Tribunal finds that the applicant filled in his passenger card in a way that an incorrect answer was given. The Tribunal finds that the applicant did not comply with s.102 of the Act.

19. The Tribunal finds that there was non-compliance with ss.102 and 104 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

20. 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).

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

    The correct information

22. The correct information is that the applicant has been convicted of an offence before he was granted the Skilled visa and two offences at the time he completed the IPC.

    The content of the genuine document (if any)

23. 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

24. A decision to grant a visa requires an assessment of the applicant’s character, for the purpose of s.501 of the Act and Item 4001 of Schedule 4 to the Regulations. If the delegate was aware of the conviction, the conviction would have been taken into consideration in assessing these criteria. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information.

25. Further, s.166(1)(b) of the Act requires a non-citizen to provide information required by the Act or the Regulations and r.3.02(1)(b) provides that a passenger card for a person entering Australia must include a question about criminal convictions. Therefore, the Tribunal finds that the decision to immigration clear the applicant was based, at least partly, on information about the applicant’s convictions.  It is not necessary for the Tribunal to decide whether the applicant would have been granted the visa or immigration cleared, had the correct information been disclosed.

    The circumstances in which the non-compliance occurred

26. The applicant states in his response to the NOICC and his evidence to the Tribunal that he had too much on his mind when dealing with his visa application and did not think about informing the Department about his circumstances. In relation to the IPC, the applicant claims he was too tired after a long trip. The applicant states he did not intend to mislead the Department and has since provided full information on the IPCs. The applicant expressed remorse about his actions. The Tribunal has also considered the psychological report prepared by Ms North, a forensic psychologist, which outlines the circumstances leading to the convictions.

27. In relation to the nature of offences, the applicant told the Tribunal that he has been in a relationship for seven years and the relationship was deteriorating. He met another person and had a drink with her. Later on the police came to his home and told him that he had touched her improperly and also that she was underage. The lawyer told him that if he pleaded guilty, he would get a good behaviour bond, so he did plead guilty. The applicant states that such conduct is not in his character. The applicant states that the second conviction was because he had just lost his job and he reported it late to the police. The applicant told the Tribunal that he is on the Sex Offences register and has to report for another year. His good behaviour bond has expired now. The applicant states that he was not trying to hide and thought the information was already with the authorities.

28. The applicant told the Tribunal that he has been living in Australia for many years and felt that Australia was his home, even before he was granted the permanent visa. When the ‘incident’ happened, he was too embarrassed and he made the decision to leave Australia and notifying the Department was not at the forefront of his mind. The applicant said that his then lawyer did not mention that he had to inform Immigration. The applicant states that when he returned to Australia, the Federal Police were waiting for him because he did not report, because he did not know he had to report. The applicant said that he had no problems providing that information and, for example, when he applied for citizenship, he did mention the convictions. He did not intend to hide information because all the information was before the government anyway. 

29. The applicant states that he did not mention the convictions on the IPC because he had been travelling for 14 hours. He made a mistake. The applicant said he did mention the convictions on all the other IPCs. The Tribunal finds that explanation unconvincing. The Tribunal notes that it would have taken just as much time and effort to answer ‘no’ on the IPC as it would have taken him to state ‘yes’. The Tribunal does not consider that the failure to mention information on the IPC can be explained by tiredness alone. The applicant told the Tribunal he cannot explain why he did not mention the information on the IPC.

30. The applicant claims he did not know he had to inform Immigration about the changes in his circumstances. The Tribunal is mindful that there was advice on the application form advising the applicant of his obligation to inform about changes in his circumstances. As the primary decision record states, the applicant signed a declaration undertaking to inform of changes in his circumstances. The Tribunal is also of the view that the obligation to inform under s.104 exists whether or not the applicant was aware of such an obligation.

31. The applicant states that he made a genuine mistake and he never intended to lie because he thought the authorities knew about his convictions anyway. However, the applicant’s belief that the conviction was already known to the authorities does not affect his obligation to inform of the change of circumstances and provide correct information on the IPC.

1. The Tribunal finds the applicant’s claims problematic. Having completed the application form, which has questions about the applicant’s criminal convictions, the applicant was put on notice that these were relevant to his application. The applicant also signed an undertaking to inform about the changes in his circumstances. The Tribunal does not accept that the applicant was completely ignorant of the fact that his conviction was relevant to his ongoing application and that he was entirely unaware of the obligation to inform the Department about the changes to his circumstances. The Tribunal also notes, in relation to the IPCs that the applicant failed to mention his conviction on more than one occasion. The Tribunal does not accept that the repeated failure to disclose the convictions can be explained by a genuine mistake or tiredness. In the Tribunal’s view, the circumstances in which the non-compliance occurred show that the applicant was either indifferent in relation to his obligations under the migration laws, or that he was deliberately untruthful.

   The present circumstances of the visa holder

2. The applicant has been living in Australia since 2003, for a period exceeding 15 years. He has provided evidence of his employment as a graphic designer. In his written submission to the Tribunal of 9 January 2019 the applicant states that he has been living in Australia for 15 years and has spent most of his adult life in Australia. The Tribunal accepts that evidence.

3. The applicant refers to family in Australia. His sister and her family live in Sydney. The psychological report refers to the applicant’s ties to Australia, including his participation in sports, family ties and other links the applicant has formed with Australia. The Tribunal accepts that the applicant has family and social connections in Australia and that he actively participates in social and community activities in this country. The applicant provided a number of character references and three of the applicant’s friends gave oral evidence to the Tribunal. The Tribunal accepts that the applicant has formed strong social links and that those who provided references and character evidence believe the applicant to be a good and supportive person.

4. The applicant told the Tribunal that he has been living in Australia since he was very young, for many years. Very few members of his family now live at home in Lebanon, they all live in different countries but his mother and sister live in Lebanon. His brothers live in other countries but are making plans to come to Australia and he hopes his family can settle in Australia. The applicant said that he does not want to return to Lebanon. The applicant explained to the Tribunal how much Australia means to him. The applicant states that he has been an Australian since 2003 and belongs here. He considers himself to be an Australian and is proud to be an Australian. He has many friends and he has referred to his employment. The Tribunal accepts the applicant’s evidence.

5. The Tribunal has considered the unsigned statement from Ms Collen Eddie, a psychologist who saw the applicant in 2012, which the applicant provided in response to the NOICC.  The applicant also provided to the Tribunal a psychological report prepared by Ms North, a forensic psychologist. The report appears to have been arranged by the applicant’s migration agent, during the processing of the present application and for the purpose of the application. The applicant’s evidence to the Tribunal is that he saw Ms North once and not since the report was written. In such circumstances, the Tribunal is of the view that any self-reported evidence by the applicant is self-serving and unreliable. Nevertheless, the Tribunal acknowledges Ms North’s diagnosis which refers to the applicant displaying symptoms of anxiety and depression. Ms North also assessed the applicant as having low risk of recidivism. The Tribunal accepts that evidence, although it is mindful that the ground for cancellation arises because the applicant provided incorrect information on his IPC or failed to inform the Department about the changes in his circumstances and not because of the applicant’s past conviction.

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

6. Nothing adverse is known about the applicant’s subsequent behaviour with respect to the above obligations.

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

7. According to the primary decision record, the applicant completed an IPC on 14 April 2013 and answered ‘no’ to a question whether he had any criminal convictions. A copy of that IPC had been provided to the applicant pursuant to s.359A of the Act.

8. The primary decision record refers to the incorrect or incomplete answers provided in support of the citizenship applications. The Tribunal considers that the citizenship application cannot form the basis of non-compliance under the Act.

   The time that has elapsed since the non-compliance

9. The applicant was granted the Skilled visa in April 2013 and the obligation to inform of the changes in circumstances existed, relevantly, until the visa grant. More than five and a half years passed since the non-compliance. The applicant completed the IPC that was referred to in the NOICC in July 2014. About four and a half years passed since that non-compliance.

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

10. There are no known breaches of the law other than those that formed the basis of the NOICC. The applicant invited the Tribunal to contact the police to confirm his lack of criminal conduct but the Tribunal accepts the applicant’s evidence without the need for such contact.

    Any contribution made by the visa holder to the community

11. The applicant refers to having completed his study in Australia and to his employment in Australia. The Tribunal accepts that evidence.

12. The applicant states that in his previous job he was part of a charitable organisation that used to feed people. The applicant states that he plays sport and is part of the social community. He wanted to train his nephew for soccer but cannot do that because of his conviction. The Tribunal accepts that the applicant has made some contribution to the community.

13. The applicant provided to the Tribunal a number of character references and statements of support from several parties. The Tribunal accepts the evidence that the applicant has formed close relationships within the community and participates in various activities.

14. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s 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, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

15. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may lose certain entitlements he may have acquired as a permanent resident of Australia.

    Whether there would be consequential cancellations under s.140

16. There are no consequential cancellations under s. 140.

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

17. The applicant told the Tribunal there are no children affected by the cancellation.

18. With respect to family unity principles, the applicant’s evidence to the Tribunal is that his sister lives in Australia and he has a close relationship with her family. However, the applicant’s siblings and mother reside overseas. While the applicant claims his siblings wish to migrate to Australia, there is no evidence that they have obtained Australian visas. The Tribunal does not consider that the principles of family unity require the applicant’s presence in Australia.

19. The applicant spoke about the close connection with his sister’s children. He refers to babysitting the children, taking them to sports and being involved in other activities.  He states that he treats the children as his own and the decision to cancel the visa would not only affect him but also his nieces and nephews. The applicant provided written evidence from his sister and a further statement from her following the hearing. The Tribunal accepts that the applicant has a close relationship with his sister’s children and is prepared to accept that he plays a meaningful role in the children’s upbringing. However, the applicant has not satisfied the Tribunal that the best interests of these children would be adversely affected as a result of the cancellation, even if that means that the applicant will depart Australia. The Tribunal is mindful that the children are in the care of their parents, both of whom reside in Australia. Such care will be unaffected by the cancellation. While the applicant’s departure from Australia, if his visa is cancelled, would result in the applicant being unable to provide the same degree of care and support to his nieces and nephews, the applicant has not established that the children’s parents would be unable to provide the requisite degree of support and care to the children to the extent that the applicant’s departure from Australia would have any adverse effect on the children.

20. The Tribunal acknowledges that the best interests of a child are a primary consideration. As the Tribunal accepts that the applicant has a close relationship with his sister’s children, the Tribunal is prepared to accept that it would be in the best interest of the children if they were to maintain a relationship with the applicant.

21. There is no evidence, and the applicant does not claim, that Australia’s protection obligations would be breached as a result of the cancellation. The Tribunal is also mindful that the applicant is able to make an application for a protection visa if he believes Australia owes her protection obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents any claims of harm being canvassed in a protection visa application.

22. The Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.

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

23. The applicant refers to the length of time he has spent in Australia, stating that he has been living in this country for over 15 years. The Tribunal accepts that the applicant has become accustomed to the Australian way of life and that he has been absent from Lebanon for a long time. The applicant states that there would be limited opporutniteis for him in Lebanon. The applicant presented very little probative evidence to support this claim although the Tribunal acknowledges that given the length of time the applicant has lived away from Lebanon, it may be difficult for him to re-establish himself in that country.

24. The applicant refers to the psychological report and the finding that there is no risk of recidivism. As noted above, the Tribunal is mindful that the ground for cancellation does not arise because of the conviction but because of the applicant’s breach of the migration provisions. The Tribunal acknowledges and accepts the psychologist’s assessment of the applicant’s present circumstances and future conduct. The Tribunal accepts the psychologist’s assessment of the applicant’s mental health.

25. The applicant told the Tribunal that with his criminal conviction, he would not be able to get a visa for any other country. However, he told the Tribunal that he has not made enquiries and does not know if he could get another visa, but assumes that to be the case. In the absence of any evidence to support the applicant’s claim, the Tribunal does not accept that the applicant would be unable to obtain a visa to another country. The applicant told the Tribunal that he sees himself living in Australia and not in any other country. As noted above, the Tribunal accepts that the applicant has established strong connections in Australia. The Tribunal also accepts the applicant’s evidence that he wants to re-establish his family in Australia and that his siblings plan to migrate to Australia. The Tribunal accepts that considerable hardship would be caused to the family and to the applicant as a result of the cancellation.

26. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with ss.102 and 104 of the Act and that there are grounds for cancelling his visa. The Tribunal acknowledges the applicant’s evidence that he is bad with forms and made a genuine mistake by not referring to his conviction on one of the IPCs and the fact that he referred to the conviction on the other documents and in his many airport interviews with Immigration and the AFP staff. As noted above, the Tribunal does not consider that providing information at the interview is sufficient for the purpose of s. 102. The Tribunal also acknowledges the applicant’s evidence that he did not know he had to inform the Department about the changes in his circumstances and that he did not intend to mislead because the information was already available to the authorities. The Tribunal has formed the view that the applicant either knew, or should have known, the significance of his criminal conviction to the visa application and that he should have known about his obligation to inform, having been asked these specific questions on the application forms.

27. The Tribunal accepts that considerable hardship would be caused to the applicant and his family as a result of the cancellation. In particular, the Tribunal accepts that the applicant has been living in Australia for many years and hopes to establish his entire family in this country. He has strong family links with his sister and her family in Australia and expects other siblings to settle in Australia. The Tribunal accepts that the best interests of the applicant’s nieces and nephews may be that they are not separated from the applicant and the Tribunal acknowledges this to be a primary consideration. The Tribunal accepts that the applicant has strong social ties, participates in various activities and has made contributions to the Australian community. The Tribunal also acknowledges the medical evidence concerning the applicant’s mental health. The Tribunal has formed the view that the applicant’s present circumstances provide strong reasons why the visa should not be cancelled.

28. The Tribunal has found that the cancellation would not be in breach of Australia’s international obligations. The Tribunal acknowledges there would be significant legal consequences to the cancellation. The Tribunal finds that there are strong reasons why the visa should not be cancelled.

29. Against these considerations, the Tribunal considers the breach to be significant because the applicant’s criminal convictions were relevant to the decision to grant him the visa and also to immigration clear the applicant. The two criminal convictions relate to serious offences. The first conviction relates to sexual misconduct in relation to a minor. The second to the applicant’s failure to comply with the reporting obligations and the applicant’s evidence to the Tribunal is that he was fully aware of the obligation to report but did not do it on time. The applicant’s conduct demonstrates, in the Tribunal’s view, his disregard for the Australian laws. In the Tribunal’s view, the circumstances in which the non-compliance occurred and the fact that the decision to grant the visa and immigration clear the applicant was based on incorrect information, outweigh other considerations.

30. 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

31. The Tribunal affirms the decision to cancel the applicant’s Subclass 882 (Skilled — Designated Area-sponsored Overseas Student) visa.

    Kira Raif
    Senior Member