2118433 (Migration) - [2023] AATA 3026

2118433 (Migration) [2023] AATA 3026 (6 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2118433

MEMBER:Kate Millar
DATE AND TIME OF
ORAL DECISION AND REASONS:         6 July 2023 at 1:00 pm (SA time)
DATE OF WRITTEN RECORD:                25 July 2023
PLACE OF DECISION:  Adelaide

Statement made on 25 July 2023 at 7:56pm
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – incorrect answers in incoming passenger cards – specifying obligations in cancellation notice – power to cancel does not arise – criminal convictions not declared – suspended sentencing – Clean Slate program – relationship with an Australian citizen – decision under review set aside
LEGISLATION
Migration Act 1958, ss 32, 102, 104, 105, 107, 109
Migration Regulations 1994, r 2.41
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.
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 2021 to cancel the applicant’s Subclass 444 Special Category (Temporary) (Class TY) visa under the Migration Act 1958 (the Act).
2. At the hearing on 6 July 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS

SENIOR MEMBER: This is the matter number 2118433 for [the applicant] and this decision is delivered at 1 pm ACST in Adelaide.
You are a citizen of New Zealand. You have arrived in Australia twice, once on [a day in] July 2017 and once [in] October 2021. On each arrival in Australia you completed an incoming passenger card that did not disclose that you had been convicted of an offence in New Zealand. As a result, your visa was cancelled on 30 November 2021. You have applied for a review of this decision.
Since then, [in] September 2022, you left Australia and returned to New Zealand and as a result this hearing was held by Microsoft Teams. I have also heard from your mother and your fiancée in this matter.
By way of background, you are a citizen of New Zealand and your parents, siblings and a daughter from a previous relationship are in New Zealand. You came to Australia in 2017 and 2021 and most recently said you came to Australia because you are a witness in a matter and were informally advised to get away from New Zealand for a while.
As you have said, you remain concerned about your safety I will be making an order today under section 378 of the Migration Act 1958, and that order will be not to publish information that will identify you, any of the witnesses who gave evidence today, or any information about the involvement of you or any of your witnesses with a gang, organisation or employer.
You were involved in a gang when you were younger and had friends within that gang. You have told me you that you are no longer involved with that gang. When you arrived in Australia you were interviewed by officers of the department and photographs of you in the regalia of the gang were located on your telephone.
As a result, the Department did a criminal history check and you gave consent to that check. As a result, the officer discovered you had a conviction in 2011 for a domestic violence offence. The Department was advised by New Zealand police that you had left the gang.
Before coming to Australia in 2021 you had converted to Islam and while in Australia met your fiancée, who is an Australian citizen. I called your fiancée without any prior notice and asked her to give evidence. She provided consistent evidence about your relationship and was an impressive witness.
Your fiancée told me she works as [an occupation 1] in the public sector in a position that requires her to have a security clearance. She said she has declared her relationship with you as part of having that security clearance, and this had not made her ineligible for that clearance. Your fiancée is Muslim and said she would not be in a relationship with a person who is not a good Muslim, and this means that you do not drink or smoke.
I note that the Department file contained a certificate, issued under section 376 of the Act. If a certificate is validly issued under that section in relation to a document or information on the department file, I may have regard to the matter contained in the document or information and may, if I think it appropriate to do so, disclose the information of the document.
I find that the certificate was not signed and is therefore not valid. I also discussed with you the information on the file, and that includes the photographs of you in the gang regalia and also the concern of the department that you were a member of a gang. You have been provided an opportunity to comment on that today.
Turning to a consideration of the claims and evidence, this is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel your subclass 444 Special Category visa under section 109(1) of the Migration Act 1958.
The delegate cancelled your visa because the delegate found you had failed to comply with section 102 of the Act which this requires non-citizens to fill in a passenger card in such a way that no incorrect answers are given. The issues in this case are:
·     whether a valid notice under 107 was issued; and, if so,
·     where a ground for cancellation is made out; and, if so,
·     whether the visa should be cancelled.
Turning first to the issue of whether the notice of intention to cancel your visa complies with the requirements in section 107 of the Act. The exercise a power of cancellation under section 109 of the Act is conditional on the Minister issuing a valid notice to you under section 107 of the Act. That notice has to provide particulars of the alleged non-compliance and certain other information.
If a notice is issued that does not comply with section 107, the power to cancel the visa does not arise. In your case, I think there is a question of whether the notice issued by the minister’s delegate complied with section 107. The notice issued under section 107 of the Act does not inform you that your obligations under section 104 and 105 of the Act are not affected by the notice. This is required by paragraph 1071(e) of the Migration Act. The letter that was sent to you only states, and I quote: ‘I am obliged to inform you that your obligations under section 104 or 105 of the Act.’ It does not go on to tell you what those obligations are.
Section 104 of the Act requires that if circumstances change, an answer on an application form or another answer is incorrect, you must notify as soon as possible of the new circumstances and the correct answer. Section 105 requires you to notify the department if you become aware, among other things, that an answer given in your passenger card was incorrect. It is difficult to see why for matters which require the same information in each notice there are errors in the information that is required to be provided to you. The purpose of having the requirements in section 107(1)(e) and 1(f) of the notice are for a person who may have his or her visa cancelled to be given information about their obligations.
In Minister for Immigration and (indistinct) the Full Court of the Federal Court held in relation to the requirement to provide particulars, and section 107(1)(a) of the Act must be read so that the visa holder has notice of the non-compliance and an opportunity to dispute the allegation. It was held that a departure in the particulars, which are minor an insignificant in the context of the facts of a particular case, to not go to the substance of the allegation of non-compliance and does not deprive the decision-maker of jurisdiction.
The requirements specified in section 107 are not minor or trivial and I refer to the case of Khan (Migration) [2017] AATA 1657 at 63: ‘The gravity of the consequences in having a visa cancelled requires careful attention to the requirements of the Act.’ In this case, there is a failure to comply with the requirements of section 107, and it is substantial, which could result in you not knowing about your obligations following the issue of that notice.
For these reasons, I find the notice was not a valid notice for the purpose of section 107 of the Act. As a valid notice is a pre-condition to the exercise of the power to cancel in section 109 of the Act, the power to cancel does not arise.
However, to err on the side of caution I have also considered the matter if the notice is valid. That leads to the next question with whether there was non-compliance as described in the 107 notice. The issue before me is whether there was non-compliance in the way described in the section 107 notice, being the manner particularised in the notice, and if so whether the visa should be cancelled.
The non-compliance identified or particularised in the section 107 notice was non-compliance with section 102 of the Act. This requires you to fill in a passenger card in such a way that no incorrect answers are given. You entered Australia, as previously mentioned, on [days in] July 2017 and [October] 2021 and did not disclose any criminal convictions on your incoming passenger cards. The Department found you had a criminal conviction from [April] 2011 for [charge 1] and this was particularised in the notice.
You provided a letter from the Ministry of Justice in New Zealand dated [in] November 2021 stating you had no convictions. You have also provided another document of the same date that shows a conviction recorded.
I find you have a criminal conviction that you did not declare on your incoming passenger card, and you did not comply with section 102 of the Act. And there was non-compliance in the way described in the section 107 notice.
Turning to whether the visa should be cancelled. If there is non-compliance, I have to consider whether the visa should be cancelled under section 109 of the Act.
Cancellation in this context is discretionary and there are no mandatory cancellation circumstances prescribed. In exercising this power, I must consider your response to the 107 notice and have regard to the prescribed circumstances in regulation 2.41 of the regulation. And I’ll work my way through each one.
The first one is the correct information. You told me you did not think there was a conviction, as the judge told you that if you did not come before him again in a year, that that would be the end of the matter. While this reflects the sentence recorded by the Ministry of Justice, which is, and I quote, ‘to come up for sentence if called upon.’ It does not mean you do not have a conviction and I find the correct information is that you were convicted of assault [in] April 2011. This weighs in favour of cancelling your visa.
The content of a genuine document doesn’t apply in this case.
The next requirement is whether or not the decision to grant the visa, or immigration clear you, was based wholly or partly on incorrect information. The delegate refers to further enquiries that would have been made by the Department if it had been aware of your conviction and I accept that further enquiries would have been made. The decision to grant was partly based on incorrect information. However, I do note the requirement for the grant of the visa in section 32 of the Act is that you are not a Behaviour Concern Non-Citizen.
To be a Behaviour Not Concern Non-Citizen, as defined in the Act, you would need to be sentenced to one or more terms of imprisonment for a period of 12 months or more; which is not the case, as you have not been sentenced to a term of imprisonment. This weighs minimally in favour of cancelling your visa.
Turning to the circumstances in which the non-compliance occurred. You have told me, and I accept, that you genuinely believed you did not have a conviction as you were not called before the court for sentencing.
You provided a letter from the Ministry of Justice saying you did not have convictions. Both you and your mother said you enquired about whether you had a conviction before you left Australia. The lack of record of a conviction in the first instance appears because of the New Zealand Clean Slate program where a conviction no longer appears if you do not reoffend. While this does not apply to a visa application, I accept that you believed that it did. This weighs in favour of not cancelling your visa.
Looking at your present circumstances, you have a fiancée who is an Australian citizen. She gave evidence that being separated from you has been hard, and she moved from Perth to Melbourne to be better able to travel to see you. She said your wedding plans and your plans to start a family have been delayed due to the cancellation of your visa. You have said you continue to be a witness for an offence in New Zealand where you may be at risk if called to give evidence. You said you are looking to relocate to [two specified countries], near your fiancée’s extended family, if you cannot return to Australia.
You said you have moved to a rural area on the advice of police, so it is more difficult to locate you. Your mother said she been asked once by the gang where you are. You returned to New Zealand in September 2022 and said this was because you had been advised if you did not hold a visa, or leave Australia, you would be detained. You told me you did apply for a Bridging Visa E, pending the outcome of this matter but you were not told of the outcome of this visa application, despite repeatedly contacting the department. You said you were concerned about being detained, so you left.
This seems unusual as a may be qualified for a bridging visa if he or she has an application before the Tribunal. While the bridging visa also has requirements for character and, given the circumstances, the department may have wanted to further assess character, it seems unusual you were threatened with detention while this occurred.
Given your links to an Australian citizen who you are engaged to, and your stated circumstances in New Zealand, I find that your present circumstances weigh in favour of not cancelling your visa.
In looking at your subsequent behaviour with your obligations under Subdivision C of Division 3 of Part 2 of the Act, there’s nothing before me to indicate you have otherwise not complied with these obligations. Similarly, there are no other instances of non-compliance that are before me. The time elapsed since the non-compliance is approximately two years and there are no known breaches of the law since the non-compliance.
Looking to contribution made by you to the community while you were in Australia, you worked as a leading hand and foreman within your application as [an occupation 2]. You provided a reference from your employer stating you have complied with all the employer policies and procedures. You said when working in Australia, you travelled to [a named town] in the course of your employment to assist with flood recovery. You have provided a letter - which was not on letterhead - stating you worked as [an occupation 2] in New Zealand and for a particular employer who found you had a strong work ethic, and you are hard-working and conscientious. Your employer asserts he relied on you to direct other employees and overseeing matters on his behalf.
I’m satisfied you made a contribution to the community in the short period you worked in Australia, and this weighs in favour of not cancelling your visa.
I have considered all the information before me, and I have found that the notice purportedly issued under section 107 of the Act was not valid. As a valid section 107 notice is a pre-condition to the exercise of the power and in section 109 there was no power to cancel the visa.
However, in case I’m wrong on that that, I have also considered the circumstances if the notice was valid. I have decided that there was non-compliance in the way described in the notice, but that having had regard to all the relevant circumstances that your visa should not be cancelled.
My decision today is to set aside the decision to cancel your visa and substitute a decision not to cancel your subclass 444 visa.
I also make an order under section 378 of the Act not to publish information that would identify you, any of your witnesses who gave evidence today, or any information about gangs, organisations or employers with which you or your witness have any involvement.
That means your application is successful today. A notice of this decision will come to you in writing. A notice will also be sent to the minister. As you are aware, the Minister has a further right of appeal if the Minister does not agree with my decision.
DECISION
The decision to cancel the applicant’s Subclass 44 visa is set aside and substituted with a decision not to cancel the applicant’s subclass 444 visa.
Kate Millar
Senior Member