OU YANG (Migration)

[2020] AATA 564

OU YANG (Migration) [2020] AATA 564 (27 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss YI-WEN OU YANG

CASE NUMBER:  1819982

DIBP REFERENCE(S):  BCC2017/4683393

MEMBER:Antoinette Younes

DATE:27 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 27 February 2020 at 12:47pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in previous visa application – in working holiday extension visa application, claimed work in regional Australia – discretion to cancel visa – factors for and against cancellation – acknowledgment of incorrect information – no intention at the time to remain in Australia – completed study, now working and in relationship – partner’s visa due to expire soon – decision under review affirmed

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 with s.101(b) and s.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 on 25 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner.  

4. 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

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.

6. Broadly speaking, those 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.

10. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and s.107A of the Act.

11. 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.

12. 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.

13. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record.  

14. In the course of the hearing, the Tribunal discussed relevant matters, including the information that:

    i)   The applicant breached s.101(b) when applying, on 23 July 2016, for a Working Holiday (Extension) (class TZ subclass 417) visa.

    ii)     As part of the Working Holiday (Extension) (class TZ subclass 417) visa application form, the applicant provided responses to a number of questions. In response to the question Have you undertaken specified work in regional Australia for a total of 3 months? the applicant responded Yes. Under the heading Details of specified work undertaken, the applicant provided an ABN of 42001926549, postcode of 2652, starting date of 17 September 2015 and end date of 31 December 2015.  Under the heading Declaration, the applicant confirmed that, I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa.

    iii)   Based on the information provided by the applicant, the visa was granted on 28 July 2016.  She was granted the subclass 500 student visa on 26 October 2017, with an expiry date of 7 August 2019.

    iv)   The Department received an email from the owner of the above ABN stating that the applicant had never worked for that entity. On the basis of that information, the Department formed the view that the applicant had provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa.

    v)    On 25 May 2018, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant responded on 6 June 2018.

15. In the applicant’s response to the NOITCC, she indicated that:

    ·She made a mistake which she regrets.  She offered a confession – the reason for not doing the relevant work was because she did not believe she would remain in Australia for more than a year.  She also heard about an agent who can assist on payment of $1600.  She was naive and paid money to someone whom she has never met. 

    ·At the end of January 2018 on her return to Australia from Europe, she was stopped at the airport and asked questions about the Working Holiday (Extension) (class TZ subclass 417) visa.  She provided correct answers.  She now adheres to Australia’s laws.

    ·She is studying.  Her attendance rate and performance are good.  She has her teacher’s support.  During her free time, she looks for opportunities in the community and she is willing to do the relevant three months’ work.  She pays her taxes.  She has a partner who is also on a visa.

16. In support of her response to the NOITCC, the applicant provided End of Term results in the Certificate IV in Travel and Tourism to 16 January 2018, a letter of support from the applicant’s teacher dated 30 May 2018 (Managing Director of No borders Travel), and an email from the applicant dated 27 May 2018 offering to undertake volunteer work for Meals on Wheels.

17. To the Tribunal, the applicant provided the letter of support from the applicant’s teacher dated 30 May 2018 (Managing Director of No borders Travel), a document titled PetchipInfo relating to the applicant’s cat, a Statutory Declaration of the applicant’s partner confirming his relationship with the applicant, and a letter dated 14 January 2020 from the Commonwealth Bank about joint account details.

18. In the course of the hearing, the applicant acknowledged that she knew that she did not perform the relevant required employment to be granted  the Working Holiday (Extension) (class TZ subclass 417) visa.  She stated that a friend suggested an agent (Mr X) whom she paid $1600. She never met Mr X personally.  The Tribunal asked and the applicant confirmed that she knew that incorrect answers would be provided in the visa application. She stated that on her return to Australia in January 2018 and when stopped by officials at the airport, she disclosed that she had not completed the relevant work required for the Working Holiday (Extension) (class TZ subclass 417) visa.  The Tribunal asked the applicant to explain the reasons for the provision of the incorrect information.  She stated that she was not intending to stay in Australia.

19. The applicant has acknowledged that she provided incorrect information.  On the evidence, the Tribunal finds that the applicant provided incorrect answers in response to the question Have you undertaken specified work in regional Australia for a total of 3 months? When she responded Ye, under the heading Details of specified work undertaken, when she provided an ABN of 42001926549, postcode of 2652, starting date of 17 September 2015 and end date of 31 December 2015, and under the heading Declaration, when she confirmed that, I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa.

20. 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.

21. 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?

22. 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).

23. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

24. 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

25. 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.

26. 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 she had completed the specified regional work with a particular employer when in fact the applicant had not completed any such work.

27. The correct information is that the applicant did not work for any period of time for the entity with ABN 42001926549, the owner of which confirmed to the Department that the applicant had not undertaken any of the claimed work.

28. The provision of incorrect information is a serious matter and the applicant knew that incorrect information would be provided in the application. Her explanation that she did not intend to remain in Australia is unpersuasive. 

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

    ·     the content of the genuine document (if any)

30. There is no issue in relation to a genuine document.

31. The Tribunal 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

32. 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, 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, 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).

33. 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 she 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.

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

    ·     the circumstances in which the non-compliance occurred

35. 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 she had been employed by a particular entity for a particular period of time, which was not correct.

36. The applicant knew about the incorrect information. 

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

    ·     the present circumstances of the visa holder

38. The applicant is no longer studying.  She is working and lives with her partner of almost 4 years.  The applicant’s partner is on a temporary visa due to expire in August 2020.  The partner gave evidence that he intends to apply for a permanent Australian visa, supported by his employer.  He plans to include the applicant as a secondary applicant in an Australian visa application.  He gave evidence that if the applicant were to leave Australia, he would consider leaving as well so they can live together.

39. For the purpose of this Decision, the Tribunal accepts that the applicant and her partner are in a genuine relationship. 

40. The Tribunal appreciates that the applicant came to Australia on the student visa to study and the evidence shows that she has studied, consistent with that aim.  The Tribunal gives regard to the letter of support from the applicant’s teacher.

41. The Tribunal gives this consideration some weight in the applicant’s favour.

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

42. The applicant acknowledged that she knew of the incorrect answers. She told Australian officials at the airport that she did not undertake the claimed work.  The Tribunal gives this aspect some weight in the applicant’s favour.

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

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

44. The Tribunal gives this aspect neutral weight.

    ·     the time that has elapsed since the non-compliance

45. The non-compliance occurred when the applicant provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa, lodged in July 2016. The Tribunal does not consider this period of time to be significant.  There is limited information to suggest that this period of time in the applicant’s case is significant or substantial, or evidence of strong ties with the Australian community.

46. The Tribunal gives this consideration weight in favour of cancellation.

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

47. There is no evidence before the Tribunal of any breaches of the law since the non-compliance.

48. The Tribunal gives this aspect neutral weight.

    ·     any contribution made by the holder to the community.

49. The applicant gave evidence that if she were allowed to remain in Australia, she would like to undertake volunteer work to assist with the aftermath of the recent bushfires.  However, there is limited evidence of a positive contribution to the Australian community.   

50. The Tribunal gives this aspect neutral weight.

51. 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

52. 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. The applicant would also be impacted by s.48 of the Act which means that she may face difficulties in applying for any further visas in Australia and be granted an Australian visa.

53. The Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences.  However removal from Australia would mean that the applicant would be separated from her partner.  The couple has a cat and a new home may be required.

54. The Tribunal gives this aspect some weight in the applicant’s favour.

    ·whether there would be consequential cancellations under s.140

55. 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.

56. 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.   

57. 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 non-refoulement obligations in case of cancellation. 

58. 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.

59. The Tribunal appreciates that the cancellation of the applicant’s visa may have adverse personal outcomes, such as being separated from her partner.  It is however relevant that the partner is the holder of a temporary visa with a specified expiry date.  The Tribunal notes his future aspirations, including remaining in Australia and developing a career with his current employer. 

60. The Tribunal considers the potential separation from the partner to present challenges for the couple, but the Tribunal does not consider those to amount to a degree of hardship to outweigh other considerations.

61. In the course of the hearing, she advised the Tribunal that her grandfather died a day earlier but she did not want to request an adjournment.  She was keen to attend the hearing and explain what happened.  The Tribunal acknowledges the applicant’s genuine sadness about the death.

    Concluding remarks

62. The Tribunal has carefully considered the material before it individually and cumulatively.  The applicant has knowingly provided incorrect information in a visa application.  There are some aspects in her favour but on balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.

    DECISION

63. The Tribunal affirms the decision 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.