Muthoni (Migration)

[2020] AATA 1378

Muthoni (Migration) [2020] AATA 1378 (2 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Magdaline Waithera Muthoni

CASE NUMBER:  1718373

DIBP REFERENCE(S):  BCC2017/2283987

MEMBER:Wendy Banfield

DATE:2 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 02 January 2020 at 4:48pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – incorrect information on visa application – applicant notified incorrect country of passport – streamlined visa processing – applicant’s responsibility to ensure accuracy in her application – information provided by overseas education agent – applicant completed several courses – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 5(1), 54, 97-105, 107 – 109
Migration Regulations 1994, Schedule 2 cl 573.223; Schedule 8, Condition 8202; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 s.101 of the Act that requires visa applications to be correct. Section 101 of the Act states all questions in a visa application must be answered and no incorrect answers are to be given or provided. The delegate found that in the applicant’s case, incorrect answers were given or provided. In her application for a visa, in response to questions about her passport details and nationality Norway had been selected when in fact the applicant holds a passport from Kenya and is a citizen of that country. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Kenya, holds a Kenyan passport and is currently 23 years old. She came to Australia in 2017 to study Accounting. The application form for the visa which is the subject of this review indicated Ms Muthoni’s nationality and country of passport was Norway. For this reason the application was fast tracked by the Department. The information was incorrect but the applicant claims she had not been aware of the error. She declares her agent advised later that the Department had been at fault and the matter was corrected.

4. Prior to the hearing the applicant submitted the following documents:

   ·     Kenyan Certificate of Secondary Education;

   ·     Employer reference letter;

   ·     Confirmation of Enrolment (COE) for Diploma and Advanced Diploma of Accounting;

   ·     Emails between the applicant and agent in Kenya dated June 2017;

   ·     List of documents submitted with the applicant’s visa application;

   ·     Transcripts and completion certificate for the applicant’s studies in Australia;

   ·     Certificate III in Individual Support

   ·     Details of the applicant’s Australian employer;

   ·     Copies of the applicant’s passport, national identity card and birth certificate;

   ·     Copies of an original and amended visa grant notice;

   ·     Birth certificates of the applicant’s mother and brother;

   ·     Statement of purpose lodged with the visa application.

5. The applicant appeared before the Tribunal on 9 October 2019 to give evidence and present arguments.

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

   The hearing

7. The applicant gave evidence at the hearing that she came to Australia to study because it is more developed and she will obtain more skills to implement in her home country. She enrolled in a Diploma and Advanced Diploma of Accounting.  The applicant advised she was in the last Semester of her Advanced Diploma course which is due for completion in December. After that, the applicant said she wants to take a Bachelor of Accounting.

8. The applicant was asked about holding a Certificate III in Individual Support. She said she had wanted to contribute to the Australian community and gain life experience. The applicant said she previously had a family member with dementia that no one had known how to manage. It would also provide another skill which is not very available in her home country.  Currently the applicant is employed in specialised dementia care working approximately 37 hours per fortnight.

9. The applicant advised that coming to Australia was her first time abroad and she had relied on others with more experience to assist her. The Tribunal asked about her written statement in which she said she had become aware of an error on her visa grant notice. In response she said she called the agent who had managed her application and was told she had nothing to worry about, the matter would be taken care of and she would get the correct visa. According to the applicant, she later received a copy of the corrected visa information. The applicant said it took approximately 3 days to receive a new copy of her visa. She said she checked it and it appeared to have the correct information. The Tribunal asked whether the applicant had noticed that the date of the new document was the same as the original one. She said she had not and that once she saw the correct country was on the document and not Norway, she was no longer worried about it.

10. The Tribunal advised the applicant that of particular concern in her case was the fact her visa was fast tracked because her country of origin had been listed incorrectly as Norway. The applicant denied any knowledge of why the error occurred and said her agent told her the Department had made a mistake. The Tribunal asked the applicant about the emails between her and her migration agent. She explained she had also been sent educational documents by the agent and her enrolment had been arranged before the visa grant.

11. The Tribunal asked the applicant about the Department’s written Notice of Intention to Consider Cancellation (NOICC). She said she had not received it and the only correspondence she received was the cancellation letter. She said she contacted her original agent and was referred to another agent in Sydney. The Tribunal put to the applicant that the NOICC had been sent by Registered Mail to her address at the time but she reiterated she had not received it.

12. The Tribunal discussed the applicant’s current situation and intentions with her. She said she is studying and working part-time and plans to undertake a Bachelor degree. She then plans to get an Accounting job in Kenya. According to the applicant there have been no other instances of non-compliance. As to the amount of time that has elapsed since the non-compliance, the applicant said she has continued to study and also gain skills in an area she previously did not know about, in particular how to manage people with dementia. The Tribunal asked how her carer’s qualification will be of benefit to her career when she plans to pursue Accounting.  She said Accounting will be a main career but later she will be able to educate people about dementia. Regarding any contribution to the Australian community, the applicant said she had not been able to travel home since her visa was cancelled but she was able to work with people who felt like family at her job.

13. The Tribunal referred the applicant to the legal consequences of visa cancellation and invited her to make submissions. The applicant said she would lose a lot if her visa is cancelled as she is still young and would not be able to continue studying and developing her skills. The applicant advised there are no consequential cancellations in the event her visa is cancelled and she was not aware of Australia having any international obligations in her case. In response to the degree of hardship that would be caused, the applicant said she would not be able to complete her studies as planned.

14. In conclusion, the applicant said she would like the Tribunal to consider allowing her to continue developing her skills, and working as a dementia carer.

15. The representative submitted that the agent in Kenya had used the applicant’s email to create an immigration account in order to avoid implication in the matter. For this reason it was claimed the visa grant had been sent directly to the applicant. The representative referred to s.54 of the Migration Act and submitted that if the Department had checked the other information in the application they could easily have seen that Norway was an error. This is because the applicant had provided Kenyan identity documents. The representative suggested the problem would not have occurred if the applicant’s identity had been checked rather than a possible automated approval. He confirmed the applicant just wants to complete her studies and return to her home country.

    359A letter

16. On 9 October 2019 the Tribunal wrote to the applicant inviting her to comment or respond to information. The Tribunal put to the applicant:

    ·During the Tribunal hearing on 9 October 2019 you confirmed your address in July 2017 was [specified address]. The Tribunal advised that this was the address the Department sent a Notice of Intention to Consider Cancellation (NOICC) to on 12 July 2017.

    ·You claimed during the Tribunal hearing that you never received a NOICC even though it was sent by Registered Mail to your home address. However, as shown by the attached tracking page from Australia Post, the letter was delivered on 17 July 2017.

    This information is relevant to the review because contrary to your evidence at the Tribunal hearing, it indicates you were informed about the Department’s intention to consider cancelling your Student visa.

    If the Tribunal relies on the information in making a decision, it may lead to the decision under review being affirmed.

17. On 16 October 2019 the applicant replied to the invitation. The applicant maintains she did not receive the NOICC and that upon making inquiries with Australia Post, the letter was signed for by a person that was unknown to the applicant. The applicant states she found out the signatory was the owner of the property where she resides and that upon being contacted, the individual claimed not to recall receiving the letter.

18. 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

19. 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.

20. 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.

21. The applicant denied she had received the NOICC sent to her address by registered post on 12 July 2017. According to her response to the 359A letter from the Tribunal, the applicant obtained information from Australia Post that indicated the letter was signed for by a person named ‘B Phung’, who the applicant said was not known to her. The applicant submitted that on making inquiries she discovered that the signatory was the owner of the property where she resides. It is not very credible that a person who is not known to the applicant happened to be at the residence, signed for and took delivery of a registered letter but not give it to the addressee. While the applicant provided an explanation as to why she did not provide a response to the NOICC, she did not dispute the letter was correctly sent to her or claim that the power to cancel does not arise in this case.

22. 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?

23. 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 of the Act that requires visa applications to be correct. In the applicant’s case, incorrect answers were provided in relation to her passport details and nationality. The application had indicated Ms Muthoni’s passport and nationality were Norway when in fact they are Kenyan.

24. The applicant does not deny her original application incorrectly indicated her nationality and passport were from Norway. However, she claims her agent in Kenya advised her that the Department had made a mistake and it would be corrected. She further states she was given advice she could still travel and a new copy of her visa grant notice was provided later. To support her claims the applicant provided copies of emails from June 2017 allegedly between her and the agent in Kenya who she says completed the application form. The emails do not contain any discussion of the matter and appear to only contain an attachment. The Tribunal did not find them particularly enlightening in this regard.

25. Pursuant to s.99 of the Act, 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. Together with the applicant’s own evidence, the written submission by the representative dated 1 October 2019 says the applicant understands the operation of s.99 of the Act as it applies to her case. As a result, however the non-compliance occurred, it was the applicant’s responsibility to ensure her application was correct.

26. For these reasons, the Tribunal finds that there was non-compliance with s.101 of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

27. 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).

    Prescribed circumstances

28. 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

29. In this case the correct information is that the applicant is a citizen of Kenya and holds a Kenyan passport. Her application for a visa declared she was a citizen of, and held a passport from Norway, which was false. The representative submits all other information in the application was correct; the applicant had no intention to provide incorrect answers; she does not understand why her agent provided incorrect answers but she nevertheless understands the operation of s.99 of the Act. The Tribunal finds that the questions in the visa application form were not ambiguous and the answers to the questions were fundamentally important. This weighs against the applicant in considering whether to cancel her visa.

    ·     the content of the genuine document (if any)

30. The representative submits that all other documentation was genuine. The Tribunal is satisfied the incorrect information was not based on the content of any supporting documents and gives this aspect 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

31. In the Department’s decision to cancel the visa dated 4 August 2017 the delegate states that if the applicant had provided the correct information her application would have been subjected to greater scrutiny. The representative in his submission of 1 October 2019 refers to s.54 of the Act which states that the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. It is argued that if the assessing officer had considered all the information provided they would have realised the applicant was a Kenyan national (not from Norway as indicated in the application form) in which case she could have been asked to clarify the discrepancy.

32. The Tribunal is unable to take account of the Department’s internal procedures for assessing visa applications but notes that s.54 of the Act appears in a Subdivision that sets out the code of procedure for dealing fairly, efficiently and quickly with visa applications. It is in the context of natural justice for the benefit of applicants. The Tribunal does not accept s.54 of the Act contradicts or overrides the requirement for visa applications to be correct in accordance with s.101 of the Act. To interpret it otherwise would result in the Department being responsible for ensuring visa applications were correct rather than the applicant. The Tribunal finds the decision to grant a visa was based largely on incorrect information provided in the application which weights against the applicant.

    ·     the circumstances in which the non-compliance occurred

33. It is claimed the applicant was the victim of an unscrupulous education agent overseas. The email evidence provided in support of this claim is minimal and it is not clear why an agent would provide false information on the applicant’s behalf without their knowledge. No submissions were made in this regard. In addition, the applicant blames third parties for what has occurred (her agent, the Department, another person signing for correspondence addressed to her) and stated during the hearing that she did not contact the Department herself about the matter at any time. This was despite claiming to be aware of the error regarding her nationality prior to departing Kenya and still taking the significant step of travelling to another country for the first time for up to three years. The Tribunal is not satisfied on the evidence that the applicant was not aware of the false information or that the circumstances were beyond her control. This weighs against the applicant in the Tribunal’s consideration of whether the exercise its discretion to cancel her visa.

    ·     the present circumstances of the visa holder

34. At the time of the hearing the applicant was enrolled in a course of study that was due for completion in December 2019. The Tribunal gives some weight to the applicant in its consideration of this criterion.

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

1. The applicant did not contact the Department or make her own inquiries about the incorrect information that was provided in her application form. If she believed her agent in Kenya had made the error, or that the Department had done so as she claims the agent told her, it would have been prudent to ensure through official channels that her details were correct. Section 105 of the Act requires the particulars of incorrect information to be given and the applicant herself was responsible for correcting any errors. This weighs against the applicant in the Tribunal’s assessment.

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

2. The Tribunal is not aware of any other instances of non-compliance and gives this aspect neutral weight.

   ·     the time that has elapsed since the non-compliance

3. The applicant’s visa was granted on 12 June 2017 and the Department contacted her regarding an intention to cancel on 12 July 2017. As there was no response to the NOICC the visa was then cancelled the visa on 4 August 2017. During the hearing and in the representative’s submission it was stated the applicant has continued to study and has completed courses in Australia. The Tribunal affords some weight in her favour in this regard.

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

4. The Tribunal is not aware of any breaches of the law since non-compliance and gives this aspect neutral weight.

   ·     any contribution made by the holder to the community.

5. On the applicant’s behalf it was submitted she has studied courses in Aged Care as well as a Diploma and Advanced Diploma of Accounting. She works part-time as a dementia carer providing assistance to the elderly. At the hearing the applicant said she had not been able to travel home since her visa was cancelled but she was able to work with people who felt like family at her place of employment. The Tribunal gives a little weight in favour of the applicant in deciding whether to cancel her visa.

   Departmental policy considerations

6. 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

7. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

   ·     whether there would be consequential cancellations under s.140

8. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act and 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.  

9. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

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

10. It was submitted on the applicant’s behalf that cancellation of her visa would affect her chances of being granted a visa in other countries such as the United States, Canada, the UK and European countries. The Tribunal understands this is the case but finds it does not outweigh the reasons in favour of the Tribunal exercising the discretion to cancel the applicant’s visa. It was also claimed the applicant’s mother has worked hard to give her an opportunity to receive an education and cancellation of the visa will be devastating. The Tribunal accepts the evidence in this regard, however, the applicant has been able to complete the courses of study she initially came to undertake and if she wishes to pursue her studies further she can consider doing so in Kenya. The courses the applicant has completed in Australia to date will no doubt be of benefit to her in her home country in future.

    Conclusion

11. 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

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

    Wendy Banfield
    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.