Cheong (Migration)

[2024] AATA 3066

Cheong (Migration) [2024] AATA 3066 (30 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shu Lin Cheong

REPRESENTATIVE:  Ms Adele Wan

CASE NUMBER:  2212910

HOME AFFAIRS REFERENCE(S):          BCC2021/583107

MEMBER:Rachel Westaway

DATE:30 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 30 July 2024 at 10:36pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – provided incorrect answers – applicant has parents and a sibling in Australia – family and more significant ties – decision under review affirmed

LEGISLATION 
Migration Act 1958, ss 101, 103, 107
Migration Regulations 1994 (Cth), r 2.41

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 Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with section 101(b) of the Migration Act 1958 (the Act). 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 appeared before the Tribunal on 6 September August 2023 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review.

5. 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

6. 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.

7. 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.

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.

   Background

9. The applicant is a 26-year-old female from Malaysia.

10. The applicant was granted a TU-500 visa on 11 August 2020.

    Tribunal Application

11. The applicant lodged their application for review on 2 September 2022 and provided the Notification Letter from the Department of Home Affairs.

12. On 29 December 2022 the applicant’s authorised representative provided a written submission via email discussing the decision made by the Department and the non-compliance.

13. On 5 July 2023 the applicant provided the Department of Home Affairs Decision Record.

    Department of Home Affairs Application

14. On 11 July 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant.

15. On 12 July 2022 the applicant responded to the NOICC with a statement made via email.

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

    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 section101(b) of the Migration Act 1958 in the following respects:

16. The Delegate found that the applicant provided incorrect information in her Student visa application lodged 17 March 2017 when she:

    ·     answered ‘No’ to the question ‘Does the applicant have any parents or siblings in or outside Australia?’; and

    ·     answered ‘Yes’ to the question ‘Have provided complete and correct information in every detail on this form, and on any attachments to it.’ under the heading ‘Declarations’.

17. The Delegate found that this information was incorrect, as information available to the Department indicated that the applicant has parents and a sibling in Australia. Their parents are Chee Hoong Cheong, born 31 August 1966 and Lai Cheng Lee, born 13 February 1967. Their brother is Lucas Cheong, born 5 July 2008. The Delegate found that the applicant failed to declare this information, and as the delegate was unable to take it into account when deciding whether they satisfied the criteria for the grant of the visa; the applicant may have received a positive immigration outcome to which they were not entitled.

18. The Delegate therefore found that the applicant provided incorrect answers in the student visa application lodged 17 March 2017. They subsequently found that the applicant had not complied with section 101(b).

19. On 5 September 2023 the Tribunal sent a letter to the applicant providing her until 19 September 2023 to comment on or respond to certain information which we consider would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review.

20. On 7 September 2023 the Tribunal also sent the applicant a letter inviting her to comment on a certificate 375A relating to material on he Department file. The Tribunal explained the relevance of the certificate and found it valid. The applicant had until 21 September 2023 to respond. On 8 September 2023 the applicant’s new representative confirmed to the Tribunal they were acting on behalf of the applicant.

21. No response pertaining to the 359A letter or the Certificate was received.

    Oral evidence taken at Hearing

22. The applicant confirmed that she arrived in Australia 8 years ago.

23. The Tribunal discussed the incorrect information allegedly provided to the Department and the applicant confirmed she had received the NOICC. She admitted her mistake and stated that she provided the correct information in second application but had previously misread the question. She stated that in both instances she used the same agent to assist her.

24. The applicant said that she came to Australia to meet her parents and study English and Early Childhood Education and then couldn’t complete her course so she changed to business claiming it was too hard and she realised she didn’t like it.

25. The applicant stated that she had completed 70-80% of her course and had 2-3 months left. She claims to have already completed the Diploma of Business. The Tribunal asked the applicant about her other courses and she asked to view her COE  and stated that she is now at Queens but could not recall everything.

26. The Tribunal tried to acertain what was remaining for the applicant to complete such as an  Advanced Diploma but she said she couldn’t remember. She confirmed she has not been studying presently and is working as a receptionist at a hair studio and has been working there for 2 years. She said that she worked there when she was studying but did this for 20 hours a week and now she works full time for approximately 54 hours a week.

27. She claims her studies have assisted her with work and her English. She claims that her objective is to eventually marry her boyfriend and he is an Australian citizen who was born in Korea. She claims that they live together.

28. The applicant said that she has not returned to Malaysia and her boyfriend will return with her ideally at the end of September and she may apply for partner visa in Malaysia and wait.

29. She stated that she is worried that she can’t see her parents and boyfriend if she leaves and so she wants to try at appeal and did not want a record pertaining to her migration history.

30. The applicant stated her boyfriend works for Korean Airlines in Cargo. Her parents have both been working. Her father is a plasterer, and her mother recently lost her job. She stated that she has not lived with her parents for many years and she sees them once or twice a month.

31. The Tribunal asked the applicant what she would like to do in the future if she was to return to Malaysia and she confirmed she would live with her paternal aunty in KL.

32. The applicant confirmed she has no children.

    Conclusion on non-compliance

33. The applicant was honest in her discussions with the Tribunal.

34. She confirmed that she provided incorrect information in her Student visa application lodged 17 March 2017 by declaring no when asked if she has any parents or siblings in or outside Australia. She also signed her declaration and confirmed at the time that she had provided complete and correct information in every detail on this form, and on any attachments to it.’ under the heading ‘Declarations’.

35. As the applicant confirmed that the information she provided was incorrect and the Tribunal has also reviewed the material in the Department file which indicated that the applicant has parents and a sibling in Australia, the Tribunal is satisfied that the applicant provided incorrect answers in her student visa application lodged 17 March 2017 and finds that she has not complied with section 101(b).

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

    Should the visa be cancelled?

37. 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).

38. 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 reg 2.41 of the Regulations. Briefly, they are:

    the correct information

39. The applicant should have declared ‘yes’ to the question ‘Does the applicant have any parents or siblings in or outside Australia?’ as the applicant has parents and a sibling in Australia.

40. The omission of this information is significant and would have been relied upon by the delegate in making a decision whether to grant the visa. The Tribunal places significant weight on the applicant’s omission and what the correct information should have been and gives this consideration significant weight in favour of cancelling the visa.

    the content of the genuine document (if any)

41. The applicant the applicant has parents and a sibling in Australia. Her parents are Chee Hoong Cheong, born 31 August 1966 and Lai Cheng Lee, born 13 February 1967. Her brother is Lucas Cheong, born 5 July 2008. The content of the genuine document are these details which the applicant did not declare. The content of the genuine document was important to the issuing of the visa under review. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

    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

42. The Tribunal notes that an applicant’s family history and where they reside is important in assessing whether the applicant meets the criteria for the visa application. Consideration is given to whether the applicant has reasons to remain in Australia or reasons to return to her home country in making an assessment as to whether she is a genuine student and whether she meets public interest criteria amongst other things.

43. The applicant’s family details and where they reside was not declared to the Department and therefore not known when the assessment for her student visa was made. Had the delegate been aware of this, namely that incorrect answers were provided, the granting of the visa may not have occurred and as such the Tribunal gives this factor significant weight in favour of cancelling the visa.

    the circumstances in which the non-compliance occurred

44. The applicant stated that she was confused and made an error and was working with a migration agent for assistance. She was only 18 years of age and made a mistake. There is nothing before the Tribunal to suggest the applicant declared this information to her migration agent and the applicant has taken responsibility. In any event, she signed the declaration that the information provided was correct. It is the responsibility of the applicant to ensure the information provided is correct and the applicant was of an age which the Tribunal believes is mature enough to understand the importance of a declaration. There are no circumstances outlined that suggest the information provided was under circumstances outside of the applicant’s control which led to an error. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

    the present circumstances of the visa holder

45. The applicant is living with her boyfriend and they plan to marry in the future. Her boyfriend is originally from Korea and is an Australian citizen. She stated that she is working full time as a receptionist. At the time of the visa cancellation the applicant stated that she had completed part of her course and had a few months remaining. She provided no further detail pertaining to the importance of completing this however did express her interest and desire to complete her education.

46. The applicant’s brother and parents are in Australia and she sees them regularly but did not stated she had any caring responsibilities.

47. The cancellation of the visa would impact the applicant in regard to her work and she would need to return to Malaysia. Her boyfriend has employment in Australia, but she stated he intended to travel to Malaysia with her. The Tribunal acknowledges that the applicant would be separated from her family and her boyfriend if the visa was cancelled, and this would cause some distress and inconvenience.

48. However, the purpose of the student visa is to study and it is a temporary visa. The applicant would not have been entitled to remain in Australia on that visa and would face the issues outlined when she returned to Malaysia.

49. The Tribunal understands that a visa cancellation would be distressing and disappointing for the applicant, her boyfriend and her family.

50. The applicant’s personal circumstances have been considered by the Tribunal and the Tribunal gives these some weight in favour of not cancelling the visa.

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

51. The applicant confirmed and apologised to the Tribunal that she provided incorrect information to the Department regarding her family in Australia. However, whilst the Tribunal appreciates that the applicant has acknowledged this she did not declare these until the Department contacted her with the NOICC.

52. As the applicant did not declare the provision of incorrect information to the Department until she was contacted she has failed to comply with her obligations and the Tribunal gives this consideration significant weight in favour of cancelling his visa.

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

53. There is nothing before the Tribunal to indicate that the applicant has not complied with other conditions on her visa. As such the Tribunal gives this factor some weight in favour of not cancelling the visa.

    the time that has elapsed since the non-compliance

54. The applicant lodged her student visa application on 17 March 2017 with incorrect information and the Department cancelled the visa on 31 August 2022 and the applicant subsequently sought review. The Tribunal notes that over seven years have passed since the non-compliance and two years since the Department cancelled the visa. Whilst he Tribunal considers this a significant period of time since the non-compliance and the applicant would have made friends in Australia and established ties, the visa was a temporary visa and the applicant has family and more significant ties to his country.

55. The Tribunal gives this factor a little weight in favour of not cancelling the visa.

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

56. There is nothing before the Tribunal to indicate that the applicant has breached any other conditions on her visa and there is no information before the Tribunal to suggest that there has been any breaches of the law since the non-compliance.

57. The Tribunal gives this consideration a little weight in favour of not cancelling the visa.

    any contribution made by the holder to the community.

58. The applicant has not provided any information in her submission or to the Department addressing how she has contributed to the community whilst in Australia. The Tribunal acknowledges his economic contribution and possible ties to the community in Australia and the establishment of friendships. The applicant has discussed with the Tribunal her work as a receptionist.

59. The Tribunal gives this factor limited weight in favour of cancelling the visa.

    whether there would be consequential cancellations under s 140.

60. There are no other people attached to this visa and the applicant has confirmed she does not have children and as such the Tribunal gives this consideration no weight.

    whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

61. The applicant is a citizen of Malaysia and has not raised any protection claims and as such the Tribunal has not considered Australia’s non-refoulement obligations under the Refugee Convention.

62. There is no information before the Tribunal to indicate that Australia has any other international obligations that may be impacted by the cancellation of the applicant’s visa.

63. The Tribunal gives these considerations a little weight in favour of cancelling the visa.

    whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

64. If the visa was to be cancelled, the visa holder would become an unlawful non-citizen and could be liable for detention under section 189, and removal under section 198 of the Act if she does not voluntarily depart Australia.

65. The Tribunal has considered the consequences of a cancellation and accepts that if the visa is cancelled section 48 of the Act would apply and the this would mean the applicant has limited options for applying for further visas in Australia and the applicant may also be affected by Public Interest Criterion, limiting the grant of a further visas for a specified period. The Tribunal also acknowledges that the applicant has stated that she would return to Malaysia but would like to apply offshore for a partner visa.

66. I give this consideration some weight against cancelling the visa.

    Conclusion

67. 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, individually and cumulatively as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

68. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Rachel Westaway
    Senior 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.