2011784 (Migration)

[2021] AATA 884

2011784 (Migration) [2021] AATA 884 (15 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2011784

MEMBER:Nora Lamont

DATE: 15 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 15 March 2021 at 1:39pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information in visa application – change of name and previous visas not declared – changed name to bring good luck – passport in new name – advised by colleague that she could apply for same visa again – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 108, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASE
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 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant held a previous 417 visa and was granted an extension of that 417 visa. The applicant then changed her name and applied for a new 417 visa under the new name and in her application, she put that she was never known by another name and that she had never held a 417 visa previously. 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 24 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   Non-Disclosure Certificate s375a of the Migration Act

5. The Tribunal notes that a non-disclosure certificate was attached to the Departmental file and a copy of the certificate with the folio pages blacked out was given to the applicant’s representative. At the hearing the applicant and her representative responded that they did not have any issues with the certificate and that they took it to be valid.

6. 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

7. 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.

8. 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.

9. 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?

10. 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 in the following respects:

    Section 101 Visa applications to be correct

11. 101: 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 applicant applied for her first Working Holiday visa in March 2013 in the name of [Name 1], and once it was granted, she travelled to Australia in April 2013. She then applied for a second Working Holiday visa which was granted. She subsequently applied for and was granted a Student visa. After four and a half years in Australia on these visas, she departed in April 2018.

12. The applicant then changed her name to [Name 2] and applied for an updated passport. She lodged an application for another first Working Holiday visa in August 2018 and once it was granted, she travelled back to Australia [in] September 2018. She then applied for another second Working Holiday visa which was granted, and this is the visa she currently holds.

13. In her Working Holiday visa lodged on 30 August 2018:  The applicant’s response to the question ‘Are you known by any other names?’, was No. This answer is incorrect as, based on the information above, she is also known as [Name 1].  In response to the declaration ‘I am applying for a Working Holiday visa for the first time and have not previously entered Australia on a Working Holiday visa (on a passport of any country)’, the applicant answered Yes. This declaration is incorrect as on 22 March 2013 she first applied for a Working Holiday visa and [in] April 2013 she arrived in Australia as the holder of a Working Holiday visa. In her Working Holiday visa application lodged on 18 August 2019: the applicant responded to the question asking, ‘Are you known by any other names?’, she answered No. This answer is incorrect as, based on the information above, she is also known as [Name 1]. 

14. In response to the question asking, ‘Does this applicant have any other passports or documents for travel?’, the applicant answered No. This answer is incorrect as, based on the information above, at the time she also held passport [Number 1] in the name of [Name 1], issued [in] 2009 and expiring [in] 2019. In response to the declaration ‘Has the applicant been granted and been in Australia as the holder of a second Working Holiday visa (subclass 417) before?’, she answered No. This declaration is incorrect as on 18 March 2014 she applied for a second Working Holiday visa which was granted on the 21 March 2014 when she was already in Australia. She remained in Australia on this visa until [April] 2015 when she departed.

    Response to the Department on NOICC

15. Section 108 of the Migration Act 1958 provides:

    The Minister is to:
    (a) consider any written 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.

16. Does the visa holder agree there was non-compliance? Yes

    In her response to the Notice of Intention to Consider Cancellation (NOICC), the visa holder advised the Department of the following:  She is a [Age]-year-old national of Taiwan born on [Date] and is known by two names: [Name 2] and [Name 1].  She is the holder of Taiwan Passport [Number 2] and previously passport [Number 1], which expired [in] 2019. On 2 April 2013 she was granted a Working Holiday visa in the name [Name 1].  [In] April 2013 she arrived in Australia on this Working Holiday visa.  On 18 March 2014 she applied for a Working Holiday (Extension) visa which was granted on 21 March 2014.  On 27 April 2015 she applied for a Student visa which was granted on 15 May 2015.  [In] April 2018 she departed Australia and returned to her home country Taiwan. On 30 August 2018 she applied for a Working Holiday visa which was granted on 19 September 2018, in the name of [Name 2], as she was no longer known as [Name 1].  On 18 August 2019 she applied for a Working Holiday (Extension) visa which was granted on 18 August 2019.

17. The visa holder confirmed that in her Working Holiday applications lodged on 30 August 2018 and 18 August 2019 she did not declare she had also been known as [Name 1], nor that she had previously entered Australia on a Working Holiday visa and had been in Australia as the holder of a second Working Holiday visa.

18. The Tribunal considers that the visa holder did not comply with section 101(b) of subdivision C of the Act because she provided incorrect answers in two Working Holiday visa applications.

    Conclusion on non-compliance

19. 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.

    Tribunal Hearing

20. At the hearing the applicant stated that her parents wanted her to change her name. She said it was like fortune telling they said her new name would bring good luck. The applicant stated she applied for the visa under her new name as one of her work colleagues in Australia told her that if she has a different name, she could re-apply for the 417 visa.

21. The Tribunal put the question to the applicant: did she know that the answers to the questions on the visa application were untruthful to which she responded yes; she knew she was being untruthful. The Tribunal noted that the applicant’s representative had sent in a submission in which she stated that the applicant did not intend to mislead she simply made mistakes. However, when asked the applicant said she was untruthful.

22. The applicant said people told her she could do this and get another visa, she also stated that she used the internet and followed online tutorials on how to do the visa application. The applicant then said she wanted to apologise for not giving the correct answers and she didn’t know she had until the cancellation notice which contradicted the information, she had already given the Tribunal. She then stated she didn’t know she couldn’t apply again to which the Tribunal said she had already told the Tribunal she said friends told her to change her name. She said yes, her friends told her she would be successful.

23. The applicant’s representative said the applicant took these friends words, they told her she could do it. She took advice from work colleagues and did not seek legal assistance. The Tribunal also received a written submission from the applicant’s representative.

    Should the visa be cancelled?

24. 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).

25. 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. 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.

26. 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.

27. The Tribunal has considered the applicant’s circumstances and the details provided by the applicant during the hearing. The applicant has confirmed she knew she was being untruthful when she applied for the first and second visa using a new passport and name. The Tribunal considers that the incorrect information was used to apply for the visa and therefore the decision to grant the visa was based wholly on that incorrect information.

28. The applicant told the Tribunal her parents wanted her to change her name and that it was like “good luck” and it was like “fortune telling”, however the Tribunal does not accept this explanation as she then said someone in Australia told her that if she has a different name she could apply for another visa. She also stated in the hearing that she knew she was being untruthful but was just following what people had told her what to do. Given that the applicant had told the Tribunal that she did it and knowingly knew that she was giving untruthful answers the Tribunal considers that the applicant knew what she was doing when putting down incorrect information and it was not a mistake or error.

29. The visa holder has been working in a regional area during the pandemic and the Tribunal has regard for this. The applicant also said she sometimes sends money back to her family if they need it, such as for insurance and other items. She also stated her older brother and father work in construction. She did not indicate to the Tribunal that this would adversely impact the family, she did also state had she not had her visa cancelled she was planning on going back to Taiwan when her visa expired.

30. The Tribunal has considered that there are no consequential cancellations under s.140. and the applicant does not have any children that would be affected by the cancellation. Further, the cancellation would not lead to the applicant’s removal in breach of non-refoulement or family unity obligations.

31. The Tribunal notes that there can be some legal consequences of this cancellation including that the applicant may be detained, may be subject to a s.48 bar and a further Public Interest Criterion (PIC) 4013. However, the Tribunal notes and considers that the applicant was fully aware that she was providing incorrect information when she applied under a new name with a new passport and did not tell the Department.

32. 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

33. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Nora Lamont
    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.