Lin (Migration)

[2019] AATA 1677

Lin (Migration) [2019] AATA 1677 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yu Chen Lin

CASE NUMBER:  1819188

DIBP REFERENCE(S):  BCC2018/146911

MEMBER:Christine Kannis

DATE:20 May 2019

PLACE OF DECISION:  Perth

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

Statement made on 20 May 2019 at 1:55pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – failure to attend Tribunal hearing – Subclass 500 (Student) – ground for cancellation – incorrect information in previous visa application – Working Holiday visa application – consideration of discretion – fabrication of work history – grant of visa based on incorrect information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 107A, 109, 362B
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 applicant applied for the Subclass 500 visa, the cancellation of which is the subject of this matter, on 16 September 2017. On 27 October 2017, the applicant was granted the 500 visa.

3. The Department received information indicating that the applicant may have provided incorrect information in a previous visa application, a Subclass 417 Working Holiday visa.  The applicant applied for the (second) Subclass 417 Working Holiday visa on 28 June 2016 and it was granted on 1 July 2016.

4. On 31 May 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 responded on 12 June 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 (second) Subclass 417 Working Holiday visa application.

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

6. On 18 April 2019 the Tribunal sent the applicant’s representative an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 20 May 2019 at 9.00 am. The letter informed the applicant that if she was unable to attend the hearing then she should advise the Tribunal as soon as possible. The letter advised that if she did not attend the hearing a decision may be made on the review without taking any further action to allow or enable her to appear before the Tribunal or that her application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

7. On 26 April 2019 the applicant’s representative informed the Tribunal that he would not be attending the hearing.

8. On 13 May 2019 and 17 May 2019 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review. 

9. The applicant did not respond to the Invitation to Attend a Hearing or to the SMS reminders.

10. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

11. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.

12. 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

13. 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.

14. 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.

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

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

16. 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):

    Section 101:

    Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)No incorrect answers are given.

17. The breach of s.101(b) relates to a Subclass 417 Working Holiday visa (the Working Holiday visa) that the applicant previously held that was granted on 1 July 2016 and ceased on 19 September 2017.  Section 107A of the Act allows for cancellation of a current visa if there has been a non-compliance with a previous visa.

    Section 107A:

    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.

18. By operation of s.99 of the Act:

    Information is answer

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

19. The Working Holiday visa application (lodged by the applicant on 28 June 2016) included the following questions and answers:

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

    A:        Yes

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

    A:        Agriculture, Forestry and Fishing

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

    A:        Yes

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

    A:        Yes

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

    ABN   38768554802

    Postcode   6401

    Start date   23 December 2015

    End date   10 April 2016

21. On 17 October 2017 the Department was advised by Double G Farms, the business registered under ABN 38768554802, that it had not employed anyone under the Working Holiday program and the delegate was of the view that the applicant had fabricated information that she worked there for the period 23 December 2015 to 10 April 2016 to facilitate the grant of a Subclass 417 Working Holiday visa.

22. The above matters were particularised in the s.107 notice sent to the applicant on 31 May 2018.

23. On 12 June 2018 the applicant responded to the s.107 notice and provided the following information:

    ·She had no idea why the farm owner denied she was working on the farm and she did 3 months regional work there. She was employed by a foreman/agent who organised the job and promises for the regional work and promises qualified for second working holiday visa.

    ·The person’s name is Murray and he is famous in the Taiwan community as he “lots of resource of regional farm work”. A friend shares his LINE (communication application) and he offers her work in the regional farm. She believed he received a full salary from the farm owner and deducted his agent fee before giving her salary. Because it is not easy to gain a farm job to every accepted even when it is lower than the normal farm salary.

    ·When she completed the farm work he gave her a printout pay slip on the end of the employment and he applied for the second working holiday visa for her. The applicant provided his email address which she said was used in her second working holiday visa application and provided her own email address which she used for her first working holiday visa and student visa application.

    ·Her previous phone was broken and so she does not have access to the photo and record of communication with Murray. She tried to contact him but he is not responding to LINE message anymore.

    ·When she was working at the farm she was given a mobile number for the manager MA Gibson (number provided) that she found in her iCloud (Apple) contact list.

    ·Although she tried very hard she was unable to find the pay slips provided by Murray. She did not keep these records because she believed her second working holiday visa had been granted. She probably threw away the documents.

    ·Most people at the farm were paid by cash. They went to the city for shopping every two weeks and deposited salary (cash) every two weeks. It is a danger to keep too much money at the farm. The applicant attached her bank statement during the period to prove she had undertaken the farm job.

    ·She is currently a student in Skills Australia for her English course. It is important for her to further develop her career.

    ·She was unaware what happened with the farm and the foreman/agent. She did not want it to affect her studies because she spent so much time and money on study.

24. The delegate noted the bank statements provided by the applicant were for the period 21 September 2015 to 30 June 2016 and that they showed only two cash payments were made, on 10 January 2016 ($1,600.00) and on 1 April 2016 ($765.00). This was not consistent with the applicant’s claim that she went to the city every two weeks and deposited her salary because it was not safe to keep money at the farm.

25. The delegate noted that the bank statements showed numerous payments were made into the applicant’s bank account from another account during the period 21 September 2015 to 30 June 2016. The delegate concluded that this indicated the applicant was receiving payments for work performed from the same employer during that period and that she did not work for a different employer during the period 23 December 2015 to 10 April 2016.

26. The delegate noted the phone number of the farm manager provided by the applicant was not contactable.

27. The Tribunal had regard to a note in the Departmental file created on 20 January 2018 which recorded that the applicant had admitted making fraudulent claims in her Working Holiday visa application and stated she was working for JCE WA Auto Service. This admission was made at Perth Airport and it appears to relate to the applicant’s arrival in Australia on 18 January 2018. Given the applicant’s failure to attend the hearing the Tribunal was unable to put this information to her for her comment or response.

28. On the basis of the information that has been provided by the Department and the applicant in the response to the s.107 notice, the Tribunal finds that the applicant provided incorrect answers in the Working Holiday visa application.  The Tribunal further finds that the applicant declared in her application that the information provided in the application was complete, correct and up to date. The Tribunal finds that this was also an incorrect answer.

29. For these reasons, the Tribunal finds that there was non-compliance with s101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

30. 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).

31. As the applicant did not attend the hearing or provide written submissions prior to the hearing, the Tribunal relied on the information contained in the Department’s file including the Decision Record and in the response to the s.107 notice.

32. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

33. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    The correct information

34. The applicant was granted the Working Holiday visa on 1 July 2017 on the basis that she had worked for at least 3 months in specified work in regional Australia. The Tribunal has found that the correct information at the time of application and at the time of decision was that the applicant had not worked for at least 3 months in specified work in regional Australia. 

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

    The content of the genuine document (if any)

36. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information

37. One of the requirements for the grant of a second Subclass 417 Working Holiday visa is that the applicant must have already completed 3 months of specified work in regional Australia. This specified work must have been completed while the applicant was on a first Subclass 417 Working Holiday visa.

38. It is the Tribunal’s view that if the applicant had not included the information that she had worked for 3 months in regional Australia, she would in all likelihood not have been granted the (second) Working Holiday visa.  

39. The Tribunal finds that the decision to grant the Working Holiday visa on 1 July 2017 was based, wholly or partly, on incorrect information relating to the applicant’s employment in regional Australia. This weighs in favour of cancellation.

    The circumstances in which the non-compliance occurred

40. Given the applicant’s failure to attend the hearing, no evidence was provided with respect to the circumstances in which the non-compliance occurred.

    The present circumstances of the visa holder

41. Given the applicant’s failure to attend the hearing, no evidence was provided with respect to her present circumstances.

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

42. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations.

    Any other instances of non-compliance by the visa holder known to the Minister and any breaches of the law since non-compliance:  

43. There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance. The Tribunal is not aware of any other breaches of the law since the non-compliance.

    The time that has elapsed since the non-compliance

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

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

45. There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined.

    Any contribution made by the holder to the community

46. Given the applicant’s failure to attend the hearing, no evidence was provided with respect to the any contribution she has made to the community.

47. The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in r.2.41 where they are relevant or applicable in this case. The Tribunal notes the limited information before it at the time of this decision.

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

    Other considerations

49. As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109. They are:

    ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140;

    ·whether there are mandatory legal consequences to a cancellation decision; for example

    §  whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non-refoulement obligations;

    §  whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister’s personal intervention (e.g.s.46A, s.46B, s.48, 48A etc.); and

    §  whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and is liable to be detained under s.189 and removed under s.198

    ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation; for example:

    §  if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;[1]

    §  whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment; and

    ·any other relevant matter.

    Whether there would be consequential cancellations under s.140

    [1] This is consistent with the High Court’s decision in MIMA v Teoh (1994) 183 CLR 273, and with Article 3.1 of the UN Convention on the Rights of the Child 1989 (CROC) which states: ‘In all actions concerning children … the best interests of the child shall be a primary consideration’. For guidance on what constitutes an ‘action concerning children’ see Suleyman v MIMA [2000] FCA 610 (Mathews J, 12 May 2000) at [38] and Tien v MIMA (1998) 89 FCR 80 (Goldberg J, 3 December 1998) at 105.

1. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

2. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

3. While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if her visa is cancelled, she has benefited from providing the incorrect information in the Working Holiday visa application and it is likely that she would not have been granted that visa in 2016 if she had provided correct or accurate information about satisfying the work requirement.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

4. There is nothing to suggest that Australia’s international obligations would be breached as a result of the cancellation.

   Any other relevant matters

5. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

   Conclusion on the exercise of the discretion

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101(b) of the Act when she provided incorrect answers.

7. The Tribunal has found that the cancellation will not affect any other person’s visa and will not be in breach of Australia’s international obligations. The Tribunal accepts that there are no other known instances of non-compliance and no other known breaches of the law. The Tribunal acknowledges there will be legal consequences to the applicant’s visa being cancelled, most notably as her future migration options would be limited.

8. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Christine Kannis
   Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

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

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

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

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

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

   97Interpretation

   In this Subdivision:

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

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

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

   98Completion of visa application

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

   99Information is answer

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

   100Incorrect answers

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

   101Visa applications to be correct

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

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

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

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

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

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

   (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

   (f)      requiring the holder:

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

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

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

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

   (b)     otherwise—14 days.

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

   (a)      visas of a stated class; or

   (b)     visa holders in stated circumstances; or

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

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

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

   108Decision about non‑compliance

   The Minister is to:

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

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

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

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

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

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

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