2206507 (Migration) [2022] AATA 4281 (24 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Michael Kah
CASE NUMBER: 2206507
MEMBER:Alan McMurran
DATE:24 October 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 175 (Skilled - Independent) visa.
Statement made on 24 October 2022 at 12:41pm
CATCHWORDS
MIGRATION – cancellation – Skilled (Migrant) (Class VE) visa – Subclass 175 (Skilled - Independent) – incorrect information in the visa application – previous visa applications – identity details – debt to the Commonwealth repaid later in full – financial hardship – lengthy stay in Australia – Australian citizen family members – best interests of the children – contribution to the community – decision under review set aside
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
This is an application lodged on 4 May 2022 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 175 (Skilled - Independent) visa under s.109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant, [named], is a citizen of the Republic of India.
The delegate cancelled the applicant’s visa on the basis that the applicant had failed to comply with sections 101(a) and 101(b) of the Act, because he had failed to disclose information about a previous visa refusal and had provided incorrect answers about his identity on a visa application form. 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 18 October 2022 to give evidence and present arguments. The Tribunal received oral evidence from the review applicant, the review applicant’s spouse and from a character witness. The applicant’s family attended the hearing.
The applicant was represented in relation to the review by his solicitor who also attended the hearing and made submissions. The applicant informed the Tribunal when asked, that he was ready to proceed and did not require an adjournment.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant Law
Section 109(1) of the Act allows the…
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.
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AGLC
2206507 (Migration) [2022] AATA 4281
Case
[2022] AATA 4281
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal reviewed a decision concerning the cancellation of a Skilled (Migrant) (Class VE) visa, Subclass 175, held by the applicant. The dispute arose from the applicant's provision of incorrect information in his visa application, specifically regarding his identity and previous visa history, which led to a notice of potential non-compliance. The applicant did not dispute the validity of the notice but argued that strong grounds existed for the visa not to be cancelled.
The Tribunal was required to determine whether the applicant had complied with section 101 of the *Migration Act 1958* (Cth) by providing correct information in his visa application. It also had to consider whether the decision to grant the visa was based wholly or partly on incorrect information or a bogus document. Finally, if non-compliance was established, the Tribunal had to exercise its discretion as to whether the visa should be cancelled, considering all relevant circumstances.
The Tribunal found that the applicant had indeed provided incorrect information, including using an alias and failing to disclose previous visa refusals and outstanding debts to the Commonwealth. This non-compliance was deliberate, aimed at circumventing the requirement to repay a prior debt and thus obtain the visa. However, the Tribunal placed significant weight on the applicant's extensive history in Australia, spanning over 20 years, his established work and social ties, and crucially, his Australian citizen spouse and two Australian citizen children who attend local schools. The Tribunal concluded that, despite the non-compliance, the strong ties to Australia and the best interests of the children weighed heavily in favour of not cancelling the visa.
Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 175 (Skilled - Independent) visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For his part, the visa applicant takes no issue with the validity of the Notice, which he submits was validly issued, but presses his case on the basis that there are strong grounds to support an outcome that the visa should not be cancelled. The Tribunal has placed significant weight on the oral evidence provided as referred to below.Background The applicant’s history in Australia since he first visited in 2001 is extensive and covers a period in excess of 20 years from 2001 to the time of the Tribunal’s decision. It involves the applicant’s family members, being his spouse and two children. The applicant is now [age] years old and has established work and social ties in Australia. His 2 children, aged [ages], are Australian citizens, as is his spouse. The children attend a local Public School and High School, near to where they currently live. The applicant’s visa history has been described in the Department’s file as follows: Case Summary: [1][1] Department file [number]“Was listed as dependent on VE175. Main visa holder is [Alias A] ([DOB specified],F) CID [number]. 2 other children listed as dependents but not considered as part of cancellation consideration, [Child A] ([DOB specified],F) CID [number] [Child B] ([DOB specified],F) CID [number]· [September 2001] Client first arrived in Australia holding TR676 under identity [Alias B] · 26/10/2001 – Protection visa application commenced under identity [Alias B], WA010 granted · 28/03/2002 – Protection Visa Refused · 30/10/2002 – Protection Visa Refusal re-notified · 25/11/2002 – AAT Commenced Protection Visa Refusal · 11/09/2003 – AAT affirmed Protection visa Refusal · [September 2003] – Judicial Review commenced Protection Visa refusal · 20/10/2003 – WA010 ceased (associated to Protection Visa) · 21/10/2003 – WA010 granted associated to protection visa · [June 2005] – JR result – Minister Win Protection Visa Refusal · [June 2005] JR Commenced – FFC Protection Visa Refusal · [February 2006] Client departed Australia, WA010 ceased. · [May 2006] JR result – Minister Win protection visa refusal · 25/05/2009 – VE175 application commenced as dependant applicant under identity [the applicant’s name]· 14/03/2014 – VE175 granted · [October 2014] – Client arrived in Australia holding VE175 in the name of [the applicant] · [November 2018] – Client departed Australia holing VE175 · [January 2019] – Client last arrived in Australia holding VE75. · 20/10/2019 – Client commenced citizenship application · 30/04/2021 – NJL issued to visa holder for comment regarding the identity issues · 24/05/2021 – Statutory declaration from VH in response to NJL, admitting to “changing his name and date of birth to avoid large appeal cost debt and he is deeply remorseful for my actions · 27/09/2021 – Citizenship refused” At the hearing, the Tribunal provided the visa history details listed above to the applicant. The applicant acknowledged the details were correct and does not dispute the recorded history. The Tribunal finds that the Department summary accurately reflects the applicant’s visa history.Is the Notice compliant with s.107?
Evidence
Evidence Before The Court
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. Consideration of Claims and Evidence The Tribunal has had regard to the information in the Department’s file, together with the additional information and submissions made to the Tribunal. The Tribunal has also had regard to relevant judicial authority, the oral evidence from questioning the applicant at the hearing, Department Policy (PAM 3) and the Act and Regulations. The applicant provided a large bundle of documents and information (electronically) and although the Tribunal may not refer to every document in this decision, the Tribunal nonetheless has considered all the submitted information and documents. The review involves several steps. Firstly, consideration of the issue of compliance with s.107 by the Department, and the validity of the notice; secondly, whether there was non-compliance as described and particularised in the notice; and thirdly, the exercise of discretion, cancellation not being mandatory, and if there was non-compliance as described in the notice, whether the visa should be cancelled. For his part, the visa applicant takes no issue with the validity of the Notice, which he submits was validly issued, but presses his case on the basis that there are strong grounds to support an outcome that the visa should not be cancelled. The Tribunal has placed significant weight on the oral evidence provided as referred to below.Background The applicant’s history in Australia since he first visited in 2001 is extensive and covers a period in excess of 20 years from 2001 to the time of the Tribunal’s decision. It involves the applicant’s family members, being his spouse and two children. The applicant is now [age] years old and has established work and social ties in Australia. His 2 children, aged [ages], are Australian citizens, as is his spouse. The children attend a local Public School and High School, near to where they currently live. The applicant’s visa history has been described in the Department’s file as follows: Case Summary: [1][1] Department file [number]“Was listed as dependent on VE175. Main visa holder is [Alias A] ([DOB specified],F) CID [number]. 2 other children listed as dependents but not considered as part of cancellation consideration, [Child A] ([DOB specified],F) CID [number] [Child B] ([DOB specified],F) CID [number]· [September 2001] Client first arrived in Australia holding TR676 under identity [Alias B] · 26/10/2001 – Protection visa application commenced under identity [Alias B], WA010 granted · 28/03/2002 – Protection Visa Refused · 30/10/2002 – Protection Visa Refusal re-notified · 25/11/2002 – AAT Commenced Protection Visa Refusal · 11/09/2003 – AAT affirmed Protection visa Refusal · [September 2003] – Judicial Review commenced Protection Visa refusal · 20/10/2003 – WA010 ceased (associated to Protection Visa) · 21/10/2003 – WA010 granted associated to protection visa · [June 2005] – JR result – Minister Win Protection Visa Refusal · [June 2005] JR Commenced – FFC Protection Visa Refusal · [February 2006] Client departed Australia, WA010 ceased. · [May 2006] JR result – Minister Win protection visa refusal · 25/05/2009 – VE175 application commenced as dependant applicant under identity [the applicant’s name]· 14/03/2014 – VE175 granted · [October 2014] – Client arrived in Australia holding VE175 in the name of [the applicant] · [November 2018] – Client departed Australia holing VE175 · [January 2019] – Client last arrived in Australia holding VE75. · 20/10/2019 – Client commenced citizenship application · 30/04/2021 – NJL issued to visa holder for comment regarding the identity issues · 24/05/2021 – Statutory declaration from VH in response to NJL, admitting to “changing his name and date of birth to avoid large appeal cost debt and he is deeply remorseful for my actions · 27/09/2021 – Citizenship refused”
Decision
Reasons for decision
Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that in the exercise of discretion, the visa should not be cancelled.decision The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 175 (Skilled - Independent) visa.Alan McMurranMemberATTACHMENT – 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.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
The Tribunal has therefore gone on to consider if it has reached the required level of ‘a real state of satisfaction’, on the available information and documentation, whether the visa should be cancelled.Consideration of the Relevant prescribed factorsThe correct information The applicant has confirmed in his evidence and the Tribunal accepts that the correct information is as follows:·(Q 37) the applicant’s other name by which he is also known or had been known and which was the name used for a protection visa application previously, in Australia, was [Alias B].·(Q 64) during the previous 10 years, the applicant had previously stayed in Australia for more than 12 months before lodgement of the 175 visa application·(Q 71) “yes” to the question that the applicant had an outstanding debt to the Australian government·(Q 72) “yes” to the question of a prior refusal of a visa, as the applicant had been refused a protection visa·(Q 75) “yes” to the question of having previously held a visa for travel to AustraliaWhether 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 applicant made the application as secondary applicant to his wife’s visa application and provided the incorrect information himself to the agent in India who prepared and submitted the document. The information recorded by the agent was central to the question of whether the visa should be granted, particularly as previous refused applications which entail government debt cannot be waived or disregarded and the debt is repayable before further consideration of another visa. It is unlikely in those circumstances that the applicant would have been granted the visa. The Tribunal finds accordingly that the decision to grant the visa was based on the incorrect information, using the applicant’s alias and his incorrect answers intending to avoid the obligation to repay the Commonwealth debt.The circumstances in which the non-compliance occurred The circumstances have been considered and set out above in summary of the applicant’s evidence at the hearing. He explained that following his marriage, and intention to return to Australia with his spouse, he had been advised his application would not succeed based on his prior migration history in Australia. He accepted a proposal to change his identity to avoid discovery of his prior identity associated with that migration history. The applicant has conceded that he knew what he was doing was wrong and is remorseful. He understood and conceded that providing the incorrect information was deliberate with a view to obtaining a successful outcome for the visa application. The applicant’s spouse was not involved in the preparation and submission of the application, other than to execute the document where indicated. The applicant stated that the preparation of his new identity documents required some planning and took place over a two-year period from 2007 until 2009. He said his objective in providing the incorrect information was “to get the visa”. He accepted willingly the offer from the agent to provide the documentation. He said this was a common occurrence in India. He said his wife was ignorant as to the process.