Kee (Migration)

[2020] AATA 3400

Kee (Migration) [2020] AATA 3400 (14 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Youngwoo Kee

CASE NUMBER:  1903313

DIBP REFERENCE(S):  BCC2018/4098644

MEMBER:Antoinette Younes

DATE:14 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 August 2020 at 10:34am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in previous visa working visa extension application – claimed specified work in regional Australia – reliance on migration agent – discretion to cancel visa – genuine student – relationship with partner, also on student visa and close to completing studies – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 98, 99, 101, 107, 107A, 109

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

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 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.

3. The applicant appeared before the Tribunal on 11 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. 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.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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?

10. 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.

11. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act.

12. Section 101 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.

13. Section 107A of the Act is relevant in this case.  It 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.

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

15. In the course of the hearing, the Tribunal discussed with the applicant the following matters noted in the delegate’s decision record:

    i)   The applicant breached s.101(b) when applying, on 28 April 2017, 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 several 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 19238253591, postcode of 7005, starting date of 9 August 2016 and end date of 4 December 2016.  Under the heading Declaration, the applicant confirmed that information.

    iii)   Based on the information provided by the applicant, the visa was granted on 5 May 2017.  He was granted the subclass 500 student visa on 27 April 2018. 

    iv)   On 16 July 2018, the Department received advice from the business registered under the above ABN stating that the applicant had never worked for that entity.  On the basis of the available information, the delegate determined that the applicant had provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa.

16. The Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant responded.

17. In submissions dated 26 December 2018, the representative noted that:

    ·The applicant does not dispute that incorrect information was provided in the visa application, but the provision of the incorrect information was not malicious or deliberate.

    ·The applicant relied on a person who represented himself as a migration agent with experience in such matters.  That person had full carriage of the visa application.  The applicant acknowledges his responsibility.  He is apologetic and remorseful for his imprudence.

    ·The applicant is currently studying, and he is a genuine student.

    ·The applicant has contributed to the community by working casually and has made friends sharing his South Korean heritage.

    ·Apart from the current issue, the applicant has been in compliance with all visa conditions.  He could have applied for other visas.

    ·The applicant is in a relationship with Ms Gao who is completing her studies in Australia and is intending to apply for a subclass 189/190 permanent visa.  She would be impacted by “condition 4020”.  Her chances would be ruined.  Separation is not an option for the couple.

18. In subsequent submissions of 3 January 2019, the representative clarified how “condition 4020” would be triggered in the sense that if the applicant’s visa were to be cancelled and if he were to be included in subclass 189/190 permanent visa lodged by Ms Gao, condition 4020 would be enlivened.

19. In support of the response, the applicant provided information essentially relating to his relationship with Ms Gao including copies of photographs, multiple letters of support dated around December 2018, referring to the applicant’s relationship with Ms Gao, educational and clinical documents relating to Ms Gao, electricity bills in both names, a relationship certificate, Statutory Declarations of Ms Gao and the applicant, and a Levy Notice in the couple’s names issued 15 May 2018.

20. During the hearing, the applicant confirmed that he does not dispute that incorrect information was provided in the application for the Working Holiday (Extension) (class TZ subclass 417) visa.  The Tribunal questioned the applicant at length about the completion of the visa application form.  He stated that a Mr Park told him that there was a way of obtaining a second Working Holiday visa and he did not question Mr Park about how this would be done, nor did he know that incorrect information would be provided in the application.  He stated that he gave Mr Park $2000 for the application.  The applicant apologised for the provision of the incorrect information, although he maintained that he did not know that Mr Park provided incorrect information in the application.

21. The Tribunal has some doubts about the applicant’s assertions that he did not know that Mr Park provided incorrect information in the application, however, those doubts are insufficient to make a positive finding that the applicant knew or that he was actively involved in the provision of the incorrect information.

22. During the hearing, the Tribunal indicated to the applicant that if the Tribunal were to accept his version of events, he remains to be responsible for the provision of the incorrect information. 

23. The Tribunal observes that ss.98 and 99 of the Act are relevant.

    Section 98 provides that:

    Completion 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.

    Section 99 provides that:

    Information 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.

24. Even if the Tribunal were to accept that applicant had no knowledge of the provision of the incorrect information, ss.98 and 99 are enlivened.  In essence, the applicant is taken to have provided the information in the visa application.

25. 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 he responded Yes, under the heading Details of specified work undertaken, when he provided an ABN of 19238253591, postcode of 7005, starting date of 9 August 2016 and end date of 4 December 2016 and under the heading Declaration, when he confirmed those details.

26. 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.

27. 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?

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

30. 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.

31. 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 he had completed the specified regional work with a particular employer when in fact the applicant had not completed any such work.

32. The correct information is that the applicant did not work for any period for the entity with ABN 19238253591.  The entity confirmed to the Department that the applicant had not undertaken any of the claimed work.

33. As explained during the hearing, the Tribunal considers the provision of incorrect information to be a serious matter.  As is the case in this instance, under s.109, a visa can be cancelled if incorrect information is provided.  The Tribunal is of the view that the provision of incorrect information in a visa application has the potential of undermining the migration program and Australia’s migration laws.

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

    ·     the content of the genuine document (if any)

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

36. 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

37. 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).

38. 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.

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

    ·     the circumstances in which the non-compliance occurred

40. 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 he had been employed by a particular entity for a period, which is not correct. 

41. In the course of the hearing, the applicant gave evidence that a Mr Park completed the visa application and that the applicant did not know that incorrect information was or would be provided.  As noted above, the Tribunal has some doubts about the applicant’s contentions that he did not did know that Mr Park provided incorrect information in the application, however, given that those doubts are insufficient to make a positive finding that the applicant knew or that he was actively involved in the provision of the incorrect information, the Tribunal is satisfied that it is reasonable to accept as plausible that the applicant did not know, although it would have prudent for him to have made enquiries.  The applicant accepts his imprudence.  In these circumstances, the Tribunal gives weight in the applicant’s favour, although he remains to be impacted by ss.98 and 99 of the Act.

    ·     the present circumstances of the visa holder

42. The central submissions advanced relate to the fact that the applicant is a genuine student who continues to study and that he is in a relationship with a person who is also studying and would be impacted by the cancellation of the applicant’s visa.  The applicant has provided documents demonstrating that the applicant has completed a Certificate II in Business course, Certificate IV in Business course and that he is currently enrolled in a Diploma of Business course due to be completed in May 2021.  The Tribunal observes that his academic results in the Certificate IV in Business course show that that he obtained Competent assessments in the 11 subjects undertaken.

43. During the hearing, the applicant gave evidence of his plans to undertake further studies in Australia.  He described his plans as being his “strongest wish”. 

44. The Tribunal is satisfied on the evidence that the applicant is a genuine student, consistent with the requirements of the subclass 500 visa he was granted, which is the subject of this cancellation. The Tribunal gives significant weight to this aspect in the applicant’s favour.

45. The applicant provided substantial evidence about his relationship with Ms Gao who gave evidence about their relationship and background.  The Tribunal notes that Ms Gao is also an international student who is currently on a student visa, undertaking a Master of Education degree, due for completion in 2020.

46. Neither the applicant nor Ms Gao has or has had a permanent Australian visa.  Ms Gao’s subclass 500 visa, like the applicant is a temporary visa with an expiry date.  However, looking at Ms Gao’s circumstances, the Tribunal is satisfied that they warrant significant weight to be given to the relationship with the applicant.  She has been in Australia for about 10 years and she has invested substantial finances, time and genuine commitment to her education.   The Tribunal discussed potential separation of the couple, but the Tribunal is of the view that this would cause the couple significant hardship.

47. In totality, the Tribunal gives this aspect significant weight in the applicant’s favour.

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

48. The applicant did respond to the NOITCC and fully engaged with the cancellation process. 

49. The Tribunal gives this consideration weight in favour of the applicant.

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

50. There is no evidence of any other instances of non-compliance.

51. The Tribunal gives this aspect neutral weight.

    ·     the time that has elapsed since the non-compliance

52. The non-compliance occurred when the applicant provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa, lodged in April 2017. 

53. The Tribunal is of the view that this period in the applicant’s case is important as he has completed several courses since the non-compliance.

54. The Tribunal gives this consideration weight in favour of the applicant.

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

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

56. The Tribunal gives this aspect neutral weight.

    ·     any contribution made by the holder to the community.

57. The applicant has worked in Australia and the Tribunal considers this to be a contribution to Australia and gives this aspect some weight in his favour.

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly 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

2. 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.

3. The applicant would also be impacted by s.48 of the Act which means that he may face difficulties in applying for any further visas in Australia and in being granted an Australian visa.

4. The Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences and in the applicant’s case, the Tribunal gives this aspect neutral weight.

   ·whether there would be consequential cancellations under s.140

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

6. 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.   

7. There is no information before the Tribunal to suggest that Australia would be in breach of any of its international obligations, such as non-refoulement obligations in the event of cancellation. 

8. 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.

9. The Tribunal is satisfied that the visa cancellation would result in emotional, psychological, and financial hardship to both the applicant and Ms Gao.  The applicant would not be able to pursue any further studies in Australia unless granted another visa, but as discussed above, he would face difficulties.  Cancellation also means potential separation from Ms Gao and it would be unreasonable to suggest that she could depart Australia prior to completing her studies in circumstances where she has evidently invested money, time and commitment.

10. The Tribunal gives those matters significant weight in the applicant’s favour.

11. There are no other matters requiring consideration.

    Concluding remarks

12. The Tribunal has carefully considered the material before it individually and cumulatively.  The provision of incorrect information in a visa application is a serious matter.  The legislature and policy makers intended adverse consequences, including cancellation.  The applicant has acknowledged his imprudence in failing to question Mr Park about matters relating to the visa application.  There are significant aspects in the applicant’s favour such as his studies, his relationship with Ms Gao and her studies.  On balance, the Tribunal is satisfied that the evidence weighs in favour of the applicant.

13. 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 not be cancelled.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not 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.