Sharma Rimal (Migration) - [2023] AATA 1164

Sharma Rimal (Migration) [2023] AATA 1164 (14 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Swaeta Sharma Rimal
Mr Pramosh Rimal
Miss Pravasi Rimal
Miss Pristha Rimal
REPRESENTATIVE:  Mr Hem Raj Bhatta (MARN: 1466471)
CASE NUMBER:  2114259
HOME AFFAIRS REFERENCE(S):          BCC2018/417582
MEMBER:Kate Millar
DATE:14 April 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 887 (Skilled - Regional) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 14 April 2023 at 1:38PM
CATCHWORDS
MIGRATION – Cancellation – Subclass 887 (Skilled - Regional) visa – applicant had provided incorrect information to the Department– visa holder had been removed from the United Kingdom – mental health of child – bests interest of the children – children have spent the majority of their lives in Australia – have provided police clearances showing no other obvious character concerns –emotional impact and hardship – contributions to the community –decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 107, 109, 140, 376
Migration Regulations 1994, r 2.41, Schedule 2, cl 887.223
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicants are citizens of Nepal, who came to Australia in 2009. Ms Rimal was the primary applicant, and with her qualifications in hairdressing, the family was granted Skilled Regional (Provisional) (Subclass 489) visas on 7 July 2014 before being granted permanent Skilled Regional (Subclass 887) visas on 7 December 2016.
The Department became aware that Ms Rimal had not disclosed she had lived in the United Kingdom between 2003 and 2007, that her eldest child was born in the United Kingdom on 11 March 2006, and that Ms Rimal and her daughter Pristha had been removed from the United Kingdom in 2007.
As a result, Ms Rimal’s visa was cancelled on 11 October 2021 on the basis that she had not filled in her application form accurately, and her husband and children’s visa were cancelled as a consequence of Ms Rimal’s visa being cancelled.
The applicants have applied for a review of the decision made by a delegate of the Minister for Home Affairs to cancel Ms Rimal’s Subclass 887 (Skilled - Regional) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to Ms Rimal. 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.
The applicants appeared before the Tribunal on 3 February 2023 to give evidence and present arguments. The Tribunal heard from each of the applicants. The Tribunal also received oral evidence from Mr Sam Webster and Mr Baburam Bhattarai. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CERTIFICATE ISSUED UNDER SECTION 376 OF THE ACT
Section 376 of the Act allows the Minister to certify in writing that the disclose of any document or information would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding.
The Secretary may give written notice to the Tribunal of the certification and provide advice in the notice about the significance of any document or information.
If the certificate is validly issued under s 376 of the Act, the Tribunal may have regard to the document or information. The Tribunal may disclose it to the applicant or any other person who has given oral or written evidence to the Tribunal after having regard to the advice of the Secretary in the notice.
The Department file contained a notice issued under s 376 of the Act. The certificate was provided to the applicants before the hearing, and they were invited to comment on the validity of the certificate at the hearing.
The information that is the subject of the certificate is an anonymous allegation that Ms Rimal lived in the United Kingdom, married in the United Kingdom and their daughter was born in the United Kingdom. This information is disclosed in the notice issued under s.107 of the Act, the decision record and Ms Rimal has acknowledged it is correct. The notice issued under s 107 of the Act discloses that the Department sought further information form authorities in the United Kingdom who confirmed Ms Rimal and Pristha were removed from the United Kingdom in March 2007.
As such, the information the subject of the certificate has been disclosed to the applicants and they have acknowledged the truth of the allegation.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is requires the Minister to first issue a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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?
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 by Ms Rimal with s.101 of the Act in the following respects (in summary):
·     Answering “no” to questions about whether she had ever been removed, deported or excluded from any country.
·     Not providing details of her time in the United Kingdom in answer to questions about the countries in which she had lived in the past 10 years.
·     Not providing her address in the United Kingdom in response to questions about her address, instead providing an address in Nepal.
·     Answering “no” to the question “Have you travelled to any country other than Australia in the last 10 years”
·     Providing the place of birth of her daughter Pristha Rimal as Jhapa in Nepal when Pristha was born in the United Kingdom.
·     In her previous applications for a:
o   Student (subclass 572) visa granted 18 March 2009,
o   Further 572 visa granted 13 May 2011,
o   Skilled Graduate (Subclass 485) visa granted 4 July 2012,
o   Skilled-Regional (Provisional) visa granted 7 July 2014 and
o   Australian citizenship by conferral dated 11 November 2019, and the documents submitted for this application.
Ms Rimal provided the same answers to questions about the birthplace of her daughter, the countries in which she resided and the addresses where she had lived.
This information was provided on Ms Rimal’s vias applications and the Form 80 “Personal particulars for assessment including character assessment.”
The delegate found this information was incorrect as the Department received information that she lived in the United Kingdom between 2003 and 2007, her daughter Pristha was born in the United Kingdom, and that UK authorities confirmed that Ms Rimal and her daughter were removed from the United Kingdom in March 2007.
The applicants provided a notification to the Department, copied to the Tribunal on 20 March 2023, that they had provide incorrect information to the Department ion their visa applications for the Subclass 485, Subclass 489 and Subclass 887 visas, in particular Ms Rimal corrected answers about where Pristha was born, that she had been removed from the United Kingdom.
Ms Rimal has provided incorrect information, and the Tribunal finds that there was non-compliance with s 101 of the Act by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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 reg 2.41 of the Regulations.
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.[1] The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
[1] MIAC v Khadgi (2010) 190 FCR 248
In submissions, Ms Rimal states she came to Australia knowing she would not be granted a visa if she disclosed her immigration history, however she said after leaving the United Kingdom and returning to Nepal her daughter became ill and she wanted to protect her daughter and give her a better life. In submissions it is stated that she came with a strong desire to study, which she completed, and she started a career and business in the field of her studies.
Ms Rimal relies on the best interests of her two daughters and her longstanding business in Australia in support of her submission that her visa should not be cancelled.
Ms Rimal clearly and knowingly provided incorrect information on many occasions. She said she was told by the migration agent in Nepal that they could not include information about living in or being deported form the United Kingdom as this would affect the prospects of being granted vias to come to Australia. Despite acknowledging this, at various points in her oral evidence Ms Rimal attempted to minimise her actions stating “if anyone had told her she was doing wrong she would have told the truth” and that she did not know she could correct the information. The Tribunal does not accept that after being advised not to disclose that she had lived in the United Kingdom and been deported and repeated answering questions to the contrary she did not know she should have told the truth or the effect of telling the truth on her prospects of being granted the visas she had held.
The cancellation of the visa has significant and far-reaching effects on Ms Rimal and her family, and she was understandably nervous and anxious to appear in the best light. At times her anxiety resulted in her making statements that were inconsistent or the considerably overstated her position.
A. Prescribed circumstances
The correct information
The correct information is that Ms Rimal lived in the United Kingdom between 2003 and 2007, and her daughter Pristha was born in the United Kingdom. The correct information is also that Ms Rimal and Pristha were removed from the United Kingdom in March 2007.
Ms Rimal said the correct information includes that her husband was known by another name.
Ms Rimal said she did not know she could correct the information and continued to maintain what she had said to be consistent with past visa applications.
The content of the genuine document (if any)
Ms Rimal provided a birth certificate for Pristha stating she was born in Nepal. This is incorrect as she was born in the United Kingdom, and the birth certificate provided is incorrect. Ms Rimal said she did not know how this document was obtained as her husband obtained the birth certificate.
The Tribunal finds that the contents of Pristhas’ genuine birth certificate contains the information that she was born in the United Kingdom.
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
Ms Rimal submitted the correct information would have had no bearing on the grant of the Subclass 887 visa as she would meet the character test required by cl. 887.223 of Schedule 2 of the Regulations and public interest criterion 4001.
Ms Rimal and Mr Rimal were asked to provide police clearances from Australia and the United Kingdom. All of the clearances provided did not disclose any criminal convictions.
Ms Rimal said that they were deported from the United Kingdom because Mr Rimal applied for a protection visa which was refused. Neither produced notification of the decision to refuse a protection visa or of a decision that they were to be removed from the Untied Kingdom. Ms Rimal said they were told when apprehended that they would be removed but were not provide any documents.
The Tribunal has some concern that it does not have documentary evidence of the reasons they were removed from the United Kingdom but accepts on balance that Ms Rimal would meet the criteria for the visa.
However, as her actions denied the Department of the opportunity to fully consider the criteria for the Subclass 887 visa, including her address history and whether she met the character test, the Tribunal finds the decision to grant the visa was partly based on incorrect information.
It was submitted that in considering this factor in r.2.41(c) of the Regulations, the Tribunal should limit itself to the visa that was cancelled. The requirement is to look to whether the decision to grant the visa or immigration clear the visa holder was based wholly or partly on incorrect information. Ms Rimal was put on notice in the s 107 notice that she has provided incorrect information for the grant of previous visas. She has conceded that she had provide incorrect information on each of the visa applications she had made. Regulation 2.41(c) does not limit the Tribunal to the visa that was cancelled, and the previous non-compliance was specified in relation to her past visa applications in the notice issued under s.107 of the Act.
The Tribunal considers that for each of the previous visa applications specified in the s.107 notice, there has been non-compliance that has resulted in all the visas granted to Ms Rimal being at least partly based on incorrect information.
This weighs heavily in favour of cancelling her visa.
The circumstances in which the non-compliance occurred
In the response to the s.107 notice, it was submitted that Ms Rimal was aware when in Nepal and applying for her student visa that she would not be able to get a visa with her immigration history. It is claimed in that period her older daughter had health issues and developed a medical condition. As Ms Rimal wanted to give her daughter a better life and protect her she hid the information. Ms Rimal was aware with each application she was providing false information, and it is stated some migration agents were not willing to assist her as a result.
Ms Rimal said that on their return to Nepal Pristha had blood in her urine or faeces, difficulty breathing and weight loss. She was diagnosed with a virus and could not cope with the pollution. Pristha has no ongoing medical conditions, but currently suffers anaemia.
Ms Rimal said she had repeatedly taken Pristha to hospitals in Nepal and was asked to provide evidence of Pristha’s medical care in Nepal. Ms Rimal provided documents from Norvic International Hospital of Pristha’s admission between 20 June 2008 and 23 June 2008. The discharge summary reports that she was admitted with a fever and following intravenous fluids, antibiotics and other medication she was discharged as she was feeling better. It states Pristha has also had a fever six month prior and was treated for her fever and was well before developing another fever.
Ms Rimal said at the time in 2009 there was a curfew in Nepal and petrol shortages, and there were people burning tyres which she thought contributed to her daughter’s ill-health.
While the Tribunal can understand Ms Rimal’s concern for her daughter and accepts this was at least in part a motivation for wanting to leave Nepal, it is not satisfied that Pristha was as unwell as asserted by Ms Rimal, or that there was an objectively pressing medical need for Pristha to leave Nepal. It accepts that Ms Rimal wanted to give her daughter a better life.
The Tribunal considers that to a limited extent this weighs in favour of not cancelling Ms Rimal’s visa.
The present circumstances of the visa holder
Ms Rimal lived in South Australia and operates a barber business. She and her husband have assets in Australia including the business, a house and a car. They have pets in Australia.
Ms Rimal said her children have been doing well other than difficulties her younger daughter experienced after being bullied. Her children have high hopes of further study, with Pristha wanting to study to be an interior designer and Pravasi wanting to study to be a vet.
Ms Rimal has remained involved in the Nepalese Association and says she had contributed to the cultural programs run by the Nepali Association. She has an employee of her business who is a student in Australia on a student visa. She says she advertises for employees but has not been able to recruit.
Ms Rimal’s operation of a business, her completion of her studies and use of her trade, as well as the circumstances of her family as outlined below weigh in favour of not cancelling her visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Subdivision C of Division 3 of Part 2 of the Act contains obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
Ms Rimal said in oral evidence that if anyone had told her she was doing the wrong thing she would have told the truth. The Tribunal does not accept that she did not know and was not told that she needed to provide accurate information in her visa application. In written submissions it was stated some migration agents refused to assist her because she was providing false information, but Ms Rimal denied this at hearing despite acknowledging she had received advice from migration agents. The Tribunal does not accept that she did not know and was not aware of the effect of deliberately providing incorrect information and finds she continued to knowingly provide incorrect information to remain consistent with her previous responses.
Ms Rimal has repeatedly provided incorrect information over many years and for several visa applications. It is submitted the period of time that should be considered is only that which occurred after the non-compliance in her application for the Subclass 887 visa.

Subsequent to the incorrect information provided in her application for the Subclass 887 visa, the only other application is her application for citizenship. It is reported by the Department that she also provided incorrect information in her citizenship application, however this does not fall within this consideration, and is considered further below.
Ms Rimal notified the Department in March 2023 of the incorrect information.
This weighs heavily in favour of cancelling her visa.
Any other instances of non-compliance by the visa holder known to the Minister
There are numerous instances of non-compliance with the requirement not to give incorrect information as the same incorrect information has been repeated in each visa application and in the application for Australian Citizenship.
Ms Rimal has held a Subclass 572 visas granted in 2009 and 2011, a Subclass 485 visa granted in 2012, a Subclass 489 visa granted in 2014 before being granted the visa the is the subject of the cancellation in 2016. In all of these visa applications, Ms Rimal has provided false information about where she lived, where her daughter was born and in failing to disclose she has been removed from the United Kingdom.
Ms Rimal has been non-compliant in all her visa applications, and this weighs heavily in favour of cancelling her visa.
The time that has elapsed since the non-compliance
The most recent non-compliance with s 101 of the Act relied on by the delegate is the non-compliance on 15 July 2016, and it is now six years since the most recent non-compliance.
The non-compliance is evident in all Ms Rimal’s visa applications, and the earliest non-compliance was in her student visa application. The date of the application is not before the Tribunal, however this visa was granted 18 March 2009.
This weighs slightly in favour of cancelling her visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
Ms Rimal states there have not been any breaches of the law since the non-compliance. However, the delegate refers to an application for Australian citizenship containing the same information on 11 November 2019. This is a breach of s 50 of the Australian Citizenship Act 2007 and is a serious matter.
This weighs in favour of cancelling her visa.
Any contribution made by the holder to the community
Ms Rimal has been involved in two businesses, a restaurant and a barber shop. She provides an ASIC extract showing she is the Director of The Scissors Barber Shop Pty Ltd operating in South Australia.
Ms Rimal has contributed through her employment as a barber for three and a half years, and provide a reference a previous employer stating she was well-respected, displayed an eagerness to embrace new challenges and left on excellent terms to own her own business. She has received a certificate for being the 4^th top barber with her employer and has a letter of appreciation from the father of a child who has autism. She provided personal tax returns showing an income as a hairdresser of $48,463 in 2016, $45,060 in 2017, $50,545 in 2018, $51,557 in 2019and $56,126 in 2020
Mr Rimal worked as a chef in their business and is currently a bus driver. Tax returns from 2016 show a taxable income of $21,891, $31,396 I 2017 for work as a delivery driver, $0 in 2018, $34,403 as a chef for Momo n More in 2019, and $68,351 for work as a bus driver in 2020.
A letter dated 2 July 2021 from the State Coordinator South Australia of the Non-Resident Nepali Association states Ms Rimal and Mr Rimal have been members since 2014, are active members and have volunteered in programs conducted by the Association. It is stated their daughter Pravasi has actively participated in many cultural programs in the community.
Information was provided to show the involvement of the family in the school and sporting community, and the Tribunal finds the family have connections to the local, community.
This factor weighs in favour of not cancelling her vias.
B. Other circumstances
Whether there would be consequential cancellations under s 140
If Ms Rimal’s visa is cancelled, the visas of her husband Mr Pramosh Rimal and her daughter Pristha and Pravasi will also be cancelled.
Whether Australia has a relevant international agreement that would or may be breached as a result of the visa cancellation
Article 9 of the Convention which requires State parties to ensure that a child is not separated from his or her parents against their will, other than in particular circumstances, and Article 18 which states parents or legal guardians have the primary responsibility for the upbringing and development of the child.
If Ms Rimal’s visa is cancelled, the visas of her family members will also be cancelled under s.140 of the Act, and there is no suggestion that the decision to cancel her visa will result in the separation of the children from their parents.
Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions concerning children, the best interests of the child shall be the primary consideration.
This has been the subject of differing interpretations. In CFE16 v Minister and CFD16 v Minister,[2] (CFE16 & CFD16), Judge Riethmuller referred to Article 3 of the Convention and stated:
… it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[3]
[2] [2020] FCCA 1083
[3] At [19]
Judge Riethmuller states that whether the Convention must be considered in circumstances where a ministerial instruction does not apply did not need to be addressed in the judgement. This was because the delegate proceeded on the basis that the Convention applied, and the Tribunal did not identify to the applicant that it intended to approach the case differently.
Judge Riethmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s best interests.[4] Judge Riethmuller states that:
… by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[5]
[4] At [24]
[5] At [25]
It was submitted that the Tribunal was required to treat the best interest of the child as the primary consideration, and cited DQX16 v Minister,[6] (DQX)and Promsopa v Minister[7] (Promsopa) in support of this contention.
[6] [2020] FCA 1184
[7] [2020] FCA 1480
In citing DQX, the paragraphs referred to in the submissions cite the arguments of the applicant, and not necessarily the conclusion of Justice Stewart. Justice Stewart stated the question is whether the Tribunal had regard to the best interests of the child in that case[8], and that the process required is “weighing the importance of the needs of the children against the appellants’ non-compliance with the Act to see if one “outweighed” the other.”[9] It requires a decision maker to give notice if it is intended to act inconsistently with the Convention.[10]
[8] At [54]
[9] ibid
[10] [34]
In Promsopa, Chief Justice Allsop concurred with the reasoning in DXQ, and said in that case the Tribunal had failed to give proper, genuine and realistic consideration to the best interests of the child.[11] Neither cases state that the best interest of the child must always outweigh all other considerations as suggested in the submissions.
[11] At [60]
Ms Rimal was advised that in the circumstances of this case, the Tribunal may not regard the best interests of Pravasi and Pristha to be the primary consideration when weighed against other factors the Tribunal is required to consider.
In submissions in response to the s 107 notice, it was claimed the Australian government should protect the right and interest of any child, and that it is the right and interest of Ms Rimal’s children not to have a history of visa cancellation. It is claimed Australia has an obligation as to right to education and career and freedom of choice to study. It is claimed that there is an obligation on the government not to deport the children to a country with a “lower disregard of the rule of law and basis (sic) human and children right”. The Tribunal rejects the contention that there is a right for the children not to have a history of a visa cancellation, or a right to by educated and to have a career in Australia.
A decision on this matter was deferred to allow Ms Rimal to provide a report on the mental health of the children. A report was provided from a Mental Health Social Worker dated 8 March 2023 addressing questions asked by the representative. The children and Mrs Rimal started seeing the social worker on 11 October 2022. The social worker explains she did not have the qualification to provide a diagnosis and was not aware of any formal diagnoses for the children.
The social worker reports that if returned to Nepal both children would likely experience an escalation of their mental health symptoms and emotional dysregulation. Both children reported high stress levels, increased anxiety and sleep issues following the cancellation of their visas. Pravasi reported bullying at school had led to self-harming behaviour in the past. It is reported that if they return to Nepal they will face increased difficulties regulating their emotions and behaviour. The challenges of adapting to a life in a new country would intensify feelings of anxiety and depression. It is reported there is a serious risk that Pravasi will self-harm given her history of self-harm.
The social worker reports on language barriers and difficulty interacting with their peers due to cultural differences. She reports on the detriment to their mental health and the benefit if they remain in Australia. She comments, without reference to a source for her information, about health services available in Nepal.
A letter from Pravasi’s general Practitioner dated 14 March 2023 was provided stating he had decided to add pharmacotherapy in addition to the sessions with the social worker and a copy of prescriptions for an anti-depressant and melatonin were attached.
The Department of Foreign Affairs and Trade[12] acknowledge that women and girls in Nepal regardless of economic, caste or race status are vulnerable to violence including rape, sexual abuse and human trafficking. It is reported women and girls have limited resources and opportunities to pursue a career that supports them financially or affords independence. The Tribunal finds that if returned to Nepal there may be an increased risk of sexual violence and lesser opportunities to be financially independent for the children.
[12] DFAT Country Information Report Nepal, 1 March 2019
The Tribunal that given the young age of the children when they arrived in Australia, the mental health of Pravasi and the pursuit of their education, health and other various interests in Australia, that it would be in their best interests continue to live in Australia.
The Tribunal accepts the bests interest of the children are a primary consideration in this case, but not the only primary consideration as it must be weighed against other factors, in particular in this case the serious defalcations in the non-compliance by Ms Rimal.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations
If a visa is cancelled, the visa applicants are liable to detention and to deportation. While they can test their eligibility for a protection visa if they contend that their removal from Australia will breach Australia’s non-refoulement obligations,[13] they have not had protection findings made and do not attract the operation of s 197C and 197D of the Act.
[13] COT15 v MIBP (No 1) [2015] FCAFC 190
The submissions in this case do not claim that removal of the family would be in breach of Australia’s non-refoulement obligations but make detailed submissions about the conditions for women and girls in Nepal in relation to the best interests of the children.
The Tribunal has separately considered potential hardship that may result to Ms Rimal and her family members if they return to Nepal below.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
If Ms Rimal’s visa is cancelled, she will become an unlawful non-citizen unless she can apply for another visa. As her visa was cancelled, there are limited other visas for which she may apply (s 48 of the Act).
The types of vias for which Ms Rimal can apply within Australia include a protection visa (r. 2.12 of the Regulations).
If Ms Rimal does not apply for another visa and becomes an unlawful non-citizen, she is liable to be detained under s 198 of the Act and removed from Australia under s 197 of the Act.

100. If Ms Rimal applies for other visas from Nepal, she will be subject to Public Interest Criterion 4013. This requires a period of three years to have passed since her visa was cancelled unless there are compelling or compassionate circumstances affecting an Australian citizen, Australian resident or eligible New Zealand citizen that justify the grant of the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
101. In submissions to the Department, it is claimed that cancelling visa will “trash not just the client education, work career and her future, it will be devastating to other family members too in particular her daughters who has planned for their own future”. It is claimed it will bring undue hardship to her, her husband, her daughters as well as her extended family, friends and clients. It would waste her time and effort in Australia while “trashing” her daughter’s years of education in Australia. It is claimed there will be hardship for any further visa anywhere in developed countries for the family including their daughters. It is claimed this will create stress between Ms Rimal and her husband and possibly end their relationship “which normally happens with such an event”.
102. While re-establishing herself and dealing with the reactions of her family will cause Ms Rimal financial, emotional and psychological hardship. The Tribunal does not consider these to be severe hardship.
Mr Pramosh Rimal
103. Mr Rimal gave evidence and said that he was no concerned about himself but was concerned about his daughters. He said whatever he earns here he has invested here, and they have no property in Nepal, and do not have social or other support.
104. The family can sell their property in Australia and re-establish themselves, as they did when they returned from the United Kingdom. They do have some family remaining in Nepal, and while it will cause Mr Rimal some hardship, it does not consider this will be serious hardship.
Hardship to the children
105. Pristha has been in Australia since she was 4 years of age and is now 17 years old. Pravasi arrived in Australia when she was 2 years old and is now 15 years of age.
106. It is claimed the children will have difficulty establishing themselves in Nepal as they are familiar with the Australian way of life, culture and community. They will have a language barrier on return to Nepal and do not know how to behave in Nepalese society. They have lived in 5 addresses in three states and are now settling into their final home.
107. The children have parents whose first language is Nepalese, and the Tribunal finds that they would understand and be able to communicate in some Nepalese but would require a period of adjustment to become fluent in Nepalese and to undertake their education in Nepalese. They have participated in Nepalese community events, and have a familiarity with Nepalese culture, however have lived the majority of their lives in Australia and returning to Nepal will present cultural challenges.
108. It is claimed the children have an attachment to their parents, the cat and the broader community of friends and the community. It is claimed there is a lower standard of living in Nepal, and in Australia there is free-flowing drinking water, no electricity blackouts, good roads and shopping and traffic rules. It is stated the country to which they will return where bribery is required even for small official work, queueing is not followed, cars wait in zebra crossing and traffic lights are not followed. It is claimed her daughters will not be able to adapt to this way of life, and They will be unable to continue or complete their studies. They have progressed well in school in Australia and the younger child is involved in the community in netball and dance.
109. Pristha has applied for admission in the Australian Science and Mathematics School
110. It is claimed her daughters will have difficulty establishing themselves in Nepal as they are familiar with the Australian way of life, culture and community. They will have a language barrier on return to Nepal and do not now how to behave in Nepalese society. They have lived in 5 addresses in three states and are now settling into their final home.
111. It is claimed the younger child is seeing a psychologist and counselling for attempted self-harm following bullying. A letter from Headspace Marion dated 20 May 2021 to Pravasi was provide saying her file had been closed. A statement was provided from Pravasi as well as her school reports.
112. Both Pristha and Pravasi were provided the opportunity to address the Tribunal.
113. Pristha provide statements and gave oral evidence. She told the Tribunal she has been in Australia since she was 3 years old and is currently 17 years old. She started her education in Australia and wants to study interior architecture. Pristha said she would have difficulty with the language if she returned to Nepal and is concerned about her health. Pristha said she had been sick when in Nepal with viral infections and ear infections and has had typhoid. She is concerned about the prospects for her education if returned to Nepal
114. Pristha said she did go to events at the Nepali Association and is aware of the culture but is not involved to a large degree. Pristha said the language they use at home is English but her parents speak in Nepalese.
115. Pristha has been to Nepal multiple times since arriving in Australia and said it wa good to be with her family but difficult to connect with her cousins due as she says she did not understand what they were saying.
116. Pristha said she is anxious about having to start again at a grown up age. She said it will be hard to meet their daily needs or have a fluent conversation in Nepalese. She said she can understand Nepalese, but not fluently, speaks little Nepalese and cannot read or write in Nepalese.
Miss Pravasi Rimal
117. Pravasi is now 15 years old and was born in Nepal. She came to Australia when she as 2 years old.
118. Pravasi said her mental health has a major impact on her and she has had panic attacks and has had self-harming thoughts. She said she is currently having panic attacks once a week. She previously self-harmed in 2020 but overcame this with the assistance of a therapist who she saw for 6 – 8 weeks and with the transition to high school as their was no-one who attended from her primary school.

119. Pravasi said she sees a psychiatrist fortnightly and commenced this in mid-November.
120. She said she does not know much Nepalese other than the basics such as greetings. She said she does not know the culture in Nepal.
121. The Tribunal considers the cancellation of the visa will cause significant psychological and emotional hardship to the children.
Other Matters
Business
122. Ms Rimal and Mr Rimal operated a restaurant in South Australia “Momo n More Pty Ltd”. This business was sold in 2020 after cashflow issues due to COVID 19.
123. Ms Rimal owns a barber shop and has a company “The Scissors Barber Shop Pty Ltd”. She is proud to be what she said was the first professional barber in the Nepalese community, and a woman working as a barber.
124. It is claims they have employed others in their businesses., and the barber shop is looking to employ. They plan to open another restaurant or barber shop in the future. She provided advertisements for a barber for her business.
125. Ms Rimal provided certificate for the courses she has completed, which include a Certificate III in Business, Diploma of Hairdressing Salon management, Certificate IV in Hairdressing. She provided an Equifax credit score showing no adverse information, and a mortgage of $427,181.
126. Ms Rimal provided a letter from her accountant stating Ms Rimal and Mr Rimal are wonderful to work with and have strong business acumen and a willingness and plans to grow further.
127. Ms Rimal operates a successful barber shop using the trade she studied in Australia.
Property
128. Ms Rimal and Mr Rimal own a house, a pet, and other assets including a business in their name. They also provided information to show they own a car.
129. While this does show they are settled in the community, the Tribunal considers they can can sell these assets to asset in re-establishing themselves in Nepal.
Citizenship application
130. It is reported by the Department that Ms Rimal also provided false information on her application for Australian Citizenship. It is submitted by Ms Rimal that this should not be taken into account. The Tribunal does not agree, and finds this is a factor both individually and cumulatively with the false information provide on her other visa applications that weighs in favour of cancelling her visa.
CONCLUSION
131. This is a difficult matter. Ms Rimal has repeatedly been untruthful in many visa applications over a very lengthy period of time. She was also untruthful in her application for Australian citizenship. No documentary evidence has been provided of the reason she was removed form the United Kingdom.
132. However, in the time she has been in Australia she has complied with the requirements of her visa. She has studied in her trade and operates a successful barber shop. She has two children who have spent the majority of their lives in Australia. They have provided police clearances showing no other obvious character concerns.
133. In the circumstances of this particular case, the best interests of her children and the time her children have spent in Australia during their formative years marginally outweighs the very serious and repeated untruthfulness about being deported form the United Kingdom, and as a result the Tribunal concludes the vias should not be cancelled.
DECISION
134. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 887 (Skilled - Regional) visa.
135. The Tribunal has no jurisdiction with respect to the other applicants.
Kate Millar
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.