Matar (Migration)

[2017] AATA 2461

Matar (Migration) [2017] AATA 2461 (27 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ibrahim Matar

CASE NUMBER:  1715801

DIBP REFERENCE(S):  BCC2017/1928033

MEMBER:Mila Foster

DATE:27 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

Statement made on 27 November 2017 at 12:34pm

CATCHWORDS

Migration – Cancellation - Visitor (Class FA) visa – Subclass 600 (Visitor) – Incorrect information in application – Incorrect information provided regarding visa history – Failure to disclosure multiple visa refusals – Incorrect information provided by travel agent – Applicant relied on travel agent – Limited English skills – Breach not significant – Visa originally granted despite migration history

LEGISLATION

Migration Act 1958, ss 100, 101, 107, 109,

Migration Regulations 1994, r 2.41, Schedule 2

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 600 (Visitor) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101(1)(b) of the Act because he provided incorrect information in the visa application form he submitted on 10 May 2017.[1] That visa application was an application for further a Visitor visa, the applicant having already been granted a Visitor visa on 24 February 2017.[2] The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   [1] Department file no. BCC2017/1678818.

   [2] According to Department movement records.

3. The applicant appeared before the Tribunal on 8 November 2017 to give evidence and present arguments. He gave his evidence with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The Tribunal also received oral evidence by telephone from Ms Maisa Helou.

4. For the following reasons, I have concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

7. In the present matter, I am satisfied that the delegate reached the necessary state of mind to engage s.107.

8. In relation to whether the notice issued under s.107 complied with the statutory requirements, I note that two notices were issued under s.107 in relation to the same possible non-compliance – one dated 9 June 2016 and one dated 26 June 2016. The first notice was sent via email to Ms Helou, an Australian based travel agent the applicant had authorised to receive written correspondence on his behalf in relation to the visa application.[3] The second notice was sent to the applicant at the address he had provided in his visa application as his residential address. No explanation for sending the second notice was provided in the second notice or in the delegate’s decision however, having regard to the Department file relating to the cancellation of the visa,[4] I have concluded that the second notice was sent because the delegate believed that the applicant had not authorised Ms Helou to receive correspondence on his behalf in relation to a possible visa cancellation. The applicant testified at the hearing that at the time his visa application was lodged and he authorised Ms Helou to receive correspondence on his behalf in relation to that application he had no thoughts that a visa he would be granted would be subsequently cancelled. I accept that is true and thus find that the applicant had not authorised Ms Helou to receive correspondence on his behalf in relation to a possible cancellation of his visa. I am however satisfied that the second notice, hereafter referred to as the s.107 notice, complied with statutory requirements.

   [3] Department file no. BCC2017/1678818 at f.10.

   [4] Department file no. BCC2017/1928033.

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

9. The issue before the Tribunal is thus whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

10. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(1)(b) in the following respects:

    1.The applicant applied for a Visitor visa on 10 May 2017.

    2.The response ‘no’ was given to the question on page 11 of the Visitor visa application form ‘Has the applicant ever had an application for entry or further stay in Australia or any other country refused, was or had a visa cancelled?’.

    3.According to the Department’s records, the applicant was refused the following visitor visa applications prior to his visa application on 10 May 2017:

    ·   Sponsored Family Visitor applied for on 15 September 2011, refused on 24 September 2011;

    ·   Sponsored Family Visitor applied for on 19 October 2012, refused on 22 October 2012;

    ·   Visitor applied for on 8 November 2013, refused on 12 November 2013;

    ·   Visitor applied for on 4 April 2016, refused on 19 May 2016.

    4.The delegate considered the applicant’s ‘no’ answer to be incorrect in light of four previous applications the applicant had been refused, and thus that the applicant had not complied with s.101(1)(b) which requires a non-citizen to fill in or complete their applicant form in such a way that no incorrect answers are given or provided.

11. In response to the first purported s.107 notice, Ms Helou informed the Department that the applicant had authorised her to complete the visa application made on 10 May 2017, that she had made a mistake in answering ‘no’ to the question referred to in the notice, and that she had no intended to ‘present fraudulent misrepresentation’ but probably didn’t concentrate enough on the question. She stated that she did not ask the applicant his answer to the question and the applicant had no ‘relation’ to her mistake.

12. At the hearing it was evident that the applicant did not have the English language skills to complete the visa application. He testified that he relied on Ms Helou as a travel agent to complete the visa application accurately on his behalf. He said she had not asked him the question and if she had he would have replied truthfully, that is, that he had been refused Visitor visas not just on the four occasions referred to in the s.107 notice but 10 times. He said he has never lied to the Department and has no intention of doing so as he loves being in Australia and only wants to have a visa legally. He said he was very upset when Ms Helou informed him about the notice and the possibility that his visa would be cancelled. The applicant’s testimony about these matters was clear and forthright.

13. Further, Ms Helou’s testimony was consistent with the applicant’s testimony as well as what she had previously told the Department – that it was she who completed the visa application form on the applicant’s behalf and that she had answered ‘no’ to Question 11 without asking the applicant the question. She repeated what she had told the Department that she wrote ‘no’ by mistake and due to a lack of concentration. I do not however accept that aspect of her evidence to be true but consider it an attempt to absolve herself of her unsatisfactory conduct. I consider answering the question without asking the applicant the question to be indicative, not of a mistake or a lack of concentration, but of a lack of care and diligence. I find it entirely unsatisfactory that she would complete a form on behalf of another person which involves making declarations that the contents of the form are true and correct without taking even simple steps to ensure the contents are accurate. While I do not accept that Ms Helou made a mistake I do accept, given the consistency in the evidence, that she did not ask the applicant Question 11 and that she answered ‘no’ without his knowledge.

14. Even though the applicant did not personally answer ‘no’ to the question, he acknowledges that the answer was not correct. For the purposes of s.101, an answer to a question is incorrect even if the person who gave it or caused it to be given did not know that it was incorrect.[5] I thus that find that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    [5] Section 100 of the Act.

    Should the visa be cancelled?

15. As I have 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).

16. 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.

17. Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

18. Having regard to the prescribed circumstances in r.2.41 and the Department’s policy as relevant to the applicant’s circumstances particularly the circumstances of the non-compliance, I have concluded that the visa should not be cancelled for the following reasons.

19. Given the applicant’s lack of English language skills I consider it reasonable that he relied on Ms Helou, an Australian travel agent, to complete the visa application form on his behalf. I  have given considerable weight to the fact that the applicant had no knowledge that the incorrect information had been provided by Ms Helou and that it seems he had no reason to suspect that she would not accurately complete the form given she was a travel agent and fluent in English. I have also given weight to the fact that the visa application was for an extension of stay and thus the applicant had already been granted a Visitor visa. I thus presume that the Department was aware of the applicant’s prior visa refusals when he was granted the earlier Visitor visa on 24 February 2017. There is no evidence before me to indicate that the applicant provided incorrect information about his prior visa refusals in relation to the visa application which resulted in him being granted the Visitor visa on 24 February 2017. Hence, I have concluded that the breach is not significant otherwise the applicant would not have been granted the earlier Visitor visa.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

    Mila Foster
    Member

    
    

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.