Mengue (Migration)

[2020] AATA 2343

Mengue (Migration) [2020] AATA 2343 (10 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christopher Arnold Mengue

CASE NUMBER:  1820199

DIBP REFERENCE(S):  BCC2018/2202676

MEMBER:Antoinette Younes

DATE:10 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 June 2020 at 4:25pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in previous visa application – incorrectly claimed specified work in regional Australia in working holiday extension visa application – discretion to cancel visa – study now completed – intention to apply for a partner visa – relationship registered – partner’s serious mental health conditions – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 107A, 109(1)

Migration Regulations 1994 (Cth), r 2.41

CASE

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant did not comply with ss.101 and 107A of the Act.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal by telephone on 3 June 2020 to give evidence and present arguments, with the assistance of a French-speaking interpreter.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.

10. Section 101 of the Act provides that:

    Visa applications to be correct

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

    (a)  all questions on it are answered; and

    (b)  no incorrect answers are given or provided.

11. Section 107A of the Act provides that:

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

    The possible non-compliances that:

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

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

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

12. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record in which the following matters are noted:

    i)   The applicant has breached s.101(b) when applying, on 10 July 2016, for a Working Holiday (Extension) (class TZ subclass 417) visa. Section 107A is therefore applicable.

    ii)     As part of the Working Holiday (Extension) (class TZ subclass 417) visa application form, the applicant provided responses to several questions.  Under the heading Your Personal Details, which asks Have you undertaken specified work in regional Australia for a total of three months? The applicant responded Yes.  Under the heading Details of specified work undertaken, the applicant provided an ABN of 51132918348 postcode of 2477, starting date 12 October 2015 and end date of 10 January 2016. Under the heading Declaration, the applicant confirmed that he had performed the three months specified work.  Based on the information provided by the applicant, the visa was granted on 10 July 2016.

    iii)   On 9 March 2018, the Department received confirmation from the owner of the above ABN stating that the applicant had never worked for that entity. 

    iv)   Based on the available information, the Department concluded that the applicant had provided incorrect information when applying for the Working Holiday visa. On 20 June 2018, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant responded on 3 July 2018. 

13. In his response, the applicant noted the following matters:

    ·He apologised for the “situation” about which he is embarrassed.  He fell in love with Australia.  He applied for the Working Holiday (Extension) (class TZ subclass 417) visa without having completed the relevant work experience.  He listened to his friends and he made a “big mistake”.  He asks for clemency and assures that such an incident will not happen again. 

    ·He wants to study in Australia and is enrolled in a leadership and management course.  He is a good student and will complete his course in 7 months.  He will then return to France.

14. In support, the applicant provided evidence of enrolment at Mercury College in the Diploma of Leadership and Management course due to be completed on 4 January 2019.

15. In the course of the hearing, the applicant acknowledged that he had provided incorrect information when he applied for the Working Holiday (Extension) (class TZ subclass 417) visa.  He offered explanations which are discussed below. 

16. The Tribunal is satisfied on the evidence that the applicant provided incorrect responses in the application for the Working Holiday (Extension) (class TZ subclass 417) visa. The Tribunal finds that the applicant provided incorrect answers in the application form, under the heading Your Personal Details, which asks Have you undertaken specified work in regional Australia for a total of three months? to which the applicant responded Yes; under the heading Details of specified work undertaken, when the applicant provided an ABN of 51132918348, postcode of 2477, starting date of 12 October 2015 and end date of 10 January 2016, and under the heading Declaration, when the applicant confirmed that he had completed that specified work. The Tribunal therefore finds that the applicant did not comply with s.101(b) in relation to the Working Holiday (Extension) (class TZ subclass 417) visa and consequently s.107A is enlivened in relation to the student visa subclass 500.

17. For those reasons, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

18. 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).

19. 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

20. In order to satisfy the criteria for the grant of the Working Holiday (Extension) (class TZ subclass 417) visa, amongst other things, the applicant had to meet the criterion relating to specified regional work for a specified period of time within certain industries, including agriculture, forestry, mining, construction and fishing industries.

21. That criterion is a significant threshold criterion about which the Tribunal has found the applicant provided incorrect information. The applicant provided incorrect information when claiming in the visa application form that he had completed the specified regional work with a particular employer when in fact the applicant had not completed any such work.

22. The correct information is that the applicant did not work for any period for the entity with ABN 51132918348.  The applicant confirmed that he knowingly provided the incorrect information.

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

    ·     the content of the genuine document (if any)

24. There is no issue concerning a genuine document.

25. The Tribunal gives this consideration neutral weight.

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

26. The applicant was granted the Working Holiday (Extension) (class TZ subclass 417) visa subsequent to a determination by the delegate that the applicant met relevant visa criteria, including the requirement that if the applicant is or has previously been in Australia as the holder of a subclass 417 visa, that the applicant has carried out specified work in regional Australia as the holder of the visa, that the total period of the work carried out is, or is equivalent to, to at least three months full-time work and that the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards (Regulation 417.211).

27. The Tribunal is satisfied on the evidence that the applicant was granted the Working Holiday (Extension) (class TZ subclass 417) visa wholly or partly on the basis of the incorrect information that he provided when applying for that visa. The applicant’s employment details relating to the regional work was a threshold criterion fundamental to the grant of the Working Holiday (Extension) (class TZ subclass 417) visa.

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

    ·     the circumstances in which the non-compliance occurred

29. The circumstances of non-compliance occurred when the applicant provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa, specifically relating to the claims that the applicant had been employed by a particular entity for a specified period.

30. The Tribunal considers the provision of incorrect information in an application for a visa to be a serious matter; the provision of incorrect information results in a visa being granted in a case where an applicant does not meet the relevant criteria. This, amongst other consequences, undermines the integrity of the migration program and results in unfairness to other potentially meritorious applicants.  The applicant has acknowledged that he provided the incorrect information.  He explained that he was young and had intended to return to France but decided to study, which he did and completed a course.  The Tribunal is not persuaded or convinced by the applicant’s explanations.  The non-compliance occurred in July 2016, when the applicant was about 22 years old, an adult with a reasonable expectation of compliance and respect for the law.  The provision of correct information is within the control and responsibility of the applicant.

31. The Tribunal is satisfied that the applicant knowingly and intentionally provided incorrect information in order to achieve a successful migration outcome, which he did by being granted an Australian visa, the criteria of which he did not satisfy.

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

    ·     the present circumstances of the visa holder

33. The applicant gave evidence that he graduated in the Diploma of Leadership and Management course in April 2019.  The Tribunal asked the applicant why he has not returned to France, given the completion of the course.  He indicated that he has an Australian girlfriend (Ms X) whom he met in about June 2018 and he is intending to apply for a partner visa.  The Tribunal queried the forming and continuing of a relationship in the context of the visa cancellation.  The Tribunal asked why he could not apply for the partner visa offshore.  He stated that he does not want to separate from Ms X who relies on him emotionally.  He stated that their relationship was registered in May 2019.  The Tribunal asked why Ms X could not go with him to France and he stated that he could not take on or assume the responsibility of taking his partner to France for nothing.  He said he left France when he was about 21 years old and that it would take him a long time to set himself up in France.

34. The applicant gave evidence that Ms X has had a difficult life and she has consulted a therapist.  The Tribunal asked the applicant for more details about those difficulties and he said it was related to her mother, but he was reluctant to give the Tribunal any further details because the information is private and personal to Ms X.  He said she attempted suicide in November 2019.  He stated that his partner is aware of the visa cancellation.

35. The applicant gave evidence that he works online in a freelance business and that Ms X does not work.  He stated that apart from Ms X, he has no other family in Australia.

36. The Tribunal noted that he has not provided any corroborative evidence in support of the claim of the relationship.  He said he thought that the review related to issue relating to the Working Holiday (Extension) (class TZ subclass 417) visa.  The Tribunal gave the applicant time to provide material in support and indicated that it would consider the weight that it would place on that material.

37. Subsequent to the hearing, the applicant provided the following documents:

    ·Westpac account details in the applicant’s name, dated 20 March 2019.

    ·Photographs of the applicant and Ms X, taken on various dates in 2019.

    ·Letter from a Nurse Practitioner dated 3 December 2019 to the Rental Board of NSW in support of a request to break a lease due to ‘complex mental health concerns…severe mood dysregulation…complex Post Traumatic Stress Disorder’ of Ms X.

    ·Penalty Notice dated 13 December 2019 relating to the applicant concerning a traffic offence.

    ·Australian passport of Ms X.

    ·Documents relating to French classes.

    ·Submissions by the applicant about Ms X’s challenging attempts to learn French as well as her needs for professional assistance in relation to her mental health.  He indicated that he will not be able to provide her with an English therapist and the professional assistance she might need in France in case they move to France.

38. On the evidence, the Tribunal accepts that the applicant is in a relationship with an Australian citizen, Ms X.  The Tribunal is not determining whether the applicant would meet the criteria of a partner visa (such as subclass 820) on the basis of this relationship but the Tribunal is satisfied that the applicant is in a relationship which on the available evidence, can be described as ‘girlfriend/boyfriend’.  The Tribunal accepts the evidence that Ms X is a vulnerable person due to her mental health status which the Tribunal considers to be serious.  The Tribunal accepts that it would be challenging for her to live in France given the language difficulties but more significantly her mental health concerns.  It is reasonable to question the potential motive of the applicant in engaging in this relationship.  The applicant denies any migration motive but even if there is such a motive, it does not mean that the relationship is entirely fabricated to achieve that goal.  In any event, there are several criteria which the applicant would need to meet in order to be granted the partner visa, including an assessment of the genuineness of the relationship.

39. The Tribunal gives this consideration significant weight in favour of the applicant.

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

40. In response to the NOITCC and to the Tribunal, the applicant acknowledged that he had provided incorrect information.

41. The Tribunal gives this weight in favour of the applicant.

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

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

43. The Tribunal gives this aspect neutral weight.

    ·     the time that has elapsed since the non-compliance

44. The non-compliance occurred when the applicant provided incorrect information when he applied for the Working Holiday (Extension) (class TZ subclass 417) visa, lodged in July 2016.

45. Although there is limited information before the Tribunal to suggest that this period in the applicant’s case is significant or substantial, or evidence of strong ties with the Australian community, he is in a relationship with an Australian citizen.

46. The Tribunal gives this consideration weight in favour of the applicant.

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

47. The applicant provided to the Tribunal a copy of the Penalty Notice dated 13 December 2019 relating to a traffic offence (‘Proceed through red traffic arrow’).  The Tribunal is concerned about traffic offences and it considers such offences to be serious as they relate to safety and respect to other drivers and road-users.

48. The Tribunal gives this aspect weight in favour of cancellation.

    ·     any contribution made by the holder to the community.

49. There is no evidence before the Tribunal of any contribution made by the applicant to the community.  The Tribunal gives this aspect neutral weight.

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

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

1. The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. To minimise or avoid those potential consequences, the applicant could voluntarily depart Australia.

2. The applicant would also be impacted by s.48 of the Act and PIC 4013 which means that he may face difficulties in applying for any further visas in Australia and in being granted an Australian visa.  The Tribunal considers potential detention and removal from Australia as well as the s.48 bar and PIC 4013 to be intended legislative consequences.  However, given the relationship with Ms X and her vulnerable mental health status, the Tribunal considers those intended legislative consequences to result in a level of hardship that would support not cancelling the visa.

3. The Tribunal gives this aspect weight in favour of the applicant.

   ·whether there would be consequential cancellations under s.140

4. There is no evidence that the cancellation of the applicant’s visa would result, pursuant to s.140 in the cancellation of any other person.  The Tribunal gives this aspect neutral weight.

   ·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

5. There is no information before the Tribunal to suggest that any children would be impacted or that Australia would be in breach of any of its international obligations including non-refoulement obligations in case of cancellation. 

6. The Tribunal gives this aspect neutral weight.

   ·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

7. The Tribunal appreciates that the cancellation of the applicant’s visa may cause financial, psychological, and emotional hardship to the applicant personally.  The Tribunal is also satisfied that Ms X would also suffer a substantial degree of hardship given her vulnerable mental health status.

8. The Tribunal gives this aspect weight in favour of the applicant.

9. The Tribunal is not aware of any other matters relevant to its determination of the review.

   Concluding remarks

10. The Tribunal has carefully considered the material before it individually and cumulatively. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of the applicant. The Tribunal is mindful that the applicant provided incorrect information and was granted the visa based on that incorrect information.  The Tribunal considers the provision of incorrect information to be serious but the balance of the considerations weighs in favour of the applicant.

11. Having regard to all the relevant circumstances, the Tribunal concludes that on balance, the visa should not be cancelled.

    DECISION

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

    Antoinette Younes

    
    Senior Member

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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