Lei (Migration)

[2019] AATA 5070

Lei (Migration) [2019] AATA 5070 (14 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hiu Ching Lei

CASE NUMBER:  1821508

DIBP REFERENCE(S):  BCC2018/147265

MEMBER:Christine Kannis

DATE:14 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 14 July 2019 at 1:37pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in previous Working Holiday Visa application – fabricated information regarding three months regional work – incorrect information provided by migration agent without applicant’s knowledge or consent – applicant complicit, negligent and recklessly indifferent – adequate steps to ensure correctness of application not taken – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 98, 99, 100, 101, 104, 105, 107, 109, 140
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 visa under s.109(1) of the Migration Act 1958 (the Act). The Subclass 500 visa was granted on 1 August 2017.

2. The Department received information indicating that the applicant may have provided incorrect information in a previous visa application for a Subclass 417 Working Holiday visa.  The applicant applied for a (second) Subclass 417 visa on 23 July 2016.

3. On 15 June 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 delegate considered the available information including the applicant’s response to the NOICC and on 18 July 2018 decided to cancel her 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 not be cancelled.

5. The applicant appeared before the Tribunal on 11 June 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

6. 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

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

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

10. 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.

11. 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 17 August 2016 and ceased on 27 July 2017.  Section 107A of the Act allows for cancellation of a current visa if there has been a non-compliance with a previous visa.

12. 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.   

13. The Working Holiday visa application (lodged by the applicant on 23 July 2016) form included the following questions and answers:

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

    A:        Yes

    Q:       If Yes, in which industry did this mainly occur?

    A:        Agriculture, Forestry and Fishing

    Q:Do you have approved evidence that you have undertaken specified work in regional Australia for a total of 3 months?

    A:        Yes

    Q:       I declare that the information in this form is complete, correct and up-to-date.

    A:        Yes

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

    ABN  38768554802

    Postcode   6401

    Start date   14 September 2015

    End date   29 December 2015

15. On 17 October 2017 the Department was advised by Double G Farms, the business registered under ABN 38768554802, that it had not employed anyone under the Working Holiday program and the delegate decided that the applicant had fabricated information that she worked there for the period 14 September 2015 to 29 December 2015 to facilitate the grant of the Working Holiday visa.

16. The above matters were particularised in the s.107 notice sent to the applicant on 15 June 2018.

17. On 9 July 2018  the applicant provided the following information in response to the NOICC:

    • She acknowledged that her second Subclass 417 visa application contained incorrect information.
    • She was shocked to find that her second Subclass 417 visa application stated that she worked for Double G Farms for the period 14 September 2015 to 29 December 2015. She had never worked for Double G Farms.
    • While on her first Subclass 417 visa she briefly worked for a greenhouse farm, The Green Bamboo. She obtained this employment through Micaya Enterprises Pty Ltd (ABN 52154836807) and she was employed to pick plants. This was a paid position and a pay slip for the period 11 April 2016 to 24 April 2016 was provided.
    • She was unable to complete 3 months paid employment with The Green Bamboo because after April 2016 this employer was unable to give her further shifts as they could not afford to continue paying her. She became worried about the effect this may have on her second Subclass 417 visa application.
    • She was unclear about meeting the eligibility criteria for a second Subclass 417 visa. She reached out on Facebook for Chinese migrants in Australia to ask whether anyone else was in her position. She was approached by Amy Chen, who purported to be a migration agent registered in New South Wales. Ms Chen said she would find work for her and would also assist with the visa application. Due to her uncertainty of the immigration requirements, her limited English and the stress her situation was causing, she accepted Ms Chen’s offer to provide immigration assistance.
    •  She was asked to pay for Ms Chen’s services by transferring money to a bank account in the name of Chih-Hsiang Wu who was another migration agent working at the same agency and who would also be providing immigration assistance.  Snapshots of messages in Chinese (not translated) from Ms Chen were provided.
    • Most of her correspondence with Ms Chen was conducted through a Chinese messenger App. The vast majority of messages were on her old phone. She still had her old phone and she was in the process of obtaining screenshots of the messages, which were in Chinese. She was attempting to have them translated.
    • She provided the documents Ms Chen requested for her application and was told she would organise completion of the application form and upload everything to the immigration website on her behalf. She believed Ms Chen was authorised to provide immigration assistance.
    • She was by herself at the time and Ms Chen was the only person helping her. Ms Chen found her work at a restaurant.
    • She asked Ms Chen on numerous occasions about the details of her second Subclass 417 visa but was repeatedly told that Ms Chen and her agency would handle it. Ms Chen did not send a draft of the application or details of the documents being lodged for her to review prior to lodgement. As such she did not know that incorrect or misleading information had been provided to the Department.
    •  The incorrect information was provided without her knowledge or consent and had she been aware of this she would have alerted the Department.
    • Since lodging the application Ms Chen has not responded to her messages. She is seeking to obtain further information regarding the migration agency that Ms Chen purported to represent.
    • She is studying a Diploma in Childcare.  She has seven years experience in teaching kindergarten age children in her home country and found it an inspiring experience being able to broaden her understanding of the field through her Australian education.
    • Two years have elapsed since the non-compliance and she has otherwise complied with all conditions imposed on her previous and current visas.
    • There are compelling reasons for the Department to not cancel her visa. The provision of incorrect information was neither wilful nor inadvertent. She did not authorise the submission of incorrect information and only became aware of it on receipt of the NOICC. Due to her uncertain situation at the time she accepted assistance from somebody who purported to be a qualified agent and placed significant reliance on this person. She is now aware that this person may not have been authorised to provide immigration assistance.

18. At hearing the applicant confirmed the information provided in her response to the NOICC. She had not worked for Double G Farms at any time and she was not undertaking specified work in regional Australia from 14 September 2015 to 29 December 2015. She was working in a restaurant in Willetton during that period.

19. The applicant told the Tribunal that she wasn’t clear about the process of applying for a (second) Working Holiday visa and so she went online and found Ms Chen. She did not know what Ms Chen was doing but she trusted her. She paid Ms Chen for the service.

20. The Tribunal asked the applicant whether she requested Ms Chen to provide the application form before lodgement so she could check the information before it was submitted. She said she did ask but she used her old mobile phone when communicating with Ms Chen and she had been unable to retrieve the messages. Many mobile phone shops in Perth have told her that the phone is too old and the messages would be gone. The applicant said Ms Chen showed her the blank application form and told her she could log on to her Immi account to view her application. She said when she logged on she could see her application but she could not see the details provided on the form.

21. Following the hearing the applicant provided two undated translated messages. One message referred to money transfer information and the other queried the progress of a second visa. In relation to these messages the applicant said:

    Lastly I have attached the Certified translation about the conversation between myself and the migrant agent (Amy Chen and also Murray, Chih -Hsiang Wu)

    During the conversation, I requested the help /service from Amy to help me to find the work for 2nd visa. She replied me not to worry and she will organize everything for me. I only saw the blank application form and I didn’t have the record /viewed the completed application form

    In the hearing, i was asked if i have the seen the completed application form and if I have the conversation between myself and the agent

    I was bit confused and replied no which was referred to the first part of question. but In fact, I have 2 photos of screen shots of the conversation between myself and the agent. (which was submitted with the appeal application)

    I tried to find the full conversation between myself and the migration agent, but it was stored in my old phone which It cannot be fixed.

    I only can access few print screen photos (with agent details and bank details) which had Been forwarded to my other mobile during the visa application.

    I was fully relied on the migrant agent at that time and she had asked me to log in the immigration account to view online application, I did log in and checked but did not find the full application form.

    And she didn’t provide the copy of completed application to me.

    I don’t have any records /copy of the application once she lodged in the application on behalf of me .

22. The applicant told the Tribunal the only specified work that she has undertaken in regional Australia was when she worked in a hot house at The Green Bamboo in April 2016. She has worked in several jobs since being in Australia including working in restaurants, working at Optus Stadium and working for Belmont Catering Company.

23. The applicant said she has suffered trauma during her life due to nearly being raped in her first love and domestic violence in her family. She said there is violence between her parents and also between her and her family. She has seen a therapist at Anglicare on one occasion in April 2019. The therapist said her previous trauma affects her decision making and causes her to hesitate when making decisions or to mistakenly believe in someone.

24. The Tribunal asked the applicant about the treatment she has received with respect to her previous trauma. She said she saw a counsellor once and a therapist once, both in April 2019. She had appointments booked for May 2019 however because of her study commitments she had to reschedule them and has not yet seen the therapist again. Following the hearing the applicant provided a letter dated 11 June 2019 from Anglicare advising the applicant had attended for intake on 7 March 2019 and counselling on 11 April 2019. No details of a diagnosis or treatment were provided.

25. The Tribunal put to the applicant that despite her previous trauma she has worked in several jobs and has undertaken study in the four years she has been in Australia. She agreed but said she had suffered stress which caused her to throw things around and bang on the walls at times.

26. 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 work in regional Australia and that she had evidence of undertaking this work. She did not have this evidence. She provided further incorrect responses when she stated that she had worked from 14 September 2015 to 29 December 2015 for an employer with an ABN of 38768554802. The Tribunal finds the applicant completed her application form in a way that incorrect answers were given.

27. 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.

28. 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.

29. 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.

30. 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?

31. 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).

32. 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.

33. 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.

34. The applicant was informed at the beginning of the hearing that each of the r.2.41 prescribed circumstances would be considered by the Tribunal and also any other relevant facts and matters.  The Tribunal has had regard to the documentary evidence the applicant provided and also to the oral evidence given by the applicant at the hearing.

35. The Tribunal has taken these matters into account when considering the discretion.  The Tribunal has also taken into account that had the incorrect information not been provided – and the correct information had been – relating to the regional work requirement, the Working Holiday visa would not have been granted in 2016.

    The correct information

36. The applicant was granted the Working Holiday visa on 17 August 2016 on the basis that she had worked for at least 3 months in specified work in regional Australia. The applicant was asked at the hearing what the correct information was relating to her work in a regional area at time she lodged the application.  She said she did not work in a regional area during the period from 14 September 2015 to 29 December 2015 as she had indicated in her application. 

1. 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. 

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

   The content of the genuine document (if any)

3. 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

4. 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.

5. 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

6. The applicant said her agent provided incorrect information on her application form. The Tribunal asked the applicant whether she asked her agent if she could check the information provided on the application before it was submitted to the Department. She said Ms Chen told her to log on to her Immi account but when she did so she was unable to see the completed details on her application form. Whether or not this was the case the applicant did not take any further action to ensure her application was completed correctly.

7. The Tribunal finds the applicant’s submission that her agent provided the incorrect information problematic. 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 requested to check the entire application before its lodgement and required the agent to provide a draft copy of the form. 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.

8. 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.

9. The Tribunal acknowledges the applicant’s evidence that her previous trauma has adversely affected her decision making ability. The Tribunal noted however that the applicant has been able to undertake employment, undertake study and enter a committed partner relationship in Australia. She was also able to competently participate in the hearing.

10. The circumstances in which the non-compliance occurred, including the applicant’s reliance on her agent and claimed impaired decision making, are not accepted as justifying the non-compliance.

    The present circumstances of the visa holder

11. The applicant became engaged to be married on 6 April 2019. She lives with her fiancé and a flat mate. Her fiancé financially supports her. They have been in a relationship for two years and were to marry on the Sunday following the hearing (16 June 2019).

12. The Tribunal asked the applicant the reason for the timing of the marriage. She said it is because she loves her fiancé. The Tribunal asked whether her fiancé will depart Australia with her if her visa is cancelled. She said he would remain in Australia. The Tribunal informed the applicant that if her visa is cancelled she may want to apply for an offshore Partner visa. She said her lawyer had advised her about an offshore application.

13. The applicant told the Tribunal she is studying a Child Education Diploma course. She commenced the course in 2017. If her visa is cancelled and she has to depart Australia she will not receive any credits for the written work she has completed if she resumes her study in Australia at a later time. She has not undertaken the practical component of the course and will have to study the entire course if she returns to Australia following cancellation of her visa. The Tribunal notes that if the visa is cancelled the applicant may be subject to an exclusion period which may delay her study plans.

14. The applicant said she can earn more money in Hong Kong with a Child Education Diploma qualification. She cannot undertake similar study in Hong King because of the associated costs. If she returns without the qualification she will have to work very hard to support her father and younger sister. Her father is emotionally unstable and her younger sister has cognitive problems.

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

15. 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:  

16. 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

17. It has been nearly three years since the applicant provided incorrect answers. The Tribunal does not consider this to be a significant amount of time.

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

18. 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

19. The applicant told the Tribunal she tries to help people and said she has given food to beggars on the street. She said she is very enthusiastic to help the community.  Following the hearing an undated letter from Mr Aaron Smith of HeyMuzo saying the applicant participated in music sessions and acoustic jams was provided. Mr Smith said the applicant had helped people with busking in and around Perth. A handwritten letter from “Richard” was also provided. Richard thanked the applicant for singing songs for him. The applicant advised that this was feedback from street people (Richard) under the “volunteer visit spontaneously by myself”. The Tribunal gives this minimal weight in favour of not cancelling the visa.

20. Following the hearing the applicant provided evidence of two posts on showaround.com dated in May 2019 and June 2019. The posts referred to being shown around Perth sites and one mentioned “Lei”. The applicant did not mention her involvement in such activities at hearing. Following the hearing she advised that she volunteered to be a guide and has participated in this activity on two occasions. The Tribunal gives this minimal weight in favour of not cancelling the visa.

21. 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.

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

    Other considerations

23. 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.

24. 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

25. 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. 

26. 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.

27. 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 very 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

28. 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

29. When asked about the hardship that may be caused by cancellation of her visa the applicant said her family would be disappointed because they have high expectations of her. If she returns without a Child Education Diploma qualification she will have to work non-stop to support her father and younger sister.  When asked how her father and sister are paying for their living expenses at the present time the applicant said her sister is currently missing. She said she previously sent money to her father from Australia and now her fiancé sends him money. She said her father has no other source of income.

30. Following the hearing the applicant provided a letter from her best friend, Kiu Yeung Law, who said the applicant was incredibly remorseful for breaking the law. A letter from a previous employer was also provided as a character reference.

31. At hearing the applicant did not say that hardship will result if she is separated from her fiancé whilst an offshore Partner visa application is being processed. Following the hearing he applicant advised:

    The wedding registration date was postponed from March to April and then June because of my psychological health issue. I am very appreciate my partner understanding my situation. In face I m heavily psychological and financially relied on my partner. I am bit worry if I have to separate with my partner .

32. The Tribunal accepts that there is at least a possibility that if thevisa is cancelled there may be a period of separation between the applicant and her fiancé which may cause them some level of inconvenience or hardship.  However, the Tribunal does not consider it to be significant in the circumstances.  That is, the Tribunal’s view is that the applicant and her partner could make other arrangements if they were motivated to do so including temporary relocation or undertaking regular visits.

    Conclusion on the exercise of the discretion

33. 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.

34. The Tribunal accepts that there are no other known instances of non-compliance and no other known breaches of the law. The Tribunal accepts that certain hardship may be caused by the cancellation because of her reduced earning capacity in Hong Kong without an Australian qualification and because her family will be disappointed. The Tribunal accepts, although it was not raised by the applicant at hearing, that hardship may be caused by a temporary separation from her fiancé. 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.

35. 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.

36. 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. In the Tribunal’s view, the fact that the decision was based on incorrect answers outweighs other considerations.

37. 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

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 visa.

    Christine Kannis
    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.