Pelger (Migration)

[2018] AATA 5250

Pelger (Migration) [2018] AATA 5250 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nicole Pelger

CASE NUMBER:  1817300

DIBP REFERENCE(S):  BCC2018/1106837

MEMBER:Nicole Burns

DATE:13 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 13 December 2018 at 2:34pm

CATCHWORDS
MIGRATION – cancellation – Subclass 417 (Working Holiday) visa – incorrect information – did not declare visits outside Germany – travelled to Southeast Asia – not a serious failure to provide correct information or to mislead the Department – applicant sought to rectify mistake – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101(b), 107, 109(1), 140
Migration Regulations 1994, Schedule 2, r 2.41, Public Interest Criterion 4005, cl 417.221(2)(b)

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 417 (Working Holiday) 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 not provided correct information in her visa application: s.101(b). 

3. On 13 December 2018 the applicant gave oral evidence to the Tribunal via the telephone from Western Australia.

4. 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

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

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

7. In the present matter, 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.

   Did the notice comply with the requirements in s.107? 

8. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

9. The Tribunal has considered the validity of the Notice of Intention to Consider Cancellation (NOICC) dated 16 May 2018, a copy of which is contained on the Departmental file. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal finds that the notice issued under s.107 complied with the statutory requirements.

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

10. 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.

11. The notice stated that in her application form that the applicant replied ‘no’ when asked the following question under the heading ‘Health Declarations’:

    In the last 5 years, have you visited, or lived, outside GERMANY for more than 3 consecutive months (other than Australia)?

12. The day after her visa application was made (and granted), as also set out in the notice, the applicant contacted the Department and advised that for the last six months she had been backpacking through Southeast Asia.  The delegate therefore identified the non-compliance in that she should have answered ‘yes’ to the answer above, not ‘no’.

13. In response to the notice the applicant sent two emails to the Department dated 17 May 2018 and 23 May 2018.  In her first email she states as follows:

    After I have sent you my first email with the concern, that I misunderstood the Visa Application and did and [sic] incorrect answer, I noticed that I was wrong and that I answered it correct.

    It is true that I have been travelling through Asia, but I have not been to those countries longer than 3 months (in total) which means that I do not need the Health Check.

    Is that correct?

14. The delegate responded to the applicant’s email on 21 May 2018 and asked her to include the dates of her visit to each South East Asian country in her response to the notice.  In an email dated 23 May 2018 to the Department the applicant states

    I do not understand why you need further information.  As I told you I do not need a Health Check.

15. As recorded in the delegate’s decision record the delegate concluded that the applicant has not complied with s.101(b). After considering the exercise of discretion, the delegate considered that the grounds for cancellation outweighed those for not doing so.

16. At the Tribunal hearing the applicant explained that at the time she filled in the visa application form she did not really understand the question about the health undertaking, thinking that she should only answer ‘yes’ if she had been in a country for more than three months with a high tuberculosis risk, which she had not.  She said that she had been travelling in a number of countries in South East Asia[1] since 27 July 2017, but for less than three months in total in each country.  After she had lodged her application the applicant said she spoke to some other travellers and realised she may have answered that question wrong.  She sent a text to the Department’s visa cancellation section – not to have her visa cancelled but to advise that she thought she may answered the question about the health declaration incorrectly and to then undertake the health assessment if required.  She also visited a place in Bangkok that assists with visa applications for various countries, told them what had happened and they advised her to log on to her immigration account and change the answer: however when she did she found out the 417 visa had already been granted.  She decided to arrange a health undertaking just in case and made an appointment with a hospital in Bangkok.  However when she arrived for her appointment she was told that they needed a referral from Australian immigration, which she did not have. The applicant said she showed her passport which contained the stamps for all the countries she had visited to the woman at the hospital who told her that she did not need to undertake the health check. 

    [1] That is Indonesia from 27 July 2017 to 24 August 2017; Thailand from 24 August 2017 to 22 September 2017; Vietnam from 22 October 2017 to 20 December 2017; Cambodia from 20 December 2017 to 20 January 2018; and then Thailand from 20 January 2018 until she came to Australia on 28 February 2018.

17. The applicant said she arrived in Australia on 22 February 2018 as the holder of the 417 visa.  Given the airport officials who looked through her passport on arrival did not say anything, she thought the matter was sorted out and that she did not need to undertake a health assessment.  Around two months later she received the notice, but was confused, because she had thought the matter had been resolved.

18. Having regard to the applicant’s evidence and the other material before it, the Tribunal is satisfied that the applicant filled in, or completed, her application form in a way that one incorrect answer was given or provided, as set out above (at paragraph 11) with respect to the health declaration part of the form.

19. It follows that the Tribunal finds that the applicant did not comply with s.101(b) of the Act because she provided incorrect information.  That is, she answered ‘no’ when asked if in the last 5 years she had visited, or lived, outside Germany for more than 3 consecutive months (other than Australia), whereas she should have answered yes given she had been travelling throughout Southeast Asia for approximately six months in that period.

20. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in one of the way described in the s.107 notice.

    Should the visa be cancelled?

21. 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).

22. 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.

23. 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.

    The correct information

24. The Tribunal finds based on the applicant’s evidence that the correct information was that the applicant had visited or lived outside Germany for more than three consecutive months in the last five years (prior to the visa application). 

    The content of the genuine document (if any)

25. This factor is not relevant in this case.

    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 Tribunal finds that if the correct information had been provided to the Department in the application form the applicant may have been required to undertake a health assessment in order to satisfy Public Interest Criterion 4005 for the purposes of cl.417.221(2)(b), which is a mandatory visa requirement.  The applicant did not undertake a health assessment therefore the Tribunal is unable to comment on whether she would have met PIC 4005 at the time.  The decision to grant the visa was partly based on the incorrect information, which meant the delegate did not require the applicant to undertake a health assessment at the time, under the erroneous belief that the applicant had not visited or lived outside Germany for more than three consecutive months in the five years prior.

    The circumstances in which the non-compliance occurred

27. At hearing the applicant apologised for the mistake, but claimed that she had been confused at the time about the question and thought she should only answer yes if she had been in a country with a high risk of tuberculosis for three months, which she had not.

28. The Tribunal notes after realising she may have provided an incorrect answer in the application form the applicant sought to rectify the problem immediately – the next day – by texting the Department.  She also tried to change her answer through her online immigration account but was unable to as the decision to grant her the visa occurred on the same day as she had applied.  She also spent around a week in Bangkok looking into the matter including making an appointment to undertake a health assessment, just in case.  

29. The Tribunal also notes the applicant responded immediately to the notice, seeking clarification as to whether the question meant that she had visited specific countries for more than three consecutive months, claiming she had not, and therefore thought she did not need to undergo a health assessment.  In response the delegate asked her to provide the dates she visited each country however the applicant failed to do so.  At hearing the applicant said this was because she was confused and thought the situation had been resolved given she had no problems entering the country after immigration officials checked her passport containing stamps of the all the countries she had visited in South east Asia previously.   The Tribunal notes it is plausible that the applicant was confused with the question initially and accepts she made every effort to rectify the situation immediately after she realised she may have made a mistake. 

    The present circumstances of the visa holder

30. The applicant told the Tribunal that after she arrived in Australia in February this year she worked for a month and a half in a farm in Western Australia and then for a gold mining lab in Kalgoorlie.  When she was told her visa was cancelled she quit that job, applied for a Bridging visa with work rights, and then started working for another gold mining lab once that visa was granted.  She works full time and lives in a share house. 

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

31. There is no evidence or any allegation that there is anything in the subsequent behaviour of the applicant that indicates she has not complied with her obligation under the Act. 

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

32. There are no other instances of non-compliance known by the Tribunal.

    The time that has elapsed since the non-compliance

33. The applicant’s 417 visa was lodged and granted on 22 January 2018, with an expiry date of 28 February 2019.  The applicant entered Australia as the holder of that visa on 28 February 2018.  It has now been approximately 11 months since the visa was lodged and granted.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

34. The Tribunal is not aware of any breaches of the law since the non-compliance in January 2018.

    Any contribution made by the holder to the community

35. No matters were raised in relation to this factor.

    Policy

36. The Department’s PAM3 ‘General visa cancellation powers’ at [15.3] lists certain other matters that, where relevant, should be taken into account as a matter of government policy when considering whether to exercise the discretion to cancel a visa under s.109 of the Act. They are:

    ·whether the visa would still have been granted if the correct information had been given;

    ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140;

    ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:

    o   if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;

    o   whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment; and

    ·any other matters raised by the visa holder in their response.

37. In relation to the policy factors there are no particular factors relevant to this case which has not already been addressed above under the prescribed criteria.

38. The Tribunal has carefully considered the particular circumstances of this case.  Whilst it accepts that the applicant provided an incorrect answer to one question in her visa application form, it considers its provision was not a serious failure to provide correct information or to mislead the Department, but was a mistake which the applicant sought to correct the day after she lodged her application (and subsequently), however the decision to grant the visa had already been made. 

39. Having regard to the totality of the evidence before it and for the reasons above the Tribunal is satisfied that the grounds supporting the applicant’s case outweigh the seriousness (or otherwise) of the provision of the incorrect information and arguments in favour of cancelling the visa.

    CONCLUSION

40. 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 not be cancelled.

    DECISION

41. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Nicole Burns
    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.