2109825 (Migration) - [2022] AATA 487

2109825 (Migration) [2022] AATA 487 (18 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2109825
MEMBER:James Silva
DATE:18 February 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 18 February 2022 at 5:37pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in association with application for protection visa – incorrect answers and bogus documents given with previous visa application – work in home country and travel, residence and work in third country, and related documents – one official document altered – discretion to cancel visa – no notification of correct information or response to department’s notice – reliance on agent in home country – protection visa application in progress and Bridging E visa granted in association – cancellation of current visa would not result in removal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 105, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Zhong v MIAC (2008) 171 FCR 444
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K 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 Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a national of India, born in [year].
He was granted a Bridging A visa on 2 March 2020, in association with an application for a protection visa. On 25 June 2021, the delegate issued a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there are grounds for cancelling the applicant’s visa under s.109 of the Act. The applicant did not respond to the NOICC, and his visa was cancelled on 29 July 2021. The applicant seeks review of the decision.
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 appeared before the Tribunal on 17 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted via teleconference with the assistance of an interpreter in the Hindi and English languages. The applicant is unrepresented in this matter. He presented no documents, and did not request the Tribunal to take evidence from any witness.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The applicant stated that he preferred to discuss his past and current circumstances face-to-face, without providing details. The Tribunal considered the request, but determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 2109825 (Migration)

Details

AGLC: 2109825 (Migration) [2022] AATA 487
Case: [2022] AATA 487
Decision Date: 18 February 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of the applicant's Bridging A (Class WA) visa, Subclass 010. The applicant had been granted this visa in association with an application for a protection visa. The dispute arose from allegations that the applicant had provided incorrect answers and bogus documents in a previous visitor visa application, and subsequently in his protection visa application.

The Tribunal was required to determine whether the applicant had failed to comply with sections 101(b) and 103 of the Migration Act 1958, which relate to providing correct information in visa applications and not submitting bogus documents. It also needed to consider whether the notice issued by the Department under section 107 of the Act complied with its requirements, and if so, whether the discretion to cancel the visa under section 109 of the Act should be exercised.

The Tribunal found that the applicant had indeed provided incorrect information regarding his employment and residence history in his visitor visa application, and that he had presented a bogus document, specifically an altered [Country 1] residence permit. The Tribunal noted that while the applicant's subsequent protection visa application was still ongoing, the discrepancies in his previous applications were significant. Despite the applicant's reliance on an agent in his home country and the fact that cancellation would not immediately result in removal due to his ongoing protection visa application, the Tribunal concluded that the non-compliance was substantial and weighed heavily in favour of cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Bridging A visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. Did the notice comply with the requirements in s.107? The applicant is unrepresented, and did not raise any concerns as to whether the NOICC complied with s.107. However, the Tribunal considers it appropriate to address this, for completeness and because it provides context for this decision. The notice[1] identified s.101(b) and s.103 as the relevant provisions. Section 101(b) states that ‘a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided’. Section 103 states that a ‘a non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided’. In relation to the meaning of a ‘bogus document’, the NOICC highlighted that it includes a document that the Minister reasonably suspects is a document that ‘is counterfeit or has been altered by a person who does not have authority to do so’.[1] The delegate’s decision record of 26 April 2021 sets out the information that formed the basis for the cancellation, and the procedural steps. The applicant submitted to the Tribunal a copy of the decision. He has raised no questions about the validity of the notice. The notice set out relevant information and documents that the applicant presented to the Department.Visitor visa application lodged on 22 September 2019§ The applicant provided information as follows:- He is currently employed, as [an Occupation 1] with [Employer 1] in Hyderabad, India, a position he has held since 11 June 2014.- He travelled to [Country 1] from [April] 2017 to [February] 2018.- He confirmed that he had read and understood the information in the application, that it was ‘complete and correct information in every detail’, and he understood that the visa may be cancelled if documents were found to be fraudulent or the information to be incorrect.§ The applicant provided copies of the following documents:- Offer of appointment from [Employer 1], dated 11 June 2014, relating to a position as an [Occupation 1] in Hyderabad, from 24 June 2014.- Letter from [Employer 1], dated 11 September 2019, stating that the applicant worked there since June 2014, that he is currently employed in Hyderabad as [an Occupation 1], and that he had been given leave for 15 days.- [Country 1] residence permit issued on 26 June 2017, stating his profession as [Occupation 1] and his employer as [Employer 2].Protection visa application lodged on 24 February 2020§ The applicant provided information as follows:- He was employed as [an Occupation 1] by [Employer 1], [with specified duties], in Telangana, India, from February 2018 to February 2020. - He worked in [Country 1] as an [Occupation 2] (November 2014 to September 2016), and later as [an Occupation 3] (April to October 2017). In other periods, he was unemployed ([birth]-2014, September 2016 to April 2017, and September 2017 to February 2018).- His residential address from November 2014 to February 2018 was in [Country 1]. He was there from November 2014 to September 2016, April to September 2017, October 2018 (one week), and November 2017 to February 2018.§ The applicant provided copies of the following documents:- [Country 1] residence permit issued on 26 June 2017, stating his profession as [Occupation 3] and his employer as [Employer 2].- A cancelled [Country 1] residence permit issued on 8 December 2014, stating his profession as [Occupation 2] and his sponsor as [Employer 3].§ The NOICC (and decision record) noted that Australian Border Force (ABF) officers interviewed the applicant on arrival in Australia on 7 December 2019, having noticed the discrepancy between the [Country 1] residence permit in the applicant’s passport (giving his profession as ‘[Occupation 3]’ compared with the information given in the visitor visa application.

Decision

Reasons for decision

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.James SilvaMemberATTACHMENT – Migration Act 1958 (extracts)5Interpretation(1)In this Act, unless the contrary intention appears:bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.97InterpretationIn this Subdivision:application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).Note:Bogus document is defined in subsection 5(1).98Completion of visa applicationA non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.99Information is answerAny information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.100Incorrect answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.101Visa applications to be correctA non‑citizen must fill in or complete his or her application form in such a way that:(a)all questions on it are answered; and(b)no incorrect answers are given or provided.103Bogus documents not to be given etc.A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).107Notice of incorrect applications(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non‑compliance; and(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i)if the holder disputes that there was non‑compliance:(A)shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or(ii)if the holder accepts that there was non‑compliance:(A)give reasons for the non‑compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f) requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b) otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a) visas of a stated class; or(b) visa holders in stated circumstances; or(c) visa holders in a stated class of people (who may be visa holders in a particular place); or(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.108Decision about non‑complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.109Cancellation of visa if information incorrect(1)The Minister, after:(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

Ratio Decidendi

Legal Principle Established

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). Consideration of prescribed circumstances 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, and addressed in the following paragraphs. The correct information The applicant provided information in his subsequent protection visa application of 24 February 2020. That application is ongoing, and the Tribunal is unable to determine conclusively whether the information provided there, including the personal particulars, are correct. For the purpose of this decision, it finds that the following is the correct information:§ In relation to his employment: (a) that he was unemployed from June to November 2014; (b) that he worked as [Occupation 2] in [Country 1] from November 2014 to September 2016; (c) that he was again unemployed from September 2016 to April 2017; (d) that he worked as [an Occupation 3] in [Country 1] from April to October 2017; and (e) that he was unemployed from September 2017 to February 2018. This contrasts with the incorrect information that the applicant provided, that since June 2014 he worked for [Employer 1] as [an Occupation 1].§ In relation to his place of residence, that he was based in [Country 1] from November 2014 to February 2018 (with absences from September 2016 to April 2017, two weeks in September 2017, and six weeks in October to November 2017). This contrasts with the incorrect information that he lived in India, except for a visit to [Country 1] from April 2017 to February 2018.§ In relation to his visitor visa application, that he did not provide complete and correct information in every detail. The Tribunal considers the incorrect information to be significant, as it relates to the applicant’s employment, places of residence and migration history. It weighs this factor heavily in favour of cancelling the visa.The content of the genuine document (if any) The Tribunal proceeds on the basis that the two [Country 1] residence permits that the applicant provided with his protection visa application are genuine. However, it does so with caution, given the applicant’s reliance on bogus documents with his visitor visa application, which suggests that he may have the resources and willingness to do so in the future The two [Country 1] residence permits show that the applicant worked in [Country 1] as [an Occupation 2], from December 2014; and that he worked as [an Occupation 3] from June 2017. On their face, they indicate: (a) his claim to have worked in India from June 2014, as an [Occupation 1], was false; (b) that his claim to have worked in [Country 1] as an [Occupation 1], and only during the period April 2017 to February 2018, was false; (c) that he provided bogus documents relating to his employment with [Employer 1]; and (d) that he fraudulently altered the [Country 1] residence permit of June 2017, by changing his profession from ‘[Occupation 3]’ to ‘[Occupation 1]’.