Chang (Migration)

[2020] AATA 681

Chang (Migration) [2020] AATA 681 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lip Tee Chang

CASE NUMBER:  1712495

DIBP REFERENCE(S):  BCC2016/2940770

MEMBER:Melissa McAdam

DATE:20 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 20 February 2020 at 10:31am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – incorrect answers on application – changed identity – overstayed previous visa – excluded for 3 years – information provided due to family problems – facial image comparison – family issues not exceptional – deliberately provided incorrect information – intended to achieve positive outcome – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 107, 109, 440, 375A, 415
Migration Regulations 1994 (Cth), r 2.41

CASES

CSH18 v MHA [2018] FCCA 3226

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 378 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 Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in his 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

4. 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.

   NOICC, s.107 Notice

5. On 15 May 2017 the Department issued a s.107 Notice of intention to consider cancellation under s.109 of the Migration Act (‘NOICC’), to the applicant. In the NOICC the Department Delegate set out the following:

   -On 28 June 2016 the applicant’s partner lodged an onshore application for a class TU subclass 572 Vocational Education and Training Sector visa, including the applicant as her dependent.

   -In the visa application form, the applicant’s partner provided the following responses under ‘Details of family unit member’:

   Relationship to you: Spouse/De Facto Partner

   Family name: Lip Tee

   Given names: Chang

   Sex: Male

   Date of birth: 27 May 1979

   Place of birth: Country: MALAYSIA

   -The applicant’s partner also provided the following responses under ‘Character declarations’:

   Has any applicant ever been removed, deported or excluded from any country (including Australia)? No

   Has any applicant ever overstayed a visa in any country (including Australia)? No

   At the ‘Declaration’ section of the form, the applicant’s partner stated as follows:

   I declare that: The information provided in this form is complete, correct and up-to-date. Yes

   I am aware that I must immediately advise the department if I become aware that any information provided in this form is incorrect or if there is a change in my circumstances that is relevant to this application at any time. Yes

   -On 11 August 2016 on the basis of this information as well as meeting other relevant criteria, the applicant was granted a secondary class TU subclass 572 Vocational Education and Training Sector visa.

   -On 31 August 2016, information relating to the applicant’s identity came to the Department’s attention.

   -On 7 April 2017 a facial image comparison was conducted by a Departmental specialist. The following photos were compared by the Department’s Identity Resolution Centre:

   ·Photo taken on 15 June 2016 for Lip Tee Chang’s (born 27 May 1979) subclass 572 visa application;

   ·Passport photo from Mr Lip Tee Chang’s (born 27 May 1979) Malaysian passport (number: [number deleted]); and

   ·Passport photo from Mr Lip Tee Chang’s (born 7 March 1979) Malaysian passport (number: [number deleted]).

   -The same Identity Number ‘[number deleted]’ was recorded on the biodata page for each of the Malaysian passports listed above (numbers: [number deleted] and [number deleted]).

   -A facial image comparison specialist determined that Lip Tee Chang (born 7 March 1979) and Lip Tee CHANG (born 27 May 1979) ‘represent the same person’.

   -Departmental records show that on 30 May 2013, the applicant first arrived in Australia as ‘Lip Tee Chang’ (born 7 March 1979), holding a class UD subclass 601 Electronic Travel Authority visa. This visa expired on 29 August 2013. Lip Tee Chang held the status of unlawful non-citizen between 30 August 2013 and 10 December 2015. On 11 December 2015, Lip Tee Chang was granted a Bridging E visa. On 17 December 2015 he departed Australia. Since Lip Tee Chang overstayed his visa, he is subject to Public Interest Criterion (PIC) 4014 which means that he is subject to a three year exclusion period from the date of his departure.

   -On 1 April 2016, the applicant was issued a new Malaysian passport (number: [number deleted]) which records a different date of birth, 27 May 1979. On 15 April 2016, the applicant lodged an application for a class UD subclass 601 Electronic Travel Authority visa using the identity Mr Lip Tee Chang born 27 May 1979. On 24 May 2016, the applicant re-entered Australia holding this visa while being subject to a three year exclusion period. As stated previously, on 28 June 2016, Lip Tee Chang’s partner lodged an onshore application for a class TU subclass 572 Vocational Education and Training Sector visa; the applicant was included as her dependant. In this application the applicant did not declare his previous identity as Mr Lip Tee Chang born 7 March 1979.

   -The Delegate considered that the applicant provided incorrect information to the Department at the questions and declaration statements extracted above in his class TU subclass 572 Vocational Education and Training Sector visa application form.

   -The Delegate considered the correct responses to the visa application form questions was as follows:

   ·   To answer ‘7 March 1979’ to the question ‘Details of family unit member- Date of Birth’.

   ·   To answer ‘yes’ to the question ‘Has any applicant ever been removed, deported or excluded from any country (including Australia)?’ as you had been excluded from Australia for a three year period.

   ·   To answer ‘yes’ to the question ‘Has any applicant ever overstayed a visa in any country (including Australia)?’ as you were an unlawful non-citizen between 30 August 2013 and 10 December 2015.

   -By providing incorrect information in his class TU subclass 572 Vocational Education and Training Sector visa application, it appears that the applicant has not complied with subsection 101(b) of the Migration Act 1958. Accordingly, his visa is liable for cancellation based on section 109 of the Migration Act. It does not matter whether he deliberately or inadvertently did not comply.

6. The Delegate also referred to s. 99 of the Act which states:

   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.

   Response to NOICC

7. The applicant provided a written response on 25 May 2017, in which he stated:

   -He first came to Australia in May 2013 and did not have clear information about his visa status.  His visa was arranged by an agency and he was not aware it was a three month subclass 601 visa.

   -Before coming to Australia he was in a bad mood due to terrible life circumstances.  He came to Australia to refresh himself. He came across some really good friends in Australia and without realising, stayed in Australia for longer than his three month visa period.

   -He feels terribly sorry about his mistake.

   -He learned more about the visa system here and wanted to go back to Malaysia to reunite with his family. So he departed Australia in December 2015.

   -He had horrible quarrels there with his family. They put a lot of pressure on him.  He and his partner decided it would be best to come back to Australia. He knew it was unlawful to change his identity but he believed he would have a better opportunity to restart his life in Australia with his partner.

   -He is sorry for his ignorance and behaviour.

   -He wants another chance to stay in Australia.

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Department’s Decision.

9. On 7 June 2017 the Department Delegate decided to cancel the applicant’s visa.

   Section 375A certificate

10. On 29 June 2017 the Department issued a s.375A certificate, restricting the disclosure of several folios of the Departmental file. These folios are:

    -Folio 1, emails between Department officers to initiate the consideration of cancellation of the applicant’s visa.

    -Folios 3-8, intra-Departmental emails and database printouts related to the applicant’s identity and immigration history.

    -Folios 9-11, intra-Departmental emails and communications related to a Facial Image Comparison assessment for the applicant.

    -Folio 12, a Department generated chronology of steps taken in the visa cancellation consideration process.

11. In the Tribunal’s view the certificate is not valid as it merely refers to disclosure being “contrary to the public interest” without adequate explanation for the basis for this view.

12. In any event, the documents support the applicant’s own written admissions and do not otherwise amount to adverse information.  The Tribunal considers them relevant only to the extent that they support the applicant’s admissions.

    Delegation of Minister’s Power

13. On 8 December 2017 the Tribunal Registrar wrote to the applicant advising that the Department had advised the Tribunal that the officer who made the decision to cancel the applicant’s visa did not have the delegated power to cancel the visa under Section 109 at the time that they made that decision. The Department advised the Tribunal that it was the Department’s view that the cancellation decision stood unless set aside by a court or by the Tribunal. The letter noted that the Tribunal was considering making a guidance decision about what should happen in a case such as this and that the applicant would be advised in due course how the matter would be progressed.

14. The Tribunal Registrar wrote to the applicant on 19 June 2018 to advise the applicant that it was the Department’s view that “those [cancellation] decisions stand unless set aside by a court or Tribunal, and that the Tribunal has jurisdiction to hear the merits review applications and exercise the full suite of powers in relation to applications…”.  The letter further noted that an applicant in a similar facts matter had commenced proceedings in the Federal Court of Australia. The Tribunal Registrar informed the applicant that the Tribunal intended to await the outcome of the FCC proceedings before determining whether to issue a guidance decision, and that it would advise the applicant in due course of the outcome of FCC proceedings and whether it anticipated making a guidance decision.

15. The Tribunal Registrar wrote to the applicant on 18 January 2019 advising as follows:

    On 8 December 2017, the Administrative Appeals Tribunal (the Tribunal) wrote to you to advise that in your case the power to cancel the visa under Section 109 was not delegated to the officer from the Department of Immigration and Border Protection (now the Department of Home Affairs) who decided to cancel your visa. This also happened in some other decisions the Tribunal is reviewing.

    We also advised you, on 19 June 2018, that we were waiting for the outcome of Federal Circuit Court of Australia (FCC) proceedings in which the FCC was considering whether the Tribunal had the power to review your matter and the others like it.

    The FCC has since determined that the Tribunal can review your matter, but does not have the power to affirm the decision: CSH18 v MHA [2018] FCCA 3226.  Essentially, the Tribunal would need to set aside the decision because neither the delegate, nor the Tribunal, had the power to cancel. However, the Minister has lodged an appeal against this judgement, and has indicated that it is likely that the matter will be listed in the February/March 2019 sitting. The Minister is of the view that the Tribunal does have power to affirm the decision in your case.

    The Tribunal will not make a decision in your case until that appeal is finalised. The Tribunal will advise you in due course of the outcome of that appeal and how it affects your review. At this stage, you do not need to do anything about your review.

16. Annexed to the letter of 18 January 2019 was a copy of the decision of the Federal Circuit Court of Australia in CSH18 v MHA [2018] FCCA 3226.

17. The Tribunal Registrar wrote to the applicant on 4 July 2019 advising as follows:

    On 12 April 2019 we wrote to you to advise that the decision in the case of CSH18 v
    MHA [2018] FCCA 3226, which considered the powers of the AAT in reviewing a
    decision by a primary decision-maker who was not properly authorised to make the
    decision, had been appealed. We indicated that the AAT would not make a decision in
    your case until that appeal was finalised and we would inform you of the outcome of
    that appeal and how it affects your review.

    The Federal Court made its decision on the appeal on 28 May 2019 in MHA v CSH18
    [2018] FCAFC 80. It decided that the AAT has jurisdiction to review the decision and in
    doing so, it has all the powers of the original decision-maker as if they had been
    properly delegated. The judgment does not provide clear authority on whether the AAT
    has the power to affirm the decision of a person who was not properly authorised to
    make the decision, if the AAT were to conclude on review that the visa should be
    cancelled.

    The AAT’s powers on review are set out in s.415(2) of the Act and include the power
    to affirm the decision and the power to set aside and substitute a decision. The AAT is
    now considering CSH18’s case and will make a guidance decision on the powers of
    the AAT in determining a review in a case such as this.

    Your case will be allocated to a member in due course. Depending on the outcome of
    your review, the AAT may need to consider, or await the outcome of, the guidance decision on the powers of the AAT. The AAT will inform you if this is the case.

18. On 11 September 2019 the applicant’s review application was constituted to the Tribunal Member.

19. On 21 October 2019 the Tribunal scheduled a Hearing for the applicant to be held on 19 February 2020.

20. On 9 December 2019 the Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 19 February 2020.

21. On 13 January 2020 the applicant advised the Tribunal in writing that he did not wish to attend the Hearing and that he consented to the Tribunal proceeding to make a decision on the information before it.

22. On 21 January 2020 the Tribunal wrote to the applicant advising as follows:

    The Tribunal refers to the letter, dated 4 July 2019, sent to you from the Tribunal Registry.
    In that letter the Tribunal Registry informed you that the Tribunal intended making a guidance decision on the powers of the AAT in determining a review of a decision by a primary decision-maker who was not properly authorised to make the decision, and that the Tribunal may wait the outcome of the guidance decision before finalising your review.

    The Tribunal now wishes to inform you that the Tribunal is not currently intending making a guidance decision in relation to this matter. The Tribunal is therefore not waiting for the outcome of a guidance decision before finalising your review.

    As noted in the previous letter the Federal Court decided on 28 May 2019 in MHA v CSH18 [2018] FCAFC 80 that the AAT has jurisdiction to review a decision such as yours, and in doing so, has all the powers of the original decision-maker as if he or she had been properly delegated.

    The Tribunal would therefore have the power to affirm the decision as well as to set aside and substitute a decision.

    The Tribunal also encloses a copy of a submission received from the Department of Home Affairs in which the Department expresses the opinion that the Tribunal has the power to affirm a decision made by a Department decision-maker who was not properly authorised to make the decision.

    The Tribunal notes your correspondence declining the Tribunal’s offer of a hearing.

    The Tribunal would like to provide you with a further opportunity to consider whether you wish to attend a hearing, in light of the above information. Please respond in writing by 4 February 2020 if you wish to have the opportunity to have a hearing before the Tribunal.

    If you still do not wish to accept the opportunity for a hearing, the Tribunal will give you an opportunity to make written submissions about the above matters. If you wish to provide submissions the Tribunal requests they be provided in writing by 4 February 2020.

23. On 22 January 2020 the applicant responded in writing to the Tribunal confirming that he did not wish to attend a hearing and that he had no document to submit.

24. The Tribunal has therefore proceeded to a determination on the material before it.

    Tribunal’s Powers

25. In the Tribunal’s view the judgment of the Court in MHA v CSH18 [2019] FCAFC 80 provides Full Federal Court authority for the extent of the Tribunal’s powers to review a purported decision, where the person who made the decision lacked the requisite delegation to do so. The Court held [at para 65]:

    In our opinion, in the present case the words in s 415(1) refer to the person who made the purported decision, or who purportedly made the decision, and to the powers and discretions that person would have had if the instrument of delegation had been legally effective.

26. The Court also stated that “the Tribunal has the power under s 415(2) to affirm the decision under review.”[1]

    [1] [at para 80]

27. The judgment is authority that the Tribunal’s powers include the power to affirm, vary, remit, set aside, and dismiss the application.

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

28. 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 s.101(b) in that he had providing incorrect information in his visa application.

1. In his response to the NOICC the applicant admitted that the incorrect information particularised by the delegate, was provided in the visa application. He apologised for this.

2. There is no information before the Tribunal to suggest that the applicant is wrong and that the particularised information provided in the visa application was correct.

3. On the basis of the evidence before it the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

4. 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).

5. 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 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.

   the correct information

6. The correct information is that the applicant was born on 7 March 1979; that he had been excluded from Australia for a three year period; and that he had overstayed a visa in Australia.

7. This information was of a serious nature and very relevant to the decision whether or not to grant the applicant the visa.

8. The Tribunal considers this factors weighs in favour of cancelling the applicant’s visa.

   the content of the genuine document (if any)

9. This factor is not relevant in this matter.

   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

10. The Tribunal considers that the decision to grant the applicant the visa was based partly on the delegate’s assessment of the applicant’s personal migration history. His lack of disclosure of his past non-compliant immigration conduct in Australia was influential in the positive outcome to the visa application.

11. If the applicant had disclosed the true details of his identity and past immigration history it is a real possibility that the visa would not have been granted.

12. The Tribunal therefore considers this factors weighs in favour of cancelling the applicant’s visa.

    the circumstances in which the non-compliance occurred

13. The applicant wrote in his response to the NOICC that he provided incorrect information in the visa application because of problems with his family in Malaysia which led him and his wife to decide to “return to Australia”. He wrote that they did this in the knowledge it was unlawful to conceal his identity, because they wished for “a better opportunity” in Australia.

14. In the Tribunal’s view these circumstances do not reveal justification for providing incorrect information in the visa application. They amount to an intention to deceive to gain a perceived advantage.

15. The Tribunal considers this factors weighs in favour of cancelling the applicant’s visa.

    the present circumstances of the visa holder

16. The applicant has not provided any information about his present circumstances. In his 2017 response to the NOICC he wrote that he wants another chance to stay in Australia but did not provide any details about his then situation, activities or life in Australia.

17. In the absence of relevant information the Tribunal considers there is nothing about this factor that weighs against the cancellation of the visa, but otherwise the Tribunal views the factor neutrally.

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

18. The applicant provided a brief response to the NOICC and has corresponded with the Tribunal.

19. The Tribunal gives this consideration some weight in the applicant’s favour.

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

20. The applicant did not comply with the terms of his former Subclass 601 visa in that he stayed in Australia past the expiry date of the visa, for over two years.

21. The Tribunal considers this factors weighs in favour of cancelling the applicant’s visa.

    the time that has elapsed since the non-compliance

22. It has been three and a half years since the non-compliance. The Tribunal does not consider this a particularly long period of time.  It is not a period of time in which the non-compliance is ameliorated by other aspects of the applicant’s continued presence in Australia. Nor has the applicant identified any impact of the passage of this time that is relevant to the assessment of whether or not his visa should be cancelled.

23. On the evidence before it the Tribunal views this factor in favour of cancelling the applicant’s visa.

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

24. There is no evidence before the Tribunal that the applicant has breached any laws since the non-compliance. The Tribunal therefore gives this factor some weight in the applicant’s favour.

    any contribution made by the holder to the community.

25. The applicant has not provided any information about contributions he has made to the community.  There is no other information available that indicates he has made a contribution to the community.

26. The Tribunal considers this factor does not weigh against cancelling the applicant’s visa.

    Other considerations

27. 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.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

28. If the applicant’s visa is cancelled the applicant will become an unlawful noncitizen and will be liable to be detained in immigration detention under section 189 of the Migration Act or removed from Australia under section 198 of the Migration Act in the event that he does not arrange his own departure from Australia. Further to this the applicant may be precluded from making an application for a further visa for a period of 3 years pursuant to Public Interest Criterion 4013.

29. There is no available information that the applicant would not or could not depart Australia.  He can therefore readily avoid mandatory detention. The three year restricted period may mean he is subject to family arguments in Malaysia again but there is no indication that the temporary prohibition would otherwise cause him difficulty.

30. However the Tribunal accepts that these consequences can still be considered adverse to the applicant and it therefore gives this factor a little weight in the applicant’s favour.

    whether there would be consequential cancellations under s.140

31. There is no indication that another person holds a visa in Australia as a family member of the applicant. This factor is therefore not a relevant consideration.

    whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

32. There is no evidence before the Tribunal that Australia will be in breach of any international agreements or obligations as a result of the cancellation of the applicant’s visa.  The Tribunal gives this consideration no weight in the applicant’s favour.

    any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

33. The applicant has expressed a wish to be given a chance to stay in Australia. He has not presented any details about hardship that will be caused to him if he does not get this chance.  He has written of family arguments in Malaysia so the Tribunal accepts that returning there may cause him some emotional distress. The information he provided did not indicate the level of seriousness of his family problems in Malaysia.  Given he was able to highlight any particularly seriousness in his response the Tribunal considers the absence of such detail suggests that his family problem were not of any exceptional nature. 

34. The Tribunal gives this factor a little weight in the applicant’s favour.

    Conclusion

35. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 of the Act and that there are grounds for cancelling the visa.

36. The applicant has admitted that the provision of incorrect information was deliberate and done with the intention to achieve an immigration outcome.  In the Tribunal’s view there are insufficient considerations to counter the significance of the non-compliance.  In weighing the considerations the Tribunal finds that the relevant factors favour cancelling the applicant’s visa.

37. 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 be cancelled.

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Melissa McAdam
    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.