2006396 (Migration)

[2022] AATA 1918

2006396 (Migration) [2022] AATA 1918 (13 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006396

MEMBER:Wendy Banfield

DATE:13 May 2022

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 13 May 2022 at 3:28pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – identity details – previous visa applications – family composition – inclusion as a minor in a previous visa application – relationship with an Australian resident – best interests of the children – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 101, 107, 109, 140
Migration Regulations 1994, r 2.41

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the visa applicant did not comply with section 101(b) of Subdivision C of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 8 April 2022 to give evidence and present arguments.

   The hearing

4. The applicant agreed there had been grounds to cancel his student visa. He advised he came to Australia from the United Kingdom (UK) as a visitor, and he has citizenship there. The applicant stated the purpose of his travel was to investigate study and work options. He also wanted to visit family. The applicant applied for a student visa while onshore which was granted. The applicant said he wanted to study [a specified subject] but halfway through his visa was cancelled.

5. The applicant said he was married but is now in a de facto relationship with someone else and they live in Sydney. The applicant said he does not have children, but his partner is pregnant. He advised he would still like to study if he was able to. According to the applicant, his wife and brothers have been supporting him. The applicant said he was not aware he should apply for a Bridging Visa E and only became aware of it later, but he does have it now. The applicant was asked why he wants to remain in Australia rather than return to the UK. He said he has a partner here and most of his family and although he could return to England, he has “shifted the centre of [his] life here now”. The Tribunal put to the applicant that even if his Student visa was not cancelled, he would not be able to stay permanently. The applicant said he had wanted to return to the UK to help his father in business, but it has been so long the circumstances have changed.

6. The applicant said there would be hardship for his partner and family here if he must depart and a lot of people would be affected. Regarding his long-term plans, the applicant said he does not want to make any mistakes, and in his situation, he does not know if he is going to be here or not. The applicant said if he could, he would develop attachments here and support his family but if he has to leave Australia, he will face emotional and economic hardship. The applicant advised he does still have his parents in the UK, but none of his siblings. He claimed his visa cancellation will cause a lot of heartache.

7. The Tribunal asked the applicant to explain the circumstances that led to his visa being cancelled. The applicant confirmed he had been included as a family member when his family were refugees. He said his older sibling made a visa application for his whole family. In reference to his Student visa application, he said he had only mentioned family members that he was in contact with who were in Australia. He said he was not very thoughtful about what had happened, and he did not understand what his other brother had got himself into because of application mistakes. Regarding his name being different on previous visa applications, the applicant said he did not know why his siblings had done it, and he has always been known by [the applicant]. He claimed his brother had used another name.

8. The Tribunal put to the applicant that he had answered “no” to the question about whether he had a visa refused previously. He said it was something his sister had done, and he was not in a position to do anything. He also said he did not know he had to mention it or that it was that serious. The applicant said he did not think anything of it. He said his siblings had married in Australia which was how they gained residency in Australia. The applicant also advised two of his [siblings] had come to Australia as refugees.

9. The applicant confirmed no one else is dependent on his student visa. He said his current partner is an Australian resident and will apply for citizenship. The applicant was advised about the legal consequences of cancellation. He asked how long it will take for the Tribunal to make a decision and whether he can apply for any other visa onshore. The Tribunal indicated a decision would take a few weeks, but he would need to seek his own advice about his situation. The applicant asked if he can submit additional evidence within one week after the hearing and the Tribunal agreed, however, the applicant said he may or may not do so.

10. 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

11. 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.

12. 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.

13. 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?

14. 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 of the Act in the following respects:

    Section 101 Visa applications to be correct s101.

    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

    By operation of s99 of the Migration Act 1958, 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.

15. The Department’s notice of 3 March 2020 outlined in detail the incorrect information provided by the applicant. The notice stated that following the grant of a Student visa, information became available to the Department which indicated that the applicant had provided incorrect information regarding his identity, true family composition, marital status and previous visa applications. The notice included detailed information about the incorrect information provided in the applicant’s previous visa applications regarding his family members and family composition.

16. The Tribunal considered the information regarding non-compliance with s.101 of the Act as found by the Department together with the applicant’s evidence in support of the application for review. The applicant provided the following response to the Department’s s.107 notice:

    I regret that it has come to this point. I have read your email carefully and I take full responsibility for the confusion. My name [the applicant]. This is my true and only name. In [year] my sister [Sister A] launched an application in which our family was written '[name]' at the time I was [age] years old. My name is [the applicant] in all my legal documents. [Sister A] and [Sister B] are my sisters. [Brother C] and [Brother D] are my brothers. They weren't included in my application as family members However they are my true biological siblings. I made an error in the application form and only included my family members outside Australia. I am married to [Ms E] Passport No. [specified]. She is currently settled in Adelaide house [address]. Please consider my ongoing enrollment and my family ties to Australia and grant me the stay until the complition of my course. Thanks for your understanding. [error in original]

17. In his response to the Department, the applicant indicated he took responsibility for the incorrect information provided. At the Tribunal hearing the applicant agreed there had been grounds to cancel his visa. For these reasons, the Tribunal finds that there was non-compliance with s.101 of the Act by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

18. 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).

19. 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 reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

20. According to the Department, the correct information is that the visa holder had, in [year], made a Global Special Humanitarian (GSH) application in the name of ‘[name variant]’, which had been refused, and his true family composition is as follows:
     

Family name	Given name	Sex	Relationship to applicant	Current residence
[Family name 1]	[Specified]	M	Father	United Kingdom
[Family name 1]	[Specified]	F	Mother	United Kingdom
[Family name 1]	[Sister A]	F	Sister	Australia
[Sister B]	F	Sister	Australia
[Family name 1]	[Brother C]	M	Brother	Australia
[Family name 1]	[Brother D]	M	Brother	Australia
[Family name 1]	[Specified]	M	Brother	United Kingdom

1. In his Student visa application, the applicant failed to declare that he had made a previous application; he had used another identity; and his true family composition. The Tribunal finds the correct information is significantly different to that which the applicant provided, and this weighs strongly against him in the Tribunal’s consideration of whether the exercise its discretion to cancel his visa. 

2. There is no information to indicate the applicant provided any non-genuine documents.

3. According to the Department, the decision to grant the applicant a Student visa was based in part on the incorrect information that he provided. This included the use of a different name, his previous visa application and his family composition. If the applicant had provided the correct information to the Department, the Department may have been prompted to undertake further checks and additional scrutiny of the visa application which could, in turn, have led to a different decision about whether to grant the Student visa. This weighs against the applicant in the Tribunal’s assessment of whether to exercise its discretion to cancel his visa.

4. The circumstances in which the non-compliance occurred was that the applicant provided incorrect information when he applied for a Student visa onshore. In his written response to the Department the applicant took responsibility for the incorrect information. At the Tribunal hearing he claimed to have been too young to know about his inclusion in a GSH visa application submitted by his sister, that she would have told him, but he did not remember, and that he had misunderstood the requirement to include all his family members in his Student visa application. After considering the evidence, the Tribunal is not satisfied there are any mitigating circumstances based on the circumstances of the applicant’s non-compliance.

5. The applicant’s present circumstances are that he is living in Australia with support from his partner and siblings, he wishes to continue studying, and his partner is pregnant and expecting a baby. Although the applicant’s parents reside in the UK, the applicant stated his life is now in Australia. The Tribunal gives these circumstances some weight against cancelling the applicant’s visa.

6. The Department noted the applicant had been co-operative and prompt in his dealings with the Department in relation to his current Notice. It was noted the applicant expressed regret and stated he ‘take(s) full responsibility for the confusion’. The applicant was similarly cooperative with the Tribunal and attended a hearing to make submissions in his case. The Tribunal gave this some weight against cancelling the visa.

7. The Tribunal is not aware of any other instances of non-compliance, any breaches of the law or any adverse information since the non-compliance occurred. Regarding any contribution to the community, the applicant advised his life is based in Australia and he wishes to continue studying but did not indicate he had made any contribution to the Australian community. The Tribunal understands the non-compliance occurred on 23 August 2017 when the applicant lodged his Student visa application which is more than four years ago. However, the applicant had entered Australia as a visitor and then held a temporary student visa. The Tribunal notes therefore that the applicant was expecting to depart from Australia and return to the UK after completing his studies. The visa which is the subject of this review would not have permitted him to remain in Australia permanently.

8. While the factors set out above 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.

9. In his response to the Department’s s.107 notice the applicant stated he was responsible for the “confusion” and confirmed his correct identity. He advised his sister had made an application when he was [age] that used a different family name. He also stated that two of the people who were not included in his application as family members are in fact his sisters, and two are his brothers but claimed they were not included in error as they were outside Australia. He advised he was married and asked that his ongoing enrolment and family ties be considered. The Tribunal took account of the applicant’s response and notes his statement that he was a minor when a previous visa application was made. However, this does not account for the applicant himself omitting the names of family members from a visa application. The Tribunal is not satisfied the applicant’s response includes any mitigating factors such that the visa should not be cancelled.

10. The Tribunal considered whether there would be consequential cancellations under s 140 of the Act. There is no evidence before the Tribunal that any other person holds a visa that would be cancelled as a result of the applicant’s visa being cancelled. According to the applicant, his current partner is a permanent resident in Australia and is not dependent on his visa.

11. The applicant advised at the Tribunal hearing that his partner in Australia is expecting a baby. He did not provide independent evidence of his partner’s identity or a pregnancy, but the Tribunal accepts there may be a child whose interests would be affected by cancellation of the applicant’s visa. The Tribunal notes the applicant held a Student visa which was a temporary visa that did not give him a right to remain in Australia permanently. He was aware of his temporary visa status at the time he formed a new relationship onshore. The applicant has citizenship of the UK and would be able to return there if his visa is cancelled. He also stated his parents live in the UK and he had intended to return after studying in Australia. The applicant and his partner would be able to investigate options for the family to live in the UK in future. In considering the best interests of children, the Tribunal finds the child would be able to remain with their mother in Australia. It would be a matter for the parties themselves to decide whether the family return to the UK together.

12. The Tribunal finds that cancellation of the applicant’s visa would not result in removal in breach of Australia’s non-refoulment obligations. The applicant would be returning to the UK where he would not face any possibility of human rights violations.

13. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.

1. The applicant stated at the Tribunal hearing that he would suffer financial and emotional hardship if his visa is cancelled. This is because he has developed ties with his siblings in Australia and he has a partner who is expecting a baby. The Tribunal understands the applicant and his family members will face a degree of hardship if his visa is cancelled but as stated in this decision, the applicant previously held a temporary Student visa which would have required him to be a genuine temporary entrant to Australia, he would be returning to the UK where his parents are living, he could study a similar course in the UK if he wanted to continue his education, and the applicant’s and partner and child may elect depart from Australia with him. For these reasons, the Tribunal can only allow a little weight in favour of the applicant in assessing whether to cancel his student visa.

2. 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

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   Wendy Banfield
   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.