Chan (Migration)

Chan (Migration) [2020] AATA 5771 (30 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Yin Ching Chan
CASE NUMBER:  1829675
DIBP REFERENCE(S):  BCC2018/873091
MEMBER:David McCulloch
DATE:30 October 2020
PLACE OF DECISION:  Sydney
DECISION: The Tribunal sets aside the decision and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa

Statement made on 30 October 2020 at 9:09am
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – incorrect information provided for Working Holiday visa – not aware incorrect information being provided –genuine desire to continue to study– positive study outcome –decision under review set aside
LEGISLATION
Migration Act 1958, ss 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on 4 October 2018. 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 27 October 2020 at 9.30am to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing using the Microsoft product Teams, which facilitated the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
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.
Was there non-compliance as described in the s.107 notice?
A key 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 as follows:
Section 101. Visa applications to be correct
s101. 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
The possible breach of section 101(b) applies to your previous class TZ Working Holiday (Extension) (subclass 417) visa, however, s107A of the Migration Act allows for a non-compliance occurring with a previous visa application to lead to cancellation of a current visa.
Section 107A. Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non-compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
By operation of s99 of the Act, 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.
On 5 June 2016, you lodged a Working Holiday (Extended) (subclass 417) visa application. In association with this visa application, you completed Form Working Holiday visa dated, 5 June 2016. This application form contained the following questions, in part:
On page 2 of Form Working Holiday visa under the question "Have you undertaken specified work in regional Australia for a total of 3 months" you stated the following, in italics:
"Yes"
On page 2 of Form Working Holiday visa under the question "If Yes, in which industry did this work mainly occur?" you stated the following, in italics:
"Agriculture, Forestry and Fishing"
On page 2 of Form Working Holiday visa under the question "Do you have approved evidence that you have undertaken specified work in regional Australia for a total of 3 months?" you stated the following, in italics:
"Yes"
On page 2 and 3 of Form Working Holiday visa under the heading "Details of specified work undertaken" it asked "Details of specified work undertaken" you stated the following, in italics:
ABN:        79165239305
Postcode:   2680
Start date:   9 November 2015
End date:    25 February 2016
On page 6 and 7 of Form Working Holiday visa under the heading "Declaration" you answered "Yes" to the following:
Warning:
Giving false or misleading information is a serious offence.
I declare that:
·The information provided in this form is complete, correct and up-to-date;
·I understand that if any documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may be subsequently cancelled; and
·I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa.
Based on the information provided in the visa application, the delegate assessed you met the relevant criteria, including the requirement that while holding your initial Working Holiday (Extension) (subclass 417) visa, to have worked the equivalent of at least 3 months' full-time work in a specified occupation in regional Australia, and on 1 July 2016 granted you a Working Holiday (Extension) visa.
The Department has received information on 2 November 2017 in which B & C OWEN FARMING PTY LTD ABN: 79165239305 (the employer) has confirmed that you have never worked for the employer.
From the above evidence I consider you did not comply with section 101(b) of subdivision C of the Migration Act because when you lodged your Working Holiday (Extension) visa on 5 June 2016, the following answers you provided were incorrect:
On page 7 of Form Working Holiday visa under the heading "Declaration" you answered "Yes" to the following:
"I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa."
Based on the above evidence I consider this is incorrect because the Employer with whom you claimed to have undertaken that work, has advised you never worked for them.
On page 2 of Form Working Holiday visa under the question "Have you undertaken specified work in regional Australia for a total of 3 months" you stated the following, in italics:
"Yes"
Based on the above evidence I consider this is incorrect because the Employer with whom you claimed to have undertaken that work, has advised you never worked for them.
On page 2 of Form Working Holiday visa under the question "If Yes, in which industry did this work mainly occur?" you stated the following, in italics:
"Agriculture, Forestry and Fishing"
Based on the above evidence I consider this is incorrect because the Employer with whom you claimed to have undertaken that work, has advised you never worked for them.
On page 2 of Form Working Holiday visa under the question "Do you have approved evidence that you have undertaken specified work in regional Australia for a total of 3 months?" you stated the following, in italics:
"Yes"
Based on the above evidence I consider this is incorrect because the Employer with whom you claimed to have undertaken that work, has advised you never worked for them.
On page 2 and 3 of Form Working Holiday visa under the heading "Details of specified work undertaken" it asked "Details of specified work undertaken" you stated the following, in italics:
ABN:        79165239305
Postcode:   2680
Start date: 9 November 2015
End date:   25 February 2016
Based on the above evidence I consider this is incorrect because the Employer with whom you claimed to have undertaken that work, has advised you never worked for them.
By answering "yes" to the declaration on page 6 and 7 of Form Working Holiday visa you declared that you provided correct and up to date information, in your visa application. However, it appears that you did not.
Section 107A of the Migration Act provides that non-compliance with section 101(b) of the Migration Act in relation to the application for your Working Holiday (Extension) (subclass 417) visa may constitute grounds for cancelling your current Student (Temporary) (class TU) Student (subclass 500) visa.
Therefore, your Student (subclass 500) visa is being considered for cancellation under section 109 of the Migration Act.
The applicant provided to the Tribunal a copy of the decision of the delegate dated 4 October 2018 cancelling the visa, which also contains the above extracted information.
In the hearing, the applicant acknowledged that the incorrect information outlined above had been provided in respect of her application for the Working Holiday (Extended) (Subclass 417) visa.
For these reasons, the Tribunal finds that there was non-compliance with the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (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.
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 Procedures 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.
On the basis of the applicant’s evidence in the hearing and provided in writing after, a key relevant discretionary matter is the circumstances in which the non-compliance occurred.
The following evidence by the applicant was provided at the hearing and in a Statutory Declaration provided after the hearing. The applicant came to Australia on 25 June 2015 for about a week. The applicant returned to Hong Kong but returned to Australia on 4 November 2015 on the same visa on which she had originally entered. The applicant started exploring and jobhunting. The applicant claims that she previously worked briefly packing fruit at Flemington.
The applicant was introduced to a migration agent by a friend she had known in Hong Kong in relation to renewing the Working Holiday visa. In the written information provided following the hearing, the applicant named the agent and provided his We Chat identity. The applicant indicated that she repeatedly asked the agent if she was eligible for a second visa disclosing that she only had limited packing experience. The applicant claims that she was told that she was eligible. The applicant indicated that she requested that the agent send her the application prior to it being sent, but he did not send it to the applicant or give her anything to sign.
The applicant indicated that she herself had no specific knowledge of what had been submitted on her behalf in the application form. This had all been done by the agent.
The Tribunal expressed scepticism to the applicant in the hearing that she would not have been told of a core eligibility requirement for the visa of having undertaken specified work in regional Australia for a period of three months. The applicant maintained that she had no idea of this.
This was pressed by the Tribunal at various points in the hearing. On each occasion, the applicant maintained, sometimes emotionally, that she was not provided accurate detail of the eligibility requirements and that the agent just told her that she was eligible, and that he did the rest.
Further, the Tribunal put to the applicant that she herself was responsible for the information provided in the application form in which she attested to its contents. The applicant maintained that she was not involved in the detail of the application, and that this was all done by the agent. As indicated, the applicant maintained that she disclosed the limited extent of her prior work experience to the agent who told her that she was eligible for the renewed visa.
In light of the Tribunal’s questioning of the applicant in these respects, and the applicant’s responses, the Tribunal is satisfied that the applicant had no knowledge herself that she had not met the eligibility requirement for the visa. The Tribunal accepts that there can be unscrupulous migration agents and the Tribunal is satisfied that the applicant was misled by such an agent who wanted the applicant’s business for a fee and did not want to lose this business by disclosing true eligibility requirements.
Considered as a whole, the applicant’s statement that the agent misled her, which was made during the hearing on multiple occasions, was credible. The applicant maintained to the Tribunal that she never intentionally lied as part of her interactions with the Australian Government, which the Tribunal found to be believable.
The fact that the Tribunal considers that the applicant was not aware herself that incorrect information had been provided in the application form and that she thought she was eligible for the visa based on the work that she had disclosed to the agent are significant discretionary factors weighing against exercising the discretion to cancel the visa.
Since the grant of the visa, the applicant has studied multiple English courses. The applicant is currently studying a Diploma of Business, which commenced in January 2020 and is due to end in 2021. The applicant is thereafter enrolled in an Advanced Diploma of Business, which is due to commence in January 2021.
In the hearing, the applicant referred to successful completion of English courses, but indicated that she was struggling with parts of her Diploma of Business because of inadequate English. The applicant had passed no units in this course. The applicant indicated that if she overcomes these difficulties she would like to progress to the Advanced Diploma of Business. If she is not able to overcome difficulties, she hopes to progress with studies in cooking. The applicant referred to experience in Hong Kong in hotel management.
The applicant in the hearing, in the Tribunal’s view, was straightforward and candid in expressing challenges with her current course of study. Somewhat adverse to the applicant in the exercise of the Tribunal’s discretion is the fact that the applicant is not making good progress in her business studies. However, the Tribunal accepts that the applicant has progressed successfully with English studies and has a genuine intention to progress with further studies in cookery, if she is not able to manage to progress successfully in the business studies. This is favourable to the applicant in the exercise of the Tribunal’s discretion.
The applicant referred to hardship she will face if the visa remains cancelled and compelling reasons that she has to remain in Australia, being the fact that she will not be able to continue with her life and study in Australia. The applicant referred to wishing to progress with other visa options to remain in Australia, although she also made reference to potentially returning to Hong Kong. The applicant clarified this by stating that she wanted to visit Hong Kong because her grandmother had been diagnosed with cancer.
The applicant indicated that in Australia she has been working in restaurants, and is currently doing so, which the Tribunal accepts.
The Tribunal accepts some hardship to the applicant if she is not able to progress with her life, and particularly study, in Australia.
The applicant indicated that there will be challenges in returning to Hong Kong, both from a practical perspective in getting flights because of the pandemic, and because of inferior medical treatment in Hong Kong as compared with Australia in relation to COVID-19.
There is no evidence of the applicant not complying with other visa conditions.
The Tribunal considers that these are the key discretionary factors.
Significantly favourable to the applicant is the fact that the Tribunal accepts that she was not aware when she made the application for the Working Holiday (Subclass 417) visa that incorrect information had been provided in the application form. Adverse to the applicant is the fact that the applicant is facing challenges and not progressing well in her business studies. However, the Tribunal accepts that prior to this, the applicant progressed in English studies from July 2017. Favourable to the applicant is that the Tribunal accepts that the applicant has a genuine intention to progress with study to meet her visa obligations if she cannot cope with her business studies. The Tribunal is satisfied the applicant genuinely and earnestly wants to progress with her life in Australia and visa options, cognisant of compliance with Australian law and requirements.

As indicated, the Tribunal accepts some degree of hardship to the applicant if the visa remains cancelled.
Weighing discretionary factors, the Tribunal considers that the applicant ought to be allowed to remain in Australia on her student visa. The Tribunal determines not to exercise its discretion to cancel the visa.
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. However, 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 500 (Student) visa.
David McCulloch
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.

[2020] AATA 5771

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Natural Justice