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

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).
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
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.
NOICC, s.107 Notice
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…

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.

Continue reading Chang (Migration)

Details

AGLC: Chang (Migration) [2020] AATA 681
Case: [2020] AATA 681
Decision Date: 20 February 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Chang (the applicant) against the cancellation of his Student (Temporary) (Class TU) Subclass 572 visa by the Department of Home Affairs. The visa was cancelled on the grounds that the applicant had provided incorrect information in his visa application, specifically regarding his date of birth and previous visa overstays and exclusions. The Department's delegate had issued a notice of intention to consider cancellation, detailing the alleged non-compliance with sections 101 and 109 of the *Migration Act 1958* (Cth).

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the *Migration Act* by providing incorrect information in his visa application, and if so, whether the cancellation of his visa was warranted. The Tribunal was required to consider the evidence presented, including a facial image comparison and the applicant's immigration history, to determine if the delegate's decision to cancel the visa was validly made and whether the grounds for cancellation were established.

The Tribunal found that the applicant had indeed provided incorrect information in his visa application. A facial image comparison confirmed that the applicant, under different dates of birth, represented the same individual. This individual had previously overstayed a visa and was subject to a three-year exclusion period from Australia. The Tribunal concluded that the applicant had failed to declare his previous identity and immigration history accurately, thereby contravening section 101(b) of the Act. Consequently, the visa was liable for cancellation under section 109. While acknowledging the potential adverse consequences for the applicant, such as becoming an unlawful non-citizen and potential difficulties upon return to Malaysia, the Tribunal found these factors did not outweigh the seriousness of providing deliberately incorrect information to achieve a positive visa outcome.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa. It was satisfied that the delegate had the necessary state of mind to engage section 107 of the Act and that the notice issued complied with statutory requirements. The Tribunal also addressed issues regarding the delegation of power to cancel the visa and the validity of a section 375A certificate, ultimately finding that these procedural matters did not invalidate the cancellation decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. NOICC, s.107 Notice 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 PartnerFamily name: Lip TeeGiven names: ChangSex: MaleDate of birth: 27 May 1979Place 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)? NoHas any applicant ever overstayed a visa in any country (including Australia)? NoAt 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. YesI 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.

Decision

Reasons for decision

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. On 7 June 2017 the Department Delegate decided to cancel the applicant’s visa.Section 375A certificate 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. 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. 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 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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