Chen (Migration)

[2019] AATA 6843

Chen (Migration) [2019] AATA 6843 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huan Xiang Chen

CASE NUMBER:  1719295

DIBP REFERENCE(S):  BCC2016/4111594

MEMBER:Joseph Lindsay

DATE:6 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 06 November 2019 at 12:52pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – incorrect information in visa application – previous name, visa, travel, overstay, removal and debt not declared – three-year exclusion period – facial image comparison – discretion to cancel visa – enrolments cancelled for non-payment of fees – no response to department’s notice or appearance at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 109

Migration Regulations 1994 (Cth), r 2.41

CASE

MIAC v Khadgi (2010) 190 FCR 248

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 on 16 August 2017 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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was invited to have a hearing before the Tribunal on 25 October 2019 at 1:00pm. However, the applicant failed to appear for the hearing. Prior to the hearing, the applicant’s representative contacted the Tribunal to advise that the applicant would not appear because the applicant was not feeling well. The Tribunal, in response, advised the representative that because there was no medical evidence provided in respect to the applicant’s assertion that he could not attend the hearing because he was not feeling well, the Tribunal advised that the hearing would proceed as scheduled. The applicant did not attend the hearing. The agent did not attend the hearing. There has been no further contact at all from either the applicant or the agent with the Tribunal.

4. If the applicant had appeared at the hearing, the Tribunal would have had the opportunity to ask questions of the applicant. The Tribunal would have had the opportunity to ask the applicant why he appeared to provide incorrect answers on the ‘Student (Temporary) Visa’ application form that he submitted to the Department.

5. The Tribunal would have had the opportunity to ask the applicant why he appeared to provide incorrect information to the Department in order to get a class TU subclass 572 Vocational Education and Training Sector Student Visa, despite the clear warning to him that giving false or misleading information is a serious offence and that if information is found to be incorrect after the grant of a visa, the visa may subsequently be cancelled. The Tribunal would have had the opportunity to ask the applicant why he failed to respond to the notice from the Department dated 18 July 2017 that detailed such concerns. 

6. Accordingly, the Tribunal has decided to make a decision on the available evidence. 

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. On 16 August 2017, the delegate decided to cancel the applicant’s student visa. In this decision the term “visa holder” and the term “applicant” are used to describe Mr Huan Xiang Chen.

9. Essentially, the delegate found that the applicant’s circumstances did not comply with sections 101(b) of the Act and, accordingly, cancelled the visa under s109 of the Act.

10. Section 101(b) of the Act states:

    101 Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that:

    …

    (b) no incorrect answers are given or provided.

11. On 9 June 2016 the applicant lodged an application for a class TU subclass 572 Vocational Education and Training Sector Student Visa via the Department’s online facility that included the following information:

    Character declarations

    If you wish to study in Australia, you must be of good character. The following questions ask details of your character. If your circumstances change before you travel you should inform the Australian Government office overseas. If you are receiving assistance in completing this form, you must ensure you personally answer these questions, and that the answers are faithfully transcribed to this form. For your reference, a copy of these questions can also be found in form Application for a student (temporary) visa.

    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

    Has any applicant ever had any outstanding debts to the Australian Government or any public authority in Australia?

    No

    Declaration

    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.

    Yes

    I understand that if any fraudulent documents or false or misleading information has been provided with this application or if I fail to satisfy the Minister of my identity, my application may be refused and I, and any member of my family unit, may become unable to be granted a visa for a specified period of time.

    Yes

    I understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

    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

    I understand that if any fraudulent or misleading documents or information is found, this application is likely to be refused and I may become ineligible to be granted a visa for a period of time.

    Yes

12. However, the information in the delegate’s decision indicates:

    -The applicant first arrived in Australia on 7 December 2008 on a subclass 976 Electronic Travel Authority (ETA) Visa as Huan Xiang Chan (Born 24 October 1986).

    -The applicant overstayed this visa and was an unlawful non-citizen in Australia from 8 March 2009 until 01 February 2016.

    -On 31 December 2015, the applicant was located by NSW Police and subsequently detained at Villawood Immigration Detention Facility, following which he was removed from Australia on 01 February 2016.  

13. Since Huan Xiang Chan 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. The information in the delegate’s decision indicates that Huan Xiang Chan also incurred a debt to the Australian Government for his detention and removal from Australia.

14. The information in the delegate’s decision indicates that on 03 February 2016, the visa holder was issued a new Malaysian passport (number: A37277785) under the name Huan Xiang Chen (born 24 August 1986). On 13 March 2016, the visa holder re-entered Australia using this travel document as a holder of an ETA visa granted offshore on 24 February 2016 while being subject to a three year exclusion period.

15. The information in the delegate’s decision indicates that on 03 July 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 20 June 2016 in relation to Huan Xiang Chen’s (born 24 August 1986) health examinations for the Student visa application;

    • Photo of Huan Xiang Chan (born 24 October 1986) taken on 31 December 2015 while he was detained.

16. The information in the delegate’s decision indicates that the Forensic Facial Image Examiner determined that Huan Xiang Chen (born 24 August 1986) and Huan Xiang Chan (born 24 October 1986) ‘represent the same person’.

17. The Tribunal accepts the above information and finds that the applicant did not comply with subsection 101(b) of the Act where he gave incorrect answers to the questions as follows:

    • To answer ‘yes’ to the question ‘Has any applicant ever been removed, deported or excluded from any country (including Australia)?’

    • To answer ‘yes’ to the question ‘Has any applicant ever overstayed a visa in any country (including Australia)?’

    • To answer ‘yes’ to the question ‘Has any applicant ever had any outstanding debts to the Australian Government or any public authority in Australia?’

    • To answer ‘no’ to the following ‘Declarations’

    o The information provided in this form is complete, correct and up-to-date

    o 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.

18. Accordingly, the Tribunal finds that visa holder did not comply with subsection 101(b) of the Act when he applied for the Student visa on 09 June 2016.

19. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder (the applicant) 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.

20. 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.

21. 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.

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

22. 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.

23. Given the information before the Tribunal as indicated above, the Tribunal is satisfied that the applicant’s non-compliance was identified and particularised in the s.107 notice.

24. For these reasons, the Tribunal finds that there was non-compliance with section 101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

25. 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).

26. 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.

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.

28. My assessment of all the prescribed circumstances as set out in Regulation 2.41 is as follows:

    (a) the correct information

29. The correct information is that the visa holder has previously been in Australia in another identity. This has been confirmed by facial image comparison. As the visa holder overstayed his ETA visa which was valid until 07 March 2009 and subsequently was removed from Australia on 01 February 2016, he was subject to a three year exclusion period.

30. By not declaring his previous identity, the Tribunal finds that the applicant intentionally engaged in a deception in order to be granted his Student visa – a visa that may not have been granted to the applicant had he given accurate and correct information in his visa application.

31. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (b) the content of the genuine document (if any)

32. The non-compliance in question does not relate to a non-genuine document submitted to the Department. The Tribunal gives this consideration no weight in favour of the applicant as it is not relevant.

    (c) 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

33. It is clear to the Tribunal that the decision to grant the applicant a student visa was based partly on incorrect information as described above.

34. Had the visa holder provided the correct information, the Tribunal finds that his Student visa would not have likely been granted since he was subject to a three year exclusion period at the time. The Tribunal finds that the visa holder intentionally withheld his previous immigration and character history and provided incorrect information in obtaining the current Student visa.

35. The Tribunal gives this consideration high weight against the applicant.

    (d) the circumstances in which the non-compliance occurred (reg. 2.41(d))

36. The circumstances in which the non-compliance occurred are described above.

37. In summary, the circumstances in which the non-compliance occurred are that the applicant intentionally gave the Department false information in order to obtain his student visa.

38. Given visa holder did not provide a response to the Department, and nor did he attend the hearing, the Tribunal finds that the visa holder engaged in a deliberate deception to obtain the student visa. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (e) the present circumstances of the visa holder (reg. 2.41(e))

39. The visa holder is currently lawfully onshore as a holder of a Bridging Visa E. He does not have any accompanying dependents on the student visa.

40. Given visa holder did not provide a response to the Department, and nor did he attend the hearing, the Tribunal gives no weight in the applicant's favour.

    (f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958 (reg. 2.41(f))

41. The applicant provided incorrect information in his application for a student visa in order to facilitate a favourable migration outcome.

42. There is no indication that the applicant made any effort to correct the incorrect information provided to the Department or the Tribunal.

43. Accordingly, the Tribunal gives this no weight in the applicant's favour.

    (g) any other instances of non-compliance by the visa holder known to the Minister (reg. 2.41(g))

44. There is information before the Tribunal indicating significant non-compliance where:

    -the applicant overstayed his previous visa and was an unlawful non-citizen in Australia from 8 March 2009 until 01 February 2016.

    -on 31 December 2015, the applicant was located by NSW Police and subsequently detained at Villawood Immigration Detention Facility, following which he was removed from Australia on 01 February 2016.

45. The Tribunal finds the applicant’s behaviour to be an egregious instance of non-compliance.

46. The Tribunal gives this consideration high weight against the applicant.

    (h) the time that has elapsed since the non-compliance (reg. 2.41(h))

47. The non-compliance occurred when the visa holder re-entered Australia as a holder of ETA visa on 13 March 2016 on the basis of his new identity and on applying for a Student visa on 09 June 2016.

48. The non-compliance became evident to the Department on 03 July 2017. The time that has elapsed since the non-compliance is now over two years.

49. The Tribunal finds that despite the time that has passed since the non-compliance occurred, the significance of the applicant’s deceptive behaviour is such that his behaviour represents a significant risk to the integrity to Australia’s migration system.

50. The Tribunal gives this consideration no weight in the applicant’s favour.

    (j) any breaches of the law since the non-compliance and the seriousness of those breaches (reg. 2.41(j))

51. There is information before the Tribunal indicating that the applicant had been investigated for a series of criminal offences in New South Wales that appear to have been committed by the applicant when in April 2016 he appears to have applied for another drivers licence in New South Wales using his new identity. It is not clear whether or not the applicant has been prosecuted for these offences.

52. The Tribunal gives this consideration high weight against the applicant.

    (k) any contribution made by the holder to the community (reg. 2.41(k))

53. There is no specific information before the Tribunal to suggest the applicant has made a contribution to the Australian community. Accordingly, the Tribunal gives this no weight in the applicant's favour.

54. The Tribunal’s assessment includes the following other matters.

    • Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.

55. There are no persons in Australia whose visas would, or may, be cancelled under s140 of the Act. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    • Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.

56. There is no information before the Tribunal to indicate the circumstances of this case are such that would engage Australia’s international obligations. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    • Whether there are mandatory legal consequences to a cancellation decision.

57. If the student visa is cancelled the applicant would become an unlawful non-citizen and could be liable for detention under s189 and removal under s198 of the Migration Act 1958 if he does not voluntarily depart.

58. In addition, the cancellation could also place a limitation under section 48 of the Act which means that the applicant will have limited options to apply for further visas in Australia.

59. In addition, the applicant will be prevented by a risk factor that may prevent him from being able to meet Public Interest Criterion 4013. As a result the applicant may not be able to be granted a further temporary visa for a period of three (3) years. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    • Any other relevant matters.

1. Information before the Tribunal indicates that the visa holder was granted the Student visa on the basis of undertaking a Certificate IV in Commercial Cookery and a Diploma of Hospitality at Elizabeth Bence School of Fashion but that these enrolments were cancelled on 18 February 2017 for non-payment of fees – and the Tribunal accepts this information.

2. The Tribunal finds the applicant’s actions in this situation to give foundation to the Tribunal’s finding that the applicant has no regard whatsoever for Australian migration laws and he is prepared to engaged in deceptive behaviour to achieve a favourable migration outcome. Accordingly, the Tribunal gives this consideration high weight against the applicant.

3. 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

4. Having decided that under s108 of the Act that there was non-compliance in the way described in the notice issued under s.107 of the Act and having considered all the prescribed matters set out in regulation 2.41 of the Regulations, I find the reasons to cancel the visa outweigh the reasons not to cancel.  

5. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Student visa.

   Joseph Lindsay
   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.