He (Migration) - [2019] AATA 4121

He (Migration) [2019] AATA 4121 (10 June 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Miss Cai-We He

CASE NUMBER: 1816846

DIBP REFERENCE(S): BCC2018/907582

MEMBER: Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS: 10 June 2019 at 1:55 pm (WA time)

DATE OF WRITTEN RECORD: 13 August 2019

PLACE OF DECISION: Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa.

Statement made on 13 August 2019 at 1:00pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in previous visa application – Working Holiday (Extension) visa application – defect in s 107 notice – no email matching description in the s 107 notice – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 108, 109

CASES
SZEEM v MIMIA [2005] FMCA 27

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 June 2018 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).
At the hearing on 10 June 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons.
STATEMENT OF DECISION AND REASONS
Attached to this statement is a corrected transcript of the reasons for decision delivered at the hearing on 10 June 2019.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa.
Dr Colin Huntly
Member

Case Number 1816846 Page 2 of 5

ORAL DECISION OF MEMBER HUNTLY [1.46 pm]

I note that the applicant is currently the holder of a Subclass 500 Student (Temporary) (Class TU) visa granted on 22 August 2017. This visa is identified in the notice of intention to consider cancellation issued to the review applicant by the Department under the provisions of s.107 of the Act, dated 15 May 2018.
I note that, before considering the validity of any decision made under section 109 pursuant to this notice the tribunal must have regard to the regularity of the s.107 notice. The terms of s.108 and 109(1) clearly indicate that the procedural requirements set out in s.107 are a mandatory precondition to the exercise of the power to cancel.
Unlike the cancellation process under Subdivision D, defects in the s.107 notice do not appear to be able to be cured by the Tribunal on review. The question of whether the Tribunal on review can cure defects in the s.107 notice was addressed by Smith FM in SZEEM v MIMIA [2005] FMCA 27 where his Honour observed that in reviewing a decision to cancel a visa, the Tribunal was bound to apply the laws defining the power of the primary decision maker. As a consequence the Tribunal must make its decision having regard…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading He (Migration)

Details

AGLC: He (Migration) [2019] AATA 4121
Case: [2019] AATA 4121
Decision Date: 13 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa. The applicant, who held a Subclass 500 visa granted in August 2017, received a notice of intention to consider cancellation from the Department under section 107 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was the validity of the section 107 notice. Specifically, the Tribunal had to determine whether any defects in the notice were substantial enough to prevent the lawful exercise of the power to cancel the visa under section 109 of the Act. The Tribunal considered whether procedural requirements under section 107 were a mandatory precondition to cancellation and whether any such defects could be cured on review.

The Tribunal reasoned that section 109(1) requires a decision-maker to first determine, as per section 108(b), whether non-compliance occurred as described in the section 107 notice. While minor defects that do not affect the substance of the allegations or the visa holder's ability to respond may not invalidate a cancellation, substantial defects will. In this instance, the Tribunal found a defect in the section 107 notice because it identified incorrect information in the applicant's Subclass 417 Working Holiday (Extension) visa application, but failed to link this incorrect information to the applicant's Subclass 500 student visa application, which was the visa under consideration for cancellation. Although section 107A permits non-compliances in previous visas to be grounds for cancellation of a current visa, the notice itself must clearly specify the alleged non-compliance in relation to the visa being considered for cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Attached to this statement is a corrected transcript of the reasons for decision delivered at the hearing on 10 June 2019.DECISIONThe Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa.Dr Colin Huntly Member I note that the applicant is currently the holder of a Subclass 500 Student (Temporary) (Class TU) visa granted on 22 August 2017. This visa is identified in the notice of intention to consider cancellation issued to the review applicant by the Department under the provisions of s.107 of the Act, dated 15 May 2018. I note that, before considering the validity of any decision made under section 109 pursuant to this notice the tribunal must have regard to the regularity of the s.107 notice. The terms of s.108 and 109(1) clearly indicate that the procedural requirements set out in s.107 are a mandatory precondition to the exercise of the power to cancel. Unlike the cancellation process under Subdivision D, defects in the s.107 notice do not appear to be able to be cured by the Tribunal on review. The question of whether the Tribunal on review can cure defects in the s.107 notice was addressed by Smith FM in SZEEM v MIMIA [2005] FMCA 27 where his Honour observed that in reviewing a decision to cancel a visa, the Tribunal was bound to apply the laws defining the power of the primary decision maker. As a consequence the Tribunal must make its decision having regard to the s.107 notice issued by the delegate. The learned Federal Magistrate considered that s.109(1) requires as an essential precondition to the power to cancel a visa that the decision maker decide as a first step in terms of s.108(b) whether there was non-compliance in the way described in the 107 notice. While the Tribunal notes that a minor defect in the content of a s.107 notification, which does not go to the substance of the allegations or affect the visa holder’s capacity to respond to the allegations, will not necessarily preclude valid cancellation under s.109. However, a substantial defect will preclude a valid cancellation under s.109. In light of the foregoing the Tribunal has closely examined the notice of intention to consider cancellation issued to this applicant. The Tribunal notes that the delegate has identified answers given in the review applicant’s Subclass 417 Working Holiday (Extension) visa as contained in the relevant incorrect information alleged in the notice. While this incorrect information has not been linked back to the applicant’s Subclass 502 student visa application, this is not necessarily required per s.107A which provides as follows:Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visaThe possible non-compliances that:a)may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; andb)if so specified, can constitute a ground for the cancellation of that visa under section 109;include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

Ratio Decidendi

Legal Principle Established

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