CHOTANAN (Migration)

CHOTANAN (Migration) [2017] AATA 665 (5 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Songphop CHOTANAN
Miss Kankanis Sutthiphongphakdi
CASE NUMBER:  1607426
DIBP REFERENCE(S):  BCC2015/549512
MEMBER:Chris Thwaites
DATE:5 May 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 05 May 2017 at 3:36pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Incorrect information provided on application – Previous visa refusals undeclared – Errors by migration agent – Conscientious student – Applicant innocent of the mistake – Applicant’s wife previously declared refusals

LEGISLATION
Migration Act 1958, ss 48, 101(b), 107, 109, 140(1)
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
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 first named 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 first named applicant did not comply with s.101(b) of the Act, as he did not fill in his application form 157A Application for Student Visa in such a way that no incorrect information was given or provided. The delegate was satisfied there was a ground for cancelling the visa, and that the grounds for cancelling the visa outweigh the grounds for not cancelling the visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.
The applicants appeared before the Tribunal on 28 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.
At the conclusion of the hearing the Tribunal granted the applicants’ request for time to provide further submissions.
On 6 March 2017 the Tribunal received a written submission from the representative, outlining the background to the matter and the applicants’ evidence that the incorrect information was provided by their then migration agent by mistake.
The representative noted the applicants oral evidence about this was consistent with, and supported by, a statutory declaration from the applicant’s sister, who declared she was present when the applicants were interviewed by their previous agent, and told that agent about their previous visa application refusals.
The representative also noted the applicant’s oral evidence was consistent with, and supported by, an email from the previous agent acknowledging their mistake.
For the following reasons, the Tribunal has concluded that the decision to cancel the first named applicant’s visa should be set aside.
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.
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?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 Notice of Intention to Consider Cancellation of Student (Temprary)(class TU) Vocational Education and Training Sector (subclass 572) visa, being the manner particularised in the notice (NOICC), and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s.107 notice dated 2 May 2016 was non-compliance with s.101(b). The s.107 notice states:
On the application form 157A Application for Student visa you were asked the following questions:
3 Have you, or any person in this application ever been refused an entry permit or visa to Australia?
You Answered
No
4 Declaration
The information I have supplied in this application is complete, correct and up-to-date in every detail.
You answered:
Yes
Based on the above information, as well as meeting other relevant criteria, you were granted a subclass TU 572 Vocational Education and Training Sector visa on 11 March 2014.
On 12 June 2009 you applied for a Tourist (OFFSHORE) (TR 676) visa and this application was refused on 15 June 2009.
On 29 August 2013 Kakanis Sutthiphongphakdi applied for a Tourist (OFFSHORE) (TR 676) visa and this application was refused on 5 September 2013.
On 17 September 2013 Kakanis Sutthiphongphakdi applied for a Tourist (OFFSHORE) (TR 676) visa and this application was refused on 25 September 2013.
The Department has information that Kakanis Sutthiphongphakdi applied for a Tourist (OFFSHORE) (TR 676) visa in 2009 and the application was refused.
I consider that you have not complied with section 101(b) of the Act as you have provided incorrect answers to the following questions in your application for a subclass TU 572 Vocational Education and Training Sector visa:
3 Have you, or any person in this application ever been refused an entry permit or visa to Australia?
I consider this information to be incorrect as:
-you were refused a Tourist (OFFSHORE) (TR 676) visa on 5 September 2013.
- Kakanis Sutthiphongphakdi, who is also an applicant on your visa was refused a Tourist (OFFSHORE) (TR 676) visa in 2009, on 5 September 2013 and on 25 September 2013.
On the material presently before me I consider you did not comply with paragraph 101(b) of the Act because you did not fill in your application form 157A Application for Student Visa in such a way that no incorrect answers are given or provided.
The applicant’s then representative responded on 9 May 2016 stating, in summary, that the applicant was granted a visitor visa 676 on 5 September 2013 valid up to 5 December 2013, and was not refused a visa on 5 September 2013. Similarly, on 17 September 2013 Kakanis Sutthiphongphakdi applied for a visitor visa 676 and was granted a visa on 26 Setpember 2013 valid up to 6 December 2013. The representative submitted that as these facts to not match the NOICC, it may make the notice defective.
The representative also notes that the applicant would like to inform the Department that a mistake was made in the student visa form, that previous refusals were not mentioned. This was an honest mistake and their previous visa applications had mentioned the refusals. The written submission also addresses the factors to be considered in relation to whether the visa should be cancelled.
As noted above, the delegate decided to cancel the applicant’s visa on 17 May 2016. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates the delegate found that the applicant did not fill in his application form 157A Application for Student Visa in such a way that no incorrect information was given or provided. On the material presented, the delegate was satisfied there was a ground for cancelling the visa and that the grounds for cancelling the visa outweigh the grounds for not cancelling.
During the hearing the applicants told the Tribunal that they applied for visitor visas in 2009 and were refused and they noted this on their 2013 visitor visa application forms.
The Tribunal notes this is consistent with the copies of their 2013 visa application forms submitted to the Department.
The applicant told the Tribunal that he and his wife both applied for visitor visas in August 2013 and the applicant’s application was granted on 5 September 2013.
The applicant provided a copy of the Visa Grant Notice to the Department.
The applicant told the Tribunal his wife’s application was refused. She then re-applied for the visa on 17 September 2013 and was granted the visa on 26 September 2013. The applicant provided a copy of the Visa Grant Notice to the Department.
The Tribunal notes departmental ICSE records and movement records confirm this, and that the applicants arrived in Australia on 30 September 2013 and departed on 24 October 2013.
The Tribunal notes the applicant and his wife told the Tribunal that their previous visa application refusals were not mentioned in the application form 157A Application for Student visa, and that this was a mistake made by their then agent.
On the evidence before it, the Tribunal finds the applicant and his wife were refused visitor visas in 2009, and that the applicant’s wife was refused a visitor visa on 5 September 2013.
The Tribunal finds the applicant failed to mention this in his form 157A Application for Student visa.
The applicant and his wife told the Tribunal they did inform their agent about the previous refusals at the time, but he made a mistake and did not complete the forms correctly. They also told the Tribunal they did not identify the mistake due to their limited English.
This oral evidence is consistent with and supported by a statutory declaration from the applicant’s sister, Jamchunda Kongwatkorchai, dated 14 February 2017, provided to the Tribunal. Ms Kongwatkorchai declares that she organised the appointment and took the applicant and his wife to the migration agent who assisted with the Student visa application. She recalls them being interviewed about their previous visa applications and refusals. She confirms she witnessed the applicants provide correct information about their visa application history.
The applicants also provided a copy of an email from their previous agent confirming that she was instructed about previous refusals and that she made a mistake with the Student visa application form.
While the Tribunal has taken this information into account, the Tribunal also notes s.99 of the Act provides that 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.
After considering the applicant’s response to the NOICC, and the subsequent evidence provided to the Tribunal, the Tribunal finds the applicant provided incorrect information in his form 157A Application for Student visa. Therefore the applicant failed to comply with s.101(b) of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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.
Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
The Tribunal discussed these matters with the applicant and his representative and has considered the applicant’s response and submissions and information provided.
2.41(a) – the correct information
With respect to 2.41(a), the Tribunal considers that the correct information is that the applicant and his wife were refused visitor visas in 2009, and that the applicant’s wife was refused a visitor visa on 5 September 2013.
2.41(b) – the content of the genuine document (if any)
Not applicable.
2.41 (c) – whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or bogus document
The Tribunal accepts the decision to grant the visa was based wholly or partly on the information provided in the form 157A Application for Student visa, which included the incorrect information.
The Tribunal also notes the applicant and his wife were granted visitor visas in 2013 based on application forms which did included the correct information that they had been refused visas in the past.
2.41(d) – the circumstances in which the non-compliance occurred
The Tribunal accepts the applicant and his wife’s evidence, which was supported by the statutory declaration of Ms Kongwatkorchai, and the email from the applicant’s former agent, that the applicant and his wife provided their agent with the correct information about their previous visa application refusals, and that their agent made a mistake in the forms.
2.41 (e) – the present circumstances of the visa holder
The applicant arrived in Australia on his Student visa in March 2014 and provided a number of documents relating to his studies in Australia including an Attendance Certified for General English, Certificate II in EAL, Certificate III in EAL, and Confirmation of Enrolments for Certificate IV in EAL, Certificate IV in Business, and Diploma in Business.
The post hearing written submission states the applicant was a conscientious student and did not breach any of his visa conditions. Cancellation would mean he would be unable to complete his studies in Australia and consequently not be able to achieve his objective in his business in his home country wasting the costs incurred, all due to a mistake that was innocent, unintentional and not of his own doing.
2.41(f) – the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has engaged with the Department and provided a response to the NOICC and attended the Tribunal hearing. The applicant has admitted incorrect information has been provided and has been consistent in his explanation about how that occurred.
2.41 (g) – any other instances of non-compliance by the visa holder known to the Minister
There is no evidence that the applicant has been non-compliant in any other manner aside from the matter at hand.
2.41 (h) – the time that has elapsed since the non-compliance
The applicant was granted the visa on 11 March 2014 and has been in Australia since March 2014. There is no information before the Tribunal to suggest the applicant has not complied with any conditions of his visa.
2.41(j) – any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal that the applicant has breached Australian law.
2.41(k) – any contribution made by the holder to the community
During the hearing the applicant told the Tribunal he did not have any debt to the Commonwealth and has been a hard working student and peaceful resident.
Other relevant factors
The prescribed circumstances as listed under Reg 2.41 are considered above. However case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. The Department’s procedural guide also requires delegates to take into account other factors, such as Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. The Tribunal has considered the following factors in addition to those as required under Reg 2.41.
Australia’s International Obligations
The applicant has not raised any concerns that cancellation of his visa would engage any of Australia’s international obligations.
Effect of the cancellation
The Tribunal acknowledges that if the applicant's visa was cancelled, he would be prevented from being granted a range of temporary visas, for a period of three years. It also notes that cancellation would mean that the applicant would be prevented from applying for visas onshore pursuant to s.48 of the Act, with the exception of a limited range of visas including partner visas. The Tribunal gives these consequences some weight in favour of not cancelling the visa.
The Tribunal further notes that if his visa were cancelled, the applicant would lawfully remain on his current bridging visa until it ceases. If he remained in Australia after this date, he would become an unlawful non-citizen and would be subject to detention. There is nothing to suggest that any detention in such a hypothetical situation would be indefinite.
Conclusion
The Tribunal finds the applicant provided incorrect information in his form 157A Application for Student visa and therefore failed to comply with s.101(b).
Nevertheless the Tribunal also finds this incorrect information was provided to the Department due to a mistake by the applicant’s agent. The Tribunal also notes the applicant and his wife had previously provided the correct information to the Department in relation to their previous visa application refusals, and where nevertheless granted visas.

After considering all the circumstances of this case, including the prescribed factors pursuant to r.2.41 of the Regulations, and all other factors discussed above, the Tribunal finds that the factors in favour of cancelling the visa are outweighed by the factors in favour of not cancelling the visa.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Chris Thwaites
Member  5 May 2017

ATTACHMENT – Relevant Extracts from the Migration Act 1958:
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.

[2017] AATA 665

5 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies