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

1. 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).

2. 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

3. 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]

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 visa

   The 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; and

   b)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.

7. Accordingly, it is clear that the review decision maker based the intention to consider cancelling the student visa on information given in relation to a different visa application made previously by the review applicant. Reference to the delegate’s record of decision dated 1 June 2018 confirms that this was indeed the intention of the decision maker.

   Case Number 1816846  Page 3 of 5

1. It is evident to the tribunal after having reference to the applicant’s movement record that the applicant’s Subclass 417 Working Holiday (Extension) visa had expired by the time of the notification of intention to cancel and that at the time the decision was made and the notification was given the only valid visa that was on foot was the subclass 500 student visa. It is therefore necessary to consider the notice of intention to consider cancellation issued on 15 May 2018 to determine if it is sufficiently drafted.

2. It is possible that the applicant may have provided incorrect information in connection with her Subclass 417 Working Holiday (Extension) visa application. It may be equally possible that the review applicant provided incorrect information in connection with her Subclass 500 Student (Temporary) (Class TU) visa. These inquiries are separate.

3. The Tribunal has reviewed the department’s file in this matter and finds that the alleged incorrect information provided by the review applicant is the following statement which is extracts in the s.107 Notice as follows:

   Details of specified work undertaken:
   ABN 54634252974

   Postcode         6401

   Start Date        16 September 2015

   End Date          30 September 2015

4. The s.107 Notice thereafter makes the following statement:

   On 23 October 2017, the Department received an email from the manager of WONGA Farms (ABN 54634252974) which stated that you have never been employed by WONGA Farms.

   From the above evidence I consider you did not comply with section 101(b) of subdivision C of the Migration Act because when you lodged your subclass 417 Working Holiday (Extension) visa on 08 June 2015, the following answers you provided were incorrect”

   “Have you undertaken specified work in regional Australia for a total of 3 months?” You answered “Yes”

   Based on the above evidence I consider this incorrect because WONGA Farms, the sole employer with whom you claim to have undertaken that work, has advised you never worked for them.

5. Reference to the Australian Government ABN Lookup register service for ABN 54634252974 reveals the following ownership and related information:

   ABN DETAILS

   LAWLER, Angus James  23 Jan 2015         (current)

ABN Status  From  To

Active  16 Dec 1999        (current)

Entity type

Individual/Sole Trader

Case Number 1816846  Page 4 of 5

Goods & Services Tax (GST)  From     To

Registered  01 Jul 2000           (current)

Main business location  From  To

WA 6401  16 Dec 1999        (current)

Business name              From  To

WONGA FARMS   16 Dec 1999        17 Oct 2015

1. Close examination of the Departmental file in this matter discloses no email dated 23 October 2017 from any person. There is an email dated 2 November 2017 from a Mr Edward Lawler (not identified as either the owner or manager of WONGA Farms (ABN 54634252974). That email, in its entirety, relevantly states as follows:

   With regards to your email, Wonga Farms is a family broad acre wheat and sheep farm located in the central wheat belt in WA. During my father’s retirement and up until his passing in mid-2014, the farm had been decommissioned for the previous 10 to 15 years and locked up as my father spent most of his time overseas, coming back monthly or so to check the property and pay bills. During this time no one had access, or worked on the property causing the property to appear abandoned. I have

   received the property three years ago and currently cleaning up and preparing machinery for the property to go back into production. During this time I have not employed anyone to assist me.

   Will call tomorrow to clarify and answer any questions.

2. Reference to the foregoing information suggests as follows:

   a)The owner and manager of the sole proprietorship trading as “WONGA Farms ABN 54634252974” was one ANGUS JAMES LAWLER.

   b)ANGUS JAMES LAWLER died in mid-2014.

   c)The sole proprietorship trading as “WONGA Farms ABN 54634252974” ceased on 17 October 2015.

   d)No email matching the description in the s.107 Notice; namely: “an email from the manager of WONGA Farms (ABN 54634252974) which stated that you have never been employed by WONGA Farms” is contained on the relevant Departmental file.

3. Accordingly, it is apparent that the s.107 notice of intention to consider cancellation issued to the applicant on 15 May 2018 was fundamentally and substantially flawed. As a consequence, this fundamentally and substantially flawed s.107 Notice poisons the delegate’s subsequent decision record made under s.109 on 1 June 2018.

   Decision

4. 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.

   END OF ORAL DECISION [1.55 pm]

   Case Number 1816846  Page 5 of 5