SCOTT (Migration)

[2020] AATA 2548

SCOTT (Migration) [2020] AATA 2548 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss GABRIELLE ROSE SCOTT

CASE NUMBER:  1826748

DIBP REFERENCE(S):  BCC2018/3840461

MEMBER:Antoinette Younes

DATE:14 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 May 2020 at 1:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in application – incorrect employment details relating to previous visa held by applicant – acknowledgement of wrongdoing – genuine remorse – genuine student – difficult health circumstances – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 48, 101, 107, 107A, 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 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

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

3. The applicant appeared before the Tribunal on 13 May 2020 to give evidence and present arguments.  The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone

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.

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

8. 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. 

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

10. Section 101 of the Act provides that:

    Visa applications to be correct

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

    (a)   all questions on it are answered; and

    (b)  no incorrect answers are given or provided.

11. Section 107A of the Act provides that:

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

    The possible non-compliances that:

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

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

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

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

13. In the course of the hearing, the Tribunal discussed the following matters:

    i)   The applicant breached s.101(b) when applying, on 26 November 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 92900330515, postcode of 3501, starting date of 15 March 2016 and end date of 22 June 2016.  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 26 November 2016.  She was granted the subclass 500 student visa on 29 November 2017, with an expiry date of 4 September 2020.

    iv)   On 14 June 2018, 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 24 August 2018, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant responded on 6 September 2018.

14. In the applicant’s response to the NOITCC, she accepted that she provided incorrect information.  She requested consideration based on compassionate grounds.  She referred to several medical conditions that restricted her ability to undertake farm-work.

15. The applicant provided to the Tribunal copies of medical test results, report dated 6 May 2020 from Dr W Siow (Gastroenterologist), report dated 5 May 2020 from Dr L McArthur (GP), and a Confirmation of Course Progress dated 4 May 2020 from Bridge Business College referring to the applicant’s progress and expected completion of an Advanced Diploma of Management course in July 2020.

16. In the course of the hearing, the applicant gave evidence that she takes full responsibility for her actions.  She accepted that she provided incorrect information.  She stated that this was a “massive error of judgement” and that she was unwell at the time and did not fully-appreciate the severity of her actions.  She apologised and stated she was deeply “sorry” for providing the incorrect information.

17. On the evidence, the Tribunal finds that the applicant intentionally provided incorrect information when applying, on 26 November 2016, for a Working Holiday (Extension) (class TZ subclass 417) visa.  The Tribunal therefore finds that the applicant breached s.101(b) and s.107A.

18. For these 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?

19. 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).

20. 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

21. The correct information is that the applicant did not work for any period of time for the entity with ABN 92900330515, the owner of which confirmed to the Department that the applicant had not undertaken any of the claimed work.

22. The provision of incorrect information is a serious matter and the Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the content of the genuine document (if any)

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

24. 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

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. 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).

27. The Tribunal is satisfied on the evidence that the applicant was granted the Working Holiday (Extension) (class TZ subclass 417) visa wholly or partly on the basis of the incorrect information that 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.

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

    ·     the circumstances in which the non-compliance occurred

29. The circumstances of non-compliance occurred when the applicant provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa, specifically relating to the claims that she had been employed by a particular entity for a period, which was not correct. 

30. The applicant has acknowledged that she provided incorrect information.  She expressed remorse which the Tribunal considers to be genuine.  She provided supporting evidence from medical practitioners.  The Tribunal accepts the medical evidence that since 2017, the applicant has suffered from clinical conditions which have impacted on the applicant.

31. The Tribunal is concerned about the provision of incorrect information, but the Tribunal has decided that the medical evidence weighs in favour of the applicant.  The Tribunal is of the view that giving significant weight to the medical evidence does not undermine the seriousness of the applicant’s actions.

32. On balance, the Tribunal gives this consideration weight in the applicant’s favour.

    ·     the present circumstances of the visa holder

33. The applicant is currently studying.  She provided evidence from Bridge Business College dated 4 May 2020 confirming that she is enrolled in the Advanced Diploma of Management (Human Resources), due for completion in July 2020.  The applicant gave evidence that she has invested about $20,000 in her education and that she would like to complete the course.

34. The Tribunal is satisfied that the evidence supports a finding that the applicant is a genuine student, consistent with the purpose of the student visa she was granted.  She has invested time and money in her education in Australia, in difficult health circumstances. 

35. The Tribunal is of the view that it would be harsh and unreasonable not to allow the applicant to complete her course in Australia.

36. The Tribunal gives this consideration significant 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

37. The applicant responded to the NOITCC.  She has fully engaged with the cancellation process.  She has acknowledged wrongdoing and expressed genuine remorse for her actions.

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

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

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

40. The Tribunal gives some weight in the applicant’s favour.

    ·     the time that has elapsed since the non-compliance

41. The non-compliance occurred when the applicant provided incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa, lodged in November 2016.

42. Although, the Tribunal does not consider this period to be significant, the applicant has continued to study and is due to complete an Advanced Diploma in July 2020. 

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

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

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

45. The Tribunal gives this aspect neutral weight.

    ·     any contribution made by the holder to the community.

46. There is limited evidence of a positive contribution to the Australian community.  The Tribunal gives this aspect neutral weight.

47. 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

48. 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. However, this would mean not completing her course.  The Tribunal gives significant weight in the applicant’s favour due to potentially not being able to complete her course if she were forced to depart Australia

49. 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.  The Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences. 

    ·whether there would be consequential cancellations under s.140

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

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

51. There is no information before the Tribunal to suggest that Australia would be in breach of any of its non-refoulement obligations in case of cancellation. 

52. 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.

53. There are no other matters requiring consideration.

    Concluding remarks

54. The Tribunal has carefully considered the material before it individually and cumulatively. 

55. There are aspects in favour of cancellation.  On balance, the Tribunal is satisfied that the evidence weighs in favour of the applicant and that the preferable decision is that the applicant’s visa should not be cancelled.

56. 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

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

    Antoinette Younes

    
    Senior Member

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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