Kan (Migration)

[2019] AATA 5898

Kan (Migration) [2019] AATA 5898 (26 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hsiao Ching Kan

CASE NUMBER:  1813517

DIBP REFERENCE(S):  BCC2018/1035209

MEMBER:Helen Kroger

DATE:26 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 August 2019 at 1:18pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) incorrect information in previous application – applicant did not work for named employer – incorrect information provided by migration agent – applicant’s responsibility to ensure information submitted correct – complicit in actions of agent – negligent or recklessly indifferent – adequate steps to ensure correctness of application not taken – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 99, 100, 101, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Cl 417.211(5)

CASES
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Teoh (1994) 183 CLR 273
Suleyman v MIMA [2000] FCA 610
Tien v MIMA (1998) 89 FCR 80

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). The applicant was granted a Subclass 500 visa on 9 February 2017.

2. The Department received information indicating that the applicant may have provided incorrect information in a previous application for a Subclass 417 Working Holiday visa. The applicant was granted the (second) Subclass 417 visa on 25 May 2016.

3. On 11 April  2018, the Department sent the applicant a Notification of Intention to Consider Cancellation (NOICC) of the Subclass 500 visa, setting out the matters indicating non-compliance and inviting her to comment or respond. The applicant responded on the 23 April 2018 and provided documentation to support her response. The delegate considered the applicant’s response in addition to all available information and on 8 May 2018 decided to cancel the applicant’s Subclass 500 visa on the basis that she had provided incorrect information in her (second) Subclass 417 Working Holiday visa application.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 20 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant seeks review of the delegate’s decision and for that purpose provided a copy of the primary decision to it.

7. 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

8. 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.

9. 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.

10. 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 NOICC issued under s.107 complied with the statutory requirements.

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

11. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b):

    Section 101:

    Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)No incorrect answers are given.

12. The breach of s.101(b) relates to a Subclass 417 Working Holiday visa (the Working Holiday visa) the applicant previously held that was granted on 25 May 2016 and ceased on 9 January 2017.  Section 107A of the Act allows for cancellation of a current visa if there has been a non-compliance with a previous visa.

13. Section 99 of the Act provides that any information 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.   

14. The Working Holiday (Extension) visa application (lodged by the applicant on 11 December 2015) form included the following questions and answers:

    Q:       Have you undertaken specified work in regional Australia for a total of 3 months?

    A:        Yes

15. The application form included a Details of specified work undertaken section and in response the applicant provided the following information:

    ABN 26484808691

    Postcode 3500

    Start Date 17 May 2015

    End Date 30 August 2015

16. On the 31 October 2017, the Department was advised by J.A Camera & L.C. Camera & P.P Camera, C.M. Camera, S.M. Camera (trading as Superior Fruits), the business registered under ABN 26484808691, that it had not employed anyone under the Working Holiday program. The delegate decided that the applicant had fabricated  information that she worked there for the period 17 May 2015 to 30 August 2015 to facilitate the grant of the Working Holiday (Subclass 417) visa.

17. The above matters were particularised in the s.107 notice sent to the applicant on 11 April 2018.

18. A copy of the decision record was submitted to the Tribunal for the purposes of the review along with the applicant’s response to the NOICC, a statement of explanation to the Tribunal, dated 5 August 2019 (folio 64), medical documentation pertaining to her step-mother’s and brother’s medical condition, Central Melbourne Institute education and attendance records, family photos with her father and step-mother and identification documents.

19. The Tribunal put to the applicant information in the delegate’s decision, provided by Superior Fruits to the Department on 31 October 2017, registered under ABN 26484808691, that indicated that they had never employed the visa applicant. In response the applicant said that she had engaged a migration agent to complete the second working holiday visa application and that she was unaware of the details contained in that application, whilst  commenting that she read the form but due to her limited English competency, she did not understand the information on the form confirming that she signed the completed application form, that includes the Declaration’, ‘I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa.”  The application form did not name the employer she said she worked for from 17 May 2015 to 30 August 2015.

20. The applicant told the Tribunal that she had never worked at Superior Farms and that she had been employed in a number of casual positions, including in restaurants and as a masseur.  She consistently submitted at hearing that she had no idea about the requirements attached to her visa and that she had engaged a migration agent who provided inadequate if not false information. The applicant submitted a written explanatory statement, dated 5 August 2019 to the Tribunal, that is extracted below :

    My name is Hsiao Ching Kan, born in Taiwan on 27 February 1992. I am writing in relating to comment on the possible non-compliance and response why my current student visa should not be cancelled.

    I have some friends studied in Australia, every time when they went back to Taiwan, they shared with me lots of pictures and interesting stories. I realized that Australia is a great country with fantastic scenery. Also, Melbourne is named as the most livable city in the world in recent years. So, I can't wait to come to experience it after I graduated from school.

    I applied my first working holiday visa in 2014 by agent and arrived in Melbourne on January 2015. I didn't take lots of money with me because as an adult I wanted to be independent and earned my own living. At that time, I had no idea about what the specified work was, and the agent didn't tell me I should work in Superior Fruits to do the specified work. Actually, I found a job as a fruit picker for several days. However, I found that it was very unstable to work in the farm coz it was all depend on the season and the amount of workload needed. To live, I tried lots of jobs such as courier, waitress, admin, etc. but all of them were temporary and only work for several days. I found a part­ time job in massage shop in September 2015 and worked tillI got the student visa.

    I earned some money and I learnt a lot of skills from my boss in massage shop. In order to work longer, I contacted with an agent to apply visa extension for me. I provided my CV and related information and they told me the material was adequate and applied it accordingly. I didn't realize this bogus information they filled until received this letter. I am very sorry for this and I have no intention to cheat or hide anything. I could get a reference letter from my boss if required.

    During my stay and work in Australia, I experienced  how hard it  was to  begin a life in  a new place  and how difficult to earn the money. After I got the part-time job in the massage shop and  worked several months, I realized that it was necessary to go to school to learn more knowledge and skills to enrich myself. I believe I will improve significantly after comprehensive and systematics study of massage. Then I applied the student visa onshore and enrolled in Central Melbourne Institute of diploma of massage in February 2017. I felt very happy to study here and cherished every moment in  the class, with my tutor and classmates. I  passed all my exams  and got decent results. I  really want   to finish my courses and get my degree. I will go back to Taiwan after I complete  my study. I  will provide the evidence of my study including photos in school, letter from my teacher,  homework feedback etc.

    Besides, my stepmother Jianmei Zou, born in 1969 is living in Australia. She is an Australian Citizen. She has got progress deafness over 20 years. Therefore, I hope I can stay here to take care of her during my study period. I will provide the medical certificate for my stepmother, as well as her identification.

    To summarize, I have no intention to cheat or hide any information. I am really fascinated in this beautiful country and I really hope you can allow me to finish my study here. I have been studying hard and have learned a lot of knowledge from Melbourne Central College, therefore I really  hope that I could continue studying in Australia.

21. In the applicant’s written statement that is extracted above, she outlines the type of work she undertook, indicating that the farm work was unstable due to the seasonal nature and that she undertook varied casual jobs until she found work in a massage shop, where she continued until she was granted the student visa. The applicant indicated at hearing that she was unaware of the working condition attached to her visa in relation to the employment requirement, and that she work in specified employment in regional Australia. She did not dispute that she had not worked at Superior Fruits and that she had not undertaken work in the farming or regional sector. She explained that she read the application form completed by her migration agent, that she didn’t really understand it due to her poor English, and acknowledged that she personally signed the form.

22. She indicated that she accepted the advice of her migration agent at face value, that she was unaware that he may have been providing her misleading information and that her application could include false information. She subsequently engaged another migration agent after her visa was cancelled. The applicant expressed her concern about the professionalism of her first migration agent suggesting that the ‘country’ should deal with these type of misleading agents and the difficulty in engaging an agent when inexperienced.

23. Whilst the Tribunal has some empathy with the applicant’s observations regarding her previous migration agent, the Tribunal found her evidence problematic because she indicated that she did read and sign her application form, even though she claims that she did not fully understand it due to her limited English competency. The Tribunal finds that on the application form, in response to questions about the work she had previously undertaken in Australia, the applicant gave incorrect answers by stating that she had completed a total of 3 months in regional Australia, and indicated in her explanatory statement extracted above, that she did work as a fruit picker for a few days and that due to the seasonal nature of that work, she found it unstable. She further provided incorrect information when she stated that she worked for a business registered under  ABN 26484808691. The Tribunal finds that the applicant did not work for Superior Fruits and that she completed the application form in a way that incorrect answers were given.

24. The Tribunal further finds the applicant declared in her application form that the information provided was complete, correct and up to date. The Tribunal finds that this was also an incorrect answer.

25. The Tribunal acknowledges the applicant’s evidence that the provision of the incorrect answers was done without her knowledge or consent. However, the Tribunal is of the view that by instructing an agent to prepare and lodge the application for her and paying the fees for the service, the applicant created an agency arrangement between herself and the agent preparing her application.

26. Further, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s. 98 of the Act states that if the applicant did not fill in her application form, she is taken to do so if she causes it to be filled in or if it is otherwise filled in on her behalf. Section 100 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. Further, s. 111 states that ss.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers.

27. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

28. 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).

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

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

30. 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.

31. The applicant was advised at the beginning of the hearing that she would be invited to comment on the r.241 prescribed circumstances as set out in the delegate’s decision and that the Tribunal would consider this along with any other relevant facts and matters, including the written documentation submitted to the Tribunal and the oral evidence given at the hearing.

    The correct information

32. The applicant was granted the Working Holiday (Extension) visa on 26 May 2016 on the basis that she had worked for at least 3 months in specified work in regional Australia and that she had approved evidence of this work. The Tribunal has found that the correct information at the time of application was that the applicant had not worked for at least 3 months in specified work in regional Australia during the period stated in the application form. The Tribunal has also found that she did not have approved evidence of having undertaken the specified work.

33. The correct information was not provided. This is a significant issue which weighs in favour ofcancellation.

    The content of the genuine document (if any)

34. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information

35. Clause 417.211(5) requires the applicant to have carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa and the total period of the work carried out is, or is equivalent to, at least 3 months full-time work.

36. The Tribunal finds that the assessment of the applicant’s previous employment in regional Australia was central to the assessment of her eligibility for the Working Holiday visa. The Tribunal finds that the decision to grant the Working Holiday visa was based, wholly or partly, on incorrect information relating to the applicant’s employment in regional Australia. This weighs in favour of cancellation.

    The circumstances in which the non-compliance occurred

37. The applicant said her agent provided incorrect information on her application form. She advised the Tribunal that following the receipt of the NOICC that she engaged another agent to assist her with the application whilst there is insufficient clarity to indicate the stage at which she changed agents. The Tribunal has considered the applicant’s concern submitted during the hearing in relation to agents being able to provide misinformation to applicants, when they may not understand the system.

1. Whilst the Tribunal is not unsympathetic with the concerns expressed by the applicant, the Tribunal is of the view that the applicant had the responsibility to learn what evidence was being submitted on her behalf. The applicant could have made inquiries with the agent, particularly before the application was made, and she could have made a request to check the entire application before lodgement. In the Tribunal’s view, it was her responsibility to do so to ensure that any information that was being submitted on her behalf was correct and accurate. The applicant told the Tribunal that she did read her application before it was lodged whilst not fully appreciative of its contents because it was in English.

2. The Tribunal finds that the applicant was either complicit in the actions of her agent or she was negligent in her actions and recklessly indifferent in her dealings with the agent.

3. The applicant told the Tribunal that she did not mean to provide false information. The Tribunal accepts this but the fact remains that if the applicant had provided correct information in her application, the visa would almost certainly not have been granted.  The circumstances  in which the non-compliance occurred, including her reliance on her agent and inability to understand English, are not accepted as justifying the non-compliance.

   The present circumstances of the visa holder

4. The applicant told the Tribunal that she is a carer for her 48 year old step-mother, an Australian resident, who has progressive deafness and limited English. The applicant introduced her to her father who lives in Taiwan, and they married in June 2018. Her father runs a business in Taiwan, and the step mother has two sons who live in Australia. The applicant indicated that she lives “close” to her step mother and visits her 2-3 times each week to assist her with shopping and helping her when driving. The applicant commenced a Diploma in Remedial Massage at the Central Melbourne Institute in February 2017 and indicated that she wanted to complete this so she can return to Taiwan and provide therapeutic support for her brother, who experiences health issues following bone cancer recovery.

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

5. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations.

   Any other instances of non-compliance by the visa  holder known to the Minister and any breaches of the law since non-compliance: 

6. There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance. The Tribunal is not aware of any other breaches of the law since the non-compliance.

   The time that has elapsed since the non-compliance

7. It has been in excess of three years since the applicant provided incorrect answers. The Tribunal does not consider this to be an insignificant amount of time.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

8. There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined.

   Any contribution made by the holder to the community

9. The applicant has submitted to the Tribunal by way of written statement and during the hearing that she is a carer for her step mother, who is 48 years of age and suffers from deafness. Medical documentation submitted indicates that she wears hearing aids and the applicant told the Tribunal that she assists her shopping and accompanies her in the car when she needs to travel.  She lives nearby and visits her 2-3 days per week. Her step mother has two sons who live in Melbourne and the applicant described the relationship within the family as “not close”. The applicant indicated that she introduced her to her father during one of his visits to Australia, as they were previously (and remain) friends and they later married. Her father remains in Taiwan running a business and supporting the family, with a son who is also based in Taiwan. The applicant told the Tribunal that her step mother cannot travel to, or relocate to Taiwan due to her Chinese nationality creating visa issues to travel to Taiwan.

10. The Tribunal has considered the evidence before it and finds that the applicant provides some part time assistance to the applicant, due to her hearing impairment. Medical documentation submitted indicates that the step mother wears hearing aids to address her hearing loss and there is no information before the Tribunal to indicate that this loss necessitates a full time or part time carer. Notwithstanding this, the Tribunal is satisfied that the applicant provides some assistance to her step mother.  There are no other matters or information before the Tribunal to indicate any contribution the applicant makes to the wider Australian community.

11. The Tribunal gives some weight in favour of not cancelling the visa on the basis that the applicant assists her step mother.

12. The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in r.2.41 where they are relevant or applicable in this case.

13. In addition to the prescribed matters in r.2.41, the Tribunal has had regard to matters under policy include the following.

    Other considerations

14. As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109. They are:

    ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140;

    ·whether there are mandatory legal consequences to a cancellation decision; for example

    §  whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non-refoulement obligations;

    §  whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister’s personal intervention (e.g.s.46A, s.46B, s.48, 48A etc.); and

    §  whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and is liable to be detained under s.189 and removed under s.198

    ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation; for example:

    §  if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;[1]

    §  whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment; and

    ·any other relevant matter.

    Whether there would be consequential cancellations under s.140

    [1] This is consistent with the High Court’s decision in MIMA v Teoh (1994) 183 CLR 273, and with Article 3.1 of the UN Convention on the Rights of the Child 1989 (CROC) which states: ‘In all actions concerning children … the best interests of the child shall be a primary consideration’. For guidance on what constitutes an ‘action concerning children’ see Suleyman v MIMA [2000] FCA 610 (Mathews J, 12 May 2000) at [38] and Tien v MIMA (1998) 89 FCR 80 (Goldberg J, 3 December 1998) at 105.

15. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

16. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

17. There are no provisions in the Act which prevents the applicant from making a valid visa application without the Minister’s intervention although the applicant may have limited opportunities when making future visa applications in Australia.

18. While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if her visa is cancelled, she has benefited from providing the incorrect information in the Working Holiday visa application and it is likely that she would not have been granted that visa if she had provided correct or accurate information about satisfying the work requirement.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

19. There is nothing to suggest that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

20. The applicant told the Tribunal at the hearing that she wanted to stay in Australia for two reasons (the evidentiary basis being contained in the audio file). She explained that she wanted to stay in Australia to care for her step mother until her father is able to retire and look after her and that she wishes to complete a Diploma in Remedial Massage so that she can return to Taiwan and assist her brother. She explained that her 25 year old brother had recovered from bone cancer, and that his walking had been subsequently affected. She wishes to learn skills that will help him on her return.

21. The Tribunal is mindful that the applicant is eligible to make a Student visa application in the future, despite the cancellation. The Tribunal acknowledges that the applicant would be subject to an exclusion period which may delay her study plans, although there is also a provision to waive that requirement.

22. Whilst the Tribunal is sympathetic with her wish to support and assist her step mother, the Tribunal has considered the extended family circumstances and potential support available to her step mother, including her two sons living in Australia and the standard of health care available in Australia for citizens who have hearing impairment and her step mother’s use of hearing aids.

    Conclusion on the exercise of the discretion

23. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s.101.

24. The Tribunal accepts that there are no other known instances of non-compliance and no other breaches of the law.  The Tribunal accepts that certain hardship will be caused by the cancellation because the applicant’s student visa options would be limited by the cancellation, at least in the immediate future, and that it may cause some distress as she would not be able to visit and support her step mother each week. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. There are no consequential cancellations.

25. The Tribunal accepts that if the applicant’svisa is cancelled, and unless she is granted another visa, she may be subject to detention, although the applicant may be eligible to apply for othervisas.

26. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect answers. The Tribunal has formed the view that the applicant did not take adequate steps to ensure the correctness of her application. Having instructed an agent to lodge the application on her behalf, the applicant then did nothing to check the content of the application. The Tribunal does not accept that the applicant worked for one employer in regional Australia from 17 May 2015 to 30 August 2015. It was common ground that she did not work for Superior Fruits, the business registered under ABN 26484808691.  In the Tribunal’s view, the fact that the decision was based on incorrect answers outweighs other considerations.

27. 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.

    DECISION

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

    Helen Kroger
    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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    105Particulars of incorrect answers to be given

    (1)If a non‑citizen becomes aware that:

    (a)      an answer given or provided in his or her application form; or

    (b)     an answer given in his or her passenger card; or

    (c)      information given by him or her under section 104 about the form or card; or

    (d)     a response given by him or her under section 107;

    was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

    (2)Subsection (1) applies despite the grant of any visa.

    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.