2211128 (Migration) [2024] AATA 755 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Ray Turner
CASE NUMBER: 2211128
MEMBER:James Silva
DATE:25 January 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.
Statement made on 25 January 2024 at 5:04pm
CATCHWORDS MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – issued in association with protection visa application – incorrect answers given in previous student visa application – previous identity and protection visa refusal not declared – genuine temporary entrant – discretion to cancel visa – significant and deliberate non-compliance conceded – separation from first husband and desire to make a fresh start – claims of domestic violence, mental health and lack of English – student visa applications refused and applications for review withdrawn – protection visa application in progress – cancellation would not lead to removal – time since non-compliance, family ties, training and employment in sector with labour shortages, mental health and financial impact – decision under decision set aside
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 (Cth) (the Act).
The review applicant (former visa holder, ‘applicant’ in this decision) is a national of Bangladesh, who claims to have been born in [Year]. She was granted a Bridging A visa on 5 November 2021. On 27 July 2022, the delegate issued a Notice of Intention to Consider Cancellation (NOICC, s.107 notice) because the delegate formed the view there were grounds for cancelling the applicant’s visa under s.109. The applicant responded to the NOICC on 28 June 2022[1]. On 27 July 2022, the visa was cancelled. The applicant seeks review of the decision to cancel the visa.
[1] The applicant’s statement of 24 June 2022, and legal submission dated 28 June 2022.
The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in a student visa application dated 7 November 2019, and that after considering the applicant’s NOICC response and other relevant circumstances, the visa should be cancelled.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For 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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2211128 (Migration) [2024] AATA 755
Case
[2024] AATA 755
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by a Bangladeshi woman against the cancellation of her Bridging A (Class WA) visa. The applicant had previously provided incorrect information in a student visa application, including a different date of birth and failing to declare a previous identity and a prior protection visa refusal. The delegate of the Minister cancelled the applicant's Bridging A visa, which was associated with her protection visa application, on the grounds of non-compliance with section 101 of the Migration Act 1958. The applicant sought review of this decision before the Administrative Appeals Tribunal.
The primary legal issue before the Tribunal was whether the cancellation of the applicant's Bridging A visa was justified, considering the incorrect information provided in her earlier student visa application. This involved determining if the decision to grant the student visa was based on this incorrect information and, if so, whether the discretion to cancel the visa should be exercised in light of all relevant circumstances. The Tribunal was also required to consider the applicant's submissions regarding the reasons for the non-compliance, including claims of domestic violence, mental health issues, and lack of English proficiency, as well as the impact of cancellation on her ability to make a fresh start.
The Tribunal found that the applicant had indeed provided incorrect information in her student visa application, which significantly influenced the decision to grant that visa. However, the Tribunal also considered the applicant's circumstances, including the time elapsed since the non-compliance, her family ties in Australia, her training and employment in a sector with labour shortages, her mental health, and the financial impact of cancellation. Weighing these factors against the conceded significant and deliberate non-compliance, the Tribunal concluded that the visa should not be cancelled.
Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's Bridging A visa and substituted a decision not to cancel the visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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. Background to this matter The applicant is a Bangladeshi woman, who has variously given her date of birth as [Date 1] and [Date 2] (hence, aged [Age 1] or [Age 2] at the time of this decision). The applicant first arrived in Australia [in] June 1999, on a passport in the name [Identity 1] (DOB [1]) (Identity 1). She accompanied her first husband, [Mr A]. On 1 July 1999, her first husband lodged a protection visa application which included the applicant as his dependant. On 12 August 1999, the visa application was refused. The applicant and her husband sought merits and judicial review of the refusal decision, unsuccessfully. [In] November 2004, the applicant departed Australia. The applicant returned to Australia [in] July 2019, on a passport in the name [Identity 2] (DOB [2]) (Identity 2), as the holder of a visitor (subclass 600) visa. § On 26 September 2019, she lodged a student (subclass 500) visa, which was granted on 7 November 2019. Note: it is information provided in this visa application that formed the basis for the bridging A visa cancellation that is the subject of this review.§ On 24 August 2021, the applicant applied for a further student visa application. She was granted a bridging A visa in association with that application, with condition 8105 (work restriction), valid until final visa determination or withdrawal. On 14 March 2022, the delegate sent a NOICC relating to the bridging A visa granted on 24 August 2021. § The visa was cancelled on 9 May 2022.§ On 11 May 2022, the applicant applied to the AAT for review of the decision to cancel the visa. On 4 April 2022, the delegate refused the student visa application on the basis that the applicant did not meet cl.500.217 (Public Interest Criterion 4020, based on false or misleading information having been provided). § On 13 April 2022, the applicant applied to the AAT for review of the visa refusal decision. On 24 June 2022, the applicant withdrew both review applications.§ On 1 November 2021, the applicant applied for a protection visa. This application is still before the Department. On 5 November 2021, she was granted a bridging A visa in association with the protection visa application. As noted above, on 14 June 2022, the Department sent the applicant the NOICC relating to the bridging A visa granted on 5 November 2021. The delegate cancelled the visa on 27 July 2022.§ The applicant currently holds a bridging E visa granted on 11 August 2022. This has conditions 8207 (must not engage in any studies or training); 8401 (report at the time/s and place specified); 8506 (notify new address; and 8510 (show valid passport).
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.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. Background to this matter The applicant is a Bangladeshi woman, who has variously given her date of birth as [Date 1] and [Date 2] (hence, aged [Age 1] or [Age 2] at the time of this decision). The applicant first arrived in Australia [in] June 1999, on a passport in the name [Identity 1] (DOB [1]) (Identity 1). She accompanied her first husband, [Mr A]. On 1 July 1999, her first husband lodged a protection visa application which included the applicant as his dependant. On 12 August 1999, the visa application was refused. The applicant and her husband sought merits and judicial review of the refusal decision, unsuccessfully. [In] November 2004, the applicant departed Australia. The applicant returned to Australia [in] July 2019, on a passport in the name [Identity 2] (DOB [2]) (Identity 2), as the holder of a visitor (subclass 600) visa. § On 26 September 2019, she lodged a student (subclass 500) visa, which was granted on 7 November 2019. Note: it is information provided in this visa application that formed the basis for the bridging A visa cancellation that is the subject of this review.§ On 24 August 2021, the applicant applied for a further student visa application. She was granted a bridging A visa in association with that application, with condition 8105 (work restriction), valid until final visa determination or withdrawal. On 14 March 2022, the delegate sent a NOICC relating to the bridging A visa granted on 24 August 2021. § The visa was cancelled on 9 May 2022.§ On 11 May 2022, the applicant applied to the AAT for review of the decision to cancel the visa. On 4 April 2022, the delegate refused the student visa application on the basis that the applicant did not meet cl.500.217 (Public Interest Criterion 4020, based on false or misleading information having been provided). § On 13 April 2022, the applicant applied to the AAT for review of the visa refusal decision. On 24 June 2022, the applicant withdrew both review applications.§ On 1 November 2021, the applicant applied for a protection visa. This application is still before the Department. On 5 November 2021, she was granted a bridging A visa in association with the protection visa application. As noted above, on 14 June 2022, the Department sent the applicant the NOICC relating to the bridging A visa granted on 5 November 2021. The delegate cancelled the visa on 27 July 2022.§ The applicant currently holds a bridging E visa granted on 11 August 2022. This has conditions 8207 (must not engage in any studies or training); 8401 (report at the time/s and place specified); 8506 (notify new address; and 8510 (show valid passport).
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 not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not 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.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
There is no question in this case as to the genuineness of documents. This factor is therefore not relevant.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 applicant briefly acknowledged in her response to the NOICC that she was required to meet PIC4020 and not provide false information; and that the decision to grant her a student visa was based on incorrect information. The incorrect information that the applicant provided goes to two criteria for the grant of a student visa:§ PIC4020: This stipulates (among other things): (1) There is no evidence […] that the applicant has given […] information that is false or misleading in a material particular in relation to (a) the application for the visa; […]’§ Regulation 500.212: ‘The applicant is a genuine applicant for entry and stay as a student because (a) the applicant intends genuinely to stay in Australia temporarily, having regard to: (i) the applicant’s circumstances; and (ii) the applicant’s immigration history’. The correct information, had it been before the delegate, would have raised questions in relation to the application of PIC4020, and in particular whether she genuinely intended to stay temporarily, having regard to her immigration history. While the applicant may have been able to explain her use of a different name (for instance, with reference to a previous relationship), the use of a different date of birth and her migration history in Australia (even as the dependant of her former partner) would have attracted scrutiny. In the Tribunal’s view, the decision to grant the student visa was based in large part on the incorrect information. The Tribunal places significant weight on this factor in favour of cancelling the visa.The circumstances in which the non-compliance occurred The applicant has addressed in detail the circumstances in which the non-compliance occurred. The submissions, the applicant’s statement and the witness statements address the circumstances of the applicant’s non-compliance (in November 2019), but also provide contextual information relating to: (a) the applicant’s migration history; (b) general country information; and (c) her mental health. These circumstances form part of the applicant’s protection claims, and she implicitly requests the Tribunal to make findings relating to these. However, for the reasons stated below, the Tribunal does not consider it necessary or appropriate to make firm findings of fact in relation to these matters, for the purpose of this decision. The applicant’s role in providing the incorrect information: The applicant, in her statement of 24 June 2022 and through her representative’s response to the NOICC, acknowledged that she provided incorrect information. She wrote that she provided the incorrect information in order to make a fresh start, and without realising the consequences of doing so. However, in letters dated 24 June 2022, both the applicant’s sister [Mrs E] and her close friend [Mr F] attributed responsibility to the migration agent.§ [Mrs E] wrote: ‘My sister […] relied on the agent to fill up the form for her. […] the agent failed to put her first husband’s name in the student visa application’.[6] § [Mr F] reported the applicant’s comment that she is ‘presently facing cancellation of her visa due to the migration agent who made errors in her student visa application’. He also reported the applicant’s comment that, had she understood English properly, ‘she would never [have] permitted the migration agent to make that mistake’.§ In a similar vein, [Ms C]’s psychosocial report of 25 March 2022 recounts the applicant’s statement that she made an error in the student visa application, essentially by not thoroughly checking what the migration agent had written.[6] The Tribunal takes the reference to ‘her first husband’s name’ to mean the applicant’s name ‘[Identity 1]’.