2114364 (Migration)

[2022] AATA 969

2114364 (Migration) [2022] AATA 969 (5 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2114364

MEMBER:Nathan Goetz

DATE:5 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 05 April 2022 at 5:02pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – granted in conjunction with application for protection visa – protection visa refused and application for review in progress – incorrect answers given in previous visa application – previous name, date of birth, passport number and travel not declared – facial image comparison – no information or evidence provided and consent to decision without hearing – discretion to cancel visa – unlawful non-citizen, detention and removal after previous visa ceased – unlawful non-citizen before current protection visa application – incorrect answers repeated in protection visa application – no concession of non-compliance – possibility of lengthy detention before protection visa application finally determined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 90, 101(b), 107, 107A, 109(1), 198(5A), 359(2), 360(1), (2)(b), 363A, 375A
Migration Regulation 1994 (Cth), r 2.41, Schedule 2, cl 602.212

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 501K 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 030 (Bridging C) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. The applicant identifies as [Age]-year-old male citizen of Malaysia presently located in Australia.

3. The applicant first arrived in Australia holding an Electronic Travel Authority (visitor) (subclass 976) visa [in] July 2007.

4. Once onshore, the applicant commenced a Tourist (Onshore) (TR 676) visa application on 28 October 2007. He was granted a Bridging Visa A on this same date. The Tourist visa was granted on 5 December 2007 and ceased on 28 January 2008.

5. The applicant commenced another Tourist (Onshore) (TR 676) visa application on 23 January 2008. He was granted a Bridging Visa A on this same date. The Tourist visa was granted on 20 February 2008 and ceased on 28 April 2008.

6. The applicant commenced a final Tourist (Onshore) (TR 676) visa application on 28 April 2008. He was granted a Bridging Visa A on this same date. The Tourist visa was granted on 26 May 2008 and ceased on 28 July 2008.

7. The applicant then departed Australia [in] December 2015.

8. On 26 July 2016 the applicant was granted an Electronic Travel Authority (subclass 601) visa. He arrived onshore [in] August 2016.

9. On 20 September 2016 the applicant commenced a Student (TU 500) visa application. He was granted a Bridging Visa A on this same date. The Student Visa was refused on 14 February 2017. The applicant’s Bridging Visa A ceased on 14 March 2017. The applicant was onshore unlawfully from this date until 3 February 2021.

10. On 24 January 2021 the applicant commenced a Protection (XA 866) visa application. He was granted a Bridging Visa C on 3 February 2021. The Department refused this application on 1 June 2021. The applicant commenced review on this same date (AAT case 2107178). That review application remains outstanding.

11. On 22 September 2021 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s bridging visa that was granted on 3 February 2021. The NOICC advised the applicant that he could comment on the possible non-compliance and give reasons why the visa should not be cancelled. The applicant did not respond to the NOICC. On 12 October 2021 the delegate cancelled the bridging visa under s 109 of the Act..

12. On 15 October 2021 the applicant applied to the Tribunal for review of the decision to cancel the bridging visa. On 3 November 2021 the applicant was granted a bridging visa in connection with his review application and this bridging visa remains in effect to date.

13. On 23 March 2022 the Tribunal wrote applicant for two reasons.

14. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing on 19 April 2022 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal was unable to make a decision favourable to the applicant on the material it had. The Tribunal determined that a telephone hearing was appropriate in all the circumstances. The applicant was asked to complete and return to the Tribunal a ‘Response to hearing invitation form’ which was attached to the hearing invitation.

15. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information. The information requested is detailed later in this decision record. The letter advised the applicant that if he did not provide the Tribunal with the information it requested, he would lose the right to appear at a Tribunal hearing, meaning that the Tribunal hearing scheduled for 19 April 2022 would be cancelled and the Tribunal would make a decision on the review application without taking any further steps to allow or enable the applicant to appear at a Tribunal hearing.

16. On 4 April 2022 the applicant provided the Tribunal a completed ‘Response to hearing invitation form.’ In the form, the applicant indicated that he would not take part in the hearing listed on 19 April 2022 and the applicant consented to the Tribunal making a decision ‘on the papers’ without taking further steps to allow the applicant to appear. The applicant also indicated that he did not intend to rely on any documents at the hearing. If the applicant had intended to provide the information requested in the s 359(2) letter, the Tribunal is satisfied that a reference to that information being provided would have been detailed in the ‘Response to hearing invitation form.’

17. As the applicant consented to the Tribunal making a decision on the review application without him appearing at a Tribunal hearing, the Tribunal hearing was cancelled and the Tribunal has made a decision on the material it has: ss 360(2)(b), 363A.

    THE STATUTORY REGIME FOR CANCELLING A VISA

18. 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.

19. 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.

20. If a decision maker is satisfied that there has been non-compliance as detailed in the s 107 notice, a decision maker must then consider the discretion to cancel the visa. 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.

21. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Certificate and notification regarding disclosure of certain information to Tribunal under s 375A of the Act

22. The department file contains a certificate that prohibits the disclosure of information contained in certain TRIM references in the department file to anyone other than the Tribunal. The references are detailed in the certificate. It was claimed that disclosure of the information would be contrary to the public interest because the information would disclose lawful methods for preventing, detecting and investigation breaches or evasions of the law which would likely prejudice the effectiveness of those methods.

23. The certificate is valid, but the information contained in the certificates relates to information discussed in the delegate decision, namely that there has been a facial comparison between documents and the Malaysian passport in the name of [the applicant] has been determined to be a fraudulently issued document. This information is something that the applicant would be aware, as the delegate decision refers to that information as the basis for the delegate’s conclusion that the applicant did indeed have an alias.

    The NOICC

24. The NOICC detailed that the delegate considered there had been possible non-compliance with s 101 of the Act by the applicant. Section 101(b) requires 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. The NOICC also detailed the operation of ss 90 and 107A of the Act and their impact on the requirements of s 101 of the Act.

25. The NOICC detailed that on 26 July 2016 the applicant applied for an electronic travel authority visa. In the online application form the applicant declared:

    ·     His name as [the applicant]

    ·     His date of birth as [Date 1]

    ·     He did not have any aliases

    ·     He held Malaysian passport number [Number 1] issued [in] 2016.

26. The delegate noted that the applicant was granted the electronic travel authority visa on the basis of the above answers on 26 July 2020 (but clearly meant 26 July 2016). The NOICC then detailed that the applicant arrived in Australia [in] August 2016 holding the electronic travel authority visa. The NOICC went on to detail more of the applicant’s migration history and noted that the applicant became an unlawful non-citizen on 14 March 2017 when a bridging visa ceased.

27. The delegate detailed that on 24 January 2021 the applicant applied for a protection visa and that the applicant was granted an associated bridging visa on 3 February 2017. The basis of the grant of the bridging visa was to regularise his migration status in Australia while the protection visa application was finally determined. In the protection visa application form, the applicant maintained that his name was [the applicant], his date of birth as [Date 1], that he did not have any aliases and that he held Malaysian passport number [Number 1].

28. The NOICC then detailed the ‘evidence indicating those answers were incorrect.’ The delegate wrote that a departmental forensic facial image examiner determined the image of the applicant provided with his protection visa application in 2021 and that two images of another person on department records named [Alias] who was born on [Date 2] which were provided in 2007 and 2015 ‘represent the same person.’ The delegate then detailed that this person had previously travelled to Australia using Malaysian passport number [Number 2] issued [in] 2006 with a Malaysian identify number [Number 3]. That person also provided a copy of that Malaysian identity card which demonstrated that person’s name and date of birth. Also provided was a New South Wales driver licence with that same name and date of birth.

29. The delegate went on to detail that information in the public domain (the source for which the delegate cited) indicates that Malaysian identity numbers which appear on Malaysian passports is a unique identification number allocated to each Malaysian and is the same number on the bearer’s Malaysian national identity card. The first six digits are the holders date of birth in format YYMMD, the next two digits represent the state (if born in Malaysia) or country (if born overseas) and the last four digits are random, with the final digit being an odd number for males and an even number for females. The delegate observed that the only difference between the applicant’s Malaysian identity number and that of [Alias] is the sixth digit, reflecting the respective dates of birth, with all other numbers being consistent between the two identities. The delegate also detailed that the department obtained confirmation from the Malaysian authorities that the passport number [Number 2] issued in respect of [Alias] is genuine, but that the passport in the name of [the applicant] was fraudulently issued. In the delegate’s assessment, this did not support a conclusion that [Alias] and [the applicant] were different people.

30. The delegate went on to detail that when [Alias] previously travelled to Australia [in] November 2015 he was interviewed by a departmental officer and stated that his address in Malaysia is [Address], Alor Star Malaysia. He provided his Malaysian identity card showing this address. The delegate noted that this was the same address that the applicant provided as his address in Malaysia where he resided between 1 January 1995 and 10 August 2016 as detailed in [the applicant]’s protection visa application.

31. From that information, the delegate considered that [Alias] (born [Date 2]) and [the applicant] (born [Date 1]) were the same person.

32. The delegate decided that the applicant did not comply with s 101(b) of the Act because the applicant provided the following answers in the electronic travel authority visa on 26 July 2016 as follows:

33. The applicant provided his name is [the applicant] and declared he did not have any aliases. However, the applicant previously travelled to Australia under the name [Alias] using a Malaysian passport issued in that name and lived in Australia for over eight years. Therefore, the delegate considered that [Alias] is an alias by which the applicant has been known.

34. The applicant provided his name of birth as [Date 1] but under the alias of [Alias] he provided a Malaysian passport, a Malaysian identity card and a New South Wales driver licence all declaring that his date of birth is [Date 2].

35. As discussed previously, the applicant was invited to comment on the NOICC. He did not do so.

    The delegate decision to cancel the visa

36. On 21 October 2021 the delegate cancelled the applicant’s bridging visa that had been granted on 3 February 2021 in connection with the outstanding review application that had been made to the Tribunal concerning the decision of the delegate to refuse to grant the protection visa. The delegate did so on the basis that the applicant had not complied with s 101(b) of the Act for the reasons discussed in the NOICC. The delegate then considered the discretion about whether to cancel the bridging visa as provided by Migration Regulation 2.41. After considering all the matters, the delegate determined to cancel the bridging visa.

37. The delegate decision record indicates that s 107A of the Act specifies that non-compliance in relation to an application for a previously held visa can constitute the grounds for cancellation of a currently held visa.

    Review application to the Tribunal

38. As discussed previously, the Tribunal wrote to the applicant on 23 March 2022 under s 359(2) of the Act to request information from the applicant. The Tribunal letter noted that the delegate cancelled the bridging visa on the basis that the applicant did not comply with s 101 of the Act and requested that the applicant provide the Tribunal with information about whether the applicant complied with s 101 of the Act. The Tribunal attached a copy of the relevant section of the Act for the applicant’s assistance. As noted previously, the applicant indicated in his ‘Response to hearing invitation form’ that he would not attend the Tribunal hearing and requested that the Tribunal make a decision on the review application ‘on the papers.’

    FINDINGS AND REASONS

39. The purpose of the Tribunal hearing was for the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal needed to hold a hearing because it could not make a favourable decision based on the material it had.

40. Given the applicant declined to appear at a Tribunal hearing and did not provide the Tribunal with the information it asked for, nor any other evidence to support his review application, the Tribunal finds itself in the same position it was when it determined that it needed to invite him to appear at a Tribunal hearing, namely it could not make a favourable decision on the review application based on the material it had.

41. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    Was there non-compliance as described in the s 107 notice?

42. 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 s101(b) of the Act on the basis that:

43. The applicant did not disclose his alias of [Alias] with a date of birth of [Date 2] in the application for an electronic travel authority visa that he applied for on 26 July 2016 and noted that when the applicant applied for a protection visa on 24 January 2021, he maintained that he did not have an alias.

44. The Tribunal is satisfied on the basis that the department undertook checks as described in the NOICC and repeated in the delegate decision that the applicant and [Alias] are the same person. The applicant did not provide a response to the NOICC nor a response to the Tribunal request for information arguing otherwise. The Tribunal is satisfied that if the applicant and [Alias] were not the same person he would have argued that this was the case. The applicant did not do so. The Tribunal is satisfied that the applicant did not do so because he accepts that he and [Alias] are the same person.

45. For these reasons, the Tribunal finds that there was non-compliance with s101(b) by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

46. 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).

    The correct information

1. The Tribunal is satisfied that the correct information is that the applicant does have an alias being [Alias] with a date of birth of [Date 2]. The fact that the applicant failed to declare his alias is a factor which weighs in favour of exercising the discretion to cancel the bridging visa. It is reasonable to expect that the applicant would provide correct information in his visa application.

   The content of the genuine document (if any)

2. The Tribunal is satisfied that the content of the genuine documents, namely his Malaysian passport and his Malaysian identity card, is the information provided in documents that the applicant produced which detail his name being [Alias] with a date of birth of [Date 2]. As detailed previously, the documents produced by the applicant under the name of [the applicant] with a date of birth of [Date 1] are not genuine. The fact that the applicant has, at some point, produced documents that were fraudulently issued is a factor which weighs in favour of exercising the discretion to cancel the bridging visa. It is reasonable to expect that the applicant would not provide fraudulent documents in his visa application.

   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

3. The Tribunal is satisfied that the correct identification of the applicant was at the heart of the decision to grant him the earlier electronic travel authority visa, and stemming from this, the decision to grant the applicant all visa to which he has been granted. The Tribunal is satisfied that if a delegate was aware that the applicant was in fact [Alias], the applicant would not have been granted the electronic travel authority visa to travel to Australia because, as discussed in the delegate decision, cl 602.212 of Schedule 2 of the Regulations requires that the applicant genuinely intend to visit Australia temporarily for the purpose of a visa. The applicant’s migration history, where his previous travel to Australia included the applicant being in Australia unlawfully for a period of about 7 years until he was removed by the department, would have likely resulted in the electronic travel authority visa being refused. This weighs in favour of exercising the discretion to cancel the bridging visa. It is reasonable to expect that when a visa has been granted based on information that was incorrect, that visa should be cancelled.

   The circumstance in which the non-compliance occurred

4. The applicant provided no response to the NOICC nor to the Tribunal’s request for information to provide any context in which the non-compliance occurred. The absence of any response means the Tribunal can place no weight on the existence of any extenuating circumstances to explain the applicant’s conduct. This weighs in favour of exercising the discretion to cancel the bridging visa.

   The present circumstances of the visa holder

5. As detailed in the delegate decision, the applicant first travelled to Australia [in] July 2007 holding an electronic travel authority visa. He applied for and was granted several subsequent tourist visas and then became an unlawful non-citizen in Australia for approximately 7 years from 28 July 2008 until 19 November 2015. He was located by departmental officers, placed in immigration detention and removed from Australia to Malaysia [in] December 2015. Around 8 months later the applicant retuned to Australia [in] August 2019 as the holder of an electronic travel authority visa under a different name on a fraudulently issued Malaysian passport. He then applied for a student visa on 20 September 2016 which was refused on 14 February 2017 and the bridging visa that had been granted to him in connection with the student visa application ceased on 14 March 2017, resulting in him becoming an unlawful non-citizen. The applicant then remained in Australia as an unlawful non-citizen for approximately 3 years and 10 months until he applied for a protection visa on 24 January 2021 and was granted a bridging visa to regularise his migration status pending that visa application being considered.

6. The applicant provided no information in response to the NOICC or the Tribunal request for information concerning his present circumstances, such as family in Australia, employment or any information about his present personal circumstances. For all the Tribunal knows, the applicant has no ties to Australia. This weighs in favour of exercising the discretion to cancel the applicant’s bridging visa.

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

7. The Tribunal notes that at no time did the applicant go to the department and raise the fact that he had not complied with his obligations to provide correct information and seek to remedy the incorrect information. It was left to the department to conduct enquiries to determine what the correct information was. The failure of the applicant to try and remedy his conduct weighs in favour of exercising a discretion to cancel the bridging visa. It is reasonable to expect that the applicant would remedy his incorrect answers by approaching the department.

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

8. There are no known instances of any other non-compliance by the applicant concerning his obligations under the Act. The non-compliance is limited to the present circumstances which give rise to the cancellation of the bridging visa. This is a factor that weighs in favour of not cancelling the bridging visa, as it appears to be an aberration of the applicant’s character.

   The time that has elapsed since the non-compliance

9. The non-compliance occurred when the applicant provided incorrect answers to questions asked in his visitor visa application form on 26 July 2016, which is over 6 years ago. This is a significant period of time. The Tribunal is not satisfied that this period of time should be considered in the applicant’s favour. Had the applicant quickly remedied the incorrect information by advising the department of the fact that he had an alias, despite claiming to not have an alias on 26 July 2016, then the Tribunal would consider that a factor in favour of not cancelling the bridging visa, as the period of time would have been a short. To that end, the applicant let the incorrect information remain in place and it was only discovered to be incorrect information through the department undertaking the actions detailed in the NOICC and decision record. Accordingly, the time that has elapsed since the non-compliance is a factor that should be considered in favour of exercising the discretion to cancel the bridging visa.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

10. The Tribunal is not aware of any breaches of law by the applicant since the non-compliance occurred on 26 July 2016. This is a factor that weighs in favour of not cancelling the applicant’s bridging visa.

    Any contribution made by the holder to the community

11. The Tribunal has been provided with no information to suggest that the applicant has made any contribution to the community. The Tribunal is satisfied that if there was any suggestion that he had done so, he would have provided that in response to the NOICC or submitted that evidence to the Tribunal. The absence of any contribution made by the applicant to the community is a factor that weighs in favour of exercising the discretion to cancel the bridging visa.

    The relevant policy 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.

    Any consequential cancellations under s 140 of the Act

12. Section 140 of the Act provides that if the applicant’s visa is cancelled under s 109, a visa held by another person because of being a member of the same family unit is also cancelled. There is no evidence that the applicant has a family member who holds a visa by virtue of the fact that they are a member of the applicant’s family unit. The absence of any consequential cancellations to a person whose visa would be cancelled through no fault of their own is a factor that weighs in favour of exercising the discretion to cancel the applicant’s bridging visa.

13. Similarly, there is no evidence that the applicant has children (that is, children who do not hold a visa by virtue of being a member of the same family unit) whose interests would be affected by the cancellation.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

14. The Tribunal accepts that as a result of the applicant’s bridging visa being cancelled, he would become an unlawful non-citizen. The applicant currently holds another bridging visa (that being issued in connection with the review application) and this would cease shortly after the Tribunal makes a decision on the review application. As the bridging visa issued in connection with the protection visa Tribunal review application is currently cancelled (and would remain cancelled in the event that the Tribunal affirmed the delegate decision), the applicant would be an unlawful non-citizen liable to immigration detention and, in the ordinary course of events, would be liable to removal to his home country. However, for the reasons given below, the Tribunal is not satisfied that the applicant would be removed to Malaysia.

15. The fact that the applicant would not be removed to Malaysia would potentially result in the applicant remaining in immigration detention as an unlawful non-citizen until his protection visa application was finally determined by the Tribunal, or (in the event that the Tribunal upholds the decision to refuse to grant the protection visa application) the finalisation of any court proceedings connected with that decision. The Tribunal accepts that the applicant’s immigration detention may last for a number of years.

16. However, the Tribunal does not accept that the possibility of immigration detention for several years is a factor that should be considered in the exercise of the discretion to not cancel the visa because immigration detention is not a punitive measure. It is an administrative process for the orderly management of people in Australia who are unlawful non-citizens.

17. The Tribunal accepts that the because of the visa cancellation, the applicant would be subject to s 48 of the Act, which provides that the applicant would be limited in his ability to apply for any further visas while he remains in Australia because his visa had been cancelled under s 109 of the Act. Regulation 2.12 provides that visas that the applicant may apply for while being subject to s 48 of the Act. These visas include bridging visas (which would allow the applicant to remain in Australia, provided he had grounds for doing so) and a couple of permanent visas, one of which is a visa that the applicant has already applied for, namely a protection visa. The ability of the applicant to continue to pursue his protection visa application notwithstanding that his bridging visa is cancelled is a factor in favour of the discretion to cancel the visa as there is no practical consequence to the outstanding protection visa application.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

18. As touched upon above, the applicant has applied for a protection visa. By applying for a protection visa, the applicant claimed to meet the relevant statutory criteria for that visa. Broadly speaking, if the applicant has applied for a protection visa, he claims that he cannot return to his home country because he fears harm there. Australia is a signatory to the 1951 Refugee Convention and its 1967 Protocol. The core principle is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. This is now considered a rule of customary international law.

19. The delegate refused to grant the visa, and it is now a matter the Tribunal to determine whether the applicant meets the criteria. He is therefore not a ‘refugee’ and consequently, at this stage, there would be no breach of Australia’s non-refoulement obligations because an asylum seeker (that is, a person who has not yet been found to be a refugee) is not owed nonrefoulement obligations.

20. That being said, the applicant would still not be removed from Australia to his home country because s 198(5A) provides that the applicant must not be removed because he has made a valid application for a protection visa and that visa application has not been ‘finally determined.’ Consequently, there is no risk that the applicant would potentially be removed from Australia to his home country at this stage.

    CONCLUSION

21. 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.

22. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

23. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Nathan Goetz
    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.