POURYOUSEFI (Migration) [2023] AATA 4874 (26 September 2023)

Last Updated: 24 July 2024

POURYOUSEFI (Migration) [2023] AATA 4874 (26 September 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Yazdan POURYOUSEFI

REPRESENTATIVE: Mrs ROYA MAJD (MARN: 0701239)

CASE NUMBER: 2119903

HOME AFFAIRS REFERENCE(S): BCC2020/2012048

MEMBER: Andrew McLean Williams

DATE: 26 September 2023

PLACE OF DECISION: Brisbane

DECISION: The Tribunal affirms the decision to cancel the Applicant’s Subclass 100 (Spouse) visa.

Statement made on 26 September 2023 at 10:53am

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – ground for cancellation – bogus document – statutory declaration – marital status – failure to notify change in circumstances – divorced prior to grant of visa – adverse information – consideration of discretion – grant of visa based on incorrect information – deliberately untruthful – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 103, 104, 107, 109
Migration Regulations 1994 (Cth), r 2.41

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 Home Affairs to cancel the Applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (Cth) (‘the Act’).
2. The Delegate cancelled the visa on the basis that the visa holder (‘the Applicant’) did not comply with s.103 and s.104 of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
3. The Applicant appeared before the Tribunal on 7 September 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The Applicant was represented in relation to the review by his authorised representative Ms Roya Majd (MARN 0701239) of Majd Visa Pty Ltd. Ms Majd accompanied her client during the hearing conducted before the Tribunal on 7 September 2023.
4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 provisions require non-citizens to:
   • - provide correct information in their visa applications, and on their in-bound passenger cards;
   • - not provide bogus documents; and
   • - notify the Department, regarding any incorrect information of which they become aware, and in relation to any relevant changes in their circumstances.
6. 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 that are relevant to this case are now attached to this decision.
7. A notice under s.107 was issued to the Applicant on 8 November 2021 in the form of a Notice of Intention to Consider Cancellation under s.109 of the Migration Act 1958 (‘NOICC’). No objection has been raised as to the legal adequacy of the NOICC, and 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?

8. The issue before the Tribunal is whether there was non-compliance as described in the s.107 notice, being the manner particularised in the NOICC, and if so, whether the visa should now be cancelled.
9. The non-compliance identified and particularised in the NOICC was specifically non-compliance with s.103 and s.104.
10. Section 103 provides that ‘bogus’ documents (as defined in s.5(1)) must not be given by a non-citizen as part of a visa application. Section 104 provides that changes in circumstances referable to a visa applicant must also be notified to the Department, in the event that changes make answers previously given as part of a visa application no longer correct answers.
11. The NOICC specified that, on 11 March 2015, the Applicant had lodged a Combined Partner (subclass 309/subclass 100) visa application in conjunction with Ms Nasrin Jazayeri, who was recorded on the visa application as being the sponsor for the Applicant. The Applicant declared on the visa application that Ms Nasrin Jazayeri was his wife. The Applicant was outside Australia at the time of this application. On page two of the Application for migration to Australia by a partner (Form 47SP) (Internet) submitted on 11 March 2015 the Applicant specified his relationship status as ‘married’. On page 8 of the Form 47SP the Applicant again specified that he was ‘married’ to his sponsor. This was also specified again on page 14, where additionally, and in response to the questions ‘Is the relationship between the applicant and the sponsor genuine and continuing?’ and ‘Do the applicant and the sponsor have a mutual commitment to a shared life as husband and wife, or as de facto partners to the exclusion of all others?’, the Applicant also responded by answering ‘Yes’.
12. On page 23 of the Form 47SP the Applicant then acknowledged by answering ‘Yes’ that he would inform the Department of Immigration and Border Protection in the event that the relationship between the Applicant and the sponsor were to break down or end in divorce. Then, on page 24 of the Form 47SP, and under the heading ‘Declarations’ the Applicant acknowledged in the affirmative each of the following, among various other things:
    • - Giving false or misleading information is a serious offence;
    • - The Applicants had read and understood the information provided by them as part of the application;
    • - The Applicants had provided complete and correct information in every detail;
    • - That the Applicants understood that if any fraudulent or misleading information is found, that the application is likely to be refused and they may become ineligible to be granted a visa for a period of time.
    • - They will inform the Department of Immigration and Border Protection in writing immediately they become aware of a change in circumstances (including change of address), or if there is any change relating to information they have provided in or with this application, while it is being considered.
13. On 18 May 2015 the Applicant was granted a Partner Provisional (Subclass 309) visa, and then subsequently arrived in Australia as the holder of this Visa on 24 October 2015. This visa permitted the Applicant to travel to, enter, and remain in Australia until the end of the day on which he was notified that his application for a Permanent Partner (Migrant) (Subclass 100) visa been either decided, or had been withdrawn.
14. On 14 February 2017, the Applicant submitted a “Partner Visa application – information for permanent stage processing” form online to the Department, providing further information for the assessment of the Second-stage Permanent Partner (Migrant) (Subclass 100) visa application. On page 2 of that form, and under the sub-heading of ‘relationship status’, the Applicant specified that he was ‘married’. On page 6 of that form and under a further sub-heading ‘relationship status’ the Applicant again indicated that he was ‘married’. On page 8 of that form, and in response to the question “is the applicant still in a genuine and continuing relationship with the sponsor? The Applicant again responded by entering ’yes’. On page 8 of that form, and under a sub-heading of ‘current relationship since grant of temporary partner visa’, the Applicant answered ‘yes’ in response to the question: “do the applicant and the sponsor have a mutual commitment to a shared life as husband and wife, or as de facto partners to the exclusion of all others?’. On page 15 of that form, under the heading ‘declarations’, the Applicant then answered in the affirmative to each of the following:
    • - warning: giving false or misleading information is a serious offence. The Applicants declare that they:
    • - have read and understood the information provided to them in this application;
    • - have provided complete and correct information in every detail on this form, and on any attachments to it.
    • - Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants failed to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.
    • - Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
    • - Understand that if this application is approved, any person not included in this application will not have automatic right of entry to Australia.
    • - Will inform the Department of Immigration and Border Protection in writing immediately as they become aware of a change in circumstances (including change of address) or if there is any change relating to information they have provided in or with this application, while it is being considered.
15. On 27 August 2018 the Applicant provided a statutory declaration from his sponsor Nazrin Jazayeri, also made on 27 August 2018. In that statutory declaration, Ms Jazayeri declared, in part:
    1. That I have a mutual commitment to a shared life as a husband-and-wife, or as a de-facto partner, or as an interdependent partner, to the exclusion of all others, with Yazdan Pouryousefi’
    2. That our relationship is genuine and continuing
    7. ‘...As we are legally married...’
    8. ‘...Yazdan and I are committed to each other and we work hard in order to realise our plans together...’.
16. On the basis of the information now specified in paragraphs 11 – 15 (above), the Applicant was granted a Permanent Partner (Migrant) (Subclass 100) Visa on 25 February 2019.
17. Subsequently, the Department ascertained that the Applicant and Nasrin Jazayeri had divorced in Iran on 27 December 2017, which was a date prior to the grant of the Applicants’ Permanent Partner (Migrant) (Subclass 100) Visa.
18. On 15 March 2020, the Applicant lodged an application for conferral of Australian citizenship. This was refused by the Delegate. In reasons for decision relating to the refusal of Australian citizenship, the Delegate stated:

‘... The aforementioned information that the Department holds indicates that you have provided incorrect information/bogus documentation in support of the permanent stage of your Partner (Subclass 100) visa application. This information indicates that you were divorced outside Australia prior to the grant of your Partner (subclass 100) visa, and that you have intentionally provided false/misleading information to fraudulently obtain your permanent residence in Australia. Furthermore, Departmental records indicate that you have not advised the Department of changes in your circumstances in relation to the breakdown of your marriage as required’.

‘... Based on the evidence before me, I find you have provided incorrect information/bogus documentation in support of the permanent stage of your Partner (subclass 100) visa application.

19. Based on the above, the NOICC dated 8 ovember 2021 specified that there may have been a breach of the requirements in section 103 and in section 104(2) of the Act. The non-compliance with section 103 was specified to be the provision of a statutory declaration from Nasrin Jazayeri dated 27 August 2018, which was considered to be a false or misleading statement, given the fact of the divorce on 27 December 2017; and the non-compliance with section 104(2) was considered to be because prior to the grant of the applicant’s permanent partner (migrant) (subclass 100) visa on 25 February 2019 the applicant failed to notify the Department that he and his sponsor Ms Nasrin Jazayeri had divorced on 27 December 2017.
20. The Applicant then provided a response to the NOICC on 23 November 2021 (‘NOICC response’).
21. The information provided as part of the NOICC response included a statutory declaration from the Applicant dated 22 November 2021, as well as medical documents relating to the Applicant’s health status. In the statutory declaration, the Applicant denied that he had provided incorrect information or bogus documentation, and claimed not to have intentionally provided false or misleading information to fraudulently obtain his permanent residence in Australia. Although the Applicant admitted that he had divorced Ms Jazayeri when visiting Iran in 2017, the Applicant then claimed in the statutory declaration of 22 November 2021 to have resumed in a de-facto relationship with Ms Jazayeri immediately upon his arrival back in Australia; such that the Applicant claimed that he and Ms Jazayeri were initially in a genuine married relationship, yet this subsequently transformed into a genuine de-facto relationship, and that Ms Jazayeri had made a simple error in her statutory declaration made on 27 August 2018 and she should have indicated that they were now in a de-facto relationship at the time of the declaration, however this was an inadvertent error on her part.
22. After considering the Applicant’s NOICC response material, on 21 December 2021 the Delegate determined that there had been non-compliance with section 103 and section 104 of the Act by the Applicant. When then deciding whether to proceed and cancel the visa under section 109, decided that the visa should be cancelled (‘cancellation decision’). It is this cancellation decision that the Applicant now seeks to have reviewed before the Tribunal. Because the review proceedings are conducted de novo, the Tribunal will now consider the issues afresh.
23. Prior to the Tribunal hearing, the Applicant submitted the following additional documents in support of his application for review:
    • - a statutory declaration from Mr Christopher Garcia, declared on 2 September 2023;
    • - a statutory declaration by Mr Mohammadreza Sadree, declared on 31 August 2023;
    • - statutory declaration of Mr David Liou, declared on 4 September 2023; and
    • - submissions, dated 6 September 2023.
24. The statutory declaration from Mr Christopher Garcia declares that he has known the Applicant and his ex-wife since 2015. Mr Garcia indicates that he believes that the Applicant and his ex-wife got divorced in 2017, yet they resumed a genuine relationship as a de-facto couple in Australia in 2018, which continued up until 2019, when they finally separated. Mr Garcia was not called to give any oral evidence before the Tribunal.
25. The statutory declaration by Mohammadreza Sadree indicates that he has known the Applicant since 2015 and states that the Applicant and his ex-wife divorced in Iran in 2017 yet resumed a (de-facto) relationship in Australia upon the Applicants return to this country from Iran. Mr Sadree declares that he considered their relationship to be a genuine relationship. Mohammadreza Sadree was similarly not called to give any oral evidence.
26. The statutory declaration from Mr David Liou indicates that he has known the Applicant for almost 3 years and that he believes the Applicant to be a truthful person. Mr Liou has given no evidence in relation to any knowledge of the genuineness of the Applicant’s relationship with his sponsor Ms Nasrin Jazayeri. On this basis nothing contained in Mr Liou’s statutory declaration bears upon the central question as to the genuineness of the relationship between the Applicant and his sponsor, or the question whether there had been a breach of either of s.103 or s.104 of the Act.
27. In the submissions dated 6 September 2023 it is submitted on behalf the Applicant that although the Applicant’s ex-wife had inadvertently provided incorrect information in her statutory declaration made on 27 August 2018, and had failed to specify that at the time that she and the Applicant were longer married and were instead now in a de-facto relationship, their relationship was nonetheless a genuine one. The submission then seeks to deal with other discretionary considerations as to why the visa should not be cancelled.
28. In his oral evidence before the Tribunal on the hearing of this application for review the Applicant continued to assert that he and Ms Nasrin Jazayeri had resumed cohabitation in a de-facto relationship after his return to Australia from Iran, notwithstanding the fact of their having divorced whilst in Iran in 2017.

Adverse information put to the Applicant during the hearing:

29. During the Tribunal hearing certain adverse information was put to the Applicant by the Tribunal under s.359AA has information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. That information was particularised for the Applicant as follows:
    • - In a statutory declaration made by Nasrin Sadat Jazayeripoor (also known as Nasrin Jazayeri) and declared by her on 22 July 2020, the following had been declared:
      • - she had been in a genuine committed relationship with the Applicant from January 2014 until October 2017, and they were married from February 2015 until December 2017;
      • - difficulties in their relationship were evident even from the time of the Applicant’s first arrival in Australia, on 24 October 2015;
      • - on 19 October 2017 the Applicant travelled to Iran and had stayed there until 20 June 2018. Meanwhile Ms Jazayeri remained in Australia, and moved to a new address at Morningside. On 12 December 2017 Ms Jazayeri travelled to Iran and whilst in Iran convinced the Applicant that she and he should have an amicable divorce, to which the Applicant agreed. The Applicant conditioned his agreement to divorce on the basis that Ms Jazayeri would not withdraw her sponsorship of the Applicant in his quest to become an Australian permanent resident, to which Ms Jazayeri agreed.
      • - Ms Jazayeri returned to Australia on 12 January 2018 and resumed living at her new address at Morningside. The Applicant did not return to Australia until 20 June 2018. Ms Jazayeri refused to let the Applicant live with her at Morningside, although the Applicant did use the Morningside address as his postal address.
      • - In August 2018, the Applicant had been asked to provide more information to the Department for his permanent residency application. At that time, the Aplicant pleaded with Ms Jazayeri to provide him with a declaration indicating that they were still in a relationship, and unfortunately she accepted that request. Ms Jazayeri met with the Applicant in a public library and helped him to finalise his submission and she signed a statutory declaration confirming that she was still in a married relationship with the Applicant, even though she knew this to be untrue.
      • - On 18 August 2018 Ms Jazayeri moved out of her Morningside home. She did not provide the Applicant with her new address as she did not want the Applicant to know where she was living, and she also did not want the Applicant to continue to use her residential address as his postal address and thereby maintain the fiction that they were in a relationship Ms Jazayeri “wanted a life without any trace of him”

[‘the adverse information’]

30. During the hearing the Applicant was asked whether he now required additional time to either comment on, or respond to the adverse information. The Applicant indicated that further time was required. At the conclusion of the hearing the Tribunal wrote to the Applicant’s authorised representative on 7 September 2023 and invited further comment or responses to the adverse information, to be received by the Tribunal by no later than 21 September 2023
31. On 21 September 2023 the Applicant’s authorised representative requested an extension of time within which to respond to the adverse information, until the close of business on 22 September 2023. That request for an extension was granted by the Tribunal, which was advised by way a registry e-mail sent to the Applicant’s authorised representative on 22 September 2023 at 12:02 PM.
32. A submission about the adverse information was received by the Tribunal from the Applicant’s authorised representative on 22 September 2023 at 15.59pm (AEST).
33. The information provided in response to the adverse information consists of the following:
    • - Westpac bank statements for the Applicant for the period 6 October 2018 until 26 April 2019, indicating that Westpac had been advised that the mailing address for the Applicant was the same Morningside address previously occupied by Ms Jazayeri, before 18 August 2018.
    • - Westpac bank statements for the Applicant for the period 27 April 2018 until 26 October 2018, indicating that Westpac had been advised that the mailing address for the Applicant was the same Morningside address as occupied by Ms Jazayeri
    • - Westpac bank statements for the Applicant for the period 27 October 2017 until 27 April 2018 until, indicating that Westpac had been advised that the mailing address for the Applicant was the same Morningside address occupied by Ms Jazayeri.
    • - A series of undated photographs of the Applicant, together with Ms Jazayeri; and
    • - A statement by the Applicant, dated 22 September 2023.
34. The Tribunal considers the Westpac bank statements to be equivocal evidence. Ms Jazayeri indicated that she had allowed the Applicant to use the Morningside address is his mailing address, however she had refused to allow the Applicant to reside at that Morningside address with her. As such, the fact that the Westpac bank account statements show the Morningside address does not afford evidence in refutation of the suggestion made by Ms Jazayeri that she and the Applicant were no longer in a genuine spousal relationship after their divorce in Iran in December 2017.
35. Similarly, the Tribunal considers the bundle of photographs showing the Applicant and Ms Jazayeri together as a couple are also equivocal evidence, by reason that none of the photographs are dated, such that the photographs do not provide any substantive refutation of the adverse information that was put to the Applicant from Ms Jazayeri’s statutory declaration dated 22 July 2020, which was to the effect that their relationship ended in divorce in December 2017 and they were not in a genuine relationship after that.
36. In the unsworn statement made by the Applicant on 22 September 2023 (and subsequently provided to the Tribunal as a signed statement on 26 September 2023), the Applicant “strongly denies” the claims made by Ms Jazayeri that he and she were not in a genuine de facto partner relationship after the Applicant had returned to Australia from Iran in June 2018. Furthermore, the Applicant claims that the adverse claims made by Ms Jazayeri are also refuted by the evidence has been provided by the Applicant from other independent witnesses, as well as by the bank statements and the photographs provided by the Applicant showing he and Ms Jazayeri together as a couple, and thus proving the genuineness of their relationship. The Applicant claims that his de-facto relationship with his former wife Ms Jazayeri did not finally break down until April 2019, which the Tribunal observes as being a date after the Applicant had been conferred with Australian permanent residency.
37. Already, the Tribunal has dealt with the evidential weight that can be attached to the photographs and to the Westpac bank statements. In simple terms, the Tribunal now attaches negligible weight to either of these things, as neither of them derogates from the the essential contention contained in the statutory declaration made by Ms Jazayeri on 22 July 2020, and as put to the Applicant during the hearing on 7 September 2023.
38. As to the statutory declarations provided by the Applicant from each of persons listed in paragraph 23 of these reasons, the Tribunal observes that it has considerable difficulty in accepting the opinions of these persons as to the genuineness of the relationship between the Applicant and Ms Jazayeri, in circumstances wherein Ms Jazayeri herself has said that the relationship after their divorce in Iran in December 2017 was an artifice. If one party to a domestic relationship says that the relationship was non-genuine, then the Tribunal considers that opinion evidence of the kind now provided by outsiders who are not in that relationship cannot reasonably outweigh that of one or the actual parties to that relationship who says that the relationship was non-genuine.
39. As part of the response given to the Tribunal by the Applicant to the adverse information put to the Applicant during the hearing on 7 September 2023 the Applicant requested that the Tribunal now convene a further hearing in order to call the persons who made the statutory declarations, and to now receive oral evidence from them. The Tribunal is not required to gather evidence on behalf the Applicant. In light of the very general nature of the statutory declaration evidence provided to the Tribunal from the Declarants now listed in paragraph 23, the Tribunal sees no utility in convening a further hearing and there is no demonstrable unfairness to the Applicant in it not convening a further hearing, as the Applicant has now been afforded with sufficient opportunity to comment on the adverse information.

Has there been Non-Compliance in the Manner Described in the NOICC (s.107 Notice)?

40. Although the Applicant continues to maintain that there has not been a breach of s.103 or s.104, other than in the form of the claimed “inadvertent oversight” by Ms Jazayeri in having erroneously stated that she and the Applicant were still married rather than now in a de facto relationship (and the Applicant having failed to pick up that oversight before submitting the information to the Department), the Tribunal does not agree with that categorisation, and finds that there has been non-compliance, in the manner described in the NOICC.
41. For these reasons, the Tribunal finds that there was non-compliance with s.103 and s.104 of the Act by the Applicant in the way described in the s.107 notice.

Should the visa be cancelled?

42. As the Tribunal has decided that there was non-compliance in the manner described in the notice given to the Applicant under s.107, it is necessary to next 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).
43. In exercising this power, the Tribunal must consider the Applicant’s response (if any) to the s.107 notice about the non-compliance, and must have regard to any prescribed circumstances: s.109(1)(b) and (c).
44. The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, these 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.

45. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered as 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 (‘the PAM3’) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

(a) The correct information

46. The correct information is that the Applicant was not married to Ms Jazayeri at the time when his Permanent Partner visa was granted. On the basis of the statutory declaration from Ms Jazayeri dated 22 July 2020 - which is accepted by the Tribunal as reflecting the true state of affairs - the Tribunal does not accept that the Applicant and Ms Jazayeri were in a de-facto relationship at time of the Applicant being granted his Permanent Partner visa, either. The Tribunal now gives this factor very significant weight in favour of cancelling the visa.

(b) The content of the genuine document (if any).

47. The Applicant has conceded that the statutory declaration provided by Ms Jazayeri in support of his Permanent Partner visa application should not have stated that they were legally married, yet still now claims that they were in a genuine de-facto relationship at that time. That claim is not accepted by the Tribunal. The statutory declaration provided by Ms Jazayeri in support of the Applicant’s Permanent Partner visa application meets the definition of a ‘bogus’ document under s.5(1)(c) of the Act. The Tribunal now attaches very significant weight in favour of cancelling the visa to this consideration.

(c) 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.

48. In the Tribunal’s view, the Applicant was granted the Permanent Partner visa primarily because the Applicant had failed to notify the Department of a relevant change in his circumstances, being that he and Ms Jazayeri were divorced from one another in December 2017. The failure to declare that fact and the provision of false information maintaining that the Applicant and Ms Jazayeri were still in a genuine and ongoing relationship even after the fact of their divorce in Iran in 2017 was directly relevant to the granting of the visa. The Tribunal now attaches very significant weight in favour of cancelling the visa to this consideration.

(d) The circumstances in which the non-compliance occurred.

49. Regarding the non-compliance with section 103, the Applicant maintains that Ms Jazayeri made an honest mistake in her statutory declaration by her stating that he and she were still married, when at that time they were living in a de-facto relationship. The Applicant says that the only mistake on his part was his failure to notice that Ms Jazayeri had used the word ‘married’ rather than ‘de-facto’, when preparing her statutory declaration. These claims are lacking in credibility, and are not accepted by the Tribunal.
50. The Tribunal prefers the evidence in the later statutory declaration from Ms Jazayeri, as made on 22 July 2020, wherein Ms Jazayeri says that the earlier statutory declaration provided by her in support of the Applicant’s application for a Permanent Partner visa contained information that was deliberately untruthful, in order to facilitate the Applicant being approved for that visa.
51. As to non-compliance with section 104, the Applicant has claimed in a statutory declaration dated 22 November 2021 that he had advised Departmental officers by telephone of the fact that he and Ms Jazayeri had ‘temporarily separated’. The Tribunal notes that there are no Departmental file notes of any telephone conversation with the Applicant in relation to this issue, which the Tribunal now considers to be improbable in the event that this advice had been provided by the Applicant by telephone, as now claimed by the Applicant. Moreover, the requirement in s.104 is an explicit one requiring visa holders to inform the Department in writing in relation to changes in their circumstances. There is no evidence that the Applicant has done that.
52. The Tribunal now attaches very significant weight in favour of cancelling the visa to this consideration.

(e) The present circumstances of the visa holder

51. In his response to the NOICC, the Applicant has provided a range of medical evidence that is to the effect that the Applicant suffers from stress and has a heart condition. The Applicant states that his physical and mental health has also deteriorated since receiving the NOICC. The Medical records that have been provided reveal the Applicant to have range of health conditions including supraventricular tachycardia, hypothyroidism, depression and dyslipidaemia. In the submission prepared for the Applicant by his authorized representative dated 6 September 2023 it is submitted that:

‘The decision to cancel the visa would result in a high degree of psychological, and emotional hardship as the visa holder who would no longer hold a valid visa which would enable him to lawfully remain in Australia which has a huge impact on the visa holder’s physical and mental health.

A decision to cancel the visa would result in financial hardship for the visa holder, as the visa holder would have no work rights and therefore no legal ability to work in Australia and gain an income.

The visa holder practices Christianity as his faith. Should he be returned to Iran, we would lose the ability to practise Christianity freely.’

53. The Tribunal now gives these considerations a moderate measure of weight in favour of a decision to not cancel the visa.

(f) The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act.

52. The Applicant has persisted in maintaining whilst before the Tribunal that there has not been any breach of s.103 or s.104 of the Act, other than for an ‘inadvertent’ breach arising by reason of Ms Jazayeri omitting to use the word ‘de-facto’ in lieu of ‘married’ in her statutory declaration given in support of the Applicant’s Permanent Partner visa application, and the Applicant then having not detected that.
53. The Applicant has also continued to maintain that he was in a genuine de-facto relationship even in the face of evidence from Ms Jazayeri specifically denying that, and her stating that their ostensibly declared relationship was no more than a contrivance in aid of the Applicant being granted the visa.
54. In the Tribunal’s view the behaviour of the Applicant when before the Tribunal and his endeavours to persist in maintaining that there has not been a breach of either s.103 or s.104 do him no favours. These appear to be a deliberate attempt to continue to obfuscate the true nature of his relationship with Ms Jazayeri. Tribunal now attaches very significant weight in favour of cancelling the visa to this consideration.

(g) Any other instances known to the Delegate of non-compliance by the visa holder.

55. There is no information before the Tribunal to indicate any other instances of non-compliance by the Applicant, such that some weight is given in favour of not cancelling the visa to this consideration.

(h) The time that has elapsed since the non-compliance.

56. The non-compliance occurred on 27 December 2017 when the Applicant became divorced from Ms Jazayeri, thus requiring that the Department be notified of that change in circumstances.
57. The Applicant first arrived in Australia on 24 October 2015, and apart from some short periods overseas for periods of up to approximately one month, as well as one longer period in Iran between 19 October 2017 and 22 June 2018 (and during which period the Applicant was looking after his sick mother), the Applicant has been in Australia the whole time.
58. The Applicant has evidenced a clear intention to remain in Australia permanently given that he has previously lodged an application for Australian Citizenship on 15 March 2020, which was refused on 7 September 2020.
59. In his response to the NOICC, and when before the Tribunal the Applicant has stated that he has ‘made Australia his home’ and has ‘built a good life here’ as well as having established a range of connections in the community.
60. The Tribunal now gives these considerations a reasonable measure of weight in favour of a decision to not cancel the visa.

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

55. There is no information before the Tribunal to indicate that the Applicant has breached any other Australian laws since the non-compliance. The Tribunal now gives this consideration a little further weight against cancelling the visa.

(j) any contribution made by the holder to the community

56. The submission dated 6 September 2023 the applicant submits that he has been employed in Australia over the years and has contributed to the economy by paying taxes. The tribunal further observes that the applicant has formed friendships in the community and appears to have joined a church congregation in Brisbane. The tribunal now gives this consideration a little white in favour of not cancelling the visa.

Other Matters of policy, as set out in the PAM3:

57. In this case there would be no consequential cancellations under s.140 of the Act.
58. There are no children whose interests would be affected by a visa cancellation.
59. The Tribunal is required to consider whether cancellation of the Applicant’s visa would result in any breach of Australia’s non-refoulement obligations. The Applicant is a citizen of Iran and claims to be a Christian. The Applicant claims that if he is returned to Iran he will not be able to practice his religion openly, and he will have restricted freedoms of speech. The Applicant also claims that his various medical conditions will not be adequately treated in Iran, and due to the extended period of time now spent living in Australia, he will have difficulty in re-establishing connections to gain employment in Iran; and that cancellation of the Applicant’s visa would result in a “very high” degree of hardship for the Applicant.
60. There is no specific evidence that cancelling the Applicant’s visa would result in breach of Australia’s non-refoulment and other obligations under international law, and the Tribunal does not consider that there would be any. Although the Applicant would be apt to experience some difficulty and inconvenience when seeking to re-establish himself in Iran the Tribunal does not consider this would be such as to result in a “very high” degree of hardship. Beyond an assertion of that, the Applicant has adduced no evidence.
61. The Tribunal has considered all of these things and considers that a moderate measure of further weight in favour of not cancelling the visa should now be attached to these considerations.
62. In the event that the Applicant’s visa were to be cancelled he would become an unlawful non-citizen in Australia and thus liable for detention under section 189, as well as for forcible removal under s.198 in the event that he does not first voluntarily depart. In addition, cancellation of the visa means that the bar in s.48 of the Act would become applicable, thus giving the Applicant limited further options to apply for visas in Australia. The Applicant may also be impacted by public interest criterion (PIC) 4013. Some further, albeit only limited, weight in favour of non-cancellation of the visa is now attached by the Tribunal to these considerations.

Conclusion

63. The Tribunal has decided that there was non-compliance by the Applicant in the manner described in the notice given under s.107 of the Act. Further, having regard to all of the relevant circumstances, the Tribunal concludes that the considerations in favour of cancelling the visa now substantially outweigh those considerations that remain in favour of the visa not being cancelled, such that the visa should be cancelled.

DECISION
64. The Tribunal affirms the decision to cancel the Applicant’s Subclass 100 (Spouse) visa.

Andrew McLean Williams
Member

ATTACHMENT – Migration Act 1958 (extracts)

5. Interpretation

(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.

97. Interpretation

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).

98. Completion 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.

99. Information 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.

100. Incorrect 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.

103. Bogus documents not to be given etc.

A non‑citizen must not give, present, [produce]^[*] or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]^[*] or provided.

104. Changes in circumstances to be notified

(1) If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4) Subsection (1) applies despite the grant of any visa.

107. Notice 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.

108. Decision 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.

109. Cancellation 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.

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^[*] This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).