Huang (Migration) - [2020] AATA 5601

Huang (Migration) [2020] AATA 5601 (12 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Leyi Huang
CASE NUMBER:  2001293
DIBP REFERENCE(S):  BCC2019/5630958
MEMBER:Antoinette Younes
DATE:12 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 November 2020 at 10:23am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – incorrect information on Incoming Passenger Card – criminal convictions – guilty of conspiracy to defraud the United States of America authorities – paid an individual to undertake an English language test on the applicant’s behalf – consideration of discretion – direct relevance to the assessment of visa criteria – intentional non-compliance – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 99, 100, 101, 102, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with ss.101 and 102 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal by telephone on 28 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from a witness.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant was represented in relation to the review by her registered migration agent. The representative requested and was granted time to provide post-hearing submissions, but no further submissions were received.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under…

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 Huang (Migration)

Details

AGLC: Huang (Migration) [2020] AATA 5601
Case: [2020] AATA 5601
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa. The dispute concerned whether the applicant had provided incorrect information in her visa application and passenger cards, thereby breaching sections 101 and 102 of the *Migration Act 1958* (Cth).

The Tribunal was required to determine if a valid notice under section 107 of the Act had been issued, and if so, whether the applicant had indeed failed to comply with the requirements of sections 101 and 102. Specifically, the Tribunal had to assess whether the applicant had provided incorrect answers to questions regarding prior convictions and deportation from any country in her visa application and subsequent passenger cards.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. The evidence before the Tribunal indicated that the applicant had declared "no" to questions about prior convictions and deportation on her visa application and incoming passenger cards. However, information before the Department showed that in 2018, the applicant was convicted of conspiracy to defraud United States authorities and was deported from the US. Consequently, the Tribunal concluded that there was non-compliance as particularised in the notice, and that the visa should be cancelled.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.Was there non-compliance as described in the s.107 notice? The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101 and 102 of the Act. Section 101 provides:Visa applications to be correctA non‑citizen must fill in or complete his or her application form in such a way that:(a)all questions on it are answered; and(b)no incorrect answers are given or provided. Section 102 provides:Passenger cards to be correct A non-citizen must fill in his or her passenger card in such a way that: (b) no incorrect answers are given. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. Relevantly, the Tribunal referred to the application for a Student (subclass 500) visa, lodged by the applicant on 15 February 2019. The Decision record indicates that:I.On pages 12 and 13 of the visa application form, the applicant declared “no” to the questions asking about prior conviction in any country and whether the applicant had ever been removed or deported or excluded from any country (including Australia). II.On pages 14 and 15 of the application, the applicant declared “yes” to the following: Warning: Giving false or misleading information is a serious offence. The applicants declare that they: ·Have read and understood the information provided to them in this application. ·Have provided complete and correct information in every detail on this form, and on any attachments to it. ·Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time. ·Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. III.Based on all information provided, the applicant was granted the student visa on 19 February 2019. IV.The applicant arrived in Australia on 25 February 2019 and 11 August 2019. On the incoming passenger cards, the applicant declared “no” to the question, “If you are NOT an Australian citizen, do you have any criminal conviction/s?” V.Information before the Department indicates that in 2018 the applicant was convicted. She was found guilty of conspiracy to defraud the United States of America (US) authorities and deported from the US to the People’s Republic of China (PRC).

Decision

Reasons for decision

The Tribunal has decided that there was non-compliance by the applicant in the way described in the NOITCC. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.Antoinette YounesSenior MemberATTACHMENT – Migration Act 1958 (extracts)5Interpretation(1)In this Act, unless the contrary intention appears:bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.101Visa applications to be correctA non‑citizen must fill in or complete his or her application form in such a way that:(a)all questions on it are answered; and(b)no incorrect answers are given or provided.107Notice of incorrect applications(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non‑compliance; and(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i)if the holder disputes that there was non‑compliance:(A)shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or(ii)if the holder accepts that there was non‑compliance:(A)give reasons for the non‑compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f) requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b) otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a) visas of a stated class; or(b) visa holders in stated circumstances; or(c) visa holders in a stated class of people (who may be visa holders in a particular place); or(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.108Decision about non‑complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.109Cancellation of visa if information incorrect(1)The Minister, after:(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

Ratio Decidendi

Legal Principle Established

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