Singh (Migration)

[2018] AATA 4839

Singh (Migration) [2018] AATA 4839 (4 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpartap Singh

CASE NUMBER:  1810217

DIBP REFERENCE(S):  BCC2017/2653996

MEMBER:Wan Shum

DATE:4 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 04 October 2018 at 11:22am

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) visa – dependent on wife’s visa – bogus documentation – two identities – period as an unlawful citizen – abuse of system through making false claims – hardship – separation from wife if visa cancelled – poor career opportunities – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41 Schedule 4 PIC 4014, 4020

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 to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached s.101(b) as he did not declare that he had previously been excluded from Australia and overstayed a visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 18 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Parneet Kaur, the applicant’s wife. 

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

   BACKGROUND

5. The applicant entered Australia the first time as the holder of a student visa in 2009 as Mr Gurpreet Singh with date of birth 22 April 1987. That visa was granted as the dependent of Karandeep Kaur on the basis of their marriage. He applied for his own student visa on 22 July 2011, which was refused and he then applied for review of that refusal to the Migration Review Tribunal. That decision was affirmed by the Tribunal (differently constituted) on 14 February 2014. He then applied for a partner visa on 11 March 2014 on the basis of his marriage to Ms Christiane Marie Cruikshanks. He was granted a BVC two months after the application was made and, when that was refused by a departmental officer, he sought review of that decision to the MRT. The Tribunal (differently constituted) affirmed the decision on 25 January 2016. He then applied for Ministerial Intervention on 23 February 2016 and was granted a BVE on 4 March 2016 which was due to cease on 8 June 2016. The Minister decided not to intervene, and the applicant departed Australia voluntarily on 15 May 2016. While offshore, the applicant then applied for, and was granted, a Subclass 457 visa in the name of Mr Gurpartap Singh, date of birth 4 August 1990, as a dependent of Ms Parneet Kaur in 2017, who he had married on 17 October 2016. He re-entered Australia on 4 May 2017 holding a passport in the second identity. According to information obtained by Immigration, it appears that his second identity is genuine, and not the first.

6. The applicant attended a customer service centre of the Queensland Department of Transport and Main Roads in July 2017 to obtain a driving licence. The applicant’s image was found to be similar to an earlier record of Mr Gurpreet Singh with date of birth 22 April 1987.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The delegate considered that, when completing the visa application form, the applicant had breached s.101(b) as he did not declare that he had previously been excluded from Australia and overstayed a visa under the name of Gurpreet Singh. The delegate sent the applicant a notice of intention to consider cancellation (NOICC) of his visa setting out the alleged breaches.

8. In response, he claimed that he had not answered the questions incorrectly as he believed the questions as to whether “any applicant” had overstayed or been deported/removed/excluded were relevant only to the present application, and not the identity he had previously entered and stayed in Australia. In the written response to the NOICC, it was noted that the Subclass 457 form did not ask whether the applicant had been known by any other names, and it was submitted that in these circumstances it was not clear that he had provided an incorrect answer.

9. On review, the applicant claims that he had never been removed/deported/excluded, and that he was not aware that he had overstayed his visa because he had applied (or tried to apply) for the BVs within the 28 day period of the decisions being made on his student visa application and his spouse visa application. He told the Tribunal that following the review of the partner visa, he had signed all the documents and his migration agent had said that he would sent it to the Minister to seek Ministerial intervention. After 3 days, he called and told him that he had overstayed. But in his view, he had not overstayed because he was then granted a BVE with permission to work. This is why he stated “no” on the form. He further stated that he left before the BVE was due to cease, and was not removed from Australia. The Tribunal referred to the response given to the NOICC by his then migration agent, specifically that the responses were not incorrect as the previous entry and stay in Australia were in his first identity and not his real identity, and there was no question on that form about any other names the person applying for the visa had been known by. The applicant agreed with that submission that he did not answer the questions incorrectly in relation to his real identity.

10. As to the matter of having entered Australia on passports in two different identities, the applicant gave his account of why this had happened. The applicant said that he had grown up thinking he was Gurpreet Singh. It was not until he went to renew his passport in 2016 that he came to know that this was not his true identity. The applicant claimed that he was asked for an Aadhaar card, or identity card, by the authorities, but in order to get an Aadhaar card he needed to provide a birth certificate. However, he could not find a birth certificate in the name of Gurpreet Singh. The applicant spoke to the village head who gave him a number, and he went to the place where they kept birth records. He eventually located the birth certificate in the name of Gurpartap Singh, which had the same address and his father and mother’s names. As to why he had not known his real name until 2016, he claimed that his parents had wanted to put him into school earlier and they also used a different name. He genuinely did not know that this was not his true identity; he had always been known by his nickname of “Preet”. While nothing has been provided to corroborate these claims, the Tribunal acknowledges that a birth certificate for the identity of Gurpreet Singh could not be located when checks were undertaken by the department. On the other hand, departmental checks with Indian authorities confirmed that the birth certificate in the name of Gurpartap Singh was genuine. It thus appears that the first identity under which he entered Australia in 2011 and remained until 2016 is not the applicant’s true identity.

    The law

11. 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.

12. 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. Extracts of the Act relevant to this case are attached to this decision.

13. 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?

14. 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 in the following respects: the applicant answered “no” to the question whether he had been deported/removed/excluded from any country (including Australia); and answered “no” to the question whether he had ever been unlawful.

15. In terms of the exclusion period, the delegate considered that the applicant was excluded from Australia because of PIC 4014.

16. The applicant disputed that he had ever been deported/removed or excluded. The applicant said that he had left voluntarily within the period of validity of his Bridging Visa E. He forwarded a copy of an email he sent to Immigration on 14 May 2016 to advise that he was departing the country and movement records confirm that he departed on 15 May 2016. The Tribunal accepts that he was not deported or removed from Australia. As to whether he was excluded, PIC 4014 identifies ‘risk factors’ which includes the situation where a person departed Australia as the holder of a Bridging Visa E which was not granted within 28 days of holding a substantive visa. A person affected by this ‘risk factor’ will not meet the relevant visa criteria within 3 years of their departure, unless there are compelling or compassionate circumstances. In the Tribunal’s view, there is some uncertainty as to whether the applicant could be said to be excluded from Australia, as it is possible that if there were circumstances that were found to be compelling or compassionate, he may have been granted the Subclass 457 visa even though he was affected by a risk factor. The terms of PIC 4014 are such that it is arguably not strictly an exclusion from Australia.

17. However, the Tribunal has not reached a concluded view on this point as it is clear that he had provided incorrect information in respect of a period of unlawfulness during his stay in Australia under the first identity. The specified period identified by the delegate was a period of 9 days from 22 February 2016, when his BVC ceased, until he was granted a BVE on 4 March 2016. The delegate only identified the applicant having overstayed the BVC as a particular of possible non-compliance in the s.107 Notice, and not any other visas.

18. The applicant submitted that he did not realise he was unlawful because he had made the application for the BVE before his BVC ceased. He had relied on a migration agent to submit the documents for him, but for whatever reason the documents were not received until later. The Tribunal requested a copy of the Bridging Visa E application form from the department. This indicates that the applicant signed and dated the form on 19 February 2016, and that it was received by Immigration on 23 February 2016. While it appears to the Tribunal that the applicant had attempted to apply for the BVE prior to his BVC ceasing, the fact is that he was not granted the BVE until 9 days later. It is likely that he would have been granted the BVE if it was processed at the time it was received because of his Ministerial Intervention request. However, a BVE is not granted upon the application being lodged, but only after it has been considered by a delegate of the Minister.

19. The applicant was thus unlawful for the period between when his BVC ceased and his BVE was granted. This is regardless of whether he knew that to be the case.

20. The Tribunal further notes that he was unlawful for a period of two months in between his BVA ceasing on 25 March 2014 and his BVC being granted on 28 May 2014. The applicant claimed in relation to this period that he was not aware that he was unlawful as he had taken all steps necessary to ensure he remained lawful by applying for the partner visa prior to his BVA ceasing. Based on the information before it, the Tribunal accepts that the applicant had made the partner visa application on 11 March 2014 prior to his BVA ceasing. It notes the BVC was not granted until 28 May 2014, which appears to be when the bar for lodging visa applications onshore was considered. In any case, this period was not referred to in the s.107 notice.

21. In respect of the claim that these periods of unlawfulness were in his first identity, and not his real identity so that, in any case, he did not answer the questions incorrectly in relation to his real identity, the Tribunal does not accept this argument. It considers the references to “any applicant” on the visa application form refers to the person applying for the visa, and not to the specific identity used, such that the responses should be correct for all identities of that person.

22. While the Tribunal accepts that the applicant did take steps to ensure that he remained lawful throughout his stay in Australia under the first identity, he was in fact unlawful for the period from 23 February 2016 until 4 March 2016. The applicant claims that he did not know he was unlawful as he was granted a BVE with permission to work when he was interviewed by an officer of the department. The Tribunal has considered his claim to have not known but does not accept that he did not know he was unlawful, as it was his own evidence that he had been informed that he was unlawful around the time the Ministerial Intervention request was made. In any case, pursuant to s.100, an answer is incorrect even if the person who gave or provided the answer, or caused the answer to be given or provided, did not know it was incorrect. The question on the form is whether any applicant for the visa had been unlawful, and not in respect of a particular identity. Given the responses to these questions would be relevant considerations in deciding whether to refuse or grant the visa sought, the Tribunal does not consider that he answered the question correctly. The Tribunal finds that the applicant gave incorrect information by failing to indicate that he had been unlawful in a country, including Australia, for a period of 9 days.

23. For these reasons, 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?

24. 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).

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

26. The applicant’s response and relevant matters have been considered below.

    The correct information                

27. The correct information is that the applicant had been known by a different name and used a different identity to travel to, and stay in, Australia between 2011 and 2016. The correct information is that he was unlawful for two periods during this stay, for two months in between his BVA ceasing on 25 March 2014 and his BVC being granted on 28 May 2014, and then from 22 February 2016 until 4 March 2016. The applicant did not disclose this information when applying for the Subclass 457 visa as a dependent on his wife. It was submitted that there did not appear to be any intention to withhold this information because there is no specific question in the Subclass 457 visa application form itself requesting details of other names the person has been known by. While the Tribunal acknowledges that there is no specific question in the Subclass 457 visa application form itself requesting details of other names the person has been known by, the applicant had also completed and submitted Form 1221 ‘Additional personal particulars information’ which he signed and dated on 27 February 2017 as part of the Subclass 457 visa application. On this form he left blank the question “Other names you are, or have been, known by”. When the applicant was shown the Form 1221, he confirmed that he had signed it but could not explain why his first identity of Gurpreet Singh had not been given.

28. Given that the applicant did not provide details of his other name when there was an opportunity to do so on the Form 1221, the Tribunal does not accept his claim that there was no intention to withhold the information.

    The content of the genuine document (if any)

29. This is not relevant in this case.

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

30. There are various criteria relevant to the grant of the visa that rely on the person’s identity and immigration history. Identity is relevant to PIC 4020(2A) and if the delegate was aware that the applicant had been known by a different name, the officer would have needed to make an assessment as to the real identity of the applicant. PIC 4014 operates to prevent the grant of a visa to persons affected by the identified risk factors within 3 years of their departure from Australia, unless there are compelling or compassionate circumstances that exist. Given that he was affected by a risk factor when he applied for the Subclass 457 visa while offshore, the visa would not have been granted unless an assessment had been made by the delegate that there were circumstances which were considered to be compelling or compassionate. No such assessment was made at the time as the applicant did not advise that he had previously entered Australia on another identity and been unlawful. The Tribunal finds that the decision to grant the visas to the applicant was based, wholly or partly, on incorrect information.

    The circumstances in which the non-compliance occurred

31. The applicant claimed in his response to the NOICC that he had not given an incorrect answer as he had not been unlawful or excluded from Australia in his real identity. The applicant denied any non-compliance in these circumstances. As noted above, the Tribunal does not accept there was not any intention to withhold the information given its relevance to a decision whether or not to grant the visa.

32. There were two periods of unlawfulness during the applicant’s first stay in Australia under the name of Gurpreet Singh. The first period was for two months in between his BVA ceasing on 25 March 2014 and his BVC being granted on 28 May 2014, and then from 22 February 2016 until 4 March 2016.

33. He had first entered Australia in 2011 as the holder of a student visa granted on the basis that he was the spouse of another person. They apparently divorced within a year. The applicant tried to obtain a student visa in his own name but that was not successful. The applicant’s own evidence is that after being refused a student visa, he was feeling depressed and sitting with some friends at a cafe. A friend of a friend, Christena Jane Marie Cruikshanks, offered to help him to obtain a visa to stay in Australia by claiming to be in a spouse relationship together. The applicant admitted to the Tribunal that they were not in a relationship at the time the application was made. The applicant said that when the spouse visa was refused and he sought review of that decision, the sponsor had initially told him she would come to the hearing but then she did not. While the applicant claimed that they had lived together and he thought it might work, the Tribunal has significant doubts about this noting that he admitted that he would not have married her and did not really think it through. The applicant denied paying Ms Cruikshanks to sponsor him, but told the Tribunal that she did ask for money later on, for $200 or $500 each month. The Tribunal considers that the applicant entered into a contrived marriage for migration purposes, and then attempted to prolong his stay by applying for review and Ministerial intervention when his claims to be in a spousal relationship with the sponsor were not genuine.

1. The applicant also referred to having relied on migration agents over the years for assistance including when he made the Ministerial Intervention request and related BVE application. In terms of the period when he was unlawful after his BVC ceased and his BVE was granted, he said that was due to his BVE application being lodged late by the agent. The Tribunal has considered this claim, and accepts that he did sign the application form on 19 February 2018. It has taken into account that he has attempted to remain lawful by lodging further applications to remain onshore. However, it has also taken into account that the applicant had entered into a contrived marriage in an attempt to remain in Australia. He took the entire process through to seeking Ministerial Intervention, which he essentially said was for some more time to figure things out. While the applicant said he did not mean to cheat or hide, he also made it clear throughout the hearing that he wanted to stay in Australia and that there was nothing for him in India. The Tribunal considers that he has abused the immigration system by making false spouse claims and using the review process and Ministerial Intervention requests to prolong his stay.

   The present circumstances of the visa holder

2. The applicant has lived in Australia for a total of 7 years and is currently working as a disability support worker with Beyond Care. The applicant’s current wife lives with him in Australia, and she is working as a community worker, having been granted a Subclass 457 visa on that basis which is to expire in 2020. The Tribunal accepts that the parties are employed and live together. 

3. The applicant and his wife said that it is extremely hard for them in India even though it is their home country. The applicant’s wife said that she had worked hard in Australia since 2014 to pursue her dreams, and they want to stay here together.

4. The applicant’s employer has written a letter stating that he is a great asset to their organisation and losing such a great worker will be a big loss for the organisation. The Tribunal accepts this evidence, and has taken this into account as a reason for not cancelling the 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

5. In his response to the NOICC the applicant admitted to having used another name to enter Australia. However, he denied giving incorrect information on the main Subclass 457 visa application form in relation to having previously entered Australia and overstayed his visa in another identity, essentially because there was no question on that form regarding other names. The Tribunal notes however that the applicant also did not give details of his other identity on Form 1221 which was also part of the 457 application. The applicant was unable to explain to the Tribunal why he had not.

6. The applicant also claimed that he was not attempting to cheat or hide, and said that if he had that intention, he would not have made an application for a licence. The Tribunal does not accept that approaching the Queensland Transport and Main Roads Authority for a drivers’ licence is an indication that he did not mean to hide his previous identity from Immigration. It is not apparent to the Tribunal that he was aware that his images would be matched. It considers the failure to provide previous names that he had been known by in connection with his Subclass 457 application strongly suggests otherwise.

7. Given his desire to return to Australia, another motivation for his failure to disclose prior periods of unlawfulness and his previous entry under a different identity was the potential impact on whether he would be granted a further visa. Even if the Tribunal was to accept that there was a misunderstanding as to who was meant by ‘applicant’ in respect of the main Subclass 457 application form or that he did not know he was unlawful, it has formed the view that the applicant did not disclose his first identity to Immigration to avoid any consideration of his previous migration history and to maximise his chances of obtaining the Subclass 457 visa to return to Australia.

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

8. The applicant had also completed and submitted Form 1221 ‘Additional personal particulars information’ which he signed and dated on 27 February 2017 as part of the Subclass 457 visa application. On this form he left blank the question “Other names you are, or have been, known by”. The applicant agreed that he had signed this form but did not explain why his first identity was not given. He has thus answered that question incorrectly.

9. The applicant had also been unlawful for a period of two months following the cessation of his BVA and the grant of his BVC. There were thus two periods of unlawfulness which the decision maker was not aware of when assessing his application for the Subclass 457 visa. The Tribunal acknowledges that he attempted to make applications within the period of validity of the bridging visa A and C; however, the associated applications for substantive visas were without merit as both were refused by Immigration and then affirmed by the Tribunal (differently constituted).

   The time that has elapsed since the non-compliance

10. The applicant made the application for the Subclass 457 visa in December 2016. Less than two years have passed since the non-compliance. The applicant re-entered Australia in May 2017 under his real identity, and has remained here since that time. The Tribunal considers that the non-compliance was relatively recent.

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

11. The applicant claims to have no criminal record, and there is no evidence before the Tribunal that the applicant has been charged with, or convicted of, any offences.

12. There does not appear to be any breaches of the law since the non-compliance.

    Any contribution made by the holder to the community

13. The applicant states that he works as a disability worker. The Tribunal accepts that evidence but notes that this is his paid employment. He said he is trying to be a good citizen and has been generous, and is trying to live a peaceful life with his wife.

    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

14. In terms of mandatory legal consequences, if the applicant’s visa remains cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen. If he fails to depart Australia before the bridging visa expires, he may be detained and removed. There may be restrictions on the applicants’ future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

    Whether there would be consequential cancellations under s.140

15. The applicant’s visa was granted as a dependent on his wife’s. As such, there would be no consequential cancellations.

    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.   

16. There is no evidence, and the applicant does not claim, that Australia has protection obligations towards him. The Tribunal is also mindful that the applicant is able to make an application for a protection visa if he believes Australia owes him 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 these claims of harm being canvassed in a protection visa application.

17. There are currently no children of the marriage. There do not appear to be any international obligations which 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.  The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached if the visa is cancelled.

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

18. The applicant refers to the length of time he has spent in Australia (under both identities), that he lives with his wife here and the fact that he works as a disability support worker. The Tribunal accepts that evidence. The applicant states that there is nothing for him in India; how he was unable to find a job and the difficulties of starting again as a 30 year old with a new identity.

19. When asked about family and friends in India, the applicant said that a lot of his friends had married and were no longer living there. He advised that his parents live in the village, and he has two sisters who live in India but they are not close by. He also has 3 sisters that live overseas; one of them spends half a year in Dubai and the other half in India. The applicant does not appear to have any family in Australia other than his wife. While the applicant’s response to the NOICC included reference to the parties having many friends in Australia, the applicant’s wife said she did not make friends easily which is why it was so hard when he was back in India. The applicant had referred to some friends that had taken advantage of him previously, including someone he had lent money to who had lied to him about why he needed the money and had not paid him back. The Tribunal does not accept that the parties’ have many friends in Australia and that theses friendships are reasons for not cancelling the visa.

20. In her written statement, the applicant’s wife said that she does not know what they will do if the applicant’s visa is cancelled. She wants to remain in Australia and hopes to become a permanent resident. She referred to it not being easy for a woman in India, with less career opportunities and a lot more social and cultural expectations. She added that their past separation was very hard for both of them and how important the applicant is to her. She wrote that they want to stay together, preferably in Australia. The applicant claimed that it was difficult for him to get work or to even undertake study in India, because all his school certificates were under the first identity. He was not able to get an Aadhaar card under that identity because there was no birth certificate and an Aadhaar card was necessary for various things including obtaining a passport. But he did not have any evidence of his education under his real identity because it was all completed under the first identity. If he was to return now, he has nothing as he would not be able to work in the same field he is working in Australia as there are no nursing homes there. He said school certificates were needed to obtain work in India and that they were all in his first identity. While the Tribunal accepts that the applicant’s Indian school certificates are in the name of Gurpreet Singh, the Tribunal notes that he has obtained a Certificate III qualification in September 2017 in Australia under his real identity. In any case, the Tribunal is of the view that the applicant would be able to explain the use of two identities if required to prospective employers or education institutions in India as he has done to the Tribunal.

21. The applicant and his wife had talked about her parents not accepting their marriage; however, they also referred to her parents’ recently being granted visitor visas to visit them in Australia so that they could show them what their lives are like here. The parties had explained that her parents had not accepted the marriage because her mother was from the same village as his family. On the applicant’s wife’s side, it was her aunt that was supportive of the marriage; her father had wanted to come to the wedding but did not because of her mother. She thus does have some family support in India from her aunt, and given that her parents were preparing to travel to Australia, the Tribunal considers that this shows a willingness to now accept the applicant as their daughter’s husband.

22. The Tribunal has considered the hardship which may be caused to himself and his wife, who has asked that his visa not be cancelled so that they can remain together in Australia. The applicant’s wife said she wishes to remain with the applicant, and given this, she may have to make a difficult decision as to what she will do given her strong preference to remain here. It notes that she has been in Australia for less than 5 years and that, while she has plans to apply for a permanent visa, whether she would be granted the visa is dependent on her ability to meet the criteria which has not been assessed. The Tribunal accepts that they rely on each other emotionally and it also accepts that their lives will be disrupted if his visa remains cancelled. The Tribunal is prepared to accept that the applicant, and his wife if she were to leave Australia with him, may face difficulties in adjusting to life in India, even though it is their home country and they have family in India. While job opportunities and career prospects may be different in India compared to Australia, the Tribunal does not accept that there is any real issue as to obtaining paid employment given that both parties are educated, hold Australian qualifications and have work experience. In addition, the Tribunal considers that they will have some level of family support during the adjustment period. The Tribunal accepts that the applicant’s wife may find it difficult to return to live in India, but it has also taken into account that the visa she holds to stay in Australia is a temporary one. Taking into account all of the matters raised, the Tribunal accepts that the cancellation of the visa could cause hardship to them as a couple in that neither wish to return to India on a permanent basis; and they may need to consider living apart for a period of time.

    Summary

23. The Tribunal has formed the view that there was a breach of s.101 of the Act in the way described in the NOICC and that there are grounds for cancelling the visa. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has taken into account that there are reasons why the visas should not be cancelled, which includes the applicant’s life in Australia with his wife and the hardship they may face. The Tribunal accepts that the applicant’s wife is understandably concerned about the possibility of the applicant leaving Australia and/or both of them having to return to India. The Tribunal accepts that the cancellation of the visa would cause a degree of hardship to the parties.

24. Against these considerations, the Tribunal places significant weight on the fact that the applicant had made a number of applications to remain in Australia that were without merit, including a partner visa that was contrived in that he was not in a genuine spouse relationship with the sponsor. He proceeded to maintain this false claim for a period of over two years, while he sought merits review and Ministerial Intervention. In regards to the identified breach, the Tribunal has considered whether the applicant was aware that he was unlawful and has taken into account that he had attempted to remain lawful throughout his stay under the first identity by taking steps to apply for visas and related applications. However, for the reasons given above, it does not accept that he did not know he was unlawful. The Tribunal has concluded that the applicant had made a deliberate decision to omit details of his previous identity and migration history in order to maximise his chances of obtaining the Subclass 457 visa to return to Australia.

25. The significance of the breach in withholding relevant information and his history of attempting to remain in Australia based on false claims outweigh, in the Tribunal’s view, such considerations.

26. 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

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Wan Shum
    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.