1702001 (Migration)

1702001 (Migration) [2019] AATA 1779 (30 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1702001
MEMBER:Sean Baker
DATE:30 January 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 30 January 2019 at 4:09pm
CATCHWORDS
MIGRATION – cancellation – TU Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – non-compliance – applicant provided false information in visa application – changed name – three year exclusion ban – significant breach of migration scheme – best interest of child – deliberately and wilfully provided incorrect information – decision under review affirmed – no jurisdiction with secondary applicant

LEGISLATION
Migration Act 1958 (Cth), ss 101-105, 107, 109, 140, 359AA, 375A
Migration Regulations 1994 (Cth), r 2.41, Public Interest Criterion (PIC) 4014
CASES

MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 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 applicant provided incorrect answers in her applications for a previous visitor visa and student visa, as well as the student visa the applicant held at the time of cancellation, because she had been known by a different name and did not disclose this. 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 provided a copy of the delegate’s decision with her application for review.
The applicants appeared before the Tribunal on 29 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Initial issues
On the Department file a certificate was placed which purported to be a certificate under s.375A that disclosure of folios on the file would be contrary to the public interest. The reasons given are that these folios contain information concerning DIBP internal processes and DIBP staff details.
I provided the applicant’s representative with a copy of the purported s.375A certificate on the Department file. I explained that I did not believe that it was valid because it did not identify a valid public interest reason for the non-disclosure. I explained that I would be discussing the information with the applicant and her representative if it was valid. I asked if they wished to make comments or a submission on the certificate but they did not.
As noted above, I find that the reason provided in the certificate is not a valid public interest reason. This is because the reasons given are not a cognisable public interest reason, not explaining why revealing such processes is not in the public interest (and no such reason being evident on the face of the folios), nor explaining why staff details of public servants, whose role is to serve, and be accountable to, the public, should not be provided to a review applicant who is affected by the public servants’ decisions, and therefore I find that the s.375A certificate is invalid.
I also raised with the applicant and their representative that I did not appear to have jurisdiction in relation to the second named applicant because his visa was automatically cancelled and was therefore not a ‘decision’ I could review. They did not provide any comment, other than to say, as below, that the second name applicant was now in [Country 1].
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
Adverse information - 359AA
As above, the certificate is not valid. I put adverse information contained in those folios of the Department file to the applicant for comment at the hearing pursuant to s.359AA. I explained the process, put the information to her and checked that she understood the relevance and consequence. After a break she elected to respond in writing after the hearing and I gave her time to do so.
The information I put to her was that in department emails they describe the applicant as a person suspected of operating as a labour hire intermediary with her husband in [a location] and accordingly that she is of considerable interest to compliance field operations. There is also information that they are concerned about her case because of allegations of labour exploitation in rural [State]. I explained that this information may be relevant because it may indicate that she had not been honest about what she had been doing in Australia, her purpose in being in Australia and whether she was studying, and may also indicate that you she had been undertaking actions of concern to the department and possibly to the police. As above the applicant responded after the hearing, her response being that she did not find the information relevant to her student visa cancellation and chose not to comment.
I have carefully considered the potentially adverse information and the response of the applicant. I tend to agree with her that this information may have little bearing on her student visa cancellation. Further, the information is in the form of an unproven allegation, and does not detail the source, and is not very detailed. For these reasons I have placed no weight on the adverse information in arriving at my decision.
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.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b):
Section 101 Visa applications to be correct
A 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.
The s.107 notice (as reproduced in the decision record) set out that the applicant had not complied with this provision in the following respects:
On 17 January 2012 the visa holder lodged an application for a subclass 676 visa via the online lodgement facility. On 31 January 2012 the Department granted the visa holder a subclass 676 visa.
On page one of the application form under the heading “Your personal details”, the visa holder provided the following information:
Family Name: [Applicant 1]
Given Names: [Applicant 1]
On page one of the application form under the heading “Details of other names you have been known by”, where it states “Give details of any other names that you have been known by, including names before marriage”, the visa holder did not provide a response.
On page four of the application form under the heading “Character declarations”, where it states “Have you, or any member of your family unit included in this application, ever: been excluded from or asked to leave any country (including Australia)”, the visa holder’s response was “No”.
On 16 April 2012 the visa holder lodged an application for a subclass 572 visa on Form 157A. On 22 May 2012 the Department granted the visa holder a subclass 572 visa.
On page seven of the application form under the heading “Your details”, the visa holder provided the following information:
Family Name: [Applicant 1]
Given Names: [Applicant 1]
On page seven of the application form under the heading “Your details”, where it states “Have you been known by any other names? (including name at birth, previous married names, aliases)”, the visa holder’s response was “No”.
On page ten of the application form under the heading “Previous visa applications”, where it states “Have you, or any other person included in this application, ever: been in Australia and not complied with visa conditions or departed Australia outside your authorised period of stay?”, the visa holder’s response was “No”.
On page 17 of the application form under the heading “Character declarations”, where it states “Have you, or any member of your family unit included in this application, ever: been excluded from or asked to leave any country (including Australia)”, the visa holder’s response was “No”.
On 28 August 2014 the visa holder lodged an application for a subclass 572 visa via the online lodgement facility. On 25 September 2014 the Department granted the visa holder a subclass 572 visa.
On page one of the application form under the heading “Your personal details”, the visa holder provided the following information:
Family Name: [Applicant 1]
Given Names: [Applicant 1]
On page six of the application form under the heading “Character declarations”, where it states “Have you, or any person included in this application to apply for this visa, ever: been excluded from or asked to leave any country (including Australia)”, the visa holder’s response was “No”.
On 20 September 2016, the Department received information that the visa holder had previously been in Australia under the name, ‘[Alias 1]’.
Departmental records show that [Alias 1] was granted a subclass 976 Electronic Travel Authority (ETA) visa on 19 September 2005. [Alias 1] entered Australia [in] October 2005. On 27 January 2006 [Alias 1’s] ETA visa ceased. [In] May 2011 [Alias 1] departed. On her departure, [Alias 1] was subject to PIC 4014.
The relevant [Country 1] authority has confirmed that [Applicant 1] ([Country 1] Passport number [information deleted]) is also known as [Alias 1] ([Country 1] Passport [number]).
Therefore, based on the information provided by the relevant [Country 1] authority, I consider that [Applicant 1] and [Alias 1] is the same person.
Based on the information before me, I consider that the visa holder has not complied with section 101(b) as she provided incorrect answers in her subclass 676 visa application and subclass 572 visa applications. Specifically, I consider that the visa holder has provided incorrect information in the following manner:
In relation to the subclass 676 visa granted on 31 January 2012:
That the visa holder did not provide an answer at page one of the application form under the heading “Details of other names you have been known by”, where it states “Give details of any other names that you have been known by, including names before marriage”, is incorrect, as the visa holder is also known as “[Alias 1]”.
The answer provided by the visa holder at page six of the application form under the heading “Character declarations”, where it states “Have you, or any person included in this application to apply for this visa, ever: been excluded from or asked to leave any country (including Australia)”, and her response was “No”, is incorrect, as she has previously been excluded from Australia.
In relation to the subclass 572 visa granted on 22 May 2012:
The answer provided by the visa holder at page seven of the application form under the heading “Your details”, where it states “Have you been known by any other names? (including name at birth, previous married names, aliases)”, and her response was “No”, is incorrect, as she is also known as “[Alias 1]”.
The answer provided by the visa holder at page ten of the application form under the heading “Previous visa applications”, where it states “Have you, or any other person included in this application, ever: been in Australia and not complied with visa conditions or departed Australia outside your authorised period of stay?”, and her response was “No”, is incorrect, as she has previously departed Australia outside her authorised period of stay.
The answer provided by the visa holder at page 17 of the application form under the heading “Character declarations”, where it states “Have you, or any person included in this application to apply for this visa, ever: been excluded from or asked to leave any country (including Australia)”, and her response was “No”, is incorrect, as she has previously been excluded from Australia.
In relation to the subclass 572 visa granted on 25 September 2014:
The answer provided by the visa holder at page six of the application form under the heading “Character declarations”, where it states “Have you, or any person included in this application to apply for this visa, ever: been excluded from or asked to leave any country (including Australia)?”, and her response was “No”, is incorrect, as she has previously been excluded from Australia.
This information was sent to the applicant and, as recorded in the decision record, the applicant responded to the s.107 notice and conceded that there had been non-compliance in the manner described in the s.107 notice. She admitted that she had previously been known as [Alias 1] and had been subject to PIC 4014. She provided reasons which are discussed below.
In the submission provided to the Tribunal dated 24 November 2018 it is conceded that there had been non-compliance in the manner described in the s.107 notice.
At hearing I discussed this with the applicant. The applicant explained that when she applied for her visitor visa she had applied through an agent and the agent did not ask her the questions about previous name. She said there were agents in [Country 1] and Australia. I asked why she had not mentioned this in her response to the Department and she said it had not occurred to her. She said that the agent did not tell her all this and she had no idea about all this. I noted that she had made three visa applications in which she had had opportunities to provide the correct information. I noted as well that in the Department response she did not claim that her agents had filled out her application forms and had not asked her about any previous names or exclusion periods, so I was not sure I accepted that it was just the fault of her agent or agents that this incorrect information had been provided. She responded that she did not think that much about it as she was divorced and converted her beliefs from Buddhist to Christian and in [Country 1] you can get a visa like that and there was no problem with her changing her name. The applicant did concede that she had changed her name after the divorce.
As noted above, many of the incorrect answers were made in previous visa applications. However, s. 107A provides that failure to comply with section 101(b) in connection with a previous visa application may be grounds for cancellation of a current visa.
The applicant has not complied with s.101(b) of the Act because she has provided incorrect answers to questions about whether she had been known by any other name (she concedes she was previously known as [Alias 1]), been in Australia and not complied with visa conditions or departed Australia outside her authorised period of stay(which she also concedes), and has departed Australia outside her authorised period of stay and been excluded from or asked to leave any country (including Australia) (she concedes she was subjected to a three year exclusion period on re-entering Australia – and aware of this – in her response to the NOICC).
For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The applicant responded to the s.107 notice. In her response, she said:
That she acknowledged she had used the name [Alias 1] and that she had come to Australia in 2005 under that name, and that when she departed Australia in 2011 she was subject to PIC 4014 which is a 3 year exclusion bar to Australia.
She said that when she returned to [Country 1] she got divorced from her husband. It was a bad ending and hurt very much and she felt exhausted from the divorce. In her home town, most people are conservative and do not respect divorced women. People in her town would talk about her behind her back and she was depressed and stressed by this and had difficulty living and working. It was difficult for the visa holder to find another man who was willing to accept her past and so she decided to change her name to [Applicant 1].
She wanted to leave her home town because of the bad memories and decided to apply for a visitor visa and come to Australia again. When she filled out the visa application form, she was afraid it would not be successful therefore she did not mention about her used name and the fact she was subject to the three year exclusion bar. In the end she was able to come to Australia. She went back to school as she wanted to obtain a better qualification for her future.
She met a man and they had a baby boy (the second named applicant). she wanted to give him a better life. She wants to complete her qualification so she can give him a better life when they return to [Country 1]. If she returns without completing her studies it will be impossible for her to make a living.
She is very sorry she did not declare the correct information. She regrets this, but she has a son to raise and studies to complete and asks for a favourable decision.
the correct information

The correct information is that the applicant is also known as [Alias 1], and that after overstaying her visa she departed Australia in 2011 and was subject to PIC 4014 which is a three year exclusion from Australia. The applicant did not disclose this information on her visitor visa, nor on her two subsequent student visas. At the hearing the applicant said that this was correct. Whilst she has admitted to the provision of incorrect information when sent the NOICC, she has provided incorrect information in three visa applications and I give this significant weight towards the visa being cancelled.
the content of the genuine document (if any)
Not relevant.
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 decision to grant the applicant her visitor visa in January 2012 appears to have been wholly or partly based on the incorrect information – the applicant said in her response to the NOICC that she provided the incorrect information as she was scared that she would not be granted the visa and admitted to Australia if she provided the correct information. At the time of making that application she was within the three year exclusion period and therefore would have been refused the visa on that basis had the correct information been provided.
In relation to the student visas, it appears that these visas also were granted on the basis of the incorrect information. I discussed this with the applicant and she said that she had nothing to say.
It is clear from the Department decision, and the applicant acknowledges, that she would not have been granted the visitor visa and allowed to enter Australia but for the fact that she provided incorrect information. The migration scheme requires people to provide correct information in visa applications to maintain the integrity of that system, and to maintain community support for that system. In providing incorrect information the applicant has acted to the detriment of the integrity of that system, which I consider highly significant. I therefore give this factor significant weight towards the visa being cancelled.
the circumstances in which the non-compliance occurred
In her response to the NOICC, the applicant explains the circumstances around the non-compliance in relation to her providing incorrect information in her 2012 visitor visa application. I accept and have some sympathy for the position the applicant found herself in at this time – divorced and shunned by people in her conservative area, and having difficulty finding work and somewhere to live. However, I do not accept that the only choice the applicant had was to return to Australia by providing false information about her past name and her exclusion period. I do not accept that her circumstances at that time wholly explain or excuse her behaviour in providing the incorrect information.
In her response to the NOICC, the applicant explains that her circumstances at the time led her to provide the incorrect information because she was afraid that if she provided the correct information the visa application would not be successful. At hearing the applicant claimed that she had just provided what they were requested by the agent to provide, they just asked her questions and asked her to sign and she did.
She said she was aware she had the three year exclusion period but she changed her name and got an agent and if she could not get the visa she would not have come. She had been told that since she divorced she can get the visa and come. She said she had changed her name not for the purpose of obscuring her identity to re-enter Australia when she had been excluded, but because of her divorce. She provided evidence after the hearing, which I accept, that the court granted a decree nisi at a hearing [in] July 2011 which was to come into effect three months from that time, and a second document which was dated [October] 2011 and made the decree final. The applicant has previously provided a document which indicates that she changed her name [in] July 2011. I therefore accept, on the documents before me, that the applicant did change her name shortly after the decree nisi and therefore I cannot rule out that she did indeed change her name because of the divorce.
Having weighed up the information before me I make the following findings. I accept that the applicant changed her name shortly after the decree nisi. I have weighed up her two explanations of providing the incorrect information in her visitor visa in January 2012. I do not accept her claim that she provided the information requested by the agent and was not aware that she was providing incorrect information. This is because, firstly, the applicant’s evidence in her response to the NOICC appears to me to contradict that and explains that she was fully aware that she was providing incorrect information and that she knowingly provided that because she was justifiably afraid that the visa application would be refused if she gave the correct information. The applicant has not explained the contradictions in her evidence in the NOICC response and at hearing, nor has she detailed why her evidence at the hearing should be preferred. The response to the NOICC is detailed and appears to me thought out and I consider that it is more likely to be the truth. An additional factor weighing in this direction is that the applicant was applying for the visitor visa only a number of months after leaving Australia and, she acknowledges, being told she was excluded for three years. I therefore do not accept her later and less detailed explanation that she was unaware she had provided incorrect information in this application. I find that the applicant knowingly and deliberately provided the incorrect information in order to secure a migration outcome.
Having considered the above, I also find that the applicant continued to knowingly and deliberately provide the incorrect information in her two subsequent student visa applications. She said that she had applied for the student visas to study and have a better life for herself and her child.
I have carefully considered the evidence of the applicant about her circumstances at the time the non-compliance occurred, particularly in relation to the visitor visa but also in relation to the two student visas. Whilst I have some sympathy for her circumstances at the time of her divorce and the visitor visa application, and her wanting to study for her and her child, these are outweighed by my finding that the applicant knowingly and deliberately provided the incorrect information. I therefore give this factor significant weight towards the visa being cancelled.
the present circumstances of the visa holder
The applicant gave birth to her son, [Master A], the second applicant, in [date]. At the time of the visa cancellation, the applicant was living in Australia with him. At hearing she told me that her son was living in [Country 1] currently. She said that her family had told her to send back the child as she needed to concentrate on her studies and it was hard to raise him on her own. She said her mother was looking after [Master A]. He said she had no contact with [Master A’s] father. I asked if she had any other family or relationship ties to Australia and she said she had some friends who came here to study.
I asked the applicant about the 24 November 2018 submission. She explained her parental responsibilities for [Master A] – she said she had to send him back to [Country 1] as it was too hard to raise him on her own. She said she really didn’t want him to go back. She said she wanted to provide a better living standard for him, and that was why she wanted to complete her studies and then go back to [Country 1]. She said as she did not have any income now she had been supported by her [sibling] so she had to study more to help her son in the future. I noted that she could have returned with him and found work in [Country 1] and she said it is very difficult to find work in [Country 1] and that was why she wanted to study more.
I asked the applicant about her study. She said she had completed an English course and two units of her [Course 1], which was a 16 unit course. She said study for her was very difficult. She explained that despite holding a student visa from April 2012 until the cancellation on 3 February 2017, she had only completed an English course and two subjects of her Diploma. She said she stopped when she got pregnant and then he was very small when born and there was no one to take him so she only studied on and off because she was taking care of him. I noted that one English course after holding student visas for over five years might appear a very low completion rate, even with a pregnancy and young child, and that might lead me to doubt she would study in the future. She said that with him around she would not be able to study and that was why she sent him back home.
I have considered the present circumstances of the applicant. Her child has recently returned to [Country 1]. She does not have a relationship in Australia. She claims she wishes to study [Course 1] to give herself and her child a better life when she returns to [Country 1] but has provided very little to support this claim, and her past low completion rate may indicate that she would not in fact study. I have considerable doubt that she would study if she once more held her visa but I am willing to give her the benefit of the doubt. Even so, given that her son has returned and she does not appear to have any other present significant ties to Australia, I give this factor little weight in favour of the visa not being cancelled.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Since the notice was issued the applicant has engaged with the process and has responded and been somewhat truthful in her admissions of the non-compliance (although I am concerned that she sought at the hearing to claim she had not been aware of the non-compliance). Considered fairly, she has been reasonably truthful and compliant with her obligations to disclose information to the Department and Tribunal and I give this some weight in favour of the visa not being cancelled.
any other instances of non-compliance by the visa holder known to the Minister
I have no information before me to suggest any other instances of non-compliance by the applicant. I give this some weight in favour of the visa not being cancelled.
the time that has elapsed since the non-compliance
The non-compliance here has been relatively recent, relating to incorrect information provided in visa applications from 2012 to 2014. Given how relatively recent this is I give this factor no weight in the applicant’s favour.
any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before me that the applicant has breached the law since the non-compliance. I give this some weight in favour of the visa not being cancelled.
any contribution made by the holder to the community.
I asked the applicant if she had made any contribution to the community. She said she had not. I therefore give this factor no weight in the applicant’s favour.
Other factors
Departmental PAM 3 Guidelines suggest the following factors may also be relevant to an assessment of whether the visa should not be cancelled.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the visa remained cancelled, the applicant may be detained and removed from Australia. She may also only be able to apply for a limited range of visas if the visa remained cancelled. She would continue to not be able to work or study. I asked her what she would do if the visa remained cancelled and she said she did not know. I asked her if she would return to [Country 1] and she said she would consider it.
These are the intended consequences of the legislation, but I do acknowledge that they have had and would continue to have an effect on the applicant, in particular her inability to study which she claims she wants to do, and her ability to work and provide for herself and her son. I therefore give this factor some weight in the applicant’s favour.
whether there would be consequential cancellations under s.140
At the time of the visa cancellation, [Master A’s] visa was consequentially cancelled. However, as discussed elsewhere in these reasons, the applicant said that she had sent [Master A] back to [Country 1] and that her mother was looking after him. She said he had departed on a bridging visa E and did not have a right to re-enter Australia on that visa. Given this, even if the applicant’s visa was re-instated, [Master A’s] would not be. I give this factor no weight in the applicant’s favour. I have discussed the situation for [Master A] in relation to the rights of the child in more detail below.
whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
I asked the applicant if there was any reason she could not return to [Country 1]. She said that because of the divorce her family were not supportive of her. I noted that she had told me her mother was looking after [Master A]. She said that was right as her mother knew it would be hard for the applicant to take care of her child whilst she studied here. I noted that it appeared her mother was being supportive of the applicant. She conceded this and said she supposed that after a long time her mother had forgiven her after all. I asked if there was any other reason she could not return and she said because of her father but she did not want to discuss this any further.
On the information before me there is no basis to conclude that the applicant would suffer harm if returned to [Country 1] such as would engage Australia’s non-refoulement obligations.
I then raised the best interests of the child and the principle of family unity with the applicant. I noted that with [Master A] in [Country 1] I may consider that the best interests of the child and family unity may indicate the applicant should return to [Country 1]. She responded that she had not studied much so it would not be beneficial for her to return to help her child. This claim is also made in the submission. She said that [Master A] had returned on his [Country 1] passport, indicating that [Master A] is a citizen of [Country 1]. The applicant said that she had no contact with [Master A’s] father, so I cannot weigh this in considering the best interests of the child here.
On the information before me I find that the best interests of the child, and the principle of family unity, are not best served by the applicant remaining in Australia – I have taken account of her claim and the claims in the submission that she needs to stay here and study so she can support herself and her child but I do not find this claim at all convincing – the applicant has not established that she would be unable to work if she returned to [Country 1], and she has, on her admission, family support there to help her care for [Master A].
On the basis of the above findings I give this factor no weight towards the visa not being cancelled.
any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
I asked the applicant if there were any other relevant matters she wished to raise. She said that she was a single mother. She said her parents were old and could not support her future so she needs to study as much as possible. I asked if there were any other relevant matters and she said there were not.
I accept that if the visa remains cancelled this will create some hardship for the applicant and I give this some weight in her favour.
I have carefully considered and weighed all of the evidence before me, as set out above under each factor. I have some sympathy for the situation the applicant found herself in after her divorce in [Country 1], and I do understand her desire to provide a better life for her child. Strongly weighing against this are my findings above that the applicant has deliberately and wilfully provided the incorrect information to ensure she is granted the visas she has applied for. In particular in relation to the visitor visa the applicant was aware that she was excluded from Australia but provided incorrect information so that she could be grated the visa and return. This is a significant breach of the migration scheme and I find that the factors weighing in favour of the visa being reinstated do not, in this case, outweigh this. Having regard to the weighing of the factors above, and considering the totality of the applicant’s evidence and all of the information before me I find that in this case the factors in favour of cancellation outweigh those against cancellation.
Conclusion
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 first named applicant’s Subclass 572 Vocational Education and Training Sector visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Sean Baker
Member

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

[2019] AATA 1779

30 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice