Lin (Migration)

[2019] AATA 3987

Lin (Migration) [2019] AATA 3987 (19 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Nan-chun Lin

CASE NUMBER:  1812947

DIBP REFERENCE(S):  BCC2017/4635987

MEMBER:Stephen Conwell

DATE:19 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 19 June 2019 at 1:15pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – incorrect information – did not work in regional Australia – non-compliance – no knowledge of incorrect information – truthful  explanation – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 109
Migration Regulations 1994 (Cth), r 2.41

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act). The Subclass 500 visa was granted to the applicant on 26 May 2017. It was cancelled by a decision made on 3 May 2018.

2. The delegate cancelled the visa on the basis that the applicant may have provided incorrect information in a previous visa application, a Subclass 417 Working Holiday (Extension) visa.

3. On 17 April 2018, the Department sent the applicant a Notification of Intention to Consider Cancellation (NOICC) of the Subclass 500 visa, setting out the matters indicating non-compliance and inviting the applicant to comment or respond. The applicant provided a written response on 1 May 2018.  The delegate considered the response and decided to cancel the applicant’s Subclass 500 visa on the basis that she had provided incorrect information in her Subclass 417 Working Holiday (Extension) visa application.

4. The issue in the present case is whether that ground for cancellation of the applicant’s Subclass 500 (Student) visa is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 18 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Mr Kim Joensson. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

9. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

10. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

11. 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.101(b) in the following respects:

    Evidence of non-compliance:

    ·On 17 March 2016 the applicant applied for a class TZ Working Holiday (Extension) (subclass 417) visa via the Department’s online facility.

    ·As part of the application, the visa holder completed an electronic application form and provided the following answers:

    oIn response to the question “Have you undertaken specified work in regional Australia for a total of 3 months?” the applicant answered “Yes”.

    oUnder the heading “Details of specified work undertaken”, the applicant provided the following answers:

    Details of specified work undertaken:

    §ABN              12133687911

    §Postcode        2450

    §Start Date       17 April 2015

    §End Date         31 July 2015

    oUnder the heading “Declaration”, to the question “I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa”, the visa holder answered “Yes”.

    othe applicant also declared that the information provided in the form to be complete, correct and up-to-date, by answering “Yes”  to this declaration.

12. Based on the information provided in the visa application, the delegate assessed the applicant to have met the relevant criteria, (including the requirement that while holding her initial subclass 417 visa, the applicant had worked the equivalent of at least 3 months’ full-time work in a specified occupation in regional Australia).

13. On 29 March 2016 the applicant was granted a Working Holiday (Extension) (subclass 417) visa.

    Information indicating those answers were incorrect

14. On 23 October 2017, the Department received an email from the company owner/manager of Ren Farm Pty Ltd (ABN 12133687911) (Ren Farm) which stated that the applicant have never worked for the company. The delegate concluded that the applicant did not comply with section 101(b) of subdivision C of the Migration Act because when she applied for her Working Holiday (Extension) (subclass 417) visa on 17 March 2016 she was asked whether she had “undertaken specified work in regional Australia for a total of 3 months?”  The applicant answered “Yes” to this question. This was incorrect

15. The above matters were particularised in the s.107 notice sent to the applicant on 17 April 2018. On 1 May 2018 the applicant responded to the s.107 notice. On the day of the hearing the applicant’s representative provided a further submission to the Tribunal. These submissions are summarised below:

    ·      the applicant admits the non-compliance. She claims that it arose through her meeting a person through her friends who offered to complete and submit her application for an extension of her Working Holiday (417) visa;

    ·      she made no enquires as to the bona fides of this person or whether he was an authorised migration agent. She provided him with only her basic personal information. She did not complete, nor did she ratify, the information submitted by this person on her behalf. She had no details about this person other than a ‘WhatsApp’ phone contact number, which was the medium of communication;

    ·      she had no knowledge of the incorrect information (the incorrect claim that she had worked in regional Australia for three months); she admits to being naïve in her decision to ‘appoint’ someone with whom she had only a cursory acquaintance as her migration ‘agent’ for her visa extension application;

    ·      the applicant is in a de facto relationship with Mr Joensson, another non-citizen holding a Temporary Work (Skilled) 457 visa, valid until 23 June 2020. They have registered their domestic relationship on 8 June 2018 under the Relationships Act, Victoria;

    ·      the applicant’s non-compliance pertained to her previous 417 visa extension and shouldn’t adversely affect her current Student (500) visa;

    ·      her present circumstances  confirm that she is a genuine student who has one unit remaining in her studies;

    ·      her partner, Mr Joensson is a valued employee whose employer intends to nominate him for a sub-class 186 visa;

    ·      cancellation of the applicant’s visa would cause undue and excessive hardship to her and her partner as it would require them to be separated for an indefinite period of time;

    ·      as the applicant’s current Student visa would have expired on 15 March 2019, a decision to set aside the cancellation would require her to apply for a ‘fresh’ visa within 28 days of the Tribunal’s decision. This would allow the Department to re-assess the applicant’s bona fides and immigration history.

    Should the visa be cancelled?

16. 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).

17. 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.

18. 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.

19. The Tribunal discussed these matters with the applicant and her representative and has considered the applicant’s response and submissions and information provided.  The applicant’s partner, Mr Joensson also gave evidence.

    2.41(a) – the correct information

20. With respect to 2.41(a), the Tribunal considers that the correct information is that the applicant had not worked for a three month period in regional Australia as claimed in her application for an extension of her 417 visa.

    2.41(b) – the content of the genuine document (if any)

21. Not applicable. 

    2.41 (c) – whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or bogus document

22. The Tribunal finds that e s107A of the Act allows for a non-compliance occurring with a previous visa application to lead to cancellation of a current visa. The visa holder provided incorrect information in her Working Holiday (Extension) (subclass 417) visa application. Therefore her non-compliance occurring with her previous visa application leads to cancellation of the applicant’s current visa.  

23. The Tribunal also notes the applicant‘s Student 500 visa application contains no incorrect information.

    2.41(d) – the circumstances in which the non-compliance occurred

24. The Tribunal finds the applicant to be an honest and credible witness; it accepts her evidence that she naively trusted someone who she barely knew to act on her behalf in applying for her 417 visa extension. The applicant met this person through her social circle which allayed any concerns she might ordinarily have had about this person’s bona fides.

    2.41 (e) – the present circumstances of the visa holder

25. The Tribunal accepts the evidence that the applicant is, and has been, a genuine student, with one more unit remaining in her diploma studies; that cancellation would mean being unable to complete her studies in Australia and the waste of time and money that would entail.

26. The Tribunal accepts the evidence that the applicant is in a committed relationship with Mr Joensson since September 2015; the applicant provides love and support to him; that cancellation of her visa would result in the couple being separated for an indefinite period of time.  The Tribunal acknowledges that it is open to the couple to relocate to Taiwan should the applicant’s visa be cancelled, however Mr Joensson’s employer intends to sponsor him for a sub-class 186 permanent employee visa and understandably he would wish to remain in Australia to pursue that application.

    2.41(f) – the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act

27. The applicant has engaged with the Department and provided a response to the NOICC and attended the Tribunal hearing. The applicant has admitted that incorrect information has been provided and has been consistent in her explanation about how that occurred.

    2.41 (g) – any other instances of non-compliance by the visa holder known to the Minister

28. There is no evidence that the applicant has been non-compliant in any other manner aside from the matter at hand.

    2.41 (h) – the time that has elapsed since the non-compliance

29. The applicant was granted the Student 500 visa on 26 May 2017. There is no information before the Tribunal to suggest the applicant has not complied with any conditions of this visa.

    2.41(j) – any breaches of the law since the non-compliance and the seriousness of those breaches

30. There is no information before the Tribunal that the applicant has breached Australian law. 

    2.41(k) – any contribution made by the holder to the community

31. There is no information before the Tribunal that the applicant has made any contribution to the Australian community, however the Tribunal accepts that the applicant is a law-abiding resident.

    Other relevant factors

32. The prescribed circumstances as listed under Reg 2.41 are considered above. However case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. The Department’s procedural guide also requires delegates to take into account other factors, such as Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. The Tribunal has considered the following factors in addition to those as required under Reg 2.41.

    Australia’s International Obligations

33. The applicant has not raised any concerns that cancellation of her visa would engage any of Australia’s international obligations. 

    Effect of the cancellation

34. The Tribunal acknowledges that if the applicant's visa was cancelled, she would be prevented from being granted a range of temporary visas, for a period of three years. It also notes that cancellation would mean that the applicant would be prevented from applying for visas onshore pursuant to s.48 of the Act, with the exception of a limited range of visas including Partner visas. The Tribunal gives these consequences some weight in favour of not cancelling the visa.

35. Cancellation of the applicant’s visa would also cause hardship and interruption to the applicant and her partner, given his visa status and his current application for permanent residency. The Tribunal gives these consequences significant weight in favour of not cancelling the visa.

36. The Tribunal further notes that if her visa were cancelled, the applicant would lawfully remain on her current bridging visa until it ceases. If she remained in Australia after this date, she would become an unlawful non-citizen and would be subject to detention. There is nothing to suggest that any detention in such a hypothetical situation would be indefinite.

    Conclusion

37. The Tribunal finds the applicant provided incorrect information in her 417 Working Holiday visa extension and therefore failed to comply with s.101(b).

38. Nevertheless the Tribunal also finds this incorrect information was provided to the Department due to the actions of the applicant’s agent, effectively a passing acquaintance whom the applicant naïvely entrusted with such an important immigration assignment. The Tribunal also notes the applicant has been quick to admit the non-compliance and has truthfully explained the circumstances in which it occurred.

39. After considering all the circumstances of this case, including the prescribed factors pursuant to r.2.41 of the Regulations, and all other factors discussed above, the Tribunal finds that the factors in favour of cancelling the visa are outweighed by the factors in favour of not cancelling the visa.

    DECISION

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

    Stephen Conwell
    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.