1618298 (Migration) - [2018] AATA 4435

1618298 (Migration) [2018] AATA 4435 (31 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1618298
MEMBER:David McCulloch
DATE:31 August 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.
Statement made on 31 August 2018 at 10:25am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – incorrect answers provided on application form – exclusion period for new visa applications – false identity used to obtain a migration outcome – failed to disclose previously unlawful status and removal from Australia – grounds for cancellation outweigh hardship caused – decision under review affirmed
PRACTICE AND PROCEDURE – whether procedural defects in the s.107 notice is cause to automatically set aside the decision – procedural defects cured on review
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 359A
Migration Regulations 1994 (Cth), rr 2.41, 2.55, Schedule 4, Public Interest Criterion 4014
CASES
MIAC v Khadgi (2010) 190 FCR 248
MIMIA v Ahmed (2005) 143 FCR 314
SZEEM v MIAC [2005] FMCA 27
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the visa holder failed to comply with s.101(b) of the Act by providing incorrect answers on his TU-572 Student visa application. The delegate further determined to exercise her discretion to cancel the visa under s.109 of the Act. A breach of s.101 provided the basis on which the visa may have been cancelled under s.109.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was invited to appear before the Tribunal on 28 August 2018 to give evidence and present arguments. No response was provided to the hearing invitation and the applicant did not appear before the Tribunal at the time and place scheduled. Whilst no contact was made with the Tribunal to advise why he was unable to attend the hearing, a submission was provided by the applicant’s migration agent in advance of the hearing. This had been to respond to written information that had been put to the applicant pursuant to the procedural requirements of s.359A of the Act the day before the Tribunal had sent the invitation of the hearing to the applicant.
The Tribunal contacted the applicant’s migration agent after the applicant did not appear at the hearing to ask whether the applicant wished the Tribunal to make its decision on the papers and in light…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1618298 (Migration)

Details

AGLC: 1618298 (Migration) [2018] AATA 4435
Case: [2018] AATA 4435
Decision Date: 31 August 2018

CaseChat Overview and Summary

This matter concerned an appeal by a visa holder against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The dispute arose from allegations that the applicant had provided incorrect answers on their visa application form, specifically failing to disclose a previous removal from Australia and the use of a false identity. The decision under review was made by the Tribunal, presided over by Member David McCulloch.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* by providing incorrect answers on their visa application, and consequently, whether the Minister's delegate had validly exercised the power to cancel the applicant's visa under section 109 of the Act. A related procedural issue concerned whether any defects in the section 107 notice, which particulars the alleged non-compliance, were sufficient to set aside the cancellation decision, or if such defects were cured on review.

The Tribunal found that the applicant had indeed provided incorrect answers on their visa application form, failing to disclose their previous removal from Australia and the use of a false identity. The Tribunal applied section 101(b) of the Act, which mandates that visa applications must be completed without incorrect answers, and section 99, which deems information provided to the Minister as an answer to a question in the application form. The Tribunal was satisfied that the section 107 notice complied with statutory requirements and that any procedural defects were cured on review. The Tribunal concluded that the grounds for cancellation outweighed any hardship caused to the applicant.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.Did the notice comply with the requirements in s.107? In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with certain procedural requirements associated with the notice. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: Particulars of the possible non-compliance:I consider that there has been non-compliance with the following section of the Migration Act 1958:Section 101. Visa application must be correctA non-citizen must fill in or complete his or her application form in such a way that:…(b) no incorrect answers are given or provided.By operation of s99 of the Act, 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.Section 101. Visa application must be correctOn 15 May 2014 your partner [Ms A] lodged an offshore application for a class TU subclass 572 Vocational Education and Training Sector visa; you were included as her dependent.In the visa application form [Ms A] provided the following responses under 'Character declarations':Have you, or any person included in this application to apply for this visa, ever:been removed or deported from any country (including Australia)?NoIf Yes, please give detailsbeen excluded from or asked to leave any country (including Australia)?NoIf Yes, please give detailsAt the 'Declaration' section of the form, [Ms A] declared as follows: I declare that:The information I have supplied in this application is complete, correct and up-to-date in every detail.YesI am aware that I must immediately advise the department if I become aware that any information provided in this form is incorrect or if there is a change in my circumstances that is relevant to this application at any time.YesOn 27 May 2014 on the basis of this information as well as meeting other relevant criteria, your class TU subclass 572 Vocational Education and Training Sector visa was granted to you.On 12 February 2016, the department received adverse information from another agency in regards to your identity. The Roads and Maritime Services (RMS) agency, New South Wales, advised the department that they had identified an identical image of you with another person by the name of [Mr B], also born on [Date 1], through Facial Recognition Technology. On 29 August 2016 a further facial image comparison was conducted by a departmental specialist. Photos from your Vocational Education and Training Sector visa application and [Mr B]'s photos from immigration detention, as well as his Protection visa application lodged on 30 January 2012 and class TU subclass 572 Vocational Education and Training Sector visa application lodged on 13 August 2007 were referred to the department's Identity Resolution Centre for comparison. A Facial Image Comparison Specialist determined that [the applicant] and [Mr B] 'represent the same person'.[In] May 2007, you first arrived in Australia under the name [Mr B], holding a class UD subclass 976 Electronic Travel Authority visa. On 29 August 2007 you were granted a class TU subclass 572 Vocational Education and Training Sector Student visa while onshore. The visa ceased on 16 December 2009. You remained in Australia as an unlawful non-citizen until 30 January 2012 when you lodged an application for a Protection visa; you were granted a Bridging C visa in association with this application. On 3 February 2012 you were refused a Protection visa. You appealed the decision to the Refugee Review Tribunal.On 16 May 2012 the delegate's decision was affirmed. On 22 June 2012 your Bridging C visa ceased and you became an unlawful non-citizen. On 24 July 2013 you were found by departmental officers working at [a particular location]. [In] August 2013 you were removed from Australia. By overstaying your visa, working illegally, being detained and then removed at government expense you became subject to Public Interest Criterion 4014 which means that you were barred from making any further visa applications for three years from date of departure.[In] June 2014 you re-entered Australia [under a particular alias] holding a class TU subclass 572 Vocational Education and Training Sector visa.I consider that you provided incorrect information to the department at the questions and declaration statements extracted above in your class TU subclass 572 Vocational Education and Training Sector visa application form.I consider that the correct responses to the visa application form questions above was to state your removal and subsequent exclusion from Australia in 2013.By providing incorrect information, it appears that you have not complied with section 101(b) of the Migration Act. Accordingly, your visa is liable for cancellation based on section 109 of the Migration Act. It does not matter whether you deliberately or inadvertently did not comply.

Decision

Reasons for decision

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.David McCullochMemberATTACHMENT – Migration Act 1958 (extracts)5Interpretation(1)In this Act, unless the contrary intention appears:bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.97InterpretationIn this Subdivision:application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).Note:Bogus document is defined in subsection 5(1).98Completion of visa applicationA non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.99Information is answerAny information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.100Incorrect answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.101Visa applications to be correctA non‑citizen must fill in or complete his or her application form in such a way that:(a)all questions on it are answered; and(b)no incorrect answers are given or provided.107Notice of incorrect applications(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non‑compliance; and(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i)if the holder disputes that there was non‑compliance:(A)shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or(ii)if the holder accepts that there was non‑compliance:(A)give reasons for the non‑compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f) requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b) otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a) visas of a stated class; or(b) visa holders in stated circumstances; or(c) visa holders in a stated class of people (who may be visa holders in a particular place); or(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.108Decision about non‑complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.109Cancellation of visa if information incorrect(1)The Minister, after:(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.David McCullochMemberATTACHMENT – Migration Act 1958 (extracts)5Interpretation(1)In this Act, unless the contrary intention appears:bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.97InterpretationIn this Subdivision:application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).Note:Bogus document is defined in subsection 5(1).98Completion of visa applicationA non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.99Information is answerAny information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.100Incorrect answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.101Visa applications to be correctA non‑citizen must fill in or complete his or her application form in such a way that:(a)all questions on it are answered; and(b)no incorrect answers are given or provided.107Notice of incorrect applications(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non‑compliance; and(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i)if the holder disputes that there was non‑compliance:(A)shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or(ii)if the holder accepts that there was non‑compliance:(A)give reasons for the non‑compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f) requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b) otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a) visas of a stated class; or(b) visa holders in stated circumstances; or(c) visa holders in a stated class of people (who may be visa holders in a particular place); or(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.108Decision about non‑complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.109Cancellation of visa if information incorrect(1)The Minister, after:(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.