[2003] MRTA 5259

CATCHWORDS: Visa cancellation under section 109 - grounds for cancellation - non-compliance with sections 101, 103, 104 and 105 of the Migration Act.

DECISION: The Tribunal affirms the decision under review to cancel the Citizens of the Former Yugoslavia (Special Assistance) visa held by the review applicant.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate) on 10 July 2002 to cancel the Citizens of the Former Yugoslavia (Special Assistance) visa held by Ms Vesna Kovacevic (the review applicant). The review applicant is a national of Yugoslavia, born on 31 July 1960. The delegate's decision to cancel the visa was made under the Migration Act 1958 (the Act). The review applicant's children, Stevan and Dusan Kovacevic, also had their visas cancelled automatically under the Act.

2. The review applicant lodged a valid application for review to the Tribunal on 16 July 2002. The decision is reviewable by the Tribunal and the application for review has been validly made by a person with standing to apply for review.

3. The Tribunal is not able to review the cancellation of the visas of Stevan and Dusan Kovacevic. These family members had their visas cancelled under section 140(1) of the Act as a consequence of the cancellation of the review applicant's visa. There is no provision for merits review of a consequential cancellation under section 140(1) (see Rani v Minister for Immigration and Multicultural Affairs [1997] FCA 1493; (1997) 80 FCR 379). However, if the cancellation of the primary applicant is set aside, the effect is that the visas are treated as if they were never cancelled.

4. Section 338(3) of the Act sets out the Tribunal's general power to review cancellation decisions, allowing review of a decision to cancel a visa of a non-citizen who is in the `migration zone' at the time of cancellation and not in immigration clearance.

5. When reviewing a cancellation decision, the Tribunal generally restricts itself to considering the grounds for cancellation raised by the delegate. It also examines the procedures followed by the delegate in cancelling the visa to ensure that the requirements set out in the Act have been met.

6. In reaching a decision on a review, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). Policy guidelines should be observed where they are not inconsistent with the legislation and where there are no cogent reasons against their application.

7. The Tribunal has the power to affirm, vary, or set aside a decision to cancel a visa. Where the Tribunal sets aside a decision to cancel a visa, the effect is that the visa was never cancelled even if grounds for cancellation are established. If the visa would have otherwise expired, the outcome is that the visa is no longer current but that the particular consequences of cancellation no longer apply (e.g. the restrictions on applying for another visa).

8. The legislation, policy and other materials immediately relevant to this review are:

Section 101 of the Act.

Section 103 of the Act.

Section 104 of the Act.

Section 105 of the Act.

Section 109 of the Act.

Regulation 2.41 of the Regulations

Part 209 of Schedule 2 to the Regulations

Migration Series Instruction: MSI 340 'Visa Cancellation under sections 109, 116, 128 and 140'.

9. The Tribunal generally has regard to the Regulations as they stood at the time of a visa cancellation. However, subsequent amendments may apply in some circumstances.

10. The Tribunal had before it the documents and other material contained in the Department (F99/024922, F99/025804, CLF2001/060010 and CLF2002/018550) files and the Tribunal (V02/05110) file and other submissions received in the course of the review. The visa applicant gave sworn oral evidence to the Tribunal at a hearing held on 27 May 2003 in Brisbane, as did Ms Snezana Janjic (the witness and review applicant's sister). An accredited interpreter assisted throughout the hearing.

11. The files before the Tribunal indicate that on 4 October 1999, the review applicant made an application (Form 681) for the grant of a Refugee and Humanitarian (Migrant) (Class BA) visa. On Form 681 the review applicant stated that she was married, that her then husband, Milan Kovacevic, had disappeared on 27 July 1999 and that her marriage certificate had been destroyed when Albanians burnt her house. In addition, she listed four sisters on Form 681, namely Svetlana; Zorica; Dragica; and Stanimirka. On 6 October 1999, this application was refused.

12. On 22 November 1999, the review applicant lodged an application for a Citizens of the Former Yugoslavia (Special Assistance) visa (Form 1009), the cancellation of which is the subject of this review. On Form 1009 the review applicant listed only two sisters, Dragica and Stanimirka. She also states that she is a single mother with three children and that her then husband has been kidnapped.

13. On 5 February 2001, the review applicant was asked to provide legal documentation relating to her claim that her then husband had been kidnapped. On 9 February 2001 the review applicant responded in writing, alleging that at the time of her then husband's kidnapping, they were residing in Kosovo. She allges that he went to the shop one day,did not return home and that witnesses to the incident claimed that he had been taken away by soldiers of the Kosovo Liberation Army. She goes on to claim that, fearing for the safety of herself and her children, she then fled to Banja Koviljaca (a town in Serbia) where she reported the incident (allehged to have happenedn on or about 27 July 1999) to the International Red Cross. She finishes the letter by stating that she has no one else to turn to, other than her stated sister in Australia.

14. No documentation to evidence the review applicant's claims were provided. Therefore on 18 February 2001, and again on 2 April 2001 the review applicant was asked to provide officially authorised documentation in relation to her then husband's kidnapping and the status of her marriage. On 23 May 2001, the review applicant provided a letter/certificate from the International Red Cross confirming that a tracing request had been opened for Milan Kovacevic (father's name Dobrivoje) on 23 March 2001. The Tribunal notes that this is at least two years after the alleged disappearance/kidnapping.

15. On 25 May 2001 the application for a Citizens of the Former Yugoslavia (Special Assistance) visa was granted and on 1 August 2001 the review applicant, together with her children, entered into Australia.

16. The Department file indicates that on 14 August 2001, the review applicant's then husband, Milan Kovacevic, visited the Australian Embassy in Belgrade, claiming that his eldest son, Alexandar Kovacevic, had informed him that whilst he was away from home between 28 and 30 July 2001, his wife and two children had gone to Australia to reside with the review applicant's sister. He stated that the move to Australia was never discussed with his wife and that the couple had never lived separately since their marriage in 1978. Full details of the events relating to this interview may be found in the Department files. An officer of the Department has stated that "we are in no doubt that the person who presented at the Embassy...was Mr Milan Kovacevic, the legal spouse of Ms Vesna Kovacevic and father of Stevan and Dusan Kovacevic".

17. A file note, dated 24 August 2001, records that a woman contacted the Department, identifying herself as Dragica Trajkovic (the review applicant's sister and nominator). The woman informed the Department that her sister had made false claims; had used false documents to enter Australia and was now holding a permanent residency visa that had been granted on the basis of false information. She claimed that the review applicant had told the Department that her then husband was kidnapped some time in 1999 and was presumed dead during the Kosovo war. She stated that the review applicant's then husband was, in fact, alive and living in the house that the review applicant claimed had been destroyed y fire and that the children wish to return home to be with their father. Other allegations, not immediately relevant to the Tribunal's consideration, are recorded in the file minute and may be found in full on the Department file.

18. On 11 October 2001, the nominator visited the Department and provided documents to demonstrate that the review applicant had lied to the Department about her circumstances. Amongst these documents was a copy of the review applicant's divorce papers (translated). This document in particular appears to contradict the review applicant's statements made on 9 February 2001 and 23 March 2001that her then husband was missing, as it is recorded that he appealed against a decision relating to terms of the divorce dated 2 March 2001.

19. The nominator submitted a further statutory declaration on 4 September 2001. In this statutory declaration she provides details of Milan Kovacevic's current situation, stating that he was born on 5 November 1952 and that his father's name was Kovacevic Toma. The Tribunal notes that this information contrasts with the International Red Cross certificate referred to previously. On that certificate it is recorded that a tracing request had been lodged for a Milan Kovacevic, date of birth 24 November 1950 and whose father's name was Dobrivoje. The review applicant's marriage certificate, a copy of which was provided by the nominator, confirms the nominator's claims as stated in the statutory declaration. The nominator provided a more detailed statement on 13 May 2002 and these mirror the information previously provided.

20. Following the receiving of the above referred to information the delegate on 15 April 2002 issued to the review applicant a Notice of Intention to Cancel a visa (NOIC) under s109 of the Act. In the NOIC the delegate states that it has come to the Department's attention that the review applicant may not have complied with sections 101, 103, 104, and 105 of the Act and provides details of the sections of the Act that may not have been complied with. The NOIC invited the review applicant to comment on these issues and provided reasons why the visa should not be cancelled.

21. The Department file refers to numerous correspondences seeking an extension for lodging a reply to the NOIC from a social worker, a solicitor, and a volunteer organisation (all of who no longer represent the review applicant). On 14 June 2002, an officer of the Department contacted the review applicant's then representative and requested a response within 14 days. Following a further request for an extension, the review applicant was asked to attend the office of the Department in order to provide her response to the NOIC and receive notification of the decision, on 10 July 2002.

22. The review applicant provided a response to the NOIC at interview on 10 July 2002. In her response the review applicant described a history of domestic violence, prior trauma and a society where it was not possible for her to leave her husband. She claimed that in either March or May of 1999 her then husband went to the local shop and failed to return. She further claimed that at the time that she lodged both visa applications her then husband was still missing and that he returned after she had sent the letter to the Department dated 9 February 2001. She also stated that it is not correct that she and her then husband were living together in 2000 and that she does not know why the divorce papers would indicate this. She further claimed that Form 1009 was actually completed by her sister in pencil and that she simply went over it in pen.

23. Following this interview the delegate on 10 July 2002, proceeded to cancel the review applicant's visa pursuant to s109 of the Act. The delegate found that the review applicant has not complied with section 101, 103, 104, and 105 of subdivision C of the Act.

24. When lodging the application for review the review applicant stated that the decision to cancel her visa was based on incorrect information and that further information would be provided once it had been obtained from her country of origin.

25. On 8 April 2003 the Tribunal wrote to the review applicant, pursuant to section 359(A) of the Act inviting her comments on `particulars of any information that the Tribunal considers would be reason, or part of the reason, for affirming the decision that is under review'. The letter outlined the information which the review applicant was invited to comment on and stated the prescribed time period for a response.

26. The review applicant addressed the issues raised in the section 359(A) letter in a submission dated 15 May 2003. In the submission the review applicant claims that the husband made false statements and that they had lived separately on several occasions. In respect to the false information provided to the International Red Cross when seeking to obtain a tracing certificate for her missing then husband the review applicant stated she was unaware that she had provided incorrect information. The review applicant indicated that she was not aware that a fire in her house had not destroyed her marriage certificate as she originally had stated. She further claimed allegations of domestic violence having been committed against her by her then husband and that she is the victim of violence committed by the nominator. A letter from the review applicant's eldest son, (translated but not by an accredited interpreter) and a friend as well as statutory declaration from the witness were attached to the submission. A common thread running through these letters is the allegation that the review applicant and her children have suffered at the hands of the then husband and also when residing in Australia with the nominator.

27. A submission dated 21 May 2003 from the Refugee & Immigration Legal Centre (RILC) includes what is alleged to be a letter from the review applicant's mother (translated, bearing no date or address) as well as school certificates for the review applicant's children. The Tribunal notes that the copy of the accompanying letter attached to the original documents faxed from RILC states `I confirm that we no longer act for Mrs Kovacevic'. However the original accompanying letter does not contain this statement.

28. At the hearing the review applicant reiterated the statements she had made at time of application. She maintained that the information she had provided was correct. She stated that contrary to her former husband's claim she believed that he had disappeared and been kidnapped in May 1999. Furthermore she indicated that she initially sought the help of the International Red Cross to trace him on or about that time. However she was not provided with a `tracing letter' (confirming a tracing request was opened March 2001) until she requested this in response to the Department's request to substantiate her claims. The review applicant stated she was not aware that she had provided incorrect information to the International Red Cross for the tracing request. She claims that she was not sure of her former husband's exact age or that his father had a different name from that provided by her at that time.

29. The review applicant described her past life, claiming that her former husband treated her badly, that the marriage was not a happy one, that she feared for her life and that her main goal was to bring her children to Australia. The Tribunal referred the review applicant to the contents of documents (dated 2 March 2001) resulting from an appeal by her former husband to the divorce papers, which appears not to substantiate this claim. Instead this document indicates the visa applicant and her then husband leading a normal married life and living together in the same household. The review applicant was unable to provide the Tribunal with a satisfactory explanation, but only stated she has custody of the children. Further the Tribunal notes that at no time in the application or review process has the review applicant indicated that she and her then husband lived together as stated in the document appealing against aspects associated with the divorce. The review applicant claims that her former husband went to the Australian Embassy only to ensure that she would be deported from Australia and returned to him. However she stated that she would like to remain in Australia with the children.

30. In respect to her life in Australia the review applicant did not dispute that she has been residing in women's refuges for a considerable amount of time. She pointed out that this was because her nominator behaved violently towards her, taking all the monetary benefits the review applicant received from CentreLink for herself. The review applicant stated she no longer has contact with the nominator, is now working as a cleaner and that her children are settled in their school environment.

31. The review applicant admitted to the Tribunal that the answers she provided to the Department in relation to her visa application and in response to the NOIC leading to the subsequent cancellation of her visa contained `discrepancies', but that it was not her intention to provide misleading information. Additionally she stated, as she does not have a good command of the English language the nominator filled in (in pencil) the visa application form and that she, the review applicant, simply wrote over this. When the Tribunal suggested that the visa application form did not appear to evidence this claim, the review applicant changed her story stating that some of the answers were written by her (copied from that provided by the nominator) and some by the nominator. The Tribunal was curious to know why the visa applicant on two different visa applications made no mention of the existence of the second sister (who attended as a witness at the hearing) residing in Australia. The review applicant replied that the nominator did not like this sister and informed the visa applicant not to include her on the visa application.

32. The Tribunal has noted the evidence provided by the witness at the hearing but has given this little weight. The witness stated that she had been living in the former Yugoslavia for some years before returning to Australia in 1997. The witness indicated she thought the visa applicant and her then husband lived together and that she is not aware of the fact that they are now divorced. Nor was she aware that the review applicant was planning to come to Australia. She added that the nominator does not like her, the witness, and believes the nominator has behaved violently towards the review applicant. It appears however that little contact was maintained between the review applicant and the witness and that the witness knows little about the review applicant's situation other than what has been told to her by the review applicant.

33. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either that the grounds do not exist or that there are reasons why the visa should not be cancelled (section 119). The holder must be given an opportunity to respond. A visa may not be cancelled before the holder has been given a notice of cancellation that includes information relevant to the cancellation.

34. The Tribunal notes that the review applicant received a document headed `Decision Record of Visa Cancellation under section 109 of the Migration Act 1958'. That document states the reasons for the decision to cancel the visa on 10 July 2003 and notes that the visa applicant failed to comply with sections 101, 103, 104, and 105 of the Act. The delegate considered the matters referred to in regulation 2.41 of the Regulations in reaching the decision to cancel the subclass 209 visa.

35. Subdivision C of division 3 part 2 of the Act is headed "Visas based on incorrect information may be cancelled `. There are other portions of the Act dealing with cancellations based on other heads of power to cancel. The matter before this Tribunal is an application for review of a decision to cancel the visa on the basis of non-compliance with certain provisions in that subdivision of the Act.

36. Sections 98, 99, 100, 101, 103, 104, and 105 of the Act provide as follows:

Section 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.

Section 99. Information is answer

Any information that a non-citizen gives, causes to be given or that is given on his or her behalf to the Minister, an officer or a person or Tribunal 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 orally or in writing and whether at an interview or otherwise.

Section 100. Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect.

Section 101. Visa applications to be correct

A non-citizen must fill in his or her application form in such a way that:

Section 103. Bogus documents not to be given

A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.

Section 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.

Section 105. Particulars of incorrect answers given

(a) an answer given in his or her application form; or

(b) an answer given in his or her passenger card; or

(c) information given by him or her under section 104 about the form or card; or

(d) a response given by him or her under section 107;

was incorrect when it was given, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

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

37. The procedure leading to cancellation under the power contained in section 109 commences with the NOIC under section 107, followed by the operation of section 108. The exercise of the power to cancel is contained in section 109, which provides as follow

Section 109. Grounds for cancellation

(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

(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.

38. It is evident from the terms of section 100 and 101 that cancellation under section 109 is not necessarily based on fault and in some cases inadvertent non-compliance can lead to cancellation. However section 109 makes it clear that in the cases where it is established that bogus documents or incorrect answers were produced, the cancellation of a visa is discretionary. Although an exception is referred to in subsection 109(2) the Tribunal notes that no circumstances have been prescribed pursuant to that subsection and therefor there is no mandatory cancellation pursuant to section 109 at this time.

39. The prescribed circumstances for the cancellation of an applicant's visa pursuant to section 109 of the Act are referred to in regulation 2.41 of the Regulation which provides as follows:

2.41. For the purposes of paragraph 109 (1) (c) of the Act, the following circumstances are prescribed:

(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

(d) the circumstances in which the non-compliance occurred;

(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g) any other instances of non-compliance by the visa holder known to the Minister;

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

(j) any breaches of the law since the non-compliance and the seriousness of those breaches;

(k) any contribution made by the holder to the community.

[NOTE: Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.]

40. The task for the Tribunal is to determine whether grounds existed for the cancellation of the visa applicant's subclass 209 visa. Furthermore the Tribunal must determine whether the decision that the review applicant's visa be cancelled was the correct or preferable one, given the circumstances of the case (Drake v Minster for Immigration and Ethnic Affairs (1979) 24 ALR 577.

41. The Tribunal is satisfied that the delegate in this case followed the procedure set out in subdivision E of the Act for the cancelling of visas.

42. From the evidence before it the Tribunal finds that in the matter under review the Department was provided with a number of incorrect answers, a bogus document and was not informed by the review applicant's changes in her circumstances about her then husband's existence. The Tribunal finds that the review applicant has provided incorrect information on visa application forms for both, the visa under review, and for a Refugee and Humanitarian (Migrant) (Class BA) visa. This included statements that the review applicant was married and that her then husband had gone missing and/or was kidnapped in 1999. The contents of divorce documents, dated 2 March 2001, and an International Red Cross certificate, dated 12 January 2000, lists the review applicant's then husband as one of her family members. This clearly demonstrate that, at the time of the visa applications being made the review applicant's husband was alive and living with the review applicant.

43. The Tribunal notes that on the first visa application form the review applicant listed four sisters. On the second visa application she listed only two, claiming to have no other relatives, other than the nominator in Australia. However the review applicant now claims to have a further sister, the witness. The Tribunal notes that the review applicant failed to declare this sister Snezana Janjic, who is an Australian citizen. Given this the Tribunal is not satisfied that the review applicant did provide correct information.

44. The review applicant stated on her first visa application form that her marital status was "married" and on her second application that her marital status was "separated". Whilst the latter was the case the Tribunal notes that despite undergoing divorce proceedings during the application process, at no time did the review applicant inform the Department of the divorce. The review applicant stated that she decided not to tell the Department of the husband's return (allegedly in early 2002) or of the divorce because she was "frightened that he would stop her from leaving." Notwithstanding any of the aforementioned there is no evidence before the Tribunal that the review applicant at any time has informed the Department that she has provided incorrect or misleading information, or in the words of the review applicant `discrepancies'.

45. The files before the Tribunal indicate that when asked to provide documentary evidence in relation to her husband's disappearance, the review applicant provided a certificate from the International Red Cross that confirmed that a tracing request had been opened for Milan Kovacevic (father's name Dobrivoje), date of birth 24 November 1950. The delegate regarded this as a "bogus document" as it was her conclusion that the information provided by the review applicant to open the tracing request was false. The delegate relies on the review applicant's husband's birth certificate, marriage certificate and the birth certificates of the couple's children to confirm that his date of birth is, in fact, 5 November 1952 and that his father's name is actually Toma Kovacevic. The Tribunal notes that this evidence does support the delegate's position and concurs with the delegate's conclusion that this certificate is a `bogus' document.

46. The review applicant claimed, in her response to the NOIC, that she did not know how incorrect information came to be included on the tracing request. She also claimed that, whilst the certificate states that the request was lodged on that date, that that was the date that she renewed enquiries about previous applications. However when the Tribunal requested the review applicant provide it with a certificate or at least the approximate date such a request might have been first made, the review applicant was not able to provided an answer.

47. Having regard to the circumstances of this case and for the findings made above the Tribunal is satisfied on balance, that that the visa applicant has breached sections 101, 103,104 and 105 of the Act. These breaches are subject to section 109 of the Act.

48. As the Tribunal has found that the visa applicant's activities were such that she breached the Act, the discretion to cancel the visa under section 109 arises for consideration.

49. Regulation 2.41 sets out the prescribed circumstances which are to be taken into account for the purposes of paragraph 109(1)(c) of the Act. The Tribunal's findings on those matters are as follows under the headings:

The correct information would have been that the review applicant's husband was and is alive and that review applicant was living with the husband when she claimed he had been kidnapped or was missing.

The review applicant claimed that her house had burnt down and that her marriage certificate was destroyed with it, when, in fact, her marriage certificate was not destroyed, being later provided by her husband.

In one visa application the review applicant stated she has two sisters. Yet in another visa application she claims to have four sisters. On both occasions the review applicant listed one sister as being resident in Australia. The correct information would be that the review applicant has five sisters in total, two of who are Australian citizens.

The Tribunal considers that the review applicant has made deliberate false and misleading statements to the International Red Cross in order to obtain a tracing certificate to support her claim that her then husband had been kidnapped. The Tribunal considers that had the review applicant not made false and misleading statements to the International Red Cross either the tracing request would never have been opened, or the International Red Cross would have easily determined the whereabouts of the review applicant's then husband.

(c) The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document.

The Tribunal is aware of the review applicant's claim that she suffered discrimination and an attempted rape in the former Yugoslavia. However there is no evidence before the Tribunal to substantiate that claim, other than the review applicant's statement that the offender was convicted and jailed for that crime. Given that the Tribunal does not accept the review applicant's claim that her then husband had been kidnapped, the Tribunal considers there is little to distinguish the hardship under which the review applicant was living from that experience by many of her fellow citizens.

The Tribunal considers that the review applicant most likely would not have been considered to meet the requirements of regulation 209.211(2)(c), 209.227 and 209.323 for the grant of the subclass 209 visa.

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

The Tribunal is satisfied on balance that the non-compliance occurred in a deliberate attempt to deceive the Department in order to enable the review applicant to obtain a benefit (migration to Australia) to which she would otherwise not have been entitled.

The non-compliance was calculated and deliberate. It is not a case of inadvertently failing to disclose some relevant information about her changed circumstances. Indeed it was the review applicant's own evidence that when she provided information to the Department she had provided what she called discrepancies. There is no evidence to substantiate the review applicant's explanation that she followed the nominator's instructions by writing over the answers (written in pencil) and/or partially adding to them on the visa application forms.

The Tribunal considers the review applicant's claims that she did not tell the Department that her husband was not missing due to a fear of domestic violence committed by him lacks credibility. Particularly so as no reference to the claimed domestic violence was made in any part of the submitted divorce document.

The review applicant lives in Australia with her two dependent sons. She no longer appears to have good relations with the nominator, who appears to have withdrawn her support of the review applicant once she found out about the review applicant's false claims.

Information on the files indicates that the review applicant has been reliant on social security and shelter provided government and welfare agencies and by women's refuges for some considerable time. The review applicant has received this support despite the undertaking, as a condition of her visa that she receive adequate assistance (financial and accommodation) from her nominator.

The Tribunal notes that all such benefits would now appear to have been withdrawn. Further the Tribunal notes that the review applicant has a current application before the Administrative Appeals Tribunal in relation to the cessation of payments by CentreLink following their discovery that the review applicant had failed to advise the relevant authorities of a change in her visa status.

The Tribunal considers it highly possible that the review applicant would benefit from the support of her family (parents and two sisters) and her former husband in caring for her children, if she were to return to the former Yugoslavia.

(f) 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 review applicant claims that she did not deliberately provide incorrect answers but that there were discrepancies, as all she wanted to do, was to bring her children to Australia. The Tribunal notes that at no time, has the review applicant advised the Department that she provided a bogus document. Further the Tribunal notes the review applicant's non-compliance with section 105 and 107 (c) of the Act in that she has continued to provide incorrect information.

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

There appears to be no other instances of non-compliance.

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

The evidence on the files indicate that the review applicant's non-compliance has now been ongoing for over four years and there is no evidence to suggest that the review applicant intends to rectify the situation. Even if the Tribunal was to accept the review applicant's claim that following her former husband's disappearance/kidnapping and re-appearance some time in 2002, it is noted that the review applicant did inform the relevant department of this. The change in the review applicant's circumstances discussed in this matter occurred before her migration to Australia and was brought to the Department's attention soon after her arrival in Australia by someone other than the review applicant.

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

None are known. However the Tribunal notes that there is reason to believe that the review applicant failed to notify CentreLink of her change in visa status.

(k) Any contribution made by the holder to the community

The review applicant appears not to be a member of any sporting body, church or community organisation. Nor does she appear to have made a contribution to the community. The review applicant stated she is now employed as a cleaner. However the Tribunal notes the review applicant and her children have required welfare support at different stages of their stay in Australia. One of the intentions of the subclass 209 visa is that the visa holder be provided with significant support from a "near relative". This does not appear to be the case in the matter under review, as it appears that the nominator (being a near relative) withdrew her support of the review applicant as a result of the misleading and false information provided by the review applicant.

50. The Tribunal has found that the review applicant's activities were such that she breached the Act.

51. The Tribunal does not accept that the review applicant did not deliberately fail to inform the Department of her changed circumstances of which she was aware before she migrated to Australia or the incorrect information and documentation she presented. The weight of the evidence is contrary in this regard and it would seem that the review applicant's motivation was her own interests. Whilst the Tribunal accepts the review applicant's claim that her life with her former husband is not a happy one, the Tribunal does not consider this to be a mitigating factor for her non -compliance. The Tribunal does not find the review applicant's statements to be convincing or credible as she admitted herself that she provided answers and explanations that contained discrepancies. In other words the review applicant contrived answers and/or lied about matters such as the alleged kidnapping of her then husband and her marriage certificate being destroyed in a house fire.

52. The Tribunal accepts that the review applicant may experience some difficulties in the former Yugoslavia, but she has the support of her parents and siblings, as well as the former husband who according to the divorce documents is required to contribute financially to the review applicant's children's upbringing.

53. It is trite to say that the power to cancel a visa is an important component of the structure of Immigration law particularly as it relates to its deterrent nature for potential migrants trying to circumvent the law and the Government's orderly migration processes. Accordingly a breach of the law not only offends the law but also disadvantages those who wish to live in Australia and who apply to do so by lawful means.

54. In the circumstances of this case the Tribunal considers on balance the correct decision is that the review applicant's visa should be cancelled.

The Tribunal affirms the decision under review that the Citizens of the Former Yugoslavia (Special Assistance) visa held by the review applicant be cancelled.