Singh (Migration)

[2018] AATA 2473

Singh (Migration) [2018] AATA 2473 (23 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandeep Singh
Mrs Harvinder Kaur
Miss Riya Kaur

CASE NUMBER:  1703669

DIBP REFERENCE(S):  BCC2016/1804669

MEMBER:R. Skaros

DATE:23 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 -  Employer Nomination Scheme visa.

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

Statement made on 23 April 2018 at 3:39pm

CATCHWORDS
Migration – Cancellation – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination Scheme) – Incorrect information in application form – s. 107 notice validly issued – Whether there was non-compliance as described in the s. 107 notice – Where applicant has admitted to non-compliance as described – Whether the visa should be cancelled – Where grant of visas is based wholly or partly on incorrect information – Whether the applicant’s psychological state contributed to non-compliance – Psychological state insufficient to explain non-compliance – Where the applicant has failed to notify Department of incorrect information – Where cancellation would cause significant hardship to Australian citizens – Decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 101(b), 105, 107, 107A109, 189, 198, 375A
Migration Regulations 1994 (Cth), r 2.41, Schedule 3, Schedule 4, PIC 4001, 4014

CASES
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

   Background

2. The applicant was granted the Subclass 186 visa on 17 March 2016. Prior to this, he held a Temporary Work Subclass 457 visa which was granted on 18 December 2014 and a Tourist (Visitor) Subclass 651 visa on which he entered Australia on 16 July 2014.  The applicant is a citizen of the United Kingdom. He was born in India.

3. On 29 August 2016 the Department received information indicating that the applicant may have been identified through facial recognition technology as being the same person as Amandeep Singh Aujla (DOB: 9/01/1977). Departmental records indicate that Amandeep Singh Aujla (DOB: 9/01/1977) travelled to Australia in 1998 on a Student visa which ceased in 2000 and remained unlawful in Australia for 5 years and 4 months before departing in August 2005. 

4. Further investigations were undertaken by the Department, which included obtaining copies of the previous visa applications made by the applicant, the related identity and persons believed to be members of the applicant’s family. The Department also sought a facial comparison check from the Facial Image Comparison Unit. Upon comparing the various images received for the applicant and the related identity the Specialist concluded that in his opinion the facial images represent the same person.

5. On 6 January 2017 the Department issued a notice of intention to consider cancellation under s.109 of the Act (the notice). The delegate considered that the applicant did not comply with s.101(b) and set out the particulars of the possible non-compliance in the notice. The particulars included answers given on the application forms for the Visitor, Temporary Work and the Employer Nomination visas in relation to questions about whether the applicant is/has been known by any other name, previous applications for an Australian visa, whether he was excluded from any country including Australia and whether he had overstayed a visa in any country including Australia.

6. On 18 January 2018 the applicant provided a response to the notice in which he queried the information relied on by the delegate to conclude that he and Amandeep Singh Aujla (DOB: 9/01/1977) are the same person.  He stated that his birth certificate was issued on 30 December 1976 and indicates that his birth was registered 11 days after he was born. He stated that his year 10 certificate, which he used to obtain his Indian passport, shows his date of birth as 19/12/1976. His UK passport, which was issued on 15 April 2011 shows his date of birth as 19/12/1976. He claimed to have resided and worked in India between 1996 and 2005 before travelling to the UK and that when he subsequently applied for permanent residence in Canada his employment in India was verified. He claimed that he would not have been issued with a passport by the Indian authorities if his data matched that of a person by the name Amandeep Singh Aujla with the DOB 9/01/1977. He submitted that there were millions of people in India with the surname Singh and provided the historical context explaining why this was the case for Sikhs in India. He provided a number of articles sourced from the internet discussing the concerns of the facial recognition systems. 

7. On 7 February 2017 the delegate sought further information from the applicant, including, where he resided and worked between 2000 and 2005, a copy of his visa applications for the UK and Canada, contact number for his former spouse and biological daughter and information confirming if his parents are Santokh Singh and Raghbir Kaur and his siblings are Amanpreet Kaur and Gurpreet Singh and their contact numbers.

8. The applicant provided a number of documents including his birth certificate which was issued on 29 May 2014 indicating that his date of birth is 19 December 1976 and noting his father’s name as Santokh Singh and mother as Raghbir Kaur. Also provided was a provisional certificate issued by Bundelkhan University on 9 September 1998 indicating that the applicant’s name is Amandeep Singh Aujla and his father’s name as Santokh Singh Aujla. He provided evidence of the UK visa issued to him in 2005 which was applied for by his former spouse. He explained that his former spouse remarried in Canada and decided to relocate there with their daughter. His former spouse has custody of their daughter. He was granted a Canadian employment permit in January 2013. He provided copies of his Indian and UK passports which showed travel stamps dated 2 April 2000, and between 2006 and 2016. He provided an employment reference from H.M. Engineering in India stating that he worked there between February 2000 and November 2005. He did not provide details of his family members and claimed that he was orphaned as a child but grew up with the help of this family though they are not his biological parents or siblings. He did not provide the contact details of his former spouse and asked the delegate to reconsider that request as she was no longer his family member and he would have to speak to her first.  

9. In his responses to the Department the applicant provided a number of reasons for why his visa should not be cancelled, which included him being married to an Australian citizen and having a step-daughter for whom he has been providing emotional and financial support.

10. The delegate found that s.101(b) had been breached and after considering the matters in r.2.41 decided to cancel the visa.

    Review application

11. When applying for review of the decision the applicant provided a copy of the delegate’s decision record. The applicants were represented in relation to the review by their registered migration agent.

12. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The Tribunal notes that the applicant’s spouse and step-daughter were included in the application for review even though they are Australian citizens. Their immigration status has not been affected by the decision to cancel the applicant’s visa and it is not clear why the representative decided to include them in the application for review. The Tribunal has no jurisdiction with respect to the other applicants.

13. On 3 October 2017 the Tribunal invited the applicants to appear before it at a hearing on 24 October 2017. On 9 October 2017 the representative wrote to the Tribunal requesting access to the files held by the Tribunal. On 13 October 2017 the Tribunal received correspondence from the representative advising that they have received new instructions from the applicant which requires the applicant to obtain a psychological assessment. On this basis, a request was made for the hearing to be adjourned. The Tribunal agreed to adjourn the hearing and informed the applicant that the new hearing date would be 2 November 2017.

    s.375A certificate

14. On 27 October 2017 the Tribunal granted partial access to written material. The Department’s file included a non-disclosure certificate under s. 375A of the Act in respect of a number of folios. The identified folios in the Department’s file were not released to the applicant. The Tribunal subsequently observed that the s.375A non-disclosure certificate was issued only in respect of personal information and contact details of departmental officers. The Tribunal is satisfied that the certificate provided a valid reason for public interest immunity in respect of the information identified in the relevant folios. Accordingly, the Tribunal requested that the personal information and contact details of officers, which the Tribunal notes would have also been protected under privacy laws, be redacted and the relevant folios be provided to the applicant. At the hearing the Tribunal discussed with the applicant the relevant information that was in the folios. A copy of the redacted folios were provided to the applicant after the hearing and he was also given additional time to make submissions.

15. On 1 November 2017, the day prior to the hearing, the Tribunal received extensive submissions from the representative together with a number of supporting documents. The representative apologised for the delay in providing the information but noted that this was due to the applicant’s mental health complications which had hindered his ability to present for conference and to articulate himself. It was submitted that the applicant has been professionally diagnosed as suffering from major depressive and anxiety disorders. A request was made for the Tribunal to accommodate the applicant, given his disorders, at the hearing in the event he is hindered in articulating his evidence.

16. The submissions included a summary of the applicant’s personal and migration history as follows. The applicant, Amandeep Singh Aujla, was born on 19 December 1976 and adopted by a local family. On 6 March 1998 he was granted a Student visa as Amandeep Singh Aujla (DOB: 9/01/1977). He entered Australia on 31 March 1998 to undertake studies. Whilst in Australia, he struggled with the migration process, [various disorders] and depression. The student visa ceased on 17 April 2000. The applicant remained unlawful in Australia for 5 years and 4 months. He voluntarily departed Australia on 10 August 2005. In October 2005 he married a UK national and entered the UK in January 2006. In 2008 a daughter of that relationship was born. On 15 April 2011 the applicant was issued with a UK passport indicating his name Amandeep Singh (DOB: 19/12/1976). The applicant migrated to Canada in 2012 and his spouse and daughter followed soon after. In April 2014 the applicant and his former spouse separated. The applicant’s former spouse has full custody of their daughter. On 11 July 2014 the applicant applied for a visitor visa (Subclass 651) as Amandeep Singh (DOB: 19/12/1976), which was granted. On 24 July 2014 he entered Australia on that visa. A month later he met Ms Harvinder Kaur, his current spouse, who is an Australian citizen.  On 2 October 2014 he lodged an application for a subclass 457 visa as Amandeep Singh (DOB: 19/12/1976). On 18 December 2014 the 457 visa was granted. On 28 March 2015 the applicant marries Ms Kaur, who has a daughter (Riya) from a previous relationship. Riya, who has been living in India with her grandparents, returns to Australia and lives with the applicant and Ms Kaur. On 15 July 2015 the applicant lodged an Employer Nomination, Subclass 186, as Amandeep Singh (DOB: 19/12/1976) which was granted on 17 March 2016. It was explained that the applicant did not lodge a Partner visa because Ms Kaur had previously sponsored another person and he would have had to wait for three years to pass between the relevant permissions of the previous spouse sponsorship and the grant of a temporary partner visa to him.

17. It was submitted that in August 2016 the applicant was referred by his doctor to a psychologist under a mental health plan for management of depressed mood and severe stress after which he commenced therapy. It was submitted that the applicant returned to India in November 2016 to undertake some studies and that while he was there his friend arranged for him to consult a psychiatrist, whom he consulted with on a regular basis whilst in India, and he commenced taking antidepressant medication. In January 2017 the applicant received the notice of intention to consider cancellation and his visa was subsequently cancelled on 27 February 2017. The applicant and Ms Kaur became aware that they were expecting a child who was due to be born on 2 February 2018. It was submitted that the applicant suffers ongoing depression exasperated by the stress of the visa cancellation, the uncertainty of his future and the negative impact that his departure from Australia would have on his spouse, stepdaughter and child.

18. The representative conceded that, in light of the applicant’s admission that he is Amandeep Singh Aujla (DOB: 9/01/1977), the ground of cancellation exists. The explanations provided for why the applicant obtained travel documents in a different name and date of birth after returning to India in 2005 and why he did not declare his immigration history and that he had been known by another name, included the applicant’s psychological condition/disorder and his desire to distance himself from his past.

19. Detailed submissions were also made in relation to the discretion and the prescribed circumstances in r.2.41, which the Tribunal has had regard to further below. The documents received in support of the submissions included a clinical psychologist report for the applicant dated 16 October 2017 and related letters regarding his referral for a mental health assessment, Australian passports for the applicant’s spouse and step-daughter, statutory declaration from the applicant’s friend Vivek Singha and school reports for Riya.

20. The applicant appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Ms Harvinder Kaur. At the hearing, the Tribunal queried the applicant about his claim to have been adopted, which was referred to in the psychologist’s report as an explanation for why the applicant dropped the surname Aujla, as it was his adoptive parents’ family name. Although the applicant maintained that he was adopted, after the hearing he wrote to the Tribunal admitting that Santokh Singh and Raghbir Kaur are his biological parents and that Amanpreet Kaur and Gurpreet Singh are his biological siblings.

21. On 20 November 2017, the Tribunal received written submissions addressing some of the concerns raised at the hearing, together with statutory declarations from the applicant and his spouse and general articles about [a particular disorder], lying and depression.

22. On 30 January 2018, the representative advised the Tribunal that the applicant’s daughter was born on 22 January 2018. The Tribunal has since received the birth certificate for the child together with documents and photographs.

23. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. 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.

25. 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.

26. 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?

27. 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(b) in the following respects:

28. The notice sets out the particulars of the non-compliance which included answers that were given on the application forms for the Visitor (Subclass 651) visa lodged on 11 July 2014 in which the applicant indicated that he had not been known by any other names.  It also included answers on the Temporary Work (Subclass 457) visa application forms in which the applicant indicated that he had not left any country to avoid being deported, had not been excluded or asked to leave any country (including Australia) and had not previously applied for an Australian visa. The notice also set out the answers on the Employer Nomination (Subclass 186) visa in which the applicant indicated that he had not every been known by any other names, that he had not ever been removed, deported or excluded from any country (including Australia) and that he had not overstayed a visa in any country (including Australia).

29. The delegate considered the above responses to the questions in the visa applications forms to be incorrect as other evidence before the delegate indicated that the applicant has previously been known as Amandeep Singh Aujla (DOB: 9/01/1977) and that he had previously travelled to Australia on a Student visa and that after that visa ceased he remained unlawful in Australia for a period of 5 years and 4 months. The evidence before the delegate, as particularised in the notice, included information provided by the applicant on the form 80 ‘personal particulars for character assessment’ provided with his employer nomination visa application which included details of his parents and sister. In her application for a visa in 2002, the applicant’s sister, Amanpreet Kaur, provided an affidavit from her father, Mr Santokh Singh Aujla, whose first two names and date of birth are the same as the information in the applicant’s form 80. The delegate also noted that the applicant’s sister, in her visa application, provides particulars of another brother, Gurpreet Singh, and that Departmental records indicate that Gurpreet Singh applied for a visa in the name of Gurpreet Singh Aujla, noting Aujla as his surname. The delegate also detailed the findings of the Facial Image Comparison Specialist who was of the opinion that Amandeep Singh Aujla (DOB: 9/01/1977) is the applicant. The delegate set out the immigration history of Amandeep Singh Aujla (DOB: 9/01/1977) noting that when Mr Aujla was departing Australia on 10 August 2005 he informed an airport officer that he overstayed his visa because he [had a particular disorder] and that he supported himself through [details removed] and from working in security for a short time. He was advised by the officer that he was excluded from being able to return to Australia on a temporary visa for a period of 3 years.

1. The delegate set out the effect of s.107A and explained that non-compliance with s.101(b) in relation to the visitor visa and 457 visa applications also constitute grounds for cancellation of the Employer Nomination (Subclass 186) visa.

2. In considering whether there was non-compliance as described in the notice, it is no longer necessary for the Tribunal to consider the applicant’s response and the documentary material provided to the Department challenging the particulars in the notice and denying that he is Amandeep Singh Aujla (DOB: 9/01/1977) as the applicant has now admitted that he was known as Amandeep Singh Aujla (DOB: 9/01/1977). The applicant admitted that he entered Australia as the holder of a student visa in 1998 which ceased in 2000 and that he had remained unlawfully in Australia until 2005.

3. Given the applicant’s admissions, the Tribunal finds that the applicant was known by another name, i.e. Amandeep Singh Aujla (DOB: 9/01/1977). He has therefore provided incorrect information on the Visitor visa and Subclass 186 visa applications by indicating that he has not been known by any other name. The Tribunal is also satisfied on the evidence that the applicant had previously applied for a student visa, Subclass 560, on which he entered Australia in 1998. He has therefore provided incorrect information on the visa application for the Subclass 457 visa by indicating that he had never applied for an Australian visa. The Tribunal is satisfied on the evidence that the applicant’s student visa ceased on 17 April 2000. The applicant remained unlawful in Australia between 18 April 2000 and 10 August 2005 and would have been liable for detention and removal: ss.189 and 198 of the Act. The Tribunal considers that the applicant, by departing Australia voluntarily in 2005, had avoided being detained and removed. He has therefore provided incorrect information in the 457 and 186 visa application forms by indicating that he had not ever overstayed a visa in any country (including Australia) and that he had not ever left any country to avoid being deported. The Tribunal is also satisfied on the evidence that the applicant, due to his immigration history, would have been subject to PIC 4014 if he applied for a temporary visa within a period of 3 years from his departure on 10 August 2005. He was therefore subject to an exclusion period and has therefore provided incorrect information on the 457 and 186 visa application by indicating that he had not been excluded from any country (including Australia).

4. Given the above findings, the Tribunal is satisfied that there has been non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

5. 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).

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

   ·     the correct information

   ·     the content of the genuine document (if any)

   ·     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

   ·     the circumstances in which the non-compliance occurred

   ·     the present circumstances of the visa holder

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

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

   ·     the time that has elapsed since the non-compliance

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

   ·     any contribution made by the holder to the community.

7. 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.

8. Before considering these matters, the Tribunal will first deal with the claims relating to the applicant’s psychological condition and the opinion of the psychologist that the applicant is experiencing stress and is suffering from major depressive and anxiety disorders. The Tribunal has had regard to the information in the psychologist report but is cautious as to weight it should place on it given it contains information recounted by the applicant which the Tribunal now knows is not true. For example, in detailing the history, the psychologist notes in the report that the applicant has no knowledge of his biological parents and that he was adopted not long after his adoptive parents’ first natural child died at birth. Throughout the report it refers to the applicant’s ‘adoptive parents’ and how they treated him differently compared to their biological children. At the hearing, the applicant maintained that he was adopted and gave evidence he was told this since he was young. The Tribunal queried the applicant at length about this claim, details of which are set out further below, and although he made no admissions at the hearing, after the hearing he promptly contacted the Tribunal to explain that he had not provided truthful evidence about being adopted.

9. The Tribunal notes that the report from the psychologist was based on one consultation. There is limited evidence before the Tribunal to indicate that the applicant has been receiving psychological assistance on a consistent and regular basis. It was submitted, and recorded in the psychologist report, that the applicant had consulted a psychiatrist regularly in India for four weeks and was given anti-depressant medication, however no probative supporting evidence has been provided to substantiate this. These factors, in combination with the fact that the applicant was prepared to provide untruthful information to his psychologist during the consultation, are of concern to the Tribunal.

10. The Tribunal has considered the psychologist report in the context of all of the other evidence before it. The Tribunal is prepared to accept that the applicant suffered from [various disorders] when he was in Australia between 1998 and 2005, as described in the psychologist report, as this is consistent with information recorded by an officer at the airport when the applicant was leaving Australia in 2005. The Tribunal is also prepared to accept that the applicant is stressed and suffers from depression and anxiety, but has formed the view that this is probably due to the fact that his immigration history, and failure to declare it, has come to the attention of the Department and has led to his visa being cancelled.

11. The written submissions, the information in the psychologist report and part of the applicant’s evidence at the hearing sought to explain the applicant’s non-compliance, i.e. his provision of incorrect information about his identity and immigration history, as being due to his psychological conditions/disorders and his desire to distance himself from his past, including his [disorders] and his adoptive parent’s surname ‘Aujla’. The Tribunal does not accept that the applicant’s psychological condition/disorders caused or led him to provide incorrect information in the visa applications forms. The Tribunal considers that there were other reasons for the applicant’s non-compliance which the Tribunal has deliberated on in some detail further below.

12. The Tribunal had regard to the representative’s request for the Tribunal to accommodate the applicant at hearing as his mental health diagnosis may hinder his ability to articulate his evidence. The Tribunal was mindful of this when conducting the hearing and made efforts to explain to the applicant the issues in the review in a detailed and calm manner. The applicant, in the Tribunal’s view, had no difficulty understanding the issues in the review. His responses to the Tribunal’s queries demonstrated that he understood the questions being asked and the concerns put to him.  The Tribunal observed that the applicant only seemed to get agitated and nervous when the Tribunal put concerns to him about inconsistencies in the evidence and the doubts it had over the credibility of aspects of his claims. Overall, the Tribunal formed the view that the problematic aspects of the applicant’s evidence were due to him providing inconsistent and untruthful evidence rather than as a result of his psychological condition.

13. The evidence regarding the applicant’s psychological state is a relevant consideration in the exercise of the Tribunal’s discretion. The Tribunal gives no favourable weight to the applicant’s state of mind at the time of the non-compliance because it does not accept that his stress, anxiety and depression prevented him from providing the correct information on the visa application forms. The Tribunal however gives some weight to the applicant’s current psychological state, which the Tribunal considered is due to the applicant’s current personal circumstances, which include the fact that his visa has been cancelled and the hardship that is likely to be experienced by him, his spouse and the children if the visa remains cancelled.

14. The Tribunal has next considered the correct information. The correct information, as described in the notice, is that the applicant has been known as Amandeep Singh Aujla (DOB 9/1/1977) and that he had previously entered Australia on that name. The applicant remained unlawful in Australia for a period of 5 years and 4 months and departed Australia as he would have been subject to detention and removal. He was subject to an exclusion period of three years from his departure in 2005 if he wished to return to Australia on a temporary visa.

15. When the above was discussed with the applicant at the hearing, he conceded that this was the correct information. He did however contend that where he grew up Amandeep Singh and Amandeep Singh Aujla are considered as one name and that his certificates were in both of those names. He stated that he understands he has ticked ‘no’ on the forms relating to his previous entry but believes that the names were the same. He stated that in Canadian Immigration if your name is Singh you are expected to provide more documents. One of the certificates he provided with the employer nomination application included the name Aujla.  

16. The applicant appears to be contending that he did provide correct information in respect of his name because they are the same in his country and because he provided an education certificate which include the name Aujla. The Tribunal does not accept this contention because the questions on the visa application forms asking about other names by which the applicant is or was ever known were very specific and the applicant would have known that to answer those questions correctly he had to fully disclose, on the visa application form, the name and date of birth he had previously used to enter and remain in Australia. The obligation was on the applicant to declare in full the correct information in the visa application forms and not for the Department to decipher the information from an education document that was provided with one of the visa applications.  

17. As the grounds of cancellation do not include the provision of a bogus document, the consideration of r.2.41(b) is not relevant in this case. The Tribunal acknowledges the submissions made by the representative that the documents utilised and provided by the applicant in support of his various visa applications are, subject to one employment reference, genuine, and has had regard to these submissions, where relevant, further below.

18. The Tribunal has next considered whether the decision to grant the visas was based, wholly or partly, on the incorrect information. The Tribunal considers that the decision to grant the applicant the visa was partly based on the incorrect information provided in the application form regarding his immigration history and other names he is/was known by. When assessing whether he met the requirements for the grant of the various visas, including the visitor visa, the 457 and 186 visas, the Departmental officer had no knowledge that the applicant had previously entered Australia on another name and was unlawful for over 5 years. Had this information been known to the department, it would have led to closer scrutiny of the applicant’s eligibility for the visa. The visitor visa would have required an assessment of whether the applicant was a genuine visitor given his previous long period of unlawfulness and the applicant may have been requested to provide further evidence to demonstrate that he met the genuine visitor requirement. In respect of the 457 and the 186 visas, that would have involved an assessment of whether the applicant met the character requirements in PIC 4001, which would have required the applicant to provide police clearances in all names he has been known by from the relevant authorities in countries he has resided.

19. When the above was discussed with the applicant, he conceded that this was correct. He also stated that he travelled to Australia on the visitor visa with his UK passport. He stated that he did not want to come to Australia because of the painful memories but it was a low time and he thought to come for a break. He stated that he then decided to stick with the same information on the 457 and 186 visa applications. He stated that he did not do it purposely. When asked if he was claiming that he did not deliberately provide incorrect information about his immigration history and the previously known name on his visa applications, he stated yes because he had a different identity when he returned to India.  He stated that there was no database for him to track down where he was born or when, and that for him the previous identity is dissolved and that person never existed. He stated that the previous identity died a long time ago. The applicant’s response has been more appropriately dealt with below as part of the considerations of the circumstances of the non-compliance.

20. The representative submitted that while the non-disclosure may have had an effect on the visitor visa outcome because of the applicant’s previous migration history, by that time the re-entry ban had well expired and the applicant was a UK citizen and could have made further submissions in relation to the requirements of the visitor visa. The Tribunal explained that this consideration was not whether the visa would have still been granted if the correct information was known, but whether the decision to grant the visa was based, in part, on the incorrect information. The representative conceded that the incorrect information did play a part, though not entirely, in the grant of the visas. The Tribunal is satisfied that the decision to grant the applicant the visas was based, partly, on the incorrect information provided in the application forms. This consideration weighs in favour of cancelling the visa.

21. The Tribunal has next considered the circumstances of the non-compliance. The non-compliance, as found above, occurred when the applicant did not provide the correct information in the various visa applications forms in response to questions regarding his previously known name and immigration history, as particularised in the notice. The non-compliance occurred in July 2014, October 2014 and July 2015, being the dates on which the various visa applications were made.

22. It was submitted that that the applicant had a history of depression and past [disorders], and that because this was frowned upon within the applicant’s culture, the applicant wanted to close this chapter of his life by adopting his new name and date of birth. It was submitted that the applicant’s mental issues and fear of his past being exposed caused him to maintain his misleading and deception. It was submitted that on obtaining legal advice the applicant realised his non-compliance was an issue and that his continued denial was wrong.

23. The applicant claimed that he did not purposely provide incorrect information on the visa application forms. At the hearing, the Tribunal suggested that he appears to have deliberately not declared other names he had been known by and his immigration history, and that the reason he may have done this is because it may have adversely affected the outcome of his visa applications. In response, the applicant stated when he did not declare the information he was not sure where he would end up. He thought he was British and did not think he would have to confront his past. He stated that he has not done anything wrong in the past. When asked if he thought remaining in Australia unlawfully for over 5 years was not wrong, he stated no, personally he thought that it was the other person and not him because psychologically if he declared it he would have to go back to that personality.  He stated that he never wanted to be identified for what he used to be. He knew he would meet the requirements for the visa but did not want to declare his past identity which was associated with his past [disorders]. The Tribunal noted that it found his response at odds with his earlier claim suggesting that he had not provided incorrect information about his name because both names were used interchangeably and he had provided a document with the surname Aujla.  

24. The applicant claimed that at the time of the non-compliance he was under mental pressure and did not want to accept that he was the same person. He stated that until he had a conference with his lawyers he did not want to accept his past. At the time he applied for the visitor visa he was living in a small town in Canada away from his daughter. He experienced psychological difficulties after separation from his former spouse. He had no friends or family and decided to apply for the visitor visa to Australia to catch up with some friends. He stated that he wanted to get some support from family and friends. He did not want to go back to England. The Tribunal noted that his evidence appears contradictory to his earlier evidence that when he applied for the visitor visa he did not really want to come to Australia because he did not want to face his [disorder] self. The applicant acknowledged that his evidence is contradictory but explained that he did not want to come back to Australia as the previous identity. He stated that he was helpless and looking for support and decided to come to Australia.

25. The Tribunal expressed to the applicant its concern that given the breakdown of his relationship and his circumstances in Canada, and his desire to gain entry into Australia where his family was residing, it appears that he purposely did not disclose his previous identity in the visitor visa as this would have revealed his poor immigration history and may have resulted in the visitor visa application being refused. The Tribunal further explained that he had also indicated that he wanted to come to Australia to get support from his family during this difficult time and that he would have known that declaring his previously known name may have jeopardised his opportunity to gain entry into Australia.  In response, the applicant stated that the Tribunal may form that view but to be honest he has not received any support from his family so far, not from Gurpreet Singh, Amanpreet Kaur or Santokh Singh. He stated that in the previous 8 to 10 years he has not seen any of the family members. He wanted to find a family connection but this never happened. He wanted to come to Australia as a tourist but things changed after he came as there was a company that needed him and sponsored him under the 457 visa.  He stated that after working for the sponsor for a short time he was going to return to England. He stated that he does not dispute the Tribunal’s view that he had the desire to enter Australia but he never intended to remain in Australia. He stated that in the early stages of the cancellation process he told the Department that he was willing to depart Australia.   

1. The Tribunal discussed with the applicant his claim to the Department that he was an orphan and that he had nothing to do with his family members – i.e. Santokh Singh, Raghbir Kaur, Gurpreet Singh and Amanpreet Kaur, and that they had just looked after him and he had on and off relations with them. He confirmed that this was correct and that it may have been included in his affidavit to the Department when he responded to the notice.  The Tribunal noted that he told his psychologist that the family adopted him because they had lost their first child. It noted that even though he has tried to distance himself from his family members, his earlier evidence to the Tribunal indicates that as soon as he arrived in Australia he chose to reside with his sister, Amanpreet Kaur, where his parents sometimes live, and that nearby, in the same locale, is Gurpreet Singh’s residence. The Tribunal also reminded the applicant of his earlier evidence that he decided to rent a property only a few houses from Amanpreet and that all members of his family attended his wedding in March 2015. The Tribunal put to the applicant that the evidence before it strongly suggests that he is not being truthful about his relationship with his family members and furthermore he has not provided any substantive evidence to support the claim that his family members are not his biological parents and siblings.  The Tribunal noted that it cannot be absolutely sure of the reasons for why he has claimed he is adopted and gets no support from his family when the evidence before it strongly suggests otherwise. The Tribunal explained to the applicant that the contradictory nature of the evidence raises concerns about his credibility.

2. In response, the applicant stated that until today he does not even know where he was born. The Tribunal noted that according to the birth certificate he was born in Amristar hospital and reminded him of his earlier claim that his documents are genuine. The Tribunal noted that his birth certificate identifies where he was born and notes the names of his parents and grandparents. In response, the applicant stated that he understands that he lived on the same street and that he did get help from Amanpreet Kaur. He stated that he was not treated well and was disowned by the family. The Tribunal noted that on his earlier evidence his father took out a loan to support his application for a student visa so he can study in Australia which suggests, in the Tribunal’s view, that he was supported by his family. In response, the applicant stated that from childhood he has been working at the shop and he came to Australia under heavy pressure. Even though he was assisted by a loan he had to work and repay that loan. He stated that Gurpreet Singh only passed year 10, and that Gurpreet and Amanpreet got lots of support from the parents. He maintained that he was an orphan.

3. The applicant then stated that if he was Amanpreet and Gurpreet’s biological brother then the Tribunal could look at their documents and see if they (Gurpreet Singh or Amanpreet Kaur) had even declared him as a brother.  The Tribunal asked the applicant if the reason he is trying to distance himself from his family is because his family members had not declared him in their visa applications and that potentially they could have their visas cancelled for providing incorrect information. The applicant stated that this was not the reason and that he thought he was an orphan and this is what his parents have told him since childhood. He claimed that he does not have any relationship with his family. He stated that if Gurpreet was his real brother he would have assisted him and his spouse. He stated that he declared them as his family but they officially disowned him in 2010 or 2011 in a newspaper.

4. When queried further, the applicant stated that from childhood he was taught that he was adopted. The Tribunal noted that if it found it difficult to accept his claims about the poor relationship with his family given the efforts he has made to secure a visa to live in the same country as them, including living with one of his siblings for some time and even living in the same locale a few houses away. In response, the applicant stated that he felt weak at that time and he was looking for support from friends. He said he had 200 friends from the same college in Australia whom he wanted to catch up with. He stated that he has no evidence to prove is they are or are not his parents. The Tribunal suggested that he could obtain a DNA test. As noted above, after the hearing the applicant wrote to the Tribunal admitting that his family members are his biological parents and biological siblings.

5. The Tribunal has carefully considered all of the evidence before it regarding the circumstances of the non-compliance, but does not accept that the non-compliance was due to the applicant’s mental health issues, [or past disorders]. Nor does the Tribunal accept that the non-compliance was not deliberate. The applicant provided untruthful information to the Department about his previous identity and migration history. He also claimed he was adopted. He provided untruthful information about being adopted both to the Department, the Tribunal and even to his psychologist. The Tribunal acknowledges the applicant’s admissions to the Tribunal about these matters, and while it is prepared to give some favourable weight to his admissions, the Tribunal formed the view that the applicant was probably pressed to tell the truth when it became apparent that his claims were plainly untenable. The evidence before the Department about the applicant being Amandeep Singh Aujla was substantial and probative and it would have been clear to the applicant that he could not reasonably maintain that he was not Amandeep Singh Aujla. Similarly, if the applicant was adopted he could have easily undertaken a DNA test to prove this as suggested by the Tribunal. In light of the concerns raised at the hearing about the applicant’s claims that he is adopted, was disowned by his family and does not get any support from them and the Tribunal’s suggestion that he could undertake a DNA test, the applicant likely appreciated that he could no longer reasonably maintain that he was adopted, hence his admission after the hearing. The applicant’s willingness to maintain his untruthful claims until it was evident that they were no longer tenable reflects poorly on his character.    

6. The Tribunal has considered the post hearing submissions suggesting that the applicant’s conduct is due to his mental health issues. It was also contended that due to his [disorders], the applicant family was ashamed of him and disowned him, including placing a notice in the newspaper in 2011, and that his relationship with his parents had completely broken down and that he and his wife do not receive any support from them. The Tribunal does not accept these submissions. The evidence before the Tribunal strongly suggests that the applicant’s relationship with his siblings and parents is much closer than he is claiming. On his own evidence at the hearing the applicant indicated that at the time he travelled to Australia on the visitor visa his personal circumstances were difficult and he wanted to come to Australia to get support from his family and friends. At the time the applicant applied for the visitor visa all of his family members were residing in Australia. The applicant had the right to live in Canada and the United Kingdom but chose to travel to and remain in Australia where all members of his family reside. When he first arrived on the visitor visa he stayed with his sister Amanpreet Kaur, his brother’s residence was in the same locale, and his parents resided with both siblings. Furthermore, all members of his family attended his wedding in March 2015. After returning from Melbourne in 2016, after his employment ceased, the applicant again stayed with Amandeep in Woodcroft for a week or two before deciding to to rent a property on the same street as Amandeep. This evidence, when considered in its totality, substantially undermines the applicant’s claim that he was disowned, that he has a bad relationship with his family members and that he does not receive support from them.

7. The Tribunal gives no weight to the public notice in the Indian newspaper indicating that the applicant was disowned by his family in 2011. At that time the applicant was living abroad and it is unclear why, more than 5 years after the applicant had departed India for the United Kingdom, such a notice would have been placed in a newspaper by the applicant’s family. The Tribunal considers that even if the newspaper notice was genuine, it was likely used for some other purpose and was not due to a genuine intention on the family’s part to disown the applicant. Moreover, the Tribunal considers that if the applicant was genuinely saddened that he had been publicly disowned by his family and no longer considered himself to be their son, as he has claimed in his post-hearing submissions, then he would not have travelled to Australia in 2014 to be with his family and, on his own oral evidence, get their support. The applicant’s evidence regarding his relationship with his family and the lack of support he received from them is contradictory and reflects poorly on the applicant’s credibility generally.

8. Departmental records indicate that neither Amanpreet Kaur nor Gurpreet Singh declared the applicant as a sibling in their visa applications. The applicant initially claimed that this was because he was not their biological brother however, in light of the applicant’s admissions that they are his biological siblings, the Tribunal does not accept that this was the reason for them not declaring him in their visa application. There is no information before the Tribunal as to whether the applicant’s parents declared him as their son in their parent visa application.

9. The Tribunal acknowledges the psychologist report indicating that the applicant was suffering from, and continues to experience, stress, anxiety and depression.  Even if the Tribunal was to accept that the applicant was suffered these psychological conditions at the time of the non-compliance, there is limited evidence before the Tribunal to suggest that the applicant’s psychological condition was so impaired that he could not provide the correct information on the various visa application forms. The psychologist indicated in his report that the applicant does not suffer from a severe psychiatric disorder such as psychosis, that his thoughts for content and process are normal and that there was no evidence of perceptual disturbance, example, delusions hallucinations or ideas of reference or feelings of passivity.  There is also no suggestion that the applicant may have suffered from a severe disorder or perceptual disturbance at any time in the past.  The Tribunal is not satisfied that the applicant’s stress, anxiety and depression satisfactorily explain his instances of non-compliance and considers that the applicant would have been well aware that he was providing incorrect information on the visa application forms.

10. In summary, the Tribunal considers that the applicant, given these circumstances in Canada at the time he applied for the visitor visa, had a very strong desire to enter Australia, so much so, that he did not want any risk of being rejected the visitor visa and that it was for this reason that the applicant chose not to reveal his previously known name as this would have revealed his poor immigration history and he may not have been granted the visitor visa.  In keeping with the dishonesty in the visitor visa application, and possibly for the protection of his family members and their failure to declare him in their visa applications, the applicant decided to maintain the untruthful information about his previously known name and immigration history in his 457 and 186 visa applications. The Tribunal considers that the applicant had a strong desire to enter in and remain in Australia and is satisfied on the totality of the evidence before it that the applicant purposely and knowingly chose not to provide the correct information. The Tribunal considers that the circumstances of the non-compliance weigh in favour of cancelling the visa. 

11. The Tribunal has next considered the present circumstances of the visa holder. The applicant’s is married to Ms Harvinder Kaur, an Australian citizen, with a child from a previous relationship. The couple, who have been in a married relationship for a period of over 3 years, have a child together, Bani Kaur, who was born on 28 January 2018. The applicant is currently employed as a Network Engineer for TPG, a telecommunications Company, in Australia and the Tribunal accepts, on the basis of the applicant and Ms Kaur’s evidence at the hearing that the applicant is the primary financial provider for the family. Ms Kaur works on a part-time basis in pathology and is currently on maternity leave. The Tribunal also notes that the applicant’s parents and siblings reside in Australia. The applicant has a daughter from a previous relationship who resides in the United Kingdom with her mother who has full custody of her. The Tribunal has also had regard to the submissions and supporting documents regarding the applicant’s current psychological state.

12. The Tribunal accepts that the applicant is in a long term relationship with an Australian citizen and has an Australian citizen step daughter and biological daughter. Other than his daughter from a previous relationship, the applicant has no other family members overseas. The Tribunal is prepared to accept, as discussed above, that the applicant is experiencing psychological problems however, as found above, the Tribunal considers that the applicant’s current psychological issues are primarily due to the circumstances regarding the cancellation of his visa and the adverse consequences this is likely to have on him, his spouse and children if the visa remains cancelled. The consequences of cancellation, and the hardship that may be experienced by the applicant and members of his family are considered further below. The Tribunal is satisfied that the applicant’s current circumstances weigh in favour of not cancelling the visa. 

13. The Tribunal has next considered the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act. The Tribunal notes that in response to the notice the applicant continued to provide incorrect information regarding his previously known name and immigration history. The Tribunal acknowledges the representative’s submissions that the applicant has now made full admissions of his past non-compliance. It was submitted that the applicant’s failure to make the admissions earlier than he did was due to his mental health issues and not being represented.

14. The Tribunal acknowledges that the applicant was unrepresented before the Department and has had regard to the claims regarding his mental health issues in the context of this consideration.  The Tribunal does not accept however that the applicant being unrepresented or his mental health issues prevented him from providing truthful information in response to the notice. The Tribunal considers that the applicant, after receiving advice from his representative, likely appreciated the strength of the Department’s evidence disproving his claims, and decided to make the admissions upon realising that his evidence lacked credibility.  It is worth noting that the applicant continued to provide misleading evidence to the Tribunal regarding his initial claim to the Department that he is adopted and only made admissions in relation to this claim after the hearing. The applicant’s subsequent behaviour concerning the non-compliance weighs in favour of cancelling the visa, though the Tribunal is prepared to give some weight, albeit limited, to the applicant’s belated admissions.

15. The Tribunal has next considered whether there are any other instances of non-compliance by the visa holder known to the Minister. Although the delegate indicated that there were no other instances of non-compliance, the Tribunal was of the view that the applicant had failed to comply with his obligation under s.105 of the Migration Act to notify the Department of the incorrect information provided in the various visa applications. In response, the applicant stated he has been through psychological pressure and did not realise anything. He stated that he did not want to accept that he was the same person and that even after cancellation he did not want to accept who he is due to his [disorders].

16. The Tribunal has considered the applicant’s response and the post hearing submissions regarding the applicant’s state of mind and desire to disassociate himself from the past, but for the reasons discussed in detail above, does not accept that the applicant’s psychological state was so impaired that he was unable to appreciate that he provided incorrect information about his name and immigration history in the various visa application forms and that he had an obligation to correct that information. The applicant’s failure to comply with s.105 of the Act weighs in favour of cancellation.

17. The Tribunal has considered the time that has elapsed since the non-compliance. As set out in the notice, the non-compliance with s.101 occurred in July 2014, October 2014 and July 2015. Further instances of non-compliance occurred when the applicant provided incorrect information in response to the notice, which is a breach of s.107(2) of the Act, and he continues to be non-compliant with s.105 of the Act due to his failure to notify the Department of the incorrect information. It was submitted that the applicant had only recently acknowledged the wrongfulness of his past actions and has made full admissions about his non-compliance. It was submitted that the applicant’s behaviour was caused by his mental state, including depression and anxiety, which he has suffered from for many years.

18. The Tribunal has considered the claims regarding the applicant’s mental state at length above, and has not accepted that the numerous instances of non-compliance were due to the applicant’s mental state. The period of time that has passed since the first incident of non-compliance was just under 4 years ago. The further instances of non-compliance occurred subsequent to this. There is no evidence that the applicant has notified the Department of the incorrect information provided, he therefore remains non-compliant with his obligations under s.105 of the Act.

19. There is no evidence before the Tribunal to suggest that there were any breaches of the law by the applicant since the non-compliance.

20. The Tribunal has next considered the contribution made by the holder to the community. At the hearing the applicant gave evidence that he assisted his friend who is the manager of a charity and that when he was in Australia on a student visa he worked as a carer. In the written submissions the representative focused primarily on the contribution the applicant has made to the lives of his Australian spouse and step-daughter, including assisting Ms Kaur with her depression and to overcome the stigma and stress associated with two failed marriages, assisting Ms Kaur to bring her daughter to Australia and assuming the role of father for Riya who has no relationship with her biological father.  

21. Departmental policy provides that the degree of hardship that may be caused to the visa holder and any family members can be considered when exercising the discretion. It was submitted that Ms Kaur is established in Australia and would find it very difficult to relocate to the United Kingdom with the children. Since their marriage, Ms Kaur was able to bring her daughter Riya back from India, where she was being looked after by relatives, as prior to that Ms Kaur was struggling emotionally and financially and was unable to look after her daughter alone in Australia. Ms Kaur gave evidence at the hearing that her daughter is well settled at school. She stated that her daughter has developed a strong bond with the applicant and that he is the only father she has known. Ms Kaur also gave evidence that she has a good relationship with the applicant’s parents who are good to her. She confirmed that the applicant’s parents and siblings attended their wedding. Ms Kaur indicated that the cancellation of the applicant’s visa has placed a lot of strain on them. She stated that the family relies mainly on the applicant’s income, she will be on maternity leave for 12 months and that if the applicant is unable to remain in Australia it would ruin her life.

1. In the written submissions, the representative set out the financial and emotional difficulties that would be encountered by the family if the applicant had to return to the United Kingdom to sponsor his spouse and children, which would first require him to find employment and earn a particular level of income, and may take a long time. The Tribunal notes that this hardship would only be experienced if the family decided to relocate to the United Kingdom. Ms Kaur has indicated however that she would not relocate to the United Kingdom. The Tribunal acknowledges the reasons for why Ms Kaur does not want to relocate to the United Kingdom, which includes isolation and adjustment, and accepts that her daughter Riya, who is in the formative years of her life, and who has already had to endure being raised by extended family members in India away from her mother, would experience significant emotional hardship if the family had to now relocate.

2. The alternative is for Ms Kaur to sponsor the applicant for a partner visa. Submissions were made detailing the difficulties the family would encounter if the applicant has to leave Australia and be sponsored by Ms Kaur for a visa. The Tribunal accepts that Ms Kaur and the children would experience significant financial and emotional hardship if the applicant had to depart Australia and remain offshore for an indefinite period of time as he would not be able to maintain his employment in Australia and would not be able to continue to financially support the family. The family’s separation would, in the Tribunal’s view, cause undue financial and emotional hardship to Ms Kaur and the children. The Tribunal considers that it is in the best interest of the children for the family to remain together at this time.

3. If the applicant’s visa is cancelled he will be affected by s.48 of the Migration Act and will have limited options for applying for visas onshore without the intervention of the Minister. The applicant would be able to apply for a partner visa in Australia on the basis of his relationship with Ms Kaur however, as he will not be the holder of a substantive visa, he must meet the Schedule 3 criteria before the relationship can be assessed against the partner visa criteria. There is some risk that a delegate may not be satisfied that compelling reasons apply to waive the Schedule 3 criteria and the applicant would then have to make the partner visa application offshore. The consequences of the applicant having to make the application offshore have been discussed elsewhere in this decision. The Tribunal has also considered, and gives some weight, to the representative’s submission that the costs, delay and uncertainty associated with the applicant having to lodge a partner visa application to remain in Australia would place financial and emotional stress on the applicant, his spouse and their children.

4. The Tribunal has next considered the representative’s submissions contending that if the correct information was provided there were strong prospects that the visas would have been granted. In respect of the visitor visa, it was submitted that at the time of that application the three year exclusion period had long passed and the applicant had become a citizen of the United Kingdom. It was submitted that if the applicant provided an explanation for why he had overstayed, given his circumstances at the time, he would likely have been deemed a low risk. The Tribunal acknowledges these submissions and gives them some weight in the applicant’s favour.

5. In relation to the 457 and 186 visas, the applicant gave evidence that was sponsored/nominated by an Australian company who required his skills and that he met the requirements of those visas on the basis of his qualifications, skills and work experience in the United Kingdom and Canada. The evidence before the Tribunal suggests that the applicant met the primary criteria for the grant of those visas. There is no information to suggest that the employer nominations in respect of the applicant were not genuine. Furthermore, information on the Department’s file indicate that checks were undertaken in relation to the applicant’s education and employment in the United Kingdom and Canada and he was found to meet the skills, employment and English language proficiency requirements for the grant of the business visas.

6. In relation to the character requirements, which the Department did not have the opportunity to assess against both names, the applicant gave evidence that he was only required to provide police clearance certificates for countries he had resided in the past 10 years and that the time he applied for his business visa he had only resided in the United Kingdom, Canada and Australia. The applicant claimed that he has no criminal record. The Tribunal notes that in light of the applicant’s admissions about his identity the Department may request the applicant to provide police clearances for all names he has been known by from the authorities of all countries he has resided in and may choose to conduct its own background checks in respect of both identities. If any adverse information is found regarding the applicant’s background, including any charges or convictions, this would not prevent the Department from again issuing the applicant another cancellation notice.        

7. The current evidence before the Tribunal however suggests that if the applicant had provided the correct information in relation to his previously known name and migration history he would have still met the primary criteria of the Subclass 457 and 186 visas and, subject to him meeting character requirements, it appears that the applicant had good prospects of being granted the business visas. These considerations weigh in favour of not cancelling the visa.

   Overall considerations

8. The Tribunal has carefully considered the evidence before it and weighed up all of the relevant factors in this case. The Tribunal acknowledges that the applicant has made full admissions to the Tribunal regarding the incorrect information as set out in the notice. Full and frank disclosure is strongly encouraged and the Tribunal gave some weight in the applicant’s favour for his admissions. The Tribunal however did not form a particularly favourable view of the applicant’s credibility because of the length of time it has taken him to make the admissions and the dishonesty he maintained about having been adopted, even to his psychologist. The Tribunal gave weight to the applicant’s psychological state, but only at the time of the psychologist’s assessment, which revealed that the applicant was experiencing stress, anxiety and depression. There was nothing in the psychologist report or other evidence before the Tribunal which suggested that the applicant’s mental state at the time of the non-compliance was so impaired that it caused him to provide incorrect information. The Tribunal formed the view, for the reasons discussed above, that the applicant deliberately, knowingly and purposely provided incorrect information in his visa applications. There were numerous incidents of non-compliance by the applicant which occurred in respect of three visa applications and as part of the response to the cancellation notice.

9. While the above factors in combination weigh in favour of cancelling the applicant’s visa, the Tribunal does not consider that it is the preferable decision in all the circumstances of this case. The decision to cancel the applicant’s visa would, in the Tribunal’s view, cause considerable financial, emotional and psychological hardship for the applicant’s spouse, young step-daughter and newborn daughter, all of whom are Australian citizens. The applicant is currently employed and is the primary breadwinner for the family. The applicant’s presence in Australia has allowed Ms Kaur to be reunited with and care for her daughter from a previous marriage. The best interest of the children is that the family unit is intact and that they reside in Australia, where they have an aunt, uncle and grandparents. These circumstances weigh strongly in favour of not cancelling the visa. Also in favour of not cancelling the visa are the considerations indicating that the applicant may have still been granted the permanent business visa had he provided the correct information to the Department.  For these reasons, the Tribunal gives more weight to the circumstances in favour of not cancelling the visa.  

   Conclusion

10. 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 not be cancelled.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 -  Employer Nomination Scheme visa.

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

    R. Skaros
    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.