Li (Migration)

Li (Migration) [2020] AATA 4308 (31 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT 1:  Ms Chia-Min Li
CASE NUMBER:  1804308
DIBP REFERENCE(S):  BCC2017/4475687
APPLICANT 2:  Mr Chun-Yu Hsieh
CASE NUMBER:  1805362
DIBP REFERENCE(S):  BCC2017/4165314
MEMBER:Rachel Westaway
DATE:31 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicants’ Subclass 500 (Student) visas.

Statement made on 31 August 2020 at 6:29pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in previous Working Holiday (Extension) (Class TZ subclass 417) visa application – specified work in regional area – consideration of discretion – grant of visa based on incorrect information – circumstances giving rise to non-compliance – signed a blank form – responsibility of visa holder – significant breach – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 417.211
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of two decisions made by a delegate of the Minister for Immigration to cancel the applicants Subclass 500 (Student) visas under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the applicants’ visas on the basis that Ms Chia-Min Li and her now husband Mr Chun-Yu Hsieh had provided incorrect information when they applied for an extension for their subclass 417 working holiday visas. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicants appeared before the Tribunal on 22 August 2019 to give evidence and present arguments. The Tribunal confirmed with the applicants and their migration agent whether they would like their matters heard concurrently and they stated they would. Each applicant was afforded the opportunity to provide their own evidence and supporting evidence for each other. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicants’ visas should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.107A, namely possible non-compliances in connection with a previous visa may be grounds for cancellation of the current visa.
The applicants were sent a Notice of Intention to Consider Cancellation under section 109 of the Act on 11 January 2018. The notice outlined that on 28 January 2015 Ms Li lodged an application for an extension of a subclass 417 Working Holiday (Extension) visa online and on 8 June 2015 Mr Hsieh lodged the same.
In response to the question whether the applicants had undertaken specified work in regional Australia, for a total of 3 months, both answered yes. It also outlined the details provided. These included the ABN of the company, post code and start date of 11 May 2014 to the end date 24 August 2014 for Ms Li and 29 December 2014 to 10 April 2015 for Mr Hsieh. It also specified that under the declaration both confirmed again with the response ‘yes” that they had completed 3 months specified work on their first working holiday visa. Based on this information the delegate assessed the applicants had met the criteria.
On 5 October 2017, the Department received a written notice from the company trading as ABR Farming that Ms Li had never worked there and similarly on 23 October 2017 the company trading as Brill Farms confirmed with the Department that Mr Hsieh had not worked there for the period in which had told the Department he had. Both applicants were given an opportunity to respond.
Ms Li responded on 29 January 2018. The applicant explained that a friend gave her the contact of a person called Kim at the business. She stated that “nothing happened like payroll” and that someone came to her and said that if you pay for the application fee then she can apply for a second visa and she stated that it was assessed quickly, the same as her husbands. She claims she had no reason to doubt its legality. She stated that she then returned to her own country with her husband for approximately 5 months however she also worked in a patisserie shop and she was interested in this and wanted to study in this field.
On 2 August 2019, the Tribunal invited each applicant under s.359a of the Migration Act to comment on information which would be the reason or part of the reason for affirming the decision under review. The information put to each applicant was the details pertaining to the dates which they claim they were employed by the relevant business when these businesses confirmed that they were not in fact employed by them. It was explained to each applicant why this information was relevant to the review and constitute grounds for cancelling the visas.
On 22 August 2019 the Tribunal received a response for Ms Li. The covering letter stated it was for applicant 1 being Ms Li and Applicant 2 being Mr Hsieh.
Both applicants confirmed that they had provided incorrect information, namely that they had undertaken specified work in regional Australia for a total of three months. Based on this information, they were granted an extension to their visa.
The submission outlined Ms Li had applied for a student visa subclass 500 and Mr Hsieh was the secondary applicant. The representative confirmed that the submission was a joint submission and that the applicants had agreed to have the matter heard and decided concurrently. It stated both applicants accept that grounds for cancellation exist as incorrect information was provided which led to the granting of a previous visa.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the two applicants in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicants under s.107 of the Act, it is necessary to consider whether the visas 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).
In exercising this power, the Tribunal must consider the applicants’ responses (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances. The prescribed circumstances are set out in r.2.41 of the Regulations.
The applicant’s requested that their submission, review and attendance and evidence provided to the AAT be heard and considered together. As such, the Tribunal has prepared this decision for both applicants but has assessed each applicant individually.
Oral evidence was taken from both applicants and the Tribunal has also considered the combined submission and response to the s. 359(a) letter.
Ms Li stated that she has paid for her education costs in the past and has worked hard to be able to afford this. She claims to have wanted to study a Certificate IV in Patisserie at Tafe.
Mr Hsieh responded to the Department on 19 January 2018 however the delegate erroneously stated 2017. He stated that his wife recommended he undertake work at the business. He also stated that the supervisor was called Kim.
His response was then identical to that of his wife’s, Ms Li as outlined above
They state that apart from the incorrect information in these two applications, they have not supplied incorrect information in any other applications. They claim to have made a total of seven visa applications.
They claim that their situation merits compassionate consideration because Mr Hsieh is on a bridging visa hoping to remain with his wife whilst she completes her studies. He has irregular part time work and struggles to make sufficient income to meet their basic living requirements. Ms Li’s completion of her studies has been delayed and her graduation is therefore delayed. Should the visa be cancelled, this will compound the situation.
They claim they have not done anything else wrong when on previous visas nor has there been issues of noncompliance. They also state that more than four years has lapsed since non-compliance.
They accept that the core criterion for the grant of the extension to the working holiday visa was to complete three months of specified regional work.
They identified another decision made by the Tribunal which they said indicated that unlicensed people claiming to be agents were taking advantage of people such the applicant. They stated that they believe all other information provided was correct.
They stated that the circumstances require compassionate consideration. They detailed Line messages showing they tried to consult a migration agent at the time of the NOICC.
Ms Li provided the Tribunal with a statutory declaration. She stated that she met a man called Murray Li and he told her he was a professional agent who could obtain a second working holiday visa. She said that she told him she did not think she qualified, and he said that it is the only way in which she can remain in Australia. She explained that she arrived in Brisbane on 9 March 2014 on her first working holiday visa. In November 2014 she had contact with a friend who is now her husband and the other applicant, Mr Hsieh. They travelled to Sydney and also worked in Orange. She explained that her visa was due to expire in 3 months and she feared being separated from her boyfriend. She was told the only way to remain was to obtain a second working holiday visa. She now states that she understands that the information she received was not quite correct.
She said that she obtained information from a man called Murray Wu. She said she was sceptical that he could do it, but he obtained an extension in January 2015. Given the success, her husband also applied. She explained that she returned to Taiwan before her second working holiday visa expired. She then returned to Australia on a visitor visa and she stated that she studied a language course between May 2016 and October 2016. They both returned to Taiwan in October 2016 and returned to Australia in March 2017 on a subclass 500 student visa.
The applicant supplied a copy of communication with Murray from Line. It is dated 11 January 2018. This is the same date as the NOICC. It commences asking Murray what Customs Officers might do regarding her student visa. The applicant asks for help obtaining documentation. Murray writes that he has explained the situation to Mr Hsieh (the applicant’s then boyfriend). Murray writes that the farm cannot provide cover. It said that the farm said they will not report any information voluntarily and will try not to answer enquiry phone calls anymore. He stated that providing documents from the farm will have limited effect given the farm is not prepared to provide sponsorship.
Murray stated that he will arrange for a uniform response. The explanation will be that work on the farm was organised by a foreman and that the applicant did not know the name of the foreman and all work and payment was organised through this person. Murray stated that the applicants should not respond to the letter yet. He also stated that if their visa is cancelled, they will obtain a bridging visa and can remain in Australia for 8-12 months and work legally. Murray then went on to provide details of what they did not the farm for a consistent response to Immigration if they were asked. Murray goes on to state that if they prefer to return to Taiwan then their visa will not be cancelled, and he can teach them tricks to return and exploit loopholes such as changing their name on their passports.
The applicants provided a copy of Ms Li’s statement of course enrolment at TAFE NSW for an Advanced Diploma of Hospitality Management. Her attendance at the course was 97.37% in Semester 2 2017. Semester 1 2018 was 38.71% however the title on the page states attendance Semester 2 2017 which causes the Tribunal concern about the legitimacy of the document. Two further attendance forms are supplied which also state they are for Semester 2 2017.with attendance at 83.33% and 84.62%.
A certificate of enrolment for the Advanced Diploma and the Diploma of Hospitality were also provided for studies from July 2018 through to June 2019.
the correct information
The Tribunal has considered the email received by the Department from the claimed employer of the applicants which confirmed that neither applicant had worked for them for the required three-month period in order to meet the requirements of the visa. This information was put to the applicants separately under s359(a) of the Migration Act. The applicant provided a combined submission and separately at hearing confirmed that they accept that the incorrect information was supplied to the Department in the applications. The correct information was that they did not undertake specified regional work for a period of three months in the dates they both specified in their applications. Whilst both applicants stated at hearing that they worked at the accommodation and food exchange in Orange for a few weeks together and detailed the work. The second applicant stated that this was correct. He said that they asked him to do more labouring jobs and cleaning where the animals live. He said that he watered the plants and turned the soil. He said that they had a restaurant and they ran their own farm and taught them how to make pancakes. However, they were not able to provide any evidence to support this claim that it met these requirements. Both applicants stated that they were aware that the incorrect information was provided.
The Tribunal gives this factor minimal weight because the information supplied was incorrect and not supplied by the applicants.
the content of the genuine document (if any)
This factor is not relevant as no genuine document was provided for consideration and as such, I give this factor no weight for either applicant.
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
Regulation 417.211 requires that if the applicant is the holder of a subclass 417 visa, the Minister is satisfied that the applicant has carried out the specified work during the period or periods in regional Australia for at least three months equivalent of full-time work and remunerated for it.
Both applicants confirmed that they had not undertaken the specified work based on the requirements in regulation 417.211 for the grant of the 417 Working Holiday Extension visa. As this information is central to the grant of the visa and the applicants both confirmed that they had not undertaken the work, the Tribunal finds that it was central to the grant of the visa and had the correct information been supplied then the visa would not have been granted. As such, the Tribunal gives this factor minimal weight in the applicants’ favour.
the circumstances in which the non-compliance occurred
Ms Wang the representative explained that her clients want a combined hearing and that Ms Li would start first. At hearing Ms Li explained that she is from Taiwan and she is 28. Applicant 2, Mr Hsieh is her husband and they have been married since 2016. He is also from Taiwan.
She accepted that she provided incorrect information. She explained that she came to Australia for a life experience. She had been to America on a working holiday for 6 months. After her graduation she wanted to travel and see the world. After America she returned to Taiwan. Her school mates were speaking of Australia. After discussions with her parents she travelled to Australia. She stayed in Brisbane for 6 months. After 6 months she went travelling. She stated that she was working in exchange for accommodation and food and she said that she did this and thought it meant you don’t need to work on farms. She stated that around October she met her husband through Facebook and Line – they knew each other from High School. He decided to come to Sydney. She wanted to stay in Australia and also experience the country with him. She investigated the opportunity to go to rural areas through a website in order to extend her stay. She found a place in Orange and she had to work for 4-6 hours a day in exchange for food and accommodation. The type of work required involved planting, office work, turning soil and feeding the animals. Her relationship with her now husband developed, and she reconsidered her plans for the future. She had only three months left on her visa and wanted to stay longer.
She said she did not know about the law in Australia and she asked friends how she can stay. Her husband joined her, and she was conscious he had a bit more time on his visa and she did not want to leave him. She stated that she had a bad experience with long distance relationships, so she searched for ways to remain. She found an agent called Murray through friends.
Murray stated she could extend her working holiday visa and checked with her what places she had been and what type of work. He said that she was eligible to apply for the extension, so she and her husband went to see him. He was the only person they could find at the time and so they followed his instructions.
She was asked if she knew she did not meet the requirements for an extension. She explained that she believed the agent. He said that he knew farm owners and all they needed to do was to provide their personal information.
They saw him once and they just responded online and paid him. After the documentation was complete, he asked them to sign some forms however they were blank, and he said he will take care of the rest. The Tribunal explained that by signing a document with no information is problematic and no reasonable excuse for providing incorrect information.
She stated that she has been here a long time and she has met agents and lawyers and she understand now the error and she is very sorry.
She was asked at what point in time did she realise she had provided incorrect information. She said that it wasn’t until they finished the extended visa and they understood there were other ways to remain and she realised that what he did was wrong.
She said when her visa was about to expire, she returned on her own to Taiwan and her husband remained for longer in Australia and did temporary work. She explained she was only going for a month and she was looking for other ways to return and remain. She found another agent and applied for a student visa and this is the visa which has subsequently been cancelled. She stated she wasn’t sure what was correct or not in the previous visa, but she understood there were other ways to return. She said that the student visa would allow her to remain for up to three years. However given she only wanted to come to meet her husband initially, she applied for a visitor visa and later applied for a student visa.

Mr Hsieh confirmed they both met with Murray. He stated he also signed a blank form. He explained that it was not until he was issued with the Notice of Intention to Consider Cancellation that there was an issue with the visa application. The Tribunal asked the applicant why he was not truthful in his response in the Notice of Intention to Consider Cancellation and he said he knew it was incorrect but they asked for a response with a due date and he said they had no time to investigate.
He was asked why he applied for a second working holiday visa. He explained that he was with his wife for such a short period of time and they wanted to experience more places together. He said that because she successfully applied for the extension visa, he copied her. He was asked if it ever occurred to him that the information was incorrect. He said that he went with his wife to see Murray in person and he understood that they both wanted the same thing. He confirmed that he supplied his information and application a few months after his wife did.
The Tribunal accepts that the applicants wanted to remain in Australia longer and to be together. It accepts that they met a man called Murray who provided them with advice regarding how to apply for the extension of their working holiday visa and that this person may have provided them with a blank form to sign and was not providing accurate information and misled them. The Tribunal also accepts that the information provided may well have been prepared by Murray on the blank form signed by the applicants. Notwithstanding this, the applicants are responsible for their own documents and applications and provision of correct information. It is reasonable to expect that by signing a blank document, they may well be placing themselves in a compromised situation which did in fact occur. This decision was made by each applicant separately and at different times but with their knowledge that they were signing a blank form. The Tribunal therefore gives this factor minimal weight in favour of the applicants. Furthermore, the use of a person who misled them is unfortunate, but it rests with the applicants to ensure they use registered migration agents. The tribunal gives this factor only some weight in favour of the applicants. In considering the fact that the couple were motivated by wanting to be together, the Tribunal does not consider this a reasonable excuse to provide incorrect information and as such gives it no weight in favour of the applicants.
the present circumstances of the visa holders
Ms Li is studying and was due to finish in December 2019 and her husband has periodic casual work. They saved $25000 to pay for her studies and she claims that this money goes back into the Australian community. The delay in study and graduation is “out of her control” and she has asked the Tribunal to consider this.
Ms Li stated that she is on a bridging visa whilst studying. She has completed a Certificate IV in Patisserie. The Tribunal noted that she had an attendance record she explained that one is 38.71% and she said that she had her visa cancelled and she was trying to find a way to continue to study as well. She said that the head teacher also knew about her situation. They allowed for an extension on her tuition. She has continued her studies and has now completed her Certificate IV and is trying to complete the Diploma in Hospitality. She said that her husband and family support her and she is very grateful to them. She confirmed her studies will be completed at the end of the year.
Mr Hsieh explained that he has limited work opportunities and undertakes casual labouring roles. He confirmed that he does this to support his wife who is studying because she cannot earn money. He wants to remain in Australia until she is able to finish her studies. He said that she is expected to finish in December 2019. He said that he is only staying here to be with his wife. She wants to start a business with her younger brother, and it will be a coffee and dessert place which is popular in Taiwan.
The Tribunal explained that the attendance reports provided by MS Li have significant typos and it is hard to give them weight. The applicant asked if she can speak to her representative and the Tribunal allowed this. The applicant then stated that she is sorry, and she did not notice, and she wanted to provide this urgently and she is sorry it was not checked. She stated that sometimes the school timetables are incorrect. She said that it may be a system error.
The Tribunal notes that Ms Li is studying and has completed some studies at the time of hearing and should at the time of decision have completed her studies. Notwithstanding this, the Tribunal does not afford a significant amount of weight to this reason as a cancellation by its very nature is there to deter people from providing incorrect information which enables the grant of a visa which otherwise may not be granted. Furthermore, a delay in studies whilst problematic could be addressed by studies either via distance, in the applicant’s own country or at another time or in her own country. Whilst this may not be at ideal, within the time frame the applicants wants or at a standard the applicant wants, it would still be possible.
Ms Li stated that she has put all of her money into her studies in Australia so she could not study back home. She explained that her representative has organised that she has study rights, so she has cherished this. She explained that she has one semester remaining to complete and she has paid her tuition for this semester and she has undertaken five weeks.
The Tribunal notes that the Ms Li is likely to have now completed her studies and given there is only one semester left, if she still had any outstanding subjects, she could save to complete these at a later date. Whilst it would not be ideal, it is possible.
The Tribunal has considered Mr Hsieh’s reasons for staying with his wife and the Tribunal affords minimal weight to this in favour of Mr Hsieh because of the seriousness of providing incorrect information and the fact that a cancellation stands as a deterrent to providing incorrect information. Furthermore, should his wife’s visa be cancelled and/or studies be completed (they are now due to have been completed), there is no further reason why Mr Hsieh would need to remain in Australia on the visa.
In consideration of the issues raised by both applicants, for the reasons outlined by the Tribunal, it gives minimal weight to not cancelling their visas.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal gives this consideration minimal weight in favour of the applicants. Both applicants responded to the NOICC. Mr Hsieh stated in his response to the NOICC that he thought the information was correct. Ms Li did not deny they provided incorrect answers but rather put forward reasons for why they were provided. Both applicants responded in a timely manner to both the Department and the Tribunal and responded to all requests for information.
any other instances of non-compliance by the visa holder known to the Minister
They both stated that they have not breached other conditions on their visa or previous visas. There is nothing before the Tribunal to suggest otherwise. The Tribunal gives this factor some weight in favour of both applicants and not cancelling the visa.
the time that has elapsed since the non-compliance
The applicant confirmed that four years has passed since the breach. This is a considerable period of time in which neither applicant would have been entitled to have remained in Australia. As such, the Tribunal gives this factor minimal weight in favour of either applicant.
any breaches of the law since the non-compliance and the seriousness of those breaches
There is nothing before the Tribunal pertaining to this and both applicants have stated that they have not breached any laws. As such the Tribunal gives this factor some weight in its considerations in favour of the applicants.
any contribution made by the holder to the community.
The applicants stated at hearing that Ms Li’s education and associated spend could be considered an economic contribution. Mr Hsieh stated that he spends most of his time with his wife so she can answer. The Tribunal encouraged him to speak. He was asked if he does voluntary work as he is a home maker. He said he lives in someone else’s house. During his spare time he cleans and takes out the rubbish. On school holidays he stated he and his wife travel and spend money, and this contributes to the economy. He could not recall the names of the towns they have visited but he stated this was a contribution.
Ms Li stated that they have been in Australia on and off for 6 years. She said that apart from being an international student and paying fees, she does casual work and business owners pay tax and she contributes through this.
She said that her husband has taken her everywhere except the Northern Territory and they want the experience this and then they will return to Taiwan.
She said they saves her money to use on trips away. Her parents and her husband’s work. They had previously saved money to travel around and they appreciate the opportunity.
Whilst the Tribunal acknowledges the benefit of both applicants’’ economic contribution to Australia, the breach is a significant breach and the applicants could have come to Australia on a more relevant visa to travel and spend money. There Tribunal gives this minimal weight in favour of not cancelling the visa.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
Both applicants would be subject to a s 48 bar and would have limited options to remain in Australia should their visas be cancelled. They would need to apply for bridging visas to as remain onshore and prepare to leave. Until this time they would be unlawful citizens and may be liable to be detained under s 189 and s 198 of the Migration Act if they do not voluntarily depart Australia. They would also be subject to Public Interest Criterion which would mean they would not be to apply for a visa to Australia for three years.
Whilst the Tribunal considers these consequences to be hard for both applicants, they are the intended consequences of a cancellation and are there to protect the integrity of the immigration system and deter applicants providing incorrect information on their applications. As such the Tribunal affords minimal weight in this regard to either applicant in not cancelling their visas.
whether there would be consequential cancellations under s.140
If Ms Li’s visa is cancelled, her husband is also on a visa in Australia as her spouse and this would impact him but not lead to an automatic cancellation. Notwithstanding this, he has stated that he is here for the main purpose of being with Ms Li and would likely return with her. Mr Hsieh and Ms Li’s visas are under review and whilst the Tribunal is reviewing these two matters within the one document, they are two separate decisions. In consideration of Ms Li, the Tribunal gives this factor limited weight given she has only one semester remaining at the time of hearing and is likely to have completed her studies now so the time they would be separated would be minimal if anything.
If Mr Hsieh’s visa was cancelled and his wife’s visa was not cancelled, it would mean it is likely that they would be separated until she returned home. Given she is expected to have now completed her studies and has had study rights afforded to her, the impact would be minimal as stated above. The Tribunal gives this matter limited weight in favour of Mr Hsieh and not cancelling the visa.
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.
The applicants have not raised any reasons for consideration pertaining to international obligations and the Tribunal has not been informed of any children. The applicants stated that there is no reason they would not return to Taiwan. The Tribunal gives this factor no weight in the consideration of whether to cancel the applicants’ visas.
any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
Ms Li explained they have spent their saving on her studies and their parents would like to see her complete the studies and return and if she does not graduate it is a waste. Ms Li stated that she has completed the Certificate IV in Patisserie. She is now undertaking an advanced diploma course. She was asked whether she could still work with her brother with a certificate IV. Her major was related in hospitality and she said that the advanced diploma is a safety net in case the business fails.
She was not certain about the length of the process and when it finishes. She said she has learnt that the coffee culture is different in Australia than in Taiwan. She said that she is not required in Taiwan to have these qualifications and so it will be an added and provide a point of difference. She said that the food industry in Taiwan loves Australia.
Ms Li stated that she was nervous. She received the NOICC in January 2018. She explained that when she was in Taiwan, she realised there were other ways to return. She also stated that when she received the NOICC she could not find anyone else to help her. She spoke to her agents and they said they could not help so she went to Murray.
She said that her husband mentioned that there was a time frame to make a response. She said they didn’t know that they could extend the time for the response, so they were desperate and went to Murray.
Murray disappeared and then they found their current representative. They have more understanding now. After this they learned it was important that they must not sign things they know nothing about, and it is wrong to provide incorrect information and that they must find qualified agents. She would like to have the visa granted and she can finish her studies and return.
Mr Hsieh was asked if he would like to add anything further as the consequences are just as serious for him. Mr Hsieh said he has said everything, and it is the same as his wife’s.
Ms Li said she is very sorry about the incorrect information and she has remained here, and she has applied for 7 visas and all applications were correct and she is sorry, and she wants to stay and study.
The Tribunal notes the remorse displayed by both applicants and has considered the pressure they state they were under and the migration advice provided by a non-registered person. The Tribunal understands that a cancellation is disappointing for family as well as the visa applicants. Notwithstanding these issues, the breach is significant, and the Tribunal affords minimal weight in favour of both applicants and not cancelling their visas.
Conclusion
The Tribunal has decided that there was non-compliance by the applicants in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, individually and cumulatively for each applicant as discussed above, the Tribunal concludes that the visas should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicants Subclass 500 (Student) visas.
Rachel Westaway
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.

[2020] AATA 4308

31 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction