Dalla (Migration)

[2018] AATA 128

Dalla (Migration) [2018] AATA 128 (30 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Imad Dalla

CASE NUMBER:  1706324

DIBP REFERENCE(S):  BCC2015/2500655

MEMBERS:Jan Redfern (Presiding)

Rania Skaros

DATE:30 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 30 January 2018 at 3:54pm

CATCHWORDS

MIGRATION – Subclass 457 (Temporary Work (Skilled)) visa – cancellation of visa under s 109 of the Migration Act 1958 (Cth) – whether incorrect information provided – incorrect answer in outgoing passenger card – information related to the amount of money being taken out of Australia – consideration of the definition of ‘passenger card’ for the purposes of s 102(b) – non-compliance established – whether to exercise the discretion to cancel applicant’s visa – consideration of prescribed circumstances including correct information, circumstances in which non-compliance occurred and applicant’s present circumstances – where applicant is on parole for serious offences – where applicant has uncertain employment prospects due to approved sponsor entering administration and temporary nature of work visa – where applicant faces financial and other difficulties on return to country of origin – decision under review affirmed

PRACTICE AND PROCEDURE  – certain information subject to s 357A certificate – disclosure of the nature of the information to the Applicant  –  information subject to the s 375A certificate held not to be the reason or part of the reason for affirming the decision

LEGISLATION

Migration Act 1958, ss 97, 101, 102, 103, 104, 105, 107, 109(1), 115, 140, 358(2), 375A, 359A, 360(2), 362A, 496, 499, 504(1)(c), 506(2)

Migration Regulations 1994, rr 2.41, 3.01, 3.02

CASES

Berenguel v MIAC [2010] HCA 8
Dalla v Minister for Immigration and Border Protection [2016] FCA 998
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958.

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 and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached s.102 of the Act, namely that he provided incorrect information in an outgoing passenger card.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. We have decided to affirm the decision under review. Our reasons follow.

   BACKGROUND

4. The applicant arrived in Australia in January 2011 as the holder of a student visa.  He was granted a subclass 457 temporary work visa on 30 April 2015 for a period of 4 years on the basis of an approved nomination by Sydney Projects Group Pty Ltd (SPG), which is a building and development company based in New South Wales.

5. On 28 August 2015 the delegate sent to the applicant a Notice of Intention to Consider Cancellation (the notice) of his visa under s.109 of the Act. The breach particularised in the notice was the failure of the applicant to declare in his outgoing passenger card the fact he was taking more than AU $10,000 out of the country.

6. On 20 July 2015 the applicant presented at Sydney International Airport to depart Australia. He completed an outgoing passenger card which included a question ‘Are you taking out of Australia AUD$10,000 or more in Australian or foreign currency equivalent?’ In response the applicant marked the ‘No’ box.  While at the airport the applicant was subjected to a baggage search by Australian Border Force officers. As a result of the search officers found the applicant had in his possession AU $24,345.85 and US $506.00. The delegate considered that the applicant had provided an incorrect answer in his outgoing passenger card and had therefore not complied with s.102(b) of the Act.

7. In response to the notice, the applicant’s then representative provided submissions to the delegate dated 14 September 2015. In summary, the applicant agreed he was taking more money out of Australia than the amount specified in the outgoing passenger card but stated that this money was provided to him by his uncle and was given to him in sealed envelopes with names written on them. The funds were intended for his uncle’s parents in Lebanon. The funds totalled $21,000 but he was unaware of this at the time. Any breach was not wilful or intended. The representative provided a letter from the applicant’s uncle claiming he owned the money carried by the applicant. It was also submitted that the applicant had been in Australia as the holder of a Subclass 457 visa to work in the construction industry and that he continued to have ongoing employment. The applicant had been residing in Australia for a significant period without being convicted of criminal offences, and had been a productive and law abiding member of the Australian community while in Australia initially studying and then later in temporary employment. Given these circumstances, it was submitted that the applicant’s visa should not be cancelled.

8. On 30 September 2015 the delegate found that the applicant had not complied with s.102(b) of the Act. After considering the applicant’s response and the prescribed circumstances set out in the Migration Regulations 1994 (the Regulations), the delegate decided to cancel the visa. One of the matters considered by the delegate was that the applicant had been charged with offences relating to credit card fraud, identity theft, dealing with property reasonably suspected of being proceeds of crime and dealing with identification information contrary to s.192J of the Crimes Act 1990. These offences were alleged to have taken place prior to the non-compliance which was said to form the basis for the cancellation. The criminal charges were pending at the time of the delegate’s decision.

9. The applicant applied to the Tribunal for review on 8 October 2015 and provided a copy of the delegate’s decision record. The applicant appeared before the previously constituted Tribunal on 27 October 2015 to give evidence and present arguments. On 28 October 2015 the Tribunal affirmed the delegate’s decision to cancel the visa. The Tribunal took into account the pending criminal charges in exercising the discretion to cancel, finding that the alleged criminal breaches of the law was a relevant consideration under the prescribed circumstances set out in the Regulations.

10. The applicant appealed to the Federal Circuit Court of Australia (FCCA) and contended that the Tribunal had misconstrued the Regulations. Any conduct which is said to be the subject of breaches of the law must post-date the non-compliance and the applicant’s charges were therefore an irrelevant consideration. It was further contended that the Tribunal was in error in accepting that incorrect information provided in an outgoing passenger card could enliven the power to cancel the applicant’s 457 visa given that the grant of the visa was not based on this incorrect information. The FCCA rejected these arguments and upheld the Tribunal’s decision on 2 June 2016.

11. The applicant appealed to the Federal Court of Australia (FCA) in relation to contention that the Regulations had been misconstrued and misapplied. The FCA allowed the appeal, quashing the Tribunal’s decision (Dalla v Minister for Immigration and Border Protection [2016] FCA 998). The matter was remitted to the Tribunal for hearing and determination according to law.

12. The applicant appeared before the Tribunal (differently constituted) on 21 October 2016 and on 8 December 2016. By this stage, the applicant had pleaded guilty to the charges and was to be sentenced on 29 January 2017.

13. On 13 December 2016 the Tribunal wrote to the applicant in accordance with s.359A of the Act, which requires that the Tribunal give an applicant the opportunity to respond to adverse information. The particulars of the adverse information included the applicant’s driving record, which indicated various driving offences in NSW between December 2014 and June 2015, and general particulars about information alleging involvement in crime supporting overseas criminal activity which was the subject of a non-disclosure certificate under s.375A of the Act.

14. On 20 December 2016 the applicant’s then representative made written submission to the Tribunal, which included a response to the s.359A letter, together with supporting documents.  The representative submitted that the applicant’s driving offences predated the non-compliance and took issue with the then Tribunal’s characterisation of the non-disclosable information. The representative also made submissions about the operation and effect of the power to cancel under s 109 and contended that the ground to cancel did not arise in the circumstances of the case. These submissions raised questions of law that are outlined in more detail below.

15. On 21 December 2016 the Tribunal (again differently constituted) affirmed the decision to cancel the visa and in so doing stated that it gave no weight to the information covered by the s 375A certificate.

16. The applicant appealed to the FCCA and on 16 March 2017 the matter was remitted to the Tribunal by consent on the basis that the Tribunal had breached s.359A of the Act by not providing clear particulars of information that was covered by the s.375A certificate.

17. The applicant appeared before us on 29 November 2017 to give evidence and present arguments. He was offered the assistance of an interpreter in the Arabic (Lebanese) languages but advised at the outset that he would prefer for the hearing to be conducted in English. The applicant gave his evidence in English and demonstrated a good understanding of the issues in the review and appropriately responded to the Tribunal’s queries. He was not represented. The applicant requested, and was provided, the opportunity to provide further evidence and make further written submissions. This evidence and submissions were provided on 13 December 2017.

    LEGISLATIVE FRAMEWORK

18. 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. Relevant to the circumstances of this case, s 102 provides:

    Passenger cards to be correct

    A non-citizen must fill in his or her passenger card in such a way that:

    (a)  all questions on it are answered; and

    (b)  no incorrect answers are given.

19. 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.

20. Section 109 provides that if the Minister decides there has been non-compliance, the visa holder’s visa may be cancelled after considering any response provided by the visa holder to the notice and having regard to ‘any prescribed circumstances’.

21. The prescribed circumstances are set out in reg.2.41 of the Migration Regulations 1994 and are as follows:

    (a)      the correct information;

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

    (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;

    (d)      the circumstances in which the non-compliance occurred;

    (e)      the present circumstances of the visa holder;

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

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

    (h)      the time that has elapsed since the non-compliance;

    (j)any breaches of the law since the non-compliance and the seriousness of those breaches; and

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

22. While the factors specified in reg.2.41 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.

23. 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 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.

24. The Minister may delegate any of his or her powers under the Act to another person (s 496) and may issue directions about the performance of those functions and the exercise of those powers by others (s 499). There is no dispute in this case that the Minister delegated the power under s.109 to an officer of the Department of Immigration and Border Protection.

    MATTERS IN DISPUTE AND QUESTIONS FOR DETERMINATION

25. In submissions made by the applicant’s previous representative, it was conceded that the applicant had provided an incorrect answer in his outgoing passenger card but it was contended that the question in the outgoing passenger card about the funds being taken out of Australia was not prescribed under the Regulations and therefore did not form part of the passenger card for the purposes of s 102(b).  As such, there was no non-compliance within the meaning of ss 107 and 109 of the Act. It was further submitted that the power to cancel a visa under s 109 was only enlivened if the visa was granted on the basis of the incorrect information. It was therefore submitted that, on either argument, the ground for cancellation did not arise and there was no power to cancel the applicant’s visa.

26. A further issue identified by the Tribunal, but not directly raised by the applicant or his representatives, was the question of whether an outgoing passenger card is a ‘passenger card’ for the purposes of s 102(b).

27. Section 107 is only engaged if the Minister, or as in this case the delegate, considers the visa holder has not complied with one of the provisions mentioned in s.107(1), relevantly s 102. Whether the Minister or delegate reached the requisite state of mind at the time of the issue of the notice is a question of fact to be determined on the basis of the evidence.

28. In this case, there was uncontested evidence that on 20 July 2015 the applicant provided incorrect information in his outgoing passenger card about the funds he was taking out of Australia. While the applicant contended this was unwitting, non-compliance may still be established; even where the visa holder is unaware the answer is incorrect[1].  It was therefore open to the delegate to issue the notice under s 107 on the basis that there had been non-compliance with s 102(b). In these circumstances we are satisfied the delegate had reached the necessary state of mind to engage s.107.

    [1] Refer s 100 of the Act, which provides that ‘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’.

29. A further issue for consideration is whether the notice issued under s 107 was valid.  The notice was issued to the applicant on 28 August 2015. It provides clear particulars of the non-compliance alleged and sets out the relevant evidence relied on. The notice referred to the relevant sections of the Act and explained the relevance of those sections and otherwise complies with the statutory requirements set out in s 107. We are therefore satisfied that, subject to any argument about whether the ground for the cancellation was established in the circumstances of this case, the notice was valid.

30. The power under s 109 is only enlivened if the Minister, or the Tribunal standing in his or her stead, is satisfied there has been non-compliance. The applicant concedes he provided incorrect information in his outgoing passenger card. The question is whether this establishes non-compliance for the purposes of s 102(b) and, if so, whether there was non-compliance in the way described in the s 107 notice.

31. If the Tribunal is satisfied about these matters, the further issue that arises is whether the applicant’s visa should be cancelled, having regard to his response to the notice, the prescribed circumstances and any other relevant considerations.

32. Having regard to these matters and the submissions made by the applicant and by his former representatives, the questions for determination are:

    (1)Does an outgoing passenger card fall within the definition of a ‘passenger card’ for the purposes of establishing non-compliance with s 102(b) and does the question regarding the amount of funds a person is taking out of Australia lawfully form part of a ‘passenger card’ as provided for by the Act or Regulations?

    (2)If so, does non-compliance enliven the power under s 109 in the circumstances of the case or is the power restricted to the cancellation of visas granted on the basis of the incorrect information?

    (3)If the answer to (1) is yes and the power under s 109 is not restricted as contended, was there non-compliance in the way described in the notice?

    (4)If so, how should the discretion to cancel be exercised, having regard to any response to the notice, the prescribed matters and any other relevant considerations?

    PROCEDURAL MATTERS

    Non-disclosure certificate

33. On remittal, the Tribunal received the Department’s file which included a reissued s.375A non-disclosure certificate dated 4 July 2017. All previous s.375A certificates had been revoked. As a result of the reissued certificate, the Department confined its claim to five documents, of which two were duplicates. The basis for the non-disclosure was that documents covered by the certificate were said to contain sensitive third-party information that could prejudice an investigation of a possible breach the law.

34. Given the applicant’s former representative had made a request under s 362A of the Act for access to the Department file and the documents previously provided did not include a substantial number of the documents which were the subject of the previous s 375A certificate[2], the Tribunal provided the applicant with copies of the documents on the Department’s file which had not been previously released over which there was no longer a claim or in respect of which there were no potential third party privacy claims. Copies of these documents were provided the day before the hearing. At the hearing, the applicant confirmed that he received the documents.

    [2] Folios 1 to 67 and 88 to 134 of the Department file

35. In summary, the information which was the subject of the non-disclosure certificate comprised:

    (1)The information detailing members of the applicant’s family and their previous travel to Australia and information regarding the applicant’s student visa and the persons who supported that application, none of which was relevant to any of the issues the Tribunal has to consider.

    (2)The information that the applicant may be involved in organised crime including identity fraud and stolen or counterfeit goods, details of the applicant’s bail granted on 21 July 2015 and information regarding the criminal offences, all of which related to the charges to which the applicant had already pleaded guilty and for which he has been convicted and sentenced. This information was already known to the applicant but in any event, particulars of the adverse information included in the sentencing judge’s comments were provided to the applicant in accordance with the procedures in s.359A on 31 October 2017 as noted above.

    (3)       An internal email communication, which was recorded as at 28 July 2015, [details            deleted]. This information was superseded by an internal note dated 31 October        2016 recorded on the Integrated Client Search Environment (ICSE) from the      Department [details deleted].

1. Section 375A of the Act provides:

   Certain information only to be disclosed to Tribunal

   (1)  This section applies to a document or information if the Minister:

   (a)  has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

   (b)  has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

   (2)If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

   (a)  the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

   (b)  the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.   

2. Notwithstanding its obligations under s 375A, the Tribunal also has obligations under s 359A to ‘give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. The Tribunal must ensure the applicant understands why it is relevant, the consequences of this information being relied on to the review and provide the applicant with the opportunity to respond or comment on the information.

3. Balancing these obligations can be challenging, as demonstrated by the most recent court consent remittal, where the Tribunal sought to provide particulars of the information which was the subject of a non-disclosure certificate and expressly stated that it had given no weight to the information, but was still found to be in error.

4. In this case the Tribunal concluded that none of the material which was the subject of the non-disclosure certificate would be information that would be the reason or part of the reason for affirming the decision under review but nonetheless discussed these matters with the applicant at the hearing (refer below).

5. At the hearing the Tribunal disclosed the existence of the certificate, informed the applicant that the Tribunal considered the certificate to be valid and invited the applicant to make submissions on the certificate, which the applicant declined because he said he was not sure what to submit. The Tribunal also disclosed the nature of the information in the documents which were the subject of the non-disclosure certificate and explained why this information, other than the information referred to in subpar (2) above which had been superseded and was already the subject of a notice under s 359A (referred to below), were not considered to be adverse to his case.

6. The applicant responded to the information in subpar (3) to the effect [details deleted]. The Tribunal noted that there was no other information on the Department file substantiating these matters [details deleted]. This was consistent with the applicant’s denial and the Tribunal explained to the applicant that this was not relevant to its deliberations. The Tribunal accepted that there was no material before it to support such allegations and, in fact, there was evidence to the contrary.

7. While it may be confusing for an applicant to be confronted with possible allegations that the Tribunal has rejected in its deliberations, this communication during the hearing nonetheless exposed the Tribunal’s reasoning to the applicant lest it be subsequently said this information was considered to be relevant or possibly determinative.

   Other procedural and preliminary issues

8. There is no need to invite the applicant to a hearing and the review can be completed on the papers if the Tribunal forms the view it can make a decision which is favourable to an applicant on the material before it (s 360(2)). Relevantly, if the Tribunal accepted the threshold legal issues raised by the applicant’s former representatives or the issue it had identified in the applicant’s favour, it would be obliged to set aside the decision and there would be no need to invite the applicant to a hearing.

9. Given the issue identified by the Tribunal would be determinative of the review, the Tribunal wrote to the Department and on 4 August 2017 inviting the Secretary to make submissions on this issue under s 358(2) of the Act. On 16 August 2017, the Department advised that a delegate of the Secretary did not wish to make any submissions on this issue. 

10. Because the Tribunal was not satisfied about the correctness, or otherwise, of the applicant’s former representative’s submissions or that incorrect information in an outgoing passenger card was excluded from the regime under s 109, the Tribunal invited the applicant to attend a hearing. The Tribunal also sought further information from both the applicant and the Department about the applicant’s current circumstances.

11. Electronic records from the Department indicated that the applicant had been convicted of three offences[3] and sentenced to 2 years and 9 months of imprisonment with a non-parole period of 2 years. These offences involved, among other things, the applicant gaining access to a third party’s bank account and conducting fraudulent transactions in relation to that bank account.

    [3] Dealing with identification information with the intention of facilitating the commission of an indictable offence; having possession of identification information with the intention of facilitating the commission of an indictable offence and moving currency out of Australia without a report in respect of such movement.

12. [Details deleted].

13. The applicant was not able to provide the Tribunal with a copy of the sentencing remarks following his criminal convictions and so the Tribunal made an application to the District Court. The transcript of the sentencing remarks of his Honour Judge Blackmore was provided to the Tribunal on 19 October 2017. The Tribunal also became aware through media reports that the applicant’s sponsor was in external administration.  

14. On 31 October 2017, the Tribunal wrote to the applicant pursuant to s.359A of the Act. The particulars included information in the Judge’s sentencing remarks, information relating to his sponsoring employer and information the applicant provided during an interview with AFP officers at the airport on 20 July 2015 suggesting that he had knowingly provided incorrect information on the passenger card. The Tribunal also noted that SPG had been placed under external administration and gave notice that this may weigh in favour of cancellation because his sponsoring employer may no longer be able to maintain his employment and the applicant would therefore be unable to fulfil the purpose for which his visa was granted. The applicant sought an extension of time to provide a response on the basis that he was not represented and wanted time to consider his response and provide evidence. The extension of time was granted and on 21 November 2017 the Tribunal received a written response to the invitation together with submission and supporting documents addressing other considerations in reg. 2.41 of the Regulations. The Tribunal has considered the submissions and supporting documents further below.

15. At the commencement of the hearing, the Tribunal explained the critical issues that required determination, outlined the legal arguments previously raised by his former representatives and asked whether the applicant wished to make further submissions. Relevantly, the Tribunal confirmed that, subject to the legal questions about the operation and effect of s 109 in the circumstances of this case, the issues for consideration were whether the applicant’s visa should be cancelled having to the prescribed circumstances and any other relevant considerations. The applicant properly conceded he had provided incorrect information, given his conviction. He stated that he did not know what further submissions he could make on the legal issues raised by his former representatives. When the Tribunal advised it would have regard to those submissions, the applicant agreed.

16. The Tribunal advised that in addition to the threshold legal issues, on which it had formed preliminary but not final views, the matters on which the Tribunal would be focussing at the hearing were the discretionary considerations, including the applicant’s present circumstances and the question of whether the applicant’s sponsorship and the basis for the applicant’s temporary work visa remained a relevant consideration. The applicant provided evidence in support of his submissions, being references from third parties about his character, letters about his employment with SPG, a report from a psychologist about his mental condition leading to his offending, certificates of attainment in relation to courses undertaken in Australia and overseas, records of his criminal history in Lebanon, a letter of apology and a letter from the director of Pacific Building Development Pty Ltd (PBD), Mr Hussein Kanj, to the effect that he had been informed that the role the applicant had undertaken for the SPG was invaluable and PBD would be prepared to take over the applicant’s sponsorship.

17. Because it was not clear about the current status of the applicant’s work sponsorship, the Tribunal attempted to telephone Mr Kanj to discuss his evidence on three occasions during the hearing. Mr Kanj was not available (it was explained by an assistant that he was in hospital recovering from an operation). The applicant was given the opportunity to provide any further evidence or submissions, which he subsequently did. This evidence and submissions is considered below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. Before considering whether there was non-compliance in the way described in the notice and, if so, whether the applicant’s visa should be cancelled, the Tribunal must first address the threshold legal issues raised by the applicant’s former representative.

    Does a ‘passenger card’ include an outgoing passenger card for the purposes of s.102 and does the incorrect answer identified form part of the ‘passenger card’?

19. The applicant’s former representative made two submissions about whether the information in the outgoing passenger card was an incorrect answer for the purposes of s 102(b) of Act.

20. It was submitted that the question on the passenger card regarding the amount of money being taken out of Australia is not prescribed by reg.3.01(4) and therefore does not lawfully form part of a passenger card. The question was ‘ultra vires’ as it has not been provided for by the Act or the Regulations.

21. Before considering this submission, it is convenient to first consider the definition of ‘passenger card’ for the purposes of Subdivision C of Division 3 of part 2 of the Act and specifically, whether an outgoing passenger card falls within the meaning of passenger card within s.102(b).  The definition of ‘passenger card’ for the purposes of Subdivision C of Division 3 of Part 2 of the Act is set out in s 97 which provides:

    “passenger card” has the meaning given by s.506(2) and, for the purposes of s.115, includes any document provided for by regulations under s.504(1)(c).

22. Section 506(2) is relevant to the giving of information on a passenger card by non-citizens travelling to Australia and therefore appears to be relevant to incoming passenger cards. The subsection states as follows:

    The regulations are to provide for the giving of information, in the form of answers to questions on a form, to be known as a passenger card, by non-citizens travelling to Australia, other than non-citizens exempted by the regulations.

23. Section 97 broadens the definition, for the purposes of s.115, to include any document provided for by regulations under s.504(1)(c).

24. Relevantly, s.115 states:

    115  Application of Subdivision

    (1)      This Subdivision applies to:

    (a)      applications for visas made; and

    (b)      passenger cards filled in;

    on or after 1 September 1994.

25. Section 504 deals with the making of regulations and subsection (1)(c) authorises the making of regulations making provision for obtaining information with respect to persons departing from an Australian airport, among other things. Regulation 3.01 applies (in general terms) to people leaving Australia by aeroplane[4], and authorises an officer to require a person to whom reg.3.01 applies to provide information about certain matters, including their name and the date and country of birth[5]. From 1 July 2017, the requirement to complete a passenger card when departing Australia was removed as the information collected on a passenger card is now obtained from other sources.[6] The Tribunal considers however that the applicable provisions are those which were in effect at the time of the non-compliance. 

    [4] reg.3.01(2)(b)

    [5] reg.3.01(4)

    [6] Explanatory Statement to F2017L00549.

26. As at 20 July 2015, being the date of the non-compliance, reg.3.01 relevantly provided for people departing Australia to provide a completed passenger card to a clearance officer or an authorised system.[7] 

    [7] r.3.01(3)(c).

27. Accordingly as at 20 July 2015, an ‘outgoing passenger card’ was a document provided for by Regulations under s.504(1)(c).  Section 115 states that Subdivision C of Division 3 of part 2 of the Act (being ss.97-115) applies to passenger cards filled in on or after 1 September 1994). As s.97 provides that such a document is a passenger card for the purposes of s.115, the Tribunal considers that the effect of ss.97 and 115, when read together, is that outgoing passenger cards are included in the definition of ‘passenger card’ for the purposes of s.102.

28. In addressing the issue raised in the representative’s submission, the Tribunal notes that there is nothing in the terms of rr.3.01 and 3.02 restricting the matters that may be asked on a passenger card to those listed in reg.3.01(4). The Regulations do not provide that reg.3.01(4) applies to passenger cards and on its face, reg.3.01(4) appears to be a separate provision about other information that an officer can require a person to give. Furthermore, there is nothing in the Regulations to suggest that the matters in reg.3.01(4) provide an exhaustive list of the types of questions that can be asked on passenger cards, and in fact it does not list the two questions which reg.3.02(1) says an incoming passenger card must ask, namely about tuberculosis and convictions.

29. In light of the above, the Tribunal considers that passenger cards can request information about matters not listed in reg.3.01(4) and that the terms of the provisions cannot be read as restricting the matters that may be asked on a passenger card to those listed in reg.3.01(4). In this case, the information sought on the passenger card that was completed by the applicant as he was attempting to depart Australia on 20 July 2015 included a question about the amount of money he was taking out of Australia. The Tribunal is satisfied that the passenger card is permitted to request this information under the regulations and that the question forms part of the passenger card as provided for by the Act or Regulations.

30. In summary, the Tribunal rejects the submission made by the applicant’s former representative and is satisfied that the passenger card, which the Tribunal has found includes outgoing passenger cards, can lawfully request information regarding the amount of money being taken out of Australia and that the question forms part of the passenger card as provided for by the Act or Regulations. It follows, that an incorrect answer provided by the applicant when completing his outgoing passenger card would be considered an incorrect answer for the purposes of s.102(b).

    Do the cancellation provisions in Division 3 of Subdivision C of the Act only relate to visas granted on the basis of incorrect information?  

31. The former representative submitted that the cancellation powers set out in Division 3 Subdivision C were limited to the cancellation of visas granted on the basis of incorrect information. Because the decision to grant the Subclass 457 visa was not based on incorrect information included in the passenger card and there was no connection between the grant of the applicant’s visa and the incorrect information, the power to cancel under s 109 did not arise. The representative relied on the heading for s.107 - Notice of incorrect applications, which it was argued contemplates that s 107 is only engaged where a visa application is incorrect. A passenger card is not an application and when s.102 is read together with s.107, in particular its heading, incorrect information on a passenger card only engages s 107, which is in turn a pre-condition to the exercise of power under s 109, where the information indicates or is connected to an incorrect visa application. In other words, there must be a connection between the incorrect information and the application for the visa.  

32. In considering the above submissions, the Tribunal has had regard to the approach to headings in statutory construction as considered by the High Court in Berenguel v MIAC [2010] HCA 8. In that case, the Court noted that the heading ‘Criteria to be satisfied at time of application’ may inform the construction of the criteria thereunder but that those criteria did not speak exclusively to satisfaction at the time of application. It rejected the Minister’s argument focusing on the heading, noting that while the heading is part of the Regulations, and informs their construction, in that case, it did not connect grammatically to their terms. The Court’s analysis focused on the text and purpose of the regulation in issue.

33. In considering the text and the purpose of the legislation in this case, specifically, s.102, s.107 and s.109 in the context of Subdivision C and its heading, the Tribunal is satisfied that there is nothing in those provisions that restrict their application to incorrect information upon which a visa is granted. In contrast, there are other provisions within Subdivision C which do correlate to the heading of that Subdivision and which specifically refer to information relating to a non-citizen’s application for a visa. Not all the provisions in Subdivision C are concerned exclusively with information provided for and relevant to the grant of the visa[8]. Subdivision C, when looked at as a whole, is concerned with the integrity of migration related information more generally.     

    [8] For example, s.103 is concerned with non-compliance for the provision of bogus documents or making an incorrect statement in response to a s.107 notice: s.107(2).

34. Notwithstanding the heading to s.107 ‘Notice of incorrect applications’, this provision clearly provides that if the Minister considers that the visa holder did not comply with s.102(b), which requires a non-citizen to fill in their passenger card in a way that no incorrect answers are given, the Minister may give the visa holder a s.107 notice. The definition of ‘passenger card’, has the meaning given by s.506(2) and, for the purposes of s.115, includes any document provided for by regulations under s.504(1)(c) of the Act.  Section 115(1)(b) specifically provides that Subdivision C applies to ‘passenger cards filled in on or after 1 September 1994’.

35. We therefore reject the contention of the applicant’s former representative and find that it is clear a non-citizen’s failure to comply with s.102(b) enlivens the Minister’s power under s.109 to cancel the non-citizen’s visa even if the incorrect information does not relate to the grant of the visa which is the subject of the cancellation notice.

36. Having found that the incorrect answer provided by the applicant in his outgoing passenger card falls within the terms of s 102(b) and is a ground that may enliven the power under s 109, we turn to the question of whether there was non-compliance in the way described in the s 107 notice.

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

1. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.102(b) of the Act by answering ‘No’ to the question about whether the applicant was taking out of Australia AUD$10,000 or more in Australian or foreign currency equivalent when in fact he was taking out funds that exceeded this amount. Section 102(b) requires that a non-citizen must fill in his or her passenger card in such a way that no incorrect answers are given. The applicant completed a passenger card on 20 July 2015 as he was attempting to depart Australia. On that passenger card the applicant ticked the ‘No’ box in answer to the question about the funds he was taking out of Australia. A baggage search at the airport revealed that the applicant had AUD$24,345.85 and US$506 in his possession. These facts are not disputed by the applicant. He agrees that he provided an incorrect answer in his passenger card but says he did not know this at the time he completed the passenger card. Section 102(b) does not require intention or knowledge and s 100 provides:

   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.

2. On the evidence, the Tribunal is satisfied that the applicant gave incorrect information on his passenger card as particularised in the notice. The Tribunal therefore finds that there was non-compliance with s.102(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

3. 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).

4. 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). As already noted, the prescribed circumstances are those set out in reg 2.41 of the Regulations. The applicant provided a detailed response to the notice and in submissions prior to the hearing. A summary of those submissions and evidence provided relevant to the prescribed circumstances is set out below.

   Correct information (reg 2.41(a))

5. There is no dispute that the applicant had in his possession more than AU $10,000 when he completed his outgoing passenger card. If the applicant had disclosed this amount it is likely he would have been referred to a Department officer. The funds that the applicant had in his possession was more than double the amount set out in the passenger card. As observed by Judge Blackmore, the failure of the applicant to report the moving of the funds out of Australia carries a maximum penalty of two years imprisonment. While this tends to weigh in favour of cancellation because any breach is serious and the amount was substantial, this matter must necessarily be weighed against the other considerations. It is also relevant to note, and as submitted by the applicant, that Judge Blackmore did not impose a custodial sentence for this offence and fined the applicant $2,500. While the sentencing remarks do not shed any light on the basis for this, it is clear his Honour considered the offending to be at the lower end of the scale.

   The content of any genuine document (reg 2.41(b))

6. Given that this is not a case where it is alleged there was a bogus document provided, this consideration is not relevant to the circumstances of this case.

   Whether the decision to grant the visa was based, wholly or partly, on the incorrect information (reg 2.41(c))

7. It is clear, as submitted by the applicant’s former representatives, that the incorrect answer had no connection to the applicant’s work visa and the applicant’s visa was not based, wholly or partly, on this information. This matter is a factor that weighs against cancellation.

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

8. In submissions made to the delegate and the Tribunal, the applicant contended that funds he was carrying included his own money and funds provided to him by his uncle for his uncle’s family but he did not know how much money had been provided.

9. When the applicant was questioned at the airport by the Australian Federal Police on 20 July 2015 after money was located in the applicant’s baggage, the applicant told police that AU$10,000 belonged to him and the rest of the money was from his uncle to give to family members in Lebanon.  This information is inconsistent with the applicant’s assertion and suggests that at the time the applicant completed the outgoing passenger card he was aware that the funds he was carrying exceeded AU $10,000 in Australian or foreign currency.  This was the subject of a notice under s 359A to which the applicant responded by letter dated 21 November 2017 and while he stated it was his responsibility to check the quantity of the funds provided to him by his uncle he was unaware of the funds in his possession. Any contradiction in his evidence in the earlier Tribunal proceedings was because he was under pressure about evidence that could be used against him in subsequent criminal proceedings. This response was difficult to understand and did not explain why the applicant told this information to police.

10. The applicant was asked to clarify this matter at the hearing. The applicant provided evidence to the effect that while he was not aware of the exact amount; he knew he had more than AU $10,000 and that he should have indicated this on the outgoing passenger card. The money was not his and was given to him by his uncle to give to family members overseas. He was under pressure, because the money was not his, and did not want to lose the money. He was not aware there was a limit of moving funds out of Australia and thought it was okay to tick 'No'. He did not think it would harm anyone.

11. While this evidence is inconsistent with the applicant’s previous submissions, we accept his evidence as a truthful account. It is plausible that the applicant did not know it was a criminal offence to move funds over AU $10,000 out of Australia, panicked when confronted with the question and, concerned he might need to surrender the money if he told the truth, answered the question knowing it to be incorrect. While this may explain why he did this, it is not an excuse. This matter weighs in favour of cancellation.

    The present circumstances of the applicant (reg 2.41(e))

12. To assess the present circumstances of the applicant it is useful to understand his history, his activities while in Australia and the details of his sponsorship by SPG. The following is a summary of the applicant’s evidence, evidence provided by third parties and evidence provided by the applicant by way of letters, documents and reports prior to the hearing. This evidence is also relevant to the consideration of a number of the other prescribed circumstances, namely the time that has elapsed since non-compliance (paragraph (h)) and any contribution made by the visa holder to the community (paragraph (k)).

13. The applicant said that he arrived in Australia in 2011 to study and complete a bachelor degree in mechanical engineering. He completed a number of other courses, including an English course and a Diploma of Mechanical Engineering at the University of Western Sydney. He started to face financial difficulty towards the end of 2013 and 2014 after transferring his studies to the Penrith campus of UWS and having to pay the university fees upfront. During this period he was working part-time for the SPG. He obtained this work through his uncle who works as a subcontractor (doing rendering and tiling work) for SPG. He was concerned that he may not be able to comply with the conditions of his visa by maintaining enrolment so he decided to apply for the temporary work visa. He applied for a work visa so he could work full-time and study part-time.

14. SPG sponsored him in the occupation of ‘building associate’. He was responsible for making sure that onsite workers were safe, liaising with subcontractors and engineers, overlooking the progress of the work and dealing with complaints generally. He commenced undertaking these duties after he was granted his visa on 30 April 2015. He worked for SPG for a few months before being charged. During the time he worked with SPG, he worked on a project on John Street in Lidcombe (which included the demolition and building of apartment block) and renovations to the family home owned by the directors of SPG. The applicant said that he understood Salim Mehajer was a director of SPG. Mr Ahmad Yaseen was the general manager.

15. The applicant has not worked with SPG since July 2015 but provided a letter dated 20 December 2016 from Mr Yaseen to the effect that SPG would ‘gladly re-employ’ the applicant. The letter further advised that the applicant ‘showed great competency and skill’ and that SPG was ‘nearing the final critical stages of the construction…. with practical completion only months away’. As already noted, the applicant also provided a letter from PBD to the effect that the company would provide employment to the applicant given SPG was under external administration.

16. After questioning about the applicant’s employment prospects, the applicant said that he is not aware of whether PBD was an associated entity of SPG but understood that this company was prepared to sponsor him. After receiving the Tribunal’s letter of 31 October 2017 he tried to contact Mr Yaseen and, after speaking to his uncle, was subsequently advised Mr Yaseen was no longer working with SPG or any of the other companies owned by Mr Mehajer. His uncle spoke to Mr Kanj, whom he knew from the same village in Lebanon and who used to be a manager with SPG, and Mr Kanj advised that SPG was not in liquidation or facing bankruptcy but was under new management because the company was not being properly managed. According to the applicant, PBD were willing to keep his position, and even if they were not a related entity, this company would sponsor him. The applicant stated that if the decision to cancel his visa is set aside he would go back to work, complete a number of courses and complete his degree in engineering. He stated that his parents gave him everything so he could complete his qualifications but they had financial problems and for this reason he had to get a working visa.

17. When questioned about the criminal convictions and the sentencing remarks of Judge Blackmore, the applicant stated that he takes responsibility for his crime and feels guilty. At the time he had committed the crimes he had serious financial problems but was not a criminal mastermind. The Tribunal put to the applicant that if he had financial difficulties and could no longer afford to study in Australia he could have chosen to return to Lebanon rather than remain in Australia and commit crimes for financial gain. The applicant stated that he was 18 years old, his parents had invested money in him and as the eldest son there was a lot of pressure on him to complete his qualification. He felt that he could not return to Lebanon having not completed his courses. He also stated that his family would not accept what he did and that no member of his family has ever been in prison. His father worked in the Army for 23 years, his mother quit her studies to raise them and he could not go back to Lebanon in the circumstances.

18. The applicant stated that he did not think that his actions were harming anyone and thought that the victims' financial loss would be refunded by the bank, although he acknowledged that his actions may lead to people not trusting the financial system. The applicant stated that he has had an opportunity to reflect on his mistakes and he would like a chance to get his visa back and his life back on track. He is a low-risk offender with no history of drug abuse or gambling. He has contributed to the community by volunteering with the White Coats Organisation, a charity for the homeless, and has been a member of the gym for two years and helped train others.

19. When asked why he could not return to Lebanon, the applicant stated that due to the conflict in Syria his area has been inundated with Syrians who are willing to undertake jobs for much lower wages. His parents' financial circumstances are not good and he may have to undertake all of his studies again.

20. The applicant provided character references, which appeared to have been provided for his sentencing, being a reference from a person who regularly visited detention centres to support asylum seekers and who had known the applicant for about a year, the owners of the gym where the applicant had trained for about three years and letters from former employers, including Mr Yaseen of SPG. The applicant also provided certificates of the various courses he had completed in Australia and Lebanon, including the transcript for a Certificate IV qualification in Building and Construction completed in 2014. The applicant provided a document from Lebanon recording that he had never been convicted and a psychological report dated 2 January 2017 which was prepared for the applicant’s sentencing. Relevantly, the author of the report concluded as follows:

    A number of assessments have been administered to Mr Dalla and it is the assertion of this author that he falls in the low range for further recidivism.

    It is also asserted that Mr Dalla is suffering from an adjustment disorder with mixed anxiety and depression. This condition has developed in response to his recent incarceration

21. After the hearing, the applicant provided affidavits from Mr Salim Mehajer and Hassan Kanj sworn 11 December 2017 and an affidavit from Khadijeh Mehajer sworn 12 December 2017. In summary, the evidence provided in these affidavits was to the following effect:

    (1)Mr Salim Mehajer was the sole shareholder of SPG and was working closely with the administrator and receiver to have their appointment retired on or before 31 December 2017.

    (2)Following the retirement of the administrator and receiver he expected to have SPG back in operation by the start of 2018 and if the Tribunal requires it, he would be willing to accept that the applicant return to work with SPG. However, the applicant had been ‘shifted’ to PBD and the relationship between SPG and PBD was robust with both companies having the same management, employees, office space and projects. PBD had been formed as a ‘bridging company’ to take over the projects and employees of SPG.

    (3)Khadijeh Mehajer is the sole director of SPG and believes that the management of the company would be restored in early 2018. Once the company was out of administration, SPG would be able to reappoint the applicant if sponsorship by PBD was not sufficient.

    (4)Mr Kanj is the sole director and shareholder of PBD and this company is willing to take on the applicant’s employment and support the sponsorship of his visa.

22. In addition to the above affidavits, the applicant provided a reference from a former work colleague who had known the applicant for approximately 3 and a half years. In summary, the referee noted that the applicant was remorseful but he had no hesitation in supporting the applicant despite his wrongdoings because ‘he has displayed signs of bettering himself’. The applicant also provided company extracts from the Australian Securities and Investment Commission for SPG and PBD dated 9 December 2017. The company search for SPG showed that the company was in external administration and its sole director was Khadijeh Mehajer and its sole shareholder was Mr Salim Mehajer. The company search for PBD showed that Mr Kanj was its sole director and shareholder.

23. Having regard to the evidence and submissions provided by the applicant, it is apparent that the following matters are relevant to the applicant’s present circumstances:

    (1)The applicant is on parole having pleaded guilty to three criminal offences and being sentenced to 2 years and nine months imprisonment. His parole commenced on 1 October 2017 and he has been in immigration detention since this time.

    (2)The applicant’s visa was granted for the purpose of enabling him to work for SPG in the nominated occupation. If the cancellation of the applicant’s work visa is set aside, this visa would nonetheless expire on 30 April 2019. There are issues about whether the applicant could continue to fulfil the purpose of the visa having regard to the uncertainty surrounding his sponsorship. For instance, the applicant has not worked for SPG since to July 2015 and the sponsor is in external administration.

    (3)The applicant has been in Australia since 2011 and claims that he would find it difficult to return to Lebanon without having completed his studies. He is anxious and depressed about his current situation.

24. We will deal with each of these matters below.

    Previous criminal offending and parole

25. In Dalla v Minister for Immigration and Border Protection the Federal Court (per Logan J) found that the fact the applicant had been charged with breaches of the law after the date of non-compliance did not engage reg 2.41(j). Relevantly, Logan J found at [19],

    The upshot of that construction is that, in the circumstances of this case, where the conduct which gave rise to criminal charges and thus alleged breaches of the law, necessarily antedated the non-compliance, reg 2.41(j) was just not engaged at all. To the extent that the construction I have adopted of that paragraph differs from that of the primary judge, I respectfully disagree with his Honour.

26. His Honour, however, accepted that the charges would be relevant to the applicant’s present circumstances (refer at [16] and [25]) but found error in the Tribunal considering those charges, which were described to be of a ‘serious nature’, as being ‘weighed heavily’ against the applicant in the exercise of the discretion to cancel. Relevantly, his Honour noted at [28] that;

    …there is nothing in reg 2.41, much less s 109, which authorises any such adverse consequence to be visited on a person merely because they have been charged.

    His Honour further noted at [29]:

    …unless and until Mr  Dalla  was convicted or unless and until the Tribunal member made an affirmative finding on the basis of material reasonably probative of the fact that Mr Dalla had breached our law, he was entitled to the presumption of innocence. This, the Tribunal member did not do. It is that use which was not lawful.

    And at [30],

    The Full Court authorities mentioned above settled that reg 2.41 is not exhaustive of considerations which may be taken into account in the exercise of the discretion conferred by s 109 of the Act. But to take into account conduct which had occurred before non-compliance and which amounted to a breach of the law and which was to be regarded as serious, it was necessary for the Tribunal to have before it material probative of such a conclusion and to make such a conclusion. The Tribunal had no such material and did not do that. Instead, it just acted on the fact of Mr Dalla ’s (sic) having been charged.

27. As at the time of our decision, the issue of the applicant’s guilt in respect of these criminal charges is not in dispute. The applicant has pleaded guilty and has been convicted. The applicant does not contend that his plea of guilty was anything other than voluntary and concedes this conduct was wrongful. In his apology letter submitted to the District Court (and to the Tribunal) and in his written submissions to the Tribunal and in his evidence, the applicant agrees that the offences occurred and seeks to explain the circumstances leading to his offending. His offending was serious and is outlined in the sentencing remarks of Judge Blackmore. In summary, the applicant gained access to the victim’s internet banking account and transacted a number of fraudulent transfers and purchases totalling in excess of $180,000. The procedure adopted by the applicant was elaborate and resulted in the applicant obtaining personal identification information from the victim and gaining access to her mobile telephone number and personal banking accounts. He also gained access to the personal identification information of 20 other people although there was no evidence that those people were defrauded at the time the police intervened.

1. In his sentencing remarks, Judge Blackmore commented as follows:

   The offender saw a psychologist in preparation for the evidence. The psychologist tested the offender and concluded that there is a low risk of recidivism. Essentially the offender said that he became involved in the offences because he needed money to continue with his studies. He said that his parents who had been paying for his tuition were no longer in a position to do so and he felt great pressure to continue with his study. As a result he committed the offence and he said he did not receive all the money that was obtained from the offence but that he did receive some of it.

   The psychologist concluded that the offender was suffering from to depression as a result of his incarceration and the uncertainty as to what would happen to him.

   I accept that the offender is contrite for his actions. However it should also be noted that the offender’s willingness to engage in this type of offence demonstrates a personality with a relatively low moral standard. He is clearly prepared to take advantage of other people in order to aggrandise himself. There could have been no misunderstanding that his actions were criminal and he was clearly aware of that when he committed the offences. Given his level of education he certainly should have known better.

   ……………..

   The offender has been found is unlikely to reoffend and likely to be rehabilitated. I note that he will be deported on completion of his sentence but I have had no regard to that factor.

100.   The Tribunal raised the relevance of these sentencing remarks with the applicant in the notice sent to him under s 359A of the Act prior to the hearing. In response to these sentencing remarks, the applicant stated in his written submissions to the Tribunal as follows:

I take full responsibility for my criminal conduct up-to-date and I am shameful and remorseful towards the victim of my crime. I believe if I sought professional help in relation to my personal issues in the past it would have helped me make the right choices and perhaps I could have avoided being involved in criminal conduct. I understand the AAT’s job is to protect the Australian community from suffering harm and I submit in relation to the protection of Australian community that my serious parole conditions and supervision orders will assist me seeking further rehabilitation and reconciliation. I been able to reflect on my past conduct and I am determined to start afresh life if given the opportunity to remain in Australia.

101.   We accept the evidence of the applicant that he is remorseful and note the sentencing remarks that the applicant was unlikely to reoffend and was likely to be rehabilitated. We also note the various character references provided for the applicant and accept that, as his most recent referee has stated, he has completed a number of courses and has attempted to better himself.

102.   Notwithstanding this, we note that the applicant has been convicted of serious criminal offences and, while he is on parole until June 2018 and there may be a low risk of him reoffending, we also have regard to the comments made by Judge Blackmore, who heard the evidence and reviewed the circumstances of the criminal offending and commented that this offending demonstrated a ‘relatively low moral standard’.

103.   The applicant states that he has reflected on his offending, is remorseful and wants a second chance. However, the statement made by the applicant in his written response to the s 359A notice, in seeking to explain his actions, included the following:

I do not use this as an excuse to commit these offences as I was of the fact (sic) that the Bank would replace the funds I deceived and obtained from the unknown person. I do understand the harm my offences would have caused the victim. It would have left the victim with a residual feeling of unease using the bank services in the future.

104.   While the applicant acknowledges the harm that his offences would have caused the victim, this statement does not reflect well on his character because it does not acknowledge the harm on the financial system more generally and the cost to shareholders or the banking system. Similarly, in the applicant’s evidence to the Tribunal he agreed he had knowingly provided incorrect answer on the outgoing passenger card. His honesty is to be given credit but his explanation that he panicked and did not think there would be any harm, is concerning. Both matters demonstrate a state of mind by the applicant which suggests he has a somewhat lax attitude to compliance with the Australian laws where he has formed the view that the offending is minor. It is not the role of the Tribunal when considering cancellation to seek to punish the applicant for committing criminal offences where the criminal justice system has provided a sanction. However, the fact the applicant is currently serving a period parole for serious offences that have been previously committed and has been found by the sentencing judge to have a character of a ‘relatively low moral standard’ is highly relevant to the applicant’s present circumstances. In our view, this is a matter that weighs heavily in favour of cancellation.

Employment prospects and status of the applicant’s temporary work visa

105.   The purpose of the temporary visa granted to the applicant is to work for an approved sponsor in an approved nominated occupation. This visa was granted on 30 April 2015 for a period of four years on the basis of an approved nomination by SPG. There is no dispute that the applicant has not worked with SPG since July 2015. This company is in external administration. Even though another company has offered to employ the applicant, PBD would need to apply to become the applicant’s approved sponsor and have a nomination approved, given that there is no evidence that PBD and SPG are associated entities within the meaning of reg 1.03, which refers to s 50AAA of the Corporations Act 2001 (Cth). In fact there is evidence to the contrary because the applicant provided company searches of both companies which demonstrated that they were not related.

106.   The additional evidence provided by the applicant has not been tested by the Tribunal and the notion that projects and employees have been transferred from a company in external administration to another company is a matter that may raise issues for the administrators and regulators. However, this is not a matter for this Tribunal and undertaking an enquiry into the veracity or legitimacy of these claims goes well beyond the scope of this review. For the purposes of this review, we have accepted the evidence set out in the affidavit material. At its highest, this evidence discloses that there is a possibility the applicant will be offered employment with either SPG or PBD and will be able to continue to work under the conditions provided for by his temporary visa. If this were to happen, there is likely to be some delay in putting this in place but even if these matters could be resolved within the next three months, it is relevant to note that the applicant’s visa is due to expire in April 2019. It is a temporary visa for a particular purpose, not a permanent visa.

107.   The fact that the applicant may have employment for a period if the cancellation of his visa was set aside and his visa was restored, is favourable to the applicant. The evidence that he was a valued worker, which we accept in the absence of evidence to the contrary, also counts in his favour. However, given the vagaries in the possible arrangement and the temporary nature of the work visa, the Tribunal assesses this matter as neutral or marginally in favour of the applicant.

The applicant’s concern about returning to Lebanon

108.   We accept that the applicant has been in Australia for the past seven years, initially on a student visa and then on a temporary work visa. We also accept that it is possible any courses commenced in Australia will not be able to be finalised and this will be a detriment to the applicant. We note that the applicant is concerned about the attitude of his family to his failure and he is concerned about job opportunities in Lebanon. We accept this evidence and we further accept that the applicant is no doubt anxious and depressed about this state of affairs.

109.   The fact that the applicant was not able to complete his studies and may not be able to do so if he returns to Lebanon or may have to undertake these studies again in Lebanon is not directly related to the cancellation but rather is a consequence of the fact that he did not have sufficient finances to complete his studies, as generally required under the student visa criteria. If the applicant’s temporary visa is reinstated and he was able to continue to work until April 2019, there is no evidence that the applicant would be able to finalise his studies within this period. However, even if we accept this could be possible we give limited weight in his favour given the purpose of the applicant’s visa is to work, not to study.

110.   We acknowledge the difficulties the applicant may face in returning to Lebanon in finding work and dealing with the disappointment of his family. We also note that the applicant claims his parents’ financial circumstances are not good. We give these matters some weight in his favour but assess these issues having regard to the fact that this is a temporary work visa.

Overall assessment

111.   As outlined above, we have had no regard to the information contained in the internal email communications about national security concerns because these communications were imprecise, do not have any probative value and, at best, appear to be internal concerns raised at an early stage which had not been fully explored or investigated. Relevantly, the Department records provided to the Tribunal indicate that the applicant is not being monitored and there is no evidence in any of the material provided to the contrary. As such, this issue does not form part of the applicant’s present circumstances.

112. While the applicant’s present circumstances as a whole should be weighed against the other considerations set out in reg 2.41, it is useful to make an overall assessment of various matters that fall within this mandatory consideration. In summary, this consideration weighs in favour of cancellation. The matters relating to the applicant’s previous criminal offending and his attitude to the offending weigh in favour of cancellation. On the other hand, the nature of the applicant’s current visa, his potential employment prospects and his concern about returning to Lebanon weigh in favour of the applicant but nonetheless carry little weight for the reasons previously outlined.

Subsequent behaviour concerning the obligations under Subdivision C of Division 3, Part 2 of the Act ((reg 2.41(f))

113.   There is no evidence that the applicant has committed further breaches of Subdivision C and, while there have been some inconsistencies in his evidence in responding to the procedure under the section 109 regime, the applicant has generally been cooperative and truthful. Any uncooperative behaviour or subsequent breaches would weigh in favour of cancellation but as there is no evidence of this, the question arises whether this in fact weighs against cancellation. In our view, this matter is neutral or, at best, marginally in favour of the applicant in consideration of the discretion.

Other instances of non-compliance (reg 2.41(g))

114.   There is no evidence that the applicant has failed to comply with the Act or the Regulations. As noted above, if there was evidence of non-compliance, this would weigh in favour of cancellation but in the absence of such evidence, this matter is neutral or, at best marginally in favour of the applicant.

Time that has elapsed since non-compliance

115.   It has been just over two and half years since non-compliance. During the whole of this period, the applicant has been in detention. In our view this matter is neutral and it neither weighs in favour nor against cancellation.

Any breaches of the law since the non-compliance (reg 2.41(j))

116.   Based on the decision of the Federal Court in Dalla v Minister for Immigration and Border Protection, and for the reasons already outlined, there is no dispute that the breaches of the law for which the applicant has now been convicted were prior to non-compliance and are therefore not relevant to this consideration. As such, there is no evidence before the Tribunal that there have been any breaches of the law since non-compliance. Given that the applicant has been in detention since non-compliance, there would be little opportunity for him to breach the law and we therefore give this matter little or no weight in favour of the applicant.

Any contribution made by the visa holder to the community (reg 2.41(k))

117.   We accept that the applicant has made some contribution to the community through his work with the white coats organisation, his work at the gym and his employment. Against this, his criminal offending has had a negative impact on the Australian community. On balance, this matter does not weigh against cancellation.

Other matters

118.   Near the end of the hearing the applicant raised concerns [details deleted]. This raises a question about whether Australia has protection obligations to the applicant under its international obligations in respect of non–refoulement or complementary protection.

119.   [Details deleted].

120. Furthermore, the Tribunal may restrict publication of certain matters under s 378 of the Migration Act if it is in the public interest to do so. [Details deleted].

121.   In light of these considerations, the Tribunal finds that the applicant’s concerns [do] not engage Australia’s protection obligations. This matter does not weigh against cancellation.

CONCLUSION

122.   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.

123.   Further, having regard to all the relevant circumstances as discussed above, the Tribunal concludes that the visa should be cancelled. The applicant has provided incorrect information in his outgoing passenger card, which we have found is one of the grounds which give rise to the power to cancel. We have considered the discretionary matters and, for the reasons set out above, have found that, while a number of these weigh in his favour, those matters are outweighed by the factors that favour cancellation. We give considerable weight to the applicant’s present circumstances, the temporary nature of the visa, which is due to expire on 30 April 2019, and the uncertainty surrounding his employment prospects, particularly given this is the purpose of the applicant’s visa.

DECISION

124.   The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Jan Redfern
Deputy President

Rania Skaros
Member

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.

102Passenger cards to be correct

A non‑citizen must fill in his or her passenger card in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given.

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.

108      Decision 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.

109      Cancellation 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.

115      Application of Subdivision

(1)      This Subdivision applies to:

(a)      applications for visas made; and
(b)      passenger cards filled in;

on or after 1 September 1994.