Pandey (Migration)

[2019] AATA 4737

Pandey (Migration) [2019] AATA 4737 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ballav Pandey

CASE NUMBER:  1708982

DIBP REFERENCE(S):  BCC2016/3236469

MEMBER:Wendy Banfield

DATE:28 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 29 October 2019 at 5:24pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – incorrect information in visa application – applicant’s name – previous visa applications – travel history – prior compliance with visa conditions – consideration of discretion – overstayed previous visa – visa grant based on incorrect information – deliberate provision of false information – separation from wife on Student visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

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 573 Higher Education Sector visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his application for a Student visa. The incorrect information included the applicant’s name, whether he had applied for any other type of Australian visa, where he had travelled previously, whether he had been in Australia and not complied with visa conditions, whether he had lived outside his country of passport for 3 or more months in the last 5 years and whether he had ever been removed, deported or excluded from another country or overstayed a visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Evidence of the visa applicant

3. The applicant submitted the following written evidence:

   ·     Representative’s email submission dated 19 August 2019;

   ·     Copy of a Statutory declaration signed by Ballav Pandey dated 4 April 2017 (previously provided to the Department);

   ·     Copy of a Statutory Declaration signed by Sarina Kafle dated 4 April 2017 (previously provided to the Department).

4. The applicant provided evidence to the Department which has also been taken into account in this decision. That evidence consisted of an Application for a student visa dated 18 January 2016; Statement of Purpose; representative’s submission dated 6 February 2017; Statutory Declaration of Ballav Pandey dated 6 February 2017; evidence of Ms Kafle’s studies in Australia; Statutory Declarations by Ballav Pandey and Sarina Kafle dated 4 April 2017; medical certificates for Sarina Kafle.

5. The applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

   The hearing

7. The applicant provided background information regarding his travel to Australia as a student in 2009. He said he was studying a Diploma of Information Technology but due to being in a new environment, he was distracted and began missing classes and not taking exams. After five years he realised he had wasted time and reapplied for a further visa but the application was refused. The applicant was unsuccessful in applying for a review of the decision and afterwards the applicant said he overstayed for 35-40 days before applying for a Bridging Visa E and departing on 2 May 2014.

8. According to the applicant he did not tell his parents about his situation immediately. He said he met and married his wife then changed his name and spent time in New Zealand before applying for a Student dependent visa to Australia. He said he had not told his wife about it but while in Australia he received a letter from NSW Roads and Maritime Service advising his photo had been detected with another name. The applicant admitted he had initially denied it was him but then confessed to his wife.

9. The applicant advised his wife was studying a Bachelor of Accounting and now holds a Subclass 485 visa. He claimed a friend had suggested she study in Australia and she had proposed it to him. The applicant explained he provided incorrect information because he did not want to affect his wife’s plans to study and he was too scared to tell her about his past because she may leave him. It was claimed Ms Kafle was very upset when she did find out. The applicant said his wife is intending to study Nursing in Canberra and is currently living and working there.

10. The applicant advised it is three and a half years since the non-compliance occurred. He said there have been no further breaches of the law and he contributes to society by making donations to charities such as the Salvation Army and St Vincent De Paul Society. According to the applicant he and his wife shared a house in Campsie in New South Wales and will be sharing accommodation again in Canberra.

11. Regarding the legal consequences of his visa being cancelled, the applicant said Ms Kafle will be most affected because she will be in Australia and he will be in his home country. He said he had promised to look after his wife and his in-laws are not aware of the situation. The applicant said he and his wife were living in fear of being apart but decided to attend the hearing and decide what to do afterwards. The applicant advised he and his wife do not have children and he was not aware of Australia having any international obligations in his case. The Tribunal asked the applicant to comment on the degree of hardship that would result from his visa being cancelled. He said Ms Kafle plans to study Nursing for two and a half years after her current visa ends which would be difficult without him as she has no family in Australia and suffers from migraines and panic attacks.

12. It was submitted the applicant acknowledges he did the wrong thing and is contrite and regretful. However, he had no other intention than to be with his wife.

13. 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

14. 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.

15. 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.

16. 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?

17. 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 Migration Act in the following respects: the applicant provided incorrect answers in his visa application form as a dependent of Ms Sarina Kafle.

18. The applicant submitted a copy of Statutory Declaration dated 4 April 2017 in which he admitted he had previously travelled to Australia as a student in 2009, he had overstayed for more than 28 days and had used another name to apply for a visa with his wife. Also during the Tribunal hearing the applicant agreed he had provided incorrect information and had not complied with s.101(b) of the Migration Act.

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

    Should the visa be cancelled?

20. 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).

21. 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.

22. 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.

23. The Tribunal weighed the evidence provided by the applicant in determining whether to exercise the discretion to cancel the visa in accordance with the prescribed circumstances set out in r.2.41 of the Regulations.

24. The correct information is that the applicant had entered Australia previously having arrived on 14 March 2009 under the name, Raju Pandey (DOB: 05/12/1984). At the time the applicant held a Student visa. A further application for a Student visa was refused and after an unsuccessful application for review, Mr Pandey’s Bridging visa B ceased and he became unlawful in Australia. He was then granted a Bridging visa E and departed on 19 May 2014. According to the Department the applicant overstayed his previous visa by more than 28 days and was excluded from Australia for period of three years in accordance with Public Interest Criteria 4014. The correct information meant the applicant would have been denied a visa to Australia.

25. The Tribunal did not assess the content of any documents in making a decision in the applicant’s case.

26. The decision to grant a visa or immigration clear the visa holder was based on the incorrect information provided by the applicant. The applicant had previously been excluded from Australia. If he had submitted a visa application using his correct or previous identity, he would likely have been denied a visa to Australia. This Tribunal considers this weighs against the applicant.

27. The circumstances in which the non-compliance occurred were that the applicant had been excluded from Australia based on having overstayed a previous visa. After his marriage in his home country the applicant wanted to accompany his wife to Australia as a dependent on her Student visa. He claimed to have not told his family or his wife about the circumstances that led to his departure from Australia in 2014. The applicant was aware he would likely not be granted a Student dependent visa to accompany his wife if he had provided the correct information in his application. He therefore gave a false name and incorrect responses to questions in his application for a visa. The deliberate circumstances in which the non-compliance occurred weigh heavily against the applicant in this regard.

28. The applicant’s present circumstances are that he wishes to join Ms Kafle in Canberra where she plans to study Nursing. According to his written and oral evidence he needs to remain in Australia to support his wife because she has no other family in Australia and suffers from migraines and panic attacks. Medical certificates were provided to the Department that indicate Ms Kafle was unfit for work or study on two occasions in 2017 due to migraine headaches. The evidence provided does not support a finding that Ms Kafle would be unable to continue her studies without the applicant’s physical presence in Australia. The applicant did not provide specific evidence about his individual circumstances to support a submission that his visa should not be cancelled. The Tribunal has considered the evidence regarding the applicant’s desire to stay in Australia and support his wife but places no weight in his favour on this criterion. It will be a matter for the parties themselves to decide whether Ms Kafle remains in Australia without her husband or returns with him to their home country.

29. Regarding the applicant’s subsequent behaviour concerning his obligations under the Migration Act, there is no evidence before the Tribunal that the applicant at any time attempted to correct the false information that had been provided. He also admitted that when first confronted with information from NSW Roads and Maritime Service suggesting his photo matched a person of another name, he had initially denied it was him. Subdivision C of Division 3 of Part 2 of the Migration Act requires visa applications and passenger cards to be correct, bogus documents must not be given and the particulars of incorrect answers must be given. The applicant gave evidence that he deliberately provided a false identity and incorrect answers in his application form in order to obtain a visa to Australia knowing that it was unlikely to be granted based on his immigration history. In addition, it appears the applicant had no intention of ever notifying the Department of the incorrect information and only admitted to the non-compliance when confronted with the photo evidence from NSW Roads and Maritime Service. The evidence weighs against the applicant in the Tribunal’s consideration.

30. Regarding any other instances of non-compliance, the Tribunal notes the applicant conceded he did not study and had wasted his time while in Australia previously as the holder of a Student visa. He then overstayed his visa by approximately two months and was excluded in accordance with Public Interest Criteria. This weighs against the applicant in the Tribunal’s consideration.

31. The applicant applied for the visa that is the subject of this review on 21 January 2016. As of the date of the Department’s decision the time that has elapsed was fourteen months. According to the Department, and as confirmed by the applicant, he did not admit to the provision of incorrect information until it was put to him in the Department’s Notice of Intention to Consider Cancellation. This is a factor that weighs against the applicant.

32. There is no evidence before the Tribunal that the applicant has been involved in any breaches of the law since the non-compliance occurred. The Tribunal places some weight in the applicant’s favour on this criterion.

33. The applicant claimed during the Tribunal hearing that he made contributions to the community by donating to various charities including the Salvation Army and the St Vincent de Paul Society. He did not provide specific details or independent evidence of this and the therefore the Tribunal affords it minimal weight in his favour.

34. The Tribunal considered the prescribed factors where relevant; any matters raised by the applicant in response to the s.107 notice; and any consideration of the Departmental PAM 3 guidelines. These include:

    ·     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

    ·     whether there would be consequential cancellations under s.140

    ·     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.   

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

35. 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 his 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.

36. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act. The applicant is a secondary visa holder on his wife’s Student visa and cancellation of his visa would not lead to Ms Kafle’s visa being cancelled.

37. 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.

38. Regarding the degree of hardship that may be caused by the applicant’s visa being cancelled, evidence was provided that Ms Kafle plans to study Nursing for two and a half years after her current visa ends which would be difficult without her husband as she has no family in Australia and suffers from migraines and panic attacks. The Tribunal accepts that cancellation of the applicant’s visa would cause a degree of hardship to the applicant and his wife. However, as stated in this decision, the Tribunal does not accept Ms Kafle would not be able to continue her study plans in Australia after the applicant’s visa is cancelled. While the parties will have to decide whether Ms Kafle remains in Australia without the applicant or returns to Nepal with him, this issue has come about because of the applicant’s decision to provide incorrect information to the Department in his application for a visa.

39. 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

40. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector 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.