CHIU (Migration)

[2018] AATA 5839

CHIU (Migration) [2018] AATA 5839 (24 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms HSIAO-WEN CHIU

CASE NUMBER:  1821272

DIBP REFERENCE(S):  BCC2018/2132044

MEMBER:Shahyar Roushan

DATE:24 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 24 December 2018 at 9:30am

CATCHWORDS

MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – incorrect information in Working Holiday (Extension) (Onshore) visa application – applicant’s employment history – applicant never employed by a specified business – unauthorised visa application by previous migration agent – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act s 33
Migration Act 1958, ss 48, 97-105, 107-109, 119, 140
Migration Regulations 1994, Schedule 4 Public interest Criterion 4013; 2.41

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336
McDonald v D-G of Social Security (1984) 1 FCR 354
MIAC v Khadgi (2010) 190 FCR 248
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191 at 357
Sullivan v CASA (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Zhao v MIMA [2000] FCA 1235

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 020 (Bridging B) visa under s.109(1) of the Migration Act 1958 (the Act).

   Background and evidence

2. The applicant is a 27-year-old national of Taiwan. She first arrived in Australia on a Working Holiday (417) visa on 16 April 2016. She applied for a Working Holiday (Extension) (Onshore) (417) visa on 17 February 2017 and was granted the visa on 1 March 2017. On 21 March 2018, she applied for a Student Subsequent Entrant Vocational Education (TU500) visa and she was subsequently granted a Bridging visa B on 27 March 2018, pending the outcome of that application. Her application for Subsequent Entrant Vocational Education (TU500) visa was refused on 24 July 2018.

3. On 22 June 2018, in accordance to s.107 of the Act, the applicant was issued with a Notice of Intention to Consider Cancellation under s.109 (NOICC). The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.

4. The particulars of non-compliance with s.101(b) of the Act was in relation to the applicant’s claimed employment in her application for a Working Holiday (Extension) visa. The applicant stated in her application that she had worked with an employer, Green (ABN 70680477133), from 14 September 2016 to 30 December 2016. On 6 October 2017, the Department was advised by Mr Wayne Barry, the owner of Green, that the applicant had never been employed by his business.

5. The applicant did not provide a response to the NOICC and the delegate cancelled the applicant’s Bridging B visa on the basis that she had provided incorrect information in her application for a Working Holiday (Extension) visa.

   Review application

6. The applicant applied for a review of the delegate’s decision. A copy of the decision was provided by her to the Tribunal for the purposes of the review and the applicant is taken to be on notice of the delegate’s findings and reasons.

7. On 6 December 2018, the applicant provided the Tribunal with a statement, referring to her circumstances in Taiwan and why she had decided to come to Australia on a Working Holiday visa. She stated that she had worked in factories and restaurants in Sydney and subsequently applied for an extension of her visa. She was introduced to a ‘migration agent’ by one of her housemates. She provided the agent with her personal details ‘via message’ and paid $1500. She never met the agent in person. In March 2018, she applied for a student visa and subsequently she received the NOICC. She did not know how the agent had submitted her application and she was not asked to provide details of ‘specified work’. She stated it was her previous migration agent who had provided incorrect information in her application form.

8. The applicant appeared before the Tribunal on 13 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

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

11. 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.

12. 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.

13. Under s.107A of the Act, possible non-compliance may include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person

14. Having regard to the terms of the NOICC and the information referred to in the notice, 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. The Tribunal is also satisfied that the nature of the non-compliance was sufficiently particularised for the applicant to respond to it.

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

15. 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) of the Act in the following respects:

16. On 17 February 2017, the applicant applied for a Working Holiday (Extension) (Onshore) (417) visa. In her electronic application form, in response to the question ‘Have you undertaken specified work in regional Australia for a total of 3 months?’, the applicant replied ‘yes’. In relation to the ‘details of the specified work undertaken’, the applicant provided the following information:

    ABN: 70680477133
    Postcode: 2450
    Start Date: 14 September 2016
    End Date: 30 December 2016

17. In the ‘Declaration’ section of the form, the applicant said ‘yes’ in response to the following: ‘I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa’.

18. On 6 October 2017, the Department contacted the owner of the specified business, Mr Wayne Barry. Mr Barry verified that the applicant had never worked for his company.

19. On 22 June 2018, the applicant was issued with a NOICC. The Department did not receive a response to the NOICC. The above information was set out in the delegate’s reasons and formed the basis of the decision to cancel her visa.

20. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[1] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]

    [1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

21. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.

22. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[3] In that case, Flick and Perry JJ said that:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[4]

    [3] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

    [4] At [120]

23. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit. [5] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the Tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the tribunal to employ such procedures at it sees fit in undertaking its fact-finding role.[6]

    [5] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [121], referring to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.

    [6] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [122].

24. The non-compliance identified and particularised in the s.107 notice was put to the applicant at the hearing. The applicant essentially reiterated the claims contained in her written statement to the Tribunal. She said her application form was completed and lodged by her previous ‘migration agent’ without her knowledge and she was unaware of the information contained therein. The Tribunal noted that she had responded ‘no’ to a question in the form asking her ‘do you want to authorise another person to act and/or receive communication about this application on your behalf?’ As it was put to the applicant that this indicated that she did not have an agent or anyone else acting on her behalf. It was also put to the applicant that she has provided no other evidence or information to demonstrate that she had in fact authorised or instructed an ‘agent’ to act on her behalf with regard to her application for a Working Holiday (Extension) (Onshore) (417) visa. The applicant responded that the agent had promised to introduce her to ‘better’ jobs and apply for the extension of the visa on her behalf. She did not find good jobs and the agent simply disappeared. She had only provided the agent with her personal information and did not consent to him providing false information.

25. The Tribunal finds the explanation offered by the applicant highly unpersuasive. As already noted, the applicant has provided no evidence in support of her claim that she had engaged an agent and that the agent had submitted the application on her behalf. The applicant had indicated in the application form that she did not wish to authorise anyone to act and/or receive communication on her behalf. Moreover, she did not respond to the NOICC and did not offer these explanations to the Department. The Tribunal does not accept that the applicant had authorised or engaged an agent to act on her behalf, who had provided false information in her application form regarding specified work undertaken in regional Australia. In the present case, the Tribunal is satisfied that the applicant had provided incorrect information in her application for a Working Holiday (Extension) (Onshore) (417) visa and that there was non-compliance with s.101(b) of the Act in the manner described in the notice.

    Should the visa be cancelled?

26. 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).

27. 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.

28. 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.

    The correct information

29. The Tribunal considers that the correct information is that the applicant did not work for Green (ABN: 70680477133) from 14 September 2016 to 30 December 2016. Therefore, she did not undertake specified work in regional Australia for a period of at least three months within certain industries.

    The content of the genuine document (if any)

30. This consideration is not relevant in this case.

    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

31. The Tribunal is of the view that the information provided by the applicant in her application for a Working Holiday (Extension) (Onshore) (417) visa was critical to the grant of the visa.

    The circumstances in which the non-compliance occurred

32. The applicant has persistently maintained that she did not give incorrect information to the Department, attributing responsibility to her previous migration agent. The Tribunal has rejected the claim that the applicant had engaged or authorised an agent to act on her behalf. Therefore, she has not provided any mitigating circumstances to explain why she would have done so. 

    The present circumstances of the visa holder

33. The applicant has given evidence that her boyfriend currently resides in Australia on a student visa and she would like to remain with him. The Tribunal appreciates the applicant’s desire to stay in Australia with her boyfriend. However, as it was discussed with the applicant at the hearing, a Bridging B visa is a temporary visa permitting the holder to remain lawfully in Australia while her substantive visa application is being processed. The applicant told the Tribunal that her application for a Student Subsequent Entrant Vocational Education (TU500) visa has been refused by the Department. There was no evidence before the Tribunal that the applicant has applied for any other substantive visa. It is difficult to see how, if her Bridging B visa was not cancelled, the applicant would have been able to remain with her boyfriend in Australia.

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

34. As noted above, the applicant has maintained that she did not give incorrect information to the Department.

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

35. On the basis of the evidence before the Tribunal, there are no other instances of non-compliance by the applicant known to the Minister.

    The time that has elapsed since the non-compliance

36. The relevant non-compliance in the present case took place when the applicant made her application for a Working Holiday (Extension) (Onshore) (417) visa on 17 February 2017.

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

37. On the basis of the evidence before the Tribunal, the applicant has not breached the law since the relevant non-compliance.

    Any contribution made by the holder to the community

38. There was no information before the Tribunal with respect to any contribution made by the applicant to the community. 

39. In addition, the Tribunal has considered the following matters:

40. There are no persons in Australia whose visas would, or may, be cancelled under a.140 of the Act; there was no evidence before the Tribunal to suggest that any of Australia’s obligations under relevant international agreements would or may be breached as a result of the visa cancellation and there are no children in Australia whose interests could be affected by the cancellation.

41. The Tribunal accepts that as a consequence of the cancellation of her visa the applicant would become an unlawful non-citizen and could be liable for detention. The cancellation could also mean that the applicant would have limited options to apply for further visas in Australia under s.48 of the Act. In addition, she will be prevented by a risk factor that may prevent her from being able to meet Public interest Criterion 4013. As a result, she may not be able to be granted a further temporary visa for a period of three years. The applicant is a citizen of Taiwan and she would be able to return to that country. In the circumstances of this case, the Tribunal does not consider any of the limitations referred to would be so severe to warrant not cancelling the visa.   

    Conclusions

42. For the reasons set-out above, the Tribunal has found that the applicant provided incorrect information in her application for a Working Holiday (Extension) (Onshore) (417) visa. The Tribunal has found that the decision to grant the applicant a Working Holiday visa was based on the incorrect information. Having carefully considered all of the relevant circumstances, the Tribunal finds that the applicant’s visa should be cancelled.

    DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

   Shahyar Roushan
   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.