1. The first application for the Student visa was made in 2014. The application for the Partner visa was made in August 2019. Over ten years passed since the first instance of non-compliance and over five years since the most recent instance of non-compliance.

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

1. The applicant claims he has not breached any laws in Australia and he provided in his submissions to the delegate and to the Tribunal copies of the police certificates from the US and Australia.

Any contribution made by the holder to the community.

1. The applicant refers to his voluntary activities and provided some statements that outline his community involvement, coaching and mentoring activities. The applicant also presented evidence of having provided support, including financial support, to a family overseas. In oral evidence the applicant spoke about supporting people with fitness and training, coaching and mentoring. The applicant also spoke about his employment and contributing to community safety. The Tribunal accepts that the applicant has made a contribution to the community through such activities.
2. 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] FCAFC 145; (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.

Whether there would be consequential cancellations under s 140.

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

If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

1. The applicant's evidence is that he presently resides in Australia with his partner and her two minor children. In oral evidence he spoke about his parental responsibilities and the support he provides to the children. There are multiple statements before the Tribunal, including the statements from the applicant's partner and other family members, that refer to that relationship and the support the applicant provides to the children. The applicant's partner, Ms Daber in her declaration and oral evidence refers to the parental guidance the applicant provides to her children (as well as support for her father). The applicant refers to his presence in the children's lives since their young age and describes the support he has provided, and continues to provide to the children, noting that the children's father is absent and disinterested.
2. The Tribunal is prepared to accept that it would be in the best interests of the children to maintain the relationship with the applicant. The Tribunal is mindful that the applicant is able to seek a Partner visa in the future, so that any separation from the children that may result from the present cancellation is unlikely to be permanent. (The applicant's evidence is that a new application would cause a significant financial burden on the family as they have no spare funds.) Nevertheless, the Tribunal accepts that it may be in the best interests of the children if the visa is not cancelled. That is a primary, but not a determinative, consideration.

Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

1. The applicant refers to the 'chaos' and the circumstances in Mexico including mobs and cartels and drugs, violence and overcrowding. The Tribunal found the applicant's claims to be vague and the Tribunal is not satisfied that these claims give rise to Australia's protection obligations. The Tribunal is also mindful that the applicant is able to seek a protection visa in the future.
2. As for the family unity obligations, the Tribunal is mindful that the applicant will be able to seek another Partner visa in the future (although he cannot make such an application onshore) which would enable the applicant to live with his partner and step-children.

Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

1. If the applicant's visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister's intervention although there are limited types of visas for which the applicant may be able to apply onshore due to the operation of s.48. The applicant may also be subject to an exclusion period in relation to future applications made offshore. If the visa is cancelled, the applicant will lose the entitlements he may have acquired as a permanent resident. The Tribunal accepts that PIC 4020 considerations may arise in relation to future visa applications (although that is not a consequence of the cancellation). The Tribunal acknowledges that the mandatory legal consequences may result in hardship to the applicant.

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

1. The primary decision record indicates that in June 2022 the applicant made an application for Australian citizenship and in that application he also failed to declare his criminal convictions and removal from the US.
2. In his submission to the delegate the applicant states that the non-disclosure was not deliberate but an inadvertent error and he has demonstrated a willingness to rectify the mistake and comply with legal requirements. The Tribunal does not accept that claim, noting that the applicant provided incorrect answers in not less than three separate visa application that spanned five years. Even if the applicant had somehow misinterpreted the question about his convictions - which the Tribunal does not accept - the Tribunal does not consider that the applicant had misunderstood the questions about overstaying in another country or being removed or deported from another country. Yet he had consistently claimed that this had not occurred. The fact that in his applications the applicant consistently claimed to have been living in Mexico until 2014, and thus deliberately excluding any reference to his residence in the US, supports the Tribunal's view, that the provision of incorrect answers was deliberate and done knowingly. In the Tribunal's view, that is not an action of someone who has demonstrated a willingness to rectify his mistake and comply with legal requirements. Rather, it is the action of someone who was persistent in trying to withhold adverse information so as not to jeopardise the grant of the visa. He continued to offer the same falsehoods in his citizenship application as recently as in June 2022. In the Tribunal's view, if the applicant was genuinely remorseful about his actions, as he now claims to be, he would not have consistently provided false information in his multiple dealings with Immigration over the years.
3. The applicant states in his submission to the delegate that the deportation incident occurred 10 years ago and since then he had maintained a "clean record" and shown commitment to lawful behaviour. Again, the issue here is not the applicant's criminal record or the reasons he was removed from the US. The issue is not the applicant's past criminal conviction or his good character. The issue is his provision of incorrect answers when completing multiple visa application forms. The applicant did so in the course of three visa application and in support of his citizenship application and his consistency in providing incorrect answers and withholding relevant information does not support, in the Tribunal's view, the applicant's claim that he has shown commitment to lawful behaviour.
4. Ms Daber in her declaration refers to the applicant providing support in looking after her elderly father, stating that without the applicant's help, she would be in a 'precarious situation'. The applicant submits that if he was to leave Australia, this would cause upheaval in Ms Daber's family and stress and financial hardship. The applicant also refers to the effect the separation would have on the children, noting his long-term parental responsibilities towards the two children.
5. As noted above, there are a number of character references and other supporting statements that had been provided in response to the NOICC and the applicant provided several character references and letters of support to the Tribunal in his submissions of 27 November 2024 and 13 March 2025. These include statements from members of the community, the applicant's partner, his employer and others. It is not apparent from those statements that the writers were necessarily aware of the applicant's overseas conviction or of the visa issues that led to the present cancellation. Nevertheless, the Tribunal accepts that those who provided statements believe the applicant to be of good character and support his stay in Australia.
6. The applicant claims that he is remorseful about what he has done. The Tribunal does not accept that evidence, noting that the applicant provided false information in the two visitor visa applications, the Partner visa application and, recently, in the citizenship application. The applicant told the Tribunal that he did not recognise the consequences of his actions. The applicant seems to submit that he decided to provide truthful information because he became aware of the consequences and the fact that his visa could be cancelled, not because he was genuinely remorseful for his actions. In the Tribunal's view, if the applicant was genuinely remorseful, he would not persistently provide false information in his application. The Tribunal is of the view that the applicant's expression of remorse is entirely opportunistic.
7. The Tribunal has considered the totality of the applicant's circumstances. The Tribunal has determined that the applicant did not comply with s. 101 of the Act and that there are grounds for cancelling his visa.
8. The Tribunal considers that there are very strong reasons why the visa should be cancelled. The applicant has consistently provided incorrect answers in his three visa applications and the citizenship application. The extent of his non-compliance has been extensive. Not only had the applicant given incorrect answers about his previous overstay and removal from the US and his past convictions, but he also consistently and deliberately withheld information about his residence in the US (claiming he has been residing in Mexico from birth until 2014). He also provided incorrect answers in the Partner application concerning his previous relationship and the existence of a child overseas. The Tribunal is of the view that the non-compliance has been deliberate, extensive and designed to mislead in order to avoid presenting the US police clearance certificate which may have affected the visa grants. These matters weigh very heavily in favour of the cancellation.
9. The Tribunal has also formed the view that the decision to grant the visa was based, in part, on incorrect information. Information about the US overstay, removal and convictions would have been relevant to the applicant's character assessment. The information about his past relationship would have been relevant to the assessment of his relationship with the sponsor. This also weighs heavily in favour of the cancellation.
10. The Tribunal accepts that the applicant is presently in a relationship with his Australian partner. The Tribunal is mindful that he can be sponsored for a Partner visa on the basis of such a relationship. While acknowledging that there may be some delay before the visa may be granted, and high costs associated with such an application, in the Tribunal's view there is a significant benefit in the applicant seeking, and being granted, a visa on the basis of truthful information where the full assessment of all relevant facts can take place.
11. The Tribunal accepts that significant hardship may be caused to the applicant, his partner and family in Australia if the visa is cancelled. This is because the applicant is a primary caregiver to his partner (who has a number of medical conditions), supports his father-in-law (who has a significant illness) and he has parental responsibilities in relation to his two minor step-children. The Tribunal has formed the view that it is in the best interests of the children that the applicant's visa is not cancelled.
12. The Tribunal has formed the view that the cancellation would not be in breach of Australia's non-refoulement obligations and will not be contrary to the principles of family unity.
13. Having carefully considered all the circumstances of this case, the Tribunal has decided to give greatest weight to the significant hardship that would be caused to the applicant and his Australian family if the visa is cancelled and if the applicant was required to leave Australia. This is because of the special circumstances of this family, including health concerns and special needs of the family members and the applicant's role as a father to two minor children and a caregiver to his wife and father in law, as well as the provider of financial and emotional support to his family. These matters weigh against the cancellation and, in the particular circumstances of this case, the Tribunal has formed the view that they outweigh other considerations.

1. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 801 (Spouse) visa.

Representative for the Applicant: Mrs Anne Frances O'Donoghue