Hung (Migration)

[2020] AATA 846

Hung (Migration) [2020] AATA 846 (17 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ching-Wei Hung

CASE NUMBER:  1819119

DIBP REFERENCE(S):  BCC2018/1440147

MEMBER:Antoinette Younes

DATE:17 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 17 March 2020 at 2:24pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in previous visa application – claimed specified work in regional Australia – not employed by that business – no appearance by applicant at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 107A, 109(1),

Migration Regulations 1994 (Cth), 2.41

CASE

MIAC v Khadgi (2010) 190 FCR 248

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 to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101 and s.107A of the Act. 

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.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   HEARING INVITATION

5. On 24 December 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled at 10.30am on 10 March 2020. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration.  On 9 March 2020, the applicant requested an adjournment of the hearing on the basis of being unwell.  She attached a medical certificate indicating that she was not “fit for work from 09/03/2020 to 10/03/2020 inclusive”. 

6. On 10 March 2020, the Tribunal wrote to the applicant advising that the hearing has been rescheduled to 10.30am on 16 March 2020.  The Tribunal reiterated that that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration.  The Tribunal also offered a telephone hearing if the applicant so wished.  On 9 and 13 March 2020, the Tribunal sent to the applicant by SMS hearing reminders to the telephone number provided by the applicant in the application for review. 

7. The applicant did not respond to the hearing invitation of 10 March 2020 or appear on the scheduled hearing date and time. 

8. The Tribunal is satisfied that it has given the applicant a fair opportunity to attend a hearing.  The Tribunal has no explanation for the lack of response to the hearing invitation or attendance. In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   CONSIDERATION OF CLAIMS AND EVIDENCE     

9. 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.

10. 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.

11. 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?

12. 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.

13. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and s.107A of the Act.

14. Section 101 of the Act provides that:

    Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that:

    (a)   all questions on it are answered; and

    (b)  no incorrect answers are given or provided.

15. Section 107A of the Act provides that:

    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.

16. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record. 

17. Relevantly the decision record indicates that:

    i)   The applicant breached s.101(b) when applying, on 1 October 2015, for a Working Holiday (Extension) (class TZ subclass 417) visa.

    ii)     As part of the Working Holiday (Extension) (class TZ subclass 417) visa application form, the applicant provided responses to a number of questions. In response to the question Have you undertaken specified work in regional Australia for a total of 3 months? the applicant responded Yes. Under the heading Details of specified work undertaken, the applicant provided an ABN of 12923649456, postcode of 4670, starting date of 7 April 2015 and end date of 21 July 2015.  Under the heading Declaration, the applicant confirmed that, I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa.

    iii)   Based on the information provided by the applicant, the visa was granted on 1 October 2015.  She was granted the subclass 500 student visa on 25 September 2017.

    iv)   On 30 October 2017, the Department received an email from the owner of the above ABN stating that the applicant had never worked for that entity and that the owner does not employ anyone at the business. On the basis of that information, the delegate formed the view that the applicant had provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa.

    v)    On 28 May 2018, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant did not respond.

18. In the letter of hearing invitation, the Tribunal advised the applicant that it was unable to make a favourable decision on the basis of the available information. The Tribunal invited the applicant to attend the scheduled hearing which is the applicant’s opportunity to provide further information and to make any submissions relevant to the cancellation. The applicant did not attend the hearing.  The hearing is the applicant’s opportunity to provide further details about the incorrect answers.  The Tribunal would have asked the applicant questions about the completion of the visa application form, any assistance and relevant questions about her current circumstances. 

19. On the evidence, the Tribunal finds that the applicant provided incorrect answers in response to the question Have you undertaken specified work in regional Australia for a total of 3 months? When she responded Yes, under the heading Details of specified work undertaken, when she provided an ABN of 12923649456, postcode of 4670, starting date of 7 April 2015 and end date of 21 July 2015, and under the heading Declaration, when she confirmed that, I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa.

20. The Tribunal therefore finds that the applicant did not comply with s.101(b) in relation to the Working Holiday (Extension) (class TZ subclass 417) visa and consequently s.107A is enlivened in relation to the student visa subclass 500.

21. For those reasons, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

22. 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).

23. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). 

24. 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).

25. The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

26. In order to satisfy the criteria for the grant of the Working Holiday (Extension) (class TZ subclass 417) visa, amongst other things, the applicant had to meet the criterion relating to specified regional work for a specified period of time within certain industries, including agriculture, forestry, mining, construction and fishing industries.

27. That criterion is a significant threshold criterion about which the Tribunal has found the applicant provided incorrect information. The applicant provided incorrect information when claiming in the visa application form that she had completed the specified regional work with a particular employer when in fact the applicant had not completed any such work.

28. The correct information is that the applicant did not work for any period of time for the entity with ABN 12923649456, the owner of which confirmed to the Department that the applicant had not undertaken any of the claimed work.

29. The provision of incorrect information is a serious matter and the Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the content of the genuine document (if any)

30. There is no issue in relation to a genuine document. 

31. The Tribunal gives this aspect neutral weight.

    ·     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

32. The applicant was granted the Working Holiday (Extension) (class TZ subclass 417) visa subsequent to a determination by the delegate that the applicant met relevant visa criteria, including the requirement that if the applicant is or has previously been in Australia as the holder of a subclass 417 visa, the applicant has carried out specified work in regional Australia as the holder of the visa, that the total period of the work carried out is, or is equivalent to, at least three months full-time work and that the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards (Regulation 417.211).

33. The Tribunal is satisfied on the evidence that the applicant was granted the Working Holiday (Extension) (class TZ subclass 417) visa wholly or partly on the basis of the incorrect information that he provided when applying for that visa. The applicant’s employment details relating to the regional work was a threshold criterion fundamental to the grant of the Working Holiday (Extension) (class TZ subclass 417) visa.

34. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the circumstances in which the non-compliance occurred

35. The circumstances of non-compliance occurred when the applicant provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa, specifically relating to the claims that she had been employed by a particular entity for a particular period of time, which was not correct.  The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the present circumstances of the visa holder

36. The Tribunal has no information about the applicant’s present circumstances. 

37. The Tribunal gives this consideration neutral weight.

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

38. The applicant did not respond to the NOITCC. 

39. The Tribunal gives this consideration weight in favour of cancellation.

    ·     any other instances of non-compliance by the visa holder known to the Minister

40. There is no evidence of other instances of non-compliance. 

41. The Tribunal gives some weight in the applicant’s favour.

    ·     the time that has elapsed since the non-compliance

42. The non-compliance occurred when the applicant provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa, lodged in October 2015. The Tribunal does not consider this period of time to be significant.  There is limited information to suggest that this period of time in the applicant’s case is significant or substantial, or evidence of strong ties with the Australian community.

43. The Tribunal gives this consideration weight in favour of cancellation.

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

44. There is no evidence before the Tribunal of any breaches of the law since the non-compliance.

45. The Tribunal gives this aspect neutral weight.

    ·     any contribution made by the holder to the community.

46. There is limited evidence of a positive contribution to the Australian community.   

47. The Tribunal gives this aspect neutral weight.

48. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

49. The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. To minimise or avoid those potential consequences, the applicant could voluntarily depart Australia. The applicant would also be impacted by s.48 of the Act which means that she may face difficulties in applying for any further visas in Australia and be granted an Australian visa.

50. The Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences.  

51. The Tribunal gives this aspect neutral weight.

    ·whether there would be consequential cancellations under s.140

52. There is no evidence that the cancellation of the applicant’s visa would result, pursuant to s.140 in the cancellation of any other person.

53. The Tribunal gives this aspect neutral weight.

    ·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

54. There is no information before the Tribunal to suggest that Australia would be in breach of any of its non-refoulement obligations in case of cancellation. 

55. The Tribunal gives this aspect neutral weight.

    ·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

56. There are no other matters requiring consideration.

    Concluding remarks

57. The Tribunal has carefully considered the material before it individually and cumulatively. 

58. There are limited aspects in the applicant’s favour.  On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.

59. 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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

60. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Antoinette Younes

    
    Senior Member

    ATTACHMENT – 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.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

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

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision 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.

    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.