LIN (Migration)

[2020] AATA 617

LIN (Migration) [2020] AATA 617 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YU-SHENG LIN

CASE NUMBER:  1818529

DIBP REFERENCE(S):  BCC2017/4683370

MEMBER:Antoinette Younes

DATE:2 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 02 March 2020 at 3:40pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – incorrect information – did not work in regional area – working in Australia – wants more time to earn money – doubts regarding applicant being genuine student – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107
Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

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

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

4. The applicant appeared before the Tribunal on 27 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. 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

6. 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.

7. 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.

8. 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?

9. 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.

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

11. Section 101 of the Act provides that:

    Visa applications to be correct

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

    (a)   all questions on it are answered; and

    (b)  no incorrect answers are given or provided.

12. Section 107A of the Act provides that:

    Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    The possible non-compliances that:

    (a)  may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)  if so specified, can constitute a ground for the cancellation of that visa under section 109;

    include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

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

14. In the course of the hearing, the Tribunal discussed relevant matters, including:

    i)   The applicant breached s.101(b) when applying, on 3 March 2016, for a Working Holiday (Extension) (class TZ subclass 417) visa.

    ii)     As part of the Working Holiday (Extension) (class TZ subclass 417) visa application form, the applicant provided responses to a number of questions. In response to the question Have you undertaken specified work in regional Australia for a total of 3 months? the applicant responded Yes. Under the heading Details of specified work undertaken, the applicant provided an ABN of 42001926549, postcode of 2652, starting date of 12 September 2015 and end date of 28 December 2015.  Under the heading Declaration, the applicant confirmed that, I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa.

    iii)   Based on the information provided by the applicant, the visa was granted on 15 March 2016.  He was granted the subclass 500 student visa on 2 May 2017, with an expiry date of 10 April 2019.

    iv)   The Department received an email from the owner of the above ABN stating that the applicant had never worked for that entity. On the basis of that information, the Department formed the view that the applicant had provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa.

    v)    On 25 May 2018, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant did not respond.

15. In the course of the hearing, the applicant acknowledged that he did not complete the required employment and that incorrect answers would be provided in the application for the Working Holiday (Extension) (class TZ subclass 417) visa, lodged by an agent.  The Tribunal asked the applicant to explain the reasons for the provision of the incorrect information.  He said he wanted to work in Australia to support his family in Taiwan.  He said he knows he has done the ‘wrong thing’ but he wants more time in Australia so that he can earn more money.

16. The applicant has acknowledged that he provided incorrect information.  On the evidence, the Tribunal finds that the applicant provided incorrect answers in response to the question Have you undertaken specified work in regional Australia for a total of 3 months? When she responded Yes, under the heading Details of specified work undertaken, when she provided an ABN of 42001926549, postcode of 2652, starting date of 12 September 2015 and end date of 28 December 2015, and under the heading Declaration, when she confirmed that, I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa.

17. 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.

18. 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?

19. 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).

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

21. 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).

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

    ·     the correct information

23. 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.

24. 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.

25. The correct information is that the applicant did not work for any period of time for the entity with ABN 42001926549, the owner of which confirmed to the Department that the applicant had not undertaken any of the claimed work.

26. The provision of incorrect information is a serious matter and the applicant knew that incorrect information would be provided in the application. His explanation that he wanted to earn money in Australia is unpersuasive. 

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

    ·     the content of the genuine document (if any)

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

29. 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

30. 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).

31. 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.

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

    ·     the circumstances in which the non-compliance occurred

33. 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 particular period of time, which was not correct.

34. The applicant knew about the incorrect information. 

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

    ·     the present circumstances of the visa holder

36. The applicant is no longer studying.  He is working and he has no family in Australia.  He told the Tribunal that he is separated from his wife in Taiwan and that he has a 7 year old daughter who lives with his parents in Taiwan.  He acknowledged that he is in Australia to work.  In fact, he asked for more time to enable him to earn more money.

37. The Tribunal appreciates that the applicant came to Australia on the student visa to study and he said he studied until his visa was cancelled.  Given his evidence that he is in Australia to work, the Tribunal has serious doubts about the applicant ever being a genuine student.  In any event, the Tribunal is satisfied that even the applicant had an intention to study, he is no longer in Australia for that reason, inconsistent with the purpose of the subclass 500 visa he was granted.

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

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

39. The applicant acknowledged that he knew of the incorrect answers and stated that he had done the ‘wrong thing’. However, the Tribunal formed the view that the applicant did not fully-appreciate the seriousness of his conduct.  He did not respond to the NOITCC. 

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

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

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

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

    ·     the time that has elapsed since the non-compliance

43. The non-compliance occurred when the applicant provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa, lodged in March 2016. The Tribunal does not consider this period of time to be significant.  There is limited information to suggest that this period of time in the applicant’s case is significant or substantial, or evidence of strong ties with the Australian community.

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

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

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

46. The Tribunal gives this aspect neutral weight.

    ·     any contribution made by the holder to the community.

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

48. The Tribunal gives this aspect neutral weight.

49. 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

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

51. The Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences.  However removal from Australia would mean that the applicant would not be able to continue working.  Given that the main purpose of the subclass 500 is to study (although limited work is permitted), the Tribunal does not consider that outcome to be significant.

52. The Tribunal gives this aspect neutral weight.

    ·whether there would be consequential cancellations under s.140

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

54. 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.   

55. The applicant stated that he has a 7 year old daughter in Taiwan.  

56. As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning children in Australia.  The CROC applies to children under 18 years of age.  By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the child.

57. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

58. Article 3 of the CROC states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

    States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

59. Although the applicant’s daughter is not in Australia, the Tribunal is of the view that it is appropriate to consider her needs. 

60. It is reasonable to assume that it is in the best interests of children to be with their parents.  The presence of the applicant in Australia means that she is not with her father, which is not in her best interest.  The applicant claims that he needs money to support his family but the student visa he held is for the purpose of studying.   Under these circumstances, the Tribunal gives this aspect neutral weight.

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

62. 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.

63. The Tribunal appreciates that the cancellation of the applicant’s visa may have adverse outcomes, such as financial implications. 

64. The Tribunal gives this aspect some weight in the applicant’s favour but the Tribunal does not consider those adverse outcomes to amount to a degree of hardship to outweigh other considerations.

    Concluding remarks

65. The Tribunal has carefully considered the material before it individually and cumulatively.  The applicant has knowingly provided incorrect information in a visa application. 

66. There are limited aspects in his favour but on balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.

    DECISION

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

    Antoinette Younes

    
    Senior Member

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.