Long (Migration)

Long (Migration) [2024] AATA 490 (31 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Qin Long
REPRESENTATIVE:  Ms Diana Tong (MARN: 9359088)
CASE NUMBER:  2216550
HOME AFFAIRS REFERENCE(S):          BCC2021/972452
MEMBER:Christine Kannis
DATE:31 January 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 590 (Guardian) visa.

Statement made on 31 January 2024 at 12:50pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 590 (Guardian) – incorrect information and bogus document provided with visa application – sufficient funds – certificate of deposit – verification checks – consent to decision without hearing – discretion to cancel visa – application completed by agent – evidence of financial capacity needs to cover first 12 months of study – no evidence of other sufficient funds provided – elapse of time and changes in circumstances – divorce from then husband and partner visa with new husband refused – daughter now over 18 – insufficient information about current circumstances – international obligations and mandatory legal consequences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 98,100, 101(b), 103, 107, 109(1), 360(2), (3)
Migration Regulation 1994 (Cth), r 2.41, Schedule 2, cl 590.216
CASE
MIAC v Khadji (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 590 (Guardian) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s 101(b) and s 103 of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
In response to the Invitation to attend a hearing, the Tribunal received a Response to hearing invitation indicating the applicant would not participate in a hearing and that she consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear.
The Tribunal notes that the applicant has indicated that she has provided consent to the Tribunal to finalise the case without a hearing. The Tribunal is satisfied that the necessary consent has been given under s 360(2) of the Act and that, pursuant to s 360(3), the applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
The applicant was represented in relation to the review.
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
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.
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. In making this determination the Tribunal notes that on 13 September 2022, the Department sent the applicant via her representative an email advising that it needed to send her important correspondence about her visa and requested that she provide her current address and email address. On 15 September 2022, the applicant’s representative replied by email and provided her current address and email address. The s 107 notice dated 21 September 2022 was sent to the applicant via her representative.
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.
Background
In her Application for a Student Guardian Visa lodged on 1 December 2016, on page 12 under the heading Student Guardian declarations, the applicant answered “Yes” to the following:
The applicants declare that they:
Have access to sufficient funds to support themselves for the total period of stay in Australia. They also understand that they are able to provide further evidence of funds.
In support of her application for the visa and as evidence of sufficient funds, the applicant provided a copy of a Personal Certificate of Deposit (No. 00080710) of a bank account with the Agricultural Bank of China with the validity date of 23 February 2016 until 23 February 2017. This document purported to show an All-In-One Fixed Term Deposit Account with the deposit of RMB350,000, which was approximately AUD$70,000 in February 2016.
On the basis of the above information, as well as meeting all other relevant criteria, the applicant was granted a Student Guardian visa on 27 January 2017.
Following the grant of the visa, verification checks were undertaken by the Department and on 19 April 2021, an officer from the Department contacted the Guangzhou Sanyuanli Sub-branch of the Agricultural Bank of China, to verify the authenticity of the Personal Certificate of Deposit (No. 00080710) document. The bank advised that their institution did not issue the applicant the Personal Certificate of Deposit (No. 00080710) with the amount of RMB350,000 with the date of validity from 23 February 2016 to 23 February 2017 and had only had ever issued the applicant a Personal Certificate of Deposit (Number. 00080710) with the amount of RMB50 and the date of validity from 23 November 2016 to 23 February 2017. The bank advised that their system showed the applicant had opened the specific All-In-One Fixed Term Deposit Account on 23 November 2016, with a deposit of RMB50, which was equivalent to approximately AUD$10.
Given the inconsistencies in the information provided by the applicant in her application and the information provided by the Agricultural Bank of China, the non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101(b) and 103 of the Act in the following respects:
Alleged non-compliance with s 101(b)
Section 101 provides that visa applications are to be correct, and paragraph (b) specifically requires that no incorrect answers are given or provided.
The non-compliance identified as non-compliance with s 101(b) was:
- The applicant provided an incorrect answer in her Application for a Student Guardian Visa when she provided details on page 12 of the visa application form, under the heading Student Guardian declarations, declaring that she had access to sufficient funds to support themselves for the total period of stay in Australia
Section 98 of the Act says 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.
Section 99 of the Act provides that any information a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of s.101, paragraphs 101(b) and 102(b) and ss. 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.
Section 100 of the Act provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
The information was considered to be incorrect because information was received by the Department from a representative of the Agricultural Bank of China that the applicant did not have RMB350,000, which was approximately AUD$70,000 in February 2016 as represented by the Personal Certificate of Deposit bank account she provided
Alleged non-compliance with s 103
Section 103 provides that bogus documents are not to be given. A ‘bogus document’ is defined in s 5 (1) of the Act as a document 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.
The non-compliance identified as non-compliance with s 103 was:
- The applicant submitted the following bogus document:
The document was considered to be bogus because a verification check undertaken by the Department with a representative from the Agricultural Bank of China found that the institution did not issue the applicant the Personal Certificate of Deposit with the amount of RMB350,000, with the date of validity from 23 February 2016 to 23 February 2017.. On this basis the Department reasonably suspected the document was counterfeit or had been altered by a person who did not have authority to do so.
Response to the s 107 notice
On 5 October 2022, the applicant responded to the s 107 notice and provided the following information:
I, Qin Long, born on 24/06/1972, voluntarily request Department of Home Affairs to cancel my Australian student guardian visa, granted on 27 January 2017.
Evidence provided prior to the scheduled hearing
A Personal Statement dated 18 January 2024 made by the applicant. The document included the following notation made by a solicitor, working at Parish Patience Legal & Migration Services: I am fluent in Mandarin and English. I truly interpreted, to the best of my skill and ability the contents of the statement to the declarant, Qin Long. The Personal Statement was not sworn evidence and the translation does not appear to have been undertaken by a certified translation service. The following relevant information was included in the Personal Statement:
·She is a citizen of China.
·In 2016, she discussed her daughter's future studies with her sister who was living in Australia with her husband. They agreed that her daughter can study in Australia and her sister would look after her.
·She was close to her sister and her daughter and so she decided to go to Australia on a Student (Guardian) visa.
·To prepare the visa application, her sister referred her to an education agent, named Peter. Neither of them met Peter in person and they communicated via WeChat. She prepared the documents requested by Peter including, passports, birth certificates, employment reference letters, marriage certificate, bank statements and criminal records. These documents were all true and genuine.
·She did not read or speak English. All the documents submitted to Department were done through the agent and she could not tell which documents were submitted in support of the visa application.
·After she and her daughter arrived in Australia, they lived with her sister. Her daughter completed her studies.
·She and her then husband divorced at the end of 2017.
·She met her current husband, Mr Jason Charles Dibley in August 2018 and they married on 6 October 2019 and since then they have lived together as a happy family. Her daughter has continued to study in Australia.
·She has never seen the document that was alleged to be bogus.
·The agent who prepared their visa applications is no longer contactable, so she cannot confirm what documents he submitted.
·She had sufficient financial resources to support her daughter's studies and their lives in Australia.
A written submission from the applicant’s representative contained information not materially different from the evidence in the applicant’s Personal Statement and the following additional information:
·On 19 April 2021, an officer of the Department contacted the Agricultural Bank of China to verify authenticity of the Personal Certificate of Deposit (No.00080710), submitted with the Student (Guardian) visa and the officer found the document was not non-genuine.
·On 24 May 2021, the applicant applied for Partner (subclass 820/801) visa, sponsored by her husband Jason.
·On 7 June 2021, the applicant’s Partner (subclass 309/100) was refused on the basis of failing to satisfy Public Interest Criterion 4020 (‘PIC 4020’).
·On 21 September 2022, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’) and on 5 October 2022, she provided a response, requesting her Student (Guardian) visa (subclass 590) be cancelled.
·The bogus document was submitted to the Department without her knowledge by the agent engaged by her sister to prepare and lodge the Student (Guardian) visa (subclass 590) application.
·The applicant denies being complicit in any fraud perpetrated by the agent engaged by her sister. She has not seen the document that was alleged to be bogus.
·The NOICC alleges the applicant breached s 101 (b) of the Act when she answered a question and the answer appeared to be incorrect. The question - Do all applicants in this application confirm that they each have access to sufficient funds to support themselves for the total period of stay in Australia and understand that evidence of funds must be provided. The applicant answered “yes”. Following this question, a further question Show how each applicant included in the application will support themselves in Australia to meet living, tuition and school costs. Select any that apply. The applicant answered “other financial support” as “my family yearly income is 260,000RMB, therefore the income is enough to support myself and my daughter.” She had sufficient financial resources to support her daughter’s studies and their lives in Australia and denies being complicit in any fraud perpetrated by the agent regarding the evidence of funds. Therefore, her answer to the question regarding sufficient funds would arguably not be incorrect.
·The NOICC alleges the applicant breached s 103 as the Personal Certificate of Deposit (No.00080710) appeared to be a bogus document. She provided all her evidentiary documents, which were true and genuine. The agent prepared and lodged the visa application on her behalf and she not seen the document alleged to be bogus. It is submitted that the alleged bogus document was given by her agent, and not given, presented, produced or provided by her for the purpose of s 103.
·We are uncertain if the case officer relied solely on the amount of yearly income declared in the application form [RMB 260,000] or the amount of deposit, alleged to be [RMB350,000], or jointly. However the applicant denies being complicit in any fraud perpetrated by the agent.
·Cl 590.216 of Migration Regulations 1994 (Cth) (‘Regulations’) includes that an applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in the relevant legislative instrument, in the present case IMMI 16/018 - Evidence of Financial Capacity for Subclass 500 (Student) Visas and Subclass 590 (Student Guardian) Visas 2016/018.
·The applicant cannot speak or read English and she relied on the agent to lodge the visa application for her.
·The applicant works as a cleaner and has developed personal ties to the Australian community. If the visa remains cancelled, the applicant will be put in significant disadvantage to her family.
·The Department has not raised any other instances of non-compliance apart from those mentioned in the NOICC.
·The non-compliance (if any) occurred about seven years ago. The Department conducted an integrity check with Agricultural Bank of China in 2021, 5 years after the grant of visa. Evidence of Financial Capacity for Subclass 590 (Student Guardian) Visa needs to cover the first 12 months. Circumstances have changed as the applicant divorced her then husband and married her current husband. The length of time that has elapsed since the non-compliance and subsequent change of circumstances should be considered in favour of her.
·There is no evidence suggesting that the applicant has breached any law.
·Any mandatory legal consequences include that the applicant would also be ineligible to apply for most temporary Australian visas outside Australia for 3 years.
·The applicant’s husband is an Australian citizen. They met in August 2018 and married on 6 October 2019. They have been in a genuine relationship and marriage since then. The Department conducted an integrity check in 2021, 3 years after she commenced her relationship with her current husband . To cancel the visa “might lead to unfair to Ms Long’s current spouse . There is also a risk that her immediate family member who has strong and close bond with her will suffer emotional stress and anxious”.
·There was no non-compliance of s 103 by the applicant as the alleged bogus document was given by her agent, and not given, presented, produced or provided by her. There was not any non-compliance of s101 based on her answer to the question regarding sufficient funds would arguably not be incorrect.
Conclusion on non-compliance
In her Personal Statement the applicant ,stated that she had sufficient financial resources to support her daughter's studies and their lives in Australia. The representative submitted that the applicant’s response of yes to the question asking whether she had sufficient funds to support themselves for the total period of stay in Australia and that evidence of funds must be provided, was arguably not incorrect because to show how she would support herself she said she had Other financial support my family yearly income is 260,000RMB, therefore the income is enough to support myself and my daughter. This response was provided on page 8 of the Application for a Student Guardian Visa. Her incorrect response on page 12 was a declaration and was preceded by a Warning that the giving false or misleading information is a serious offence.
In the Tribunal’s view the answer regarding sufficient funds and the actual evidence of funds must be considered together. There is nothing before the Tribunal to suggest that any other evidence of claimed funds to support herself was provided to the Department with the application and the applicant has not claimed that she provided any other documentary evidence to demonstrate that she had sufficient funds. The applicant’s statement regarding family income in the application form on page 8 was not supported by evidence. Her claim in her Personal Statement that she had sufficient funds at the time of application has not been substantiated by any documentary evidence.

On the evidence before it, the Tribunal finds that the applicant’s answer on page 12 of her visa application form stating she had sufficient funds to support themselves for the total period of stay in Australia was incorrect. Apart from the applicant’s Personal Statement, which as noted was not sworn evidence, there is nothing before the Tribunal to show at the time of application the applicant had sufficient funds to support themselves for the total period of stay in Australia and the evidence of the claimed sufficient funds was not issued by the Agricultural Bank of China.
Accordingly, the applicant has not complied with s 101(b) as described in the s 107 notice.
The Agricultural Bank of China advised the Department that it did not issue the Personal Certificate of Deposit with the amount of RMB350,000, with the date of validity from 23 February 2016 to 23 February 2017. Therefore, the Tribunal reasonably suspects that the document is counterfeit or has been altered by a person who does not have authority to do so and finds it is a bogus document. The Tribunal finds that the document is counterfeit within the meaning provided by paragraph (b) of section 5(1) of the Act.
The applicant claims to have not seen the alleged bogus document. It appears she has not requested the Department provide a copy of the document. The applicant claims that if a bogus document was provided to the Department, she entrusted her application to an agent and because she could not read or write English, and she could not tell which documents were submitted in support of the visa application. The Tribunal accepts that an agent assisted the applicant with her visa application however is of the view that she had a responsibility to check the documents before they were submitted and an opportunity to do so, as she may have been able to withhold payment from the agent until her requirements were met. The Tribunal is also mindful that ss 98 and 100 of the Act make it clear that it is not necessary for the applicant to be personally involved in the fraud, nor even to be aware of it, for the grounds for cancellation to be established. On the evidence before it, the Tribunal is also satisfied that the applicant had authorised the agent to act on her behalf, and had relied entirely on the agent to take care of the application without checking or verifying what was being lodged on her behalf. In the circumstances, the Tribunal considers that the applicant has provided, or caused to be provided, to an officer, authorised system or the Minister bogus documents.
Accordingly, the applicant has not complied with s 103 as described in the s 107 notice.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) and s 103 by the applicant 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 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).
In exercising this power, the Tribunal must consider the applicant’s response to the s 107 notice and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (the Regulations).
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are relevant in any given case: MIAC v Khadji (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures 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 Tribunal has taken the reg 2.41 prescribed circumstances as well as any other relevant facts and matters, including the applicant’s responses to the s 107 notice into account when considering the discretion.
The Tribunal notes that the applicant elected not to attend a hearing and to have the application for review decided on the basis of the information before it. Accordingly, the Tribunal has considered the information in the Department file and the written evidence and submissions provided to the Tribunal.
Prescribed circumstances
The correct information
The correct information is that the applicant did not have access to funds of RMB350,000 to support themselves for the total period of stay in Australia as indicated by the applicant in her Application for a Student Guardian Visa.
Department integrity checks confirm that the Agricultural Bank of China only had ever issued the applicant a Personal Certificate of Deposit (No. 00080710) with RMB50 on the statement and the date of validity from 23 November 2016 to 23 February 2017.
The Tribunal gives this some weight in favour of exercising its discretion to cancel the visa.
The content of the genuine document (if any)
This consideration does not apply in this case.
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
For the reasons set out above, the Tribunal has concluded that the decision to grant the visa was based partly on incorrect information and a bogus document. It is not necessary to establish that the visa would not have been granted if the correct information was known and bogus document not provided. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on the incorrect information and a bogus document.
The Tribunal gives this factor weight in favour of its discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant’s explanation for the incorrect information and the bogus document is that she relied on an agent and therefore the provision of the information and document were out of her control. Whilst the Tribunal accepts that the applicant had an agent who assisted her with the application, that does not diminish her own responsibility to check the content of her application to learn what information/documents were being submitted on her behalf and the Tribunal finds she did not take sufficient steps to ensure the application contained correct information and genuine documents. The applicant could have made inquiries with the agent, particularly before the application was made and the agent’s fee paid, and she could have made a request to check the entire application with the assistance of an interpreter/translator before its lodgement. It her responsibility to do so to ensure the information/documents submitted on her behalf were correct and genuine. The application was an official document submitted for a serious purpose.
For the reasons stated, the Tribunal does not accept that the provision of information and documents was outside the applicant’s control. The Tribunal finds that the applicant was negligent in her actions and recklessly indifferent in her dealings with the agent.
The Tribunal gives this factor significant weight in favour of its discretion to cancel the visa.
The present circumstances of the visa holder
The applicant has been residing in Australia for 7 years, having arrived in February 2017.
In her Personal Statement the applicant said she met her current husband in August 2018 and they married on 6 October 2019. She said they have lived together as a happy family and her daughter has continued to study in Australia. The representative submitted that the applicant currently works as a cleaner.
On 24 May 2021, the applicant lodged a Partner visa application sponsored by her current husband. The delegate noted that this application included the applicant’s daughter as a dependant applicant. The applicant stated in this application that her daughter is dependent on her, not only financially, but as her primary caregiver. The Tribunal notes that the application was made nearly 3 years ago and the only current information before it regarding the applicant’s daughter is that she is studying.
The applicant works as a cleaner and the representative submitted that she has developed personal ties to the Australian community. No evidence was provided to substantiate the personal ties however the Tribunal accepts that the applicant has resided in Australia for 7 years and is married to an Australian citizen and therefore she may have developed some social and community ties. The Tribunal accepts that a decision to cancel the visa may disrupt the applicant’s employment and may result in some degree of financial hardship.
The representative submitted that if the visa remains cancelled, “the applicant will be put in significant disadvantage to her family”. The meaning of this submission is not clear however the Tribunal accepts that visa cancellation may cause some emotional hardship to the applicant, her husband and her daughter.
The Tribunal gives this consideration some weight against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations.
The Tribunal gives this consideration a little weight against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
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 gives this consideration a little weight against cancelling the visa.
The time that has elapsed since the non-compliance
The applicant provided the bogus document and incorrect answer on her application form on 1 December 2016. The Tribunal accepts that it is 7 years since the events of non-compliance occurred and considers this to be a significant amount of time.
The Tribunal gives this consideration some weight against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined.
The Tribunal gives this consideration a little weight against cancelling the visa.
Any contribution made by the holder to the community
The applicant works as a cleaner. No other evidence or information with respect to any contribution to the community was before the Tribunal.
The Tribunal gives this consideration a little weight against cancelling the visa.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in reg 2.41 where they are relevant or applicable in this case.
Other considerations
As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered the following additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and the Tribunal gives this factor no weight in its considerations.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
The policy guidelines require an assessment as to whether Australia would be in breach of its international obligations if the visa was cancelled. These include the obligations in relation to non-refoulement pursuant to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol (the Protocol); the International Covenant on Civil and Political Rights (ICCPR); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC).
The applicant is a citizen of China. The applicant has not applied for protection nor made any claims that returning to her home country would result in significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations, if the visa were to be cancelled and the applicant had to return to her home country. In those circumstances, the Tribunal is satisfied that cancelling the visa would not potentially lead to the applicant being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention, the CAT or the ICCPR, or in breach of the Protocol. Accordingly the Tribunal gives this consideration no weight in favour of or against cancelling the visa.
Article 3.1 of the CROC states: ‘In all actions concerning children … the best interests of the child shall be a primary consideration’. The Tribunal accepts that, 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 in considering whether or not to cancel the visa. The applicant’s daughter is 20 years of age and is not a minor at the present time. Article 1 of the CROC relevantly states that “a child means every human being below the age of eighteen years”. The Tribunal is satisfied therefore that CROC is not engaged in so far as the applicant’s daughter is concerned. As such the Tribunal considers that Australia’s obligations under the CROC are not relevant to this decision.
According to policy, the interests of children over the age of 18 should be taken into account under the family unity principles. Article 23.1 of the ICCPR provides that:
“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
And Article 17.1 provides that:
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation.”
The effect on family members, both in Australia and overseas and including non-citizens, must also be considered.
There is nothing before the Tribunal to indicate that the applicant and her daughter will be separated if the applicant’s visa is cancelled. The applicant and her daughter may be separated from the applicant’s current husband however there is nothing before the Tribunal to indicate whether he would travel offshore with the applicant if she is required to do so. As noted, the representative submitted that if the visa remains cancelled, “the applicant will be put in significant disadvantage to her family” and the Tribunal accepts that visa cancellation may cause some emotional hardship to the applicant, her husband and her daughter. However it is not clear whether this hardship would arise from separation or disruption/relocation of the family. The Tribunal notes that it appears the father of the applicant’s daughter did not travel to Australia with the applicant in 2017 and therefore if the applicant’s daughter returns to China, cancellation of the visa would not result in her being separated from her father.
The delegate noted that a decision to cancel the applicant’s Student Guardian visa would not likely result in the applicant being separated from her daughter as a decision to cancel the visa is separate to a decision to detain or remove the visa holder from Australia. The delegate noted that these are decisions that may arise in the future under separate legislative and policy frameworks as a result of visa cancellation.
In these circumstances, the Tribunal does not consider that cancelling the applicant’s visa would potentially result in a breach of Australia’s obligations under the ICCPR.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
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 3 year exclusion period unless she meets the relevant Public Interest Criterion. Whilst these are serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member
The applicant claims her daughter is dependent on her financially and for her care.
As noted, the representative submitted that if the applicant’s visa remains cancelled, she “will be put in significant disadvantage to her family”. The representative also submitted the following:
“We submit that to penalise Ms Long by cancelling her visa, based on the agent’s misconduct, might lead to unfair to Ms Long’s current spouse. There is also a risk that her immediate family member who has strong and close bond with her will suffer emotional stress and anxious”.
The Tribunal accepts that cancellation of the visa may cause the applicant’s current husband and her daughter emotional hardship and possibly some financial hardship however there is not sufficient information before the Tribunal to make a finding in this regard.
The Tribunal gives this some weight against exercising its discretion to cancel the visa.
Conclusion on the exercise of the discretion
The Tribunal has considered the factors identified by the legislation and policy. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101(b) and s 103 of the Act.
The Tribunal accepts that hardship may be caused to the applicant and her family if the visa is cancelled. The Tribunal accepts that the applicant has no other instances of non-compliance and no criminal record. These are factors that suggest that the visa should not be cancelled.
The Tribunal accepts that if the applicant’svisa is cancelled, and unless she is granted another visa, she may be subject to detention, although the applicant may be eligible to apply for othervisas.
The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.
The applicant’s non-compliance may cause her and her family some hardship, however the Tribunal considers the applicant’s provision of incorrect information and a bogus document is not outweighed by the considerations before it. The Tribunal places greater weight on the fact that the correct information was not provided to the Department, the circumstances in which the non-compliance occurred and that the decision to grant the visa was based partly on incorrect information and a bogus document provided to the Department.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 590 (Guardian) 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.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
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.

[2024] AATA 490

31 January 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal