Shao (Migration)

[2023] AATA 3947

Shao (Migration) [2023] AATA 3947 (11 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr I-Shang Shao

REPRESENTATIVE:  Ms Loo Mun May

CASE NUMBER:  2211345

HOME AFFAIRS REFERENCE(S):          BCC2022/1339977

MEMBER:Amanda Mendes Da Costa

DATE:11 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 408 (Temporary Activity) visa.

Statement made on 11 January 2023 at 10.42am

CATCHWORDS
MIGRATION – cancellation – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – ground for cancellation – incorrect information in visa application – applicant’s identity – facial image comparison – known by another name – citizen of another country – other identity documents – previous visa cancellation – consideration of discretion – visa grant based on incorrect information – deliberately mislead the Department – 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 Home Affairs to cancel the applicant’s Subclass 408 (Temporary Activity) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in his visa application form.  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. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 15 December 2022 to give evidence and present arguments.

4. Although the applicant was represented in relation to the review, his representative did not participate in the hearing.

5. The Tribunal has considered the material in both the Departmental and Tribunal files.  It notes that the applicant provided the Tribunal with a copy of the delegate’s decision with the review application.

6. 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

7. 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.

8. 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.

9. 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.

   Background

10. In his Temporary Activity (subclass 408) visa application the applicant provided the following information:

    Family Name:  SHAO

    Given names:  I Shang

    Place of Birth:  Taipei, Taiwan

    Country of Residence:  Taiwan

    Nationality of Passport Holder:             Taiwan

    Passport Number:  316252148

    Passport date of issue:    18 January 2018

    Passport date of expiry:  18 January 2023

11. On the Temporary Activity visa application form the applicant answered “No” to the following questions:

    Is this applicant currently or have they ever been known by any other names?

    Is this applicant a citizen of any other country?

    Does this applicant have any other current passports?

    Does this applicant have any other identity documents?

    Has the applicant ever been removed, deported, or excluded from any country (including Australia)?

    Has the applicant ever overstayed a visa in any country (including Australia)?

12. Under the Declarations section of the visa application form, the applicant acknowledged the following statement:

    Giving false or misleading information is a serious offence.

13. The applicant further declared that he:

    ·     Had provided complete and correct information in every detail on the form and on any attachments to it.

    ·     Understood that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s); and any of their family unit may become unable to be granted a visa for a specified period.

    ·     Understood that f documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

    ·     Will inform the Department in writing immediately as they become aware of a change in circumstances (including change of address) or if there is any change relating to information they have provided in or with this application, while it is being considered.

14. On 16 September 2021 through routine biometric integrity checks, the Department confirmed that the applicant’s biometrics provided with his application for a Temporary Activity visa, matched the biometrics of the following person:

    Name:            Yi Shang SIEW

    Date of Birth:    22 November 1991

    Passport:        Malaysian passport number A28188516 

15. On 7 October 2021 the Department contacted the Malaysian Immigration Department (MAD) and Malaysian National Registration Department (NRD).  The NRD confirmed that the applicant holds Malaysian citizenship.  The MAD confirmed that passport number A28188506 was genuine and that there was another passport issued to the applicant in the name of Yi Shang Siew, passport number A50050788, which is valid until 23 January 2023.

16. On 9 November 2021, a Forensic Facial Image Examiner (FFIE) of the Department conducted a facial image comparison between the photo provided with the applicant’s Temporary Activity visa application and the photo provided with the Student visa application lodged in the name of Yi Shang Siew.  The FFIE was of the opinion that the facial images represent the same person.

17. The Department subsequently became aware that:

    ·     The applicant holds two Malaysian passports in the names of Siew Yi Shang (passport number A28188506) and Yi Shang Siew (passport number A50050788), with the latter passport being valid until 23 January 2023.

    ·     On 18 November 2014 the applicant was granted a Student (Vocational Education Sector) (Subclass 572) visa in the identity of Yi Shang Siew.

    ·     On 7 December 2016 the applicant’s Student visa (issued in the identity Yi Shang Siew) was cancelled under s 116(1)(b) of the Act, on the basis that he was not enrolled in a registered course of study.  Upon the cancellation of the applicant’s Student visa was affected by Public Interest Criterion (PIC) 4013 for a period of three years as his visa had been cancelled on the basis that he had not complied with a condition attached to his visa.

    ·     After the cancellation of the applicant’s Student visa, he remained unlawfully in Australia until he was granted a Bridging E (subclass 050) visa on 1 November 2017 which is the date he departed Australia.

    Section 107 Notice

18. On 4 April 2022 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his visa. 

19. In the NOICC the Delegate out the above information regarding the information provided by the applicant in his Temporary Activity visa application form.  It found that he had provided incorrect answers when he answered “No” to the following questions:

    ·     Is this applicant currently or have they ever been known by any other names?

    ·     Is this applicant a citizen of any other country?

    ·     Does this applicant have any other current passports?

    ·     Does this applicant have any other identity documents?

    ·     Has the applicant ever been removed, deported, or excluded from any country (including Australia)?

    ·     Has the applicant ever overstayed a visa in any country (including Australia)?

20. The delegate found that:

    ·     He has also been known by another name, namely Yi Shang Siew.

    ·     He is a citizen of another country, namely Malaysia.

    ·     He has held two Malaysian passports in the names Siew Yi Shang (number A28188506) and Yi Shang Siew (number A50050788).  As the passport number A50050788 is valid until 23 January 2023, he currently holds more than one passport.

    ·     He holds a Taiwanese passport number 316252148 and two Malaysian passports.  Therefore, the applicant has other identity documents.

    ·     He has been removed from a country as his Student visa granted in the identity of Yi Shang Siew was cancelled on 7 December 2016 and he was excluded from holding another temporary visa for a period of three years from the date his Student visa was cancelled.

    ·     He overstayed a visa when he remained in Australia after his Student visa was cancelled on 7 December 2016 until his departure on 1 November 2017.

21. The applicant was invited to provide a response (in writing) to the NOICC within 14 days of receipt of the Notice.  The applicant did not provide a response.

    Applicant’s evidence at hearing

22. The applicant is a citizen of both Taiwan and Malaysia and is aged 31 years.  Although he was born in Taiwan, he obtained a Malaysian identity card and passport as a child based on his father’s own Malaysian citizenship.  The applicant’s father is deceased, but his mother and older sister live in Malaysia.  

23. The Tribunal discussed with the applicant the information he provided in his application for the subclass 408 visa.  The applicant confirmed that he had provided the information set out in paragraphs 11 to 14 of this decision.  He further confirmed that he currently holds a Taiwanese passport (number 316252148) in the name Yi Shang Siew and a Malaysian passport (number A50050788) in the name Yi Shang Siew, which expires on 23 January 2023.  The applicant advised that he previously held a Malaysian passport (number A28188516) in the name Siew Yi Shang. This passport was issued on 23 January 2013 and expired on 23 January 2018.  The applicant explained that the name on his expired Malaysian passport was different from the one on his current one.  This was because the person processing his passport application form made a mistake with his name.

24. The applicant further explained that he had obtained both his Malaysian passports based on the information in his Malaysian identity card.

25. The Tribunal questioned the applicant about the answers he gave in his visa application form about the number of passports and identity documents held by him.  It noted that he had answered “No” to the questions in the form, which are set out in paragraph 12 of this decision. The applicant confirmed that he had answered “No” to those questions in the visa application.

26. The Tribunal discussed with the applicant the delegate’s finding that he had previously used his Malaysian passport to apply for a student visa which was cancelled by the Department on 7 December 2016 and the applicant departed Australia after being excluded from Australia for a period of three years.  He told the Tribunal that he had used that Malaysian passport to apply for the visa which was subsequently cancelled.  He conceded that he did not disclose this information to the Department on his subclass 408 visa application form because he was worried that if he disclosed the earlier cancellation, his visa application may not have been successful.

27. The Tribunal questioned the applicant about the reasons for his failure to respond to the NOICC.  In response, the applicant explained that he did not receive the NOICC because in February 2022 he moved from the address he had provided to the Department in his visa application form and had not advised the Department of his change of address.  The Tribunal notes that information in the Department file shows that on 28 March 2022 it sent him an email advising that it needed to send him an important written notification about his visa and requested information about his current address and phone number.  The Department further advised that if he did not respond within five calendar days, it would send the notification to his last known address, according to its records.  That address was the one provided by the applicant in his visa application form.

28. The applicant conceded that he had received this email but had not responded to it.  Nor had he notified the Department when he changed address. When asked the reason for his failure to respond, the applicant said that he was very busy at work and perhaps he didn’t pay attention to the Department’s email.

29. In relation to his personal circusmtnces, the applicant explained that he had been working for The Midfield Group as a meat processing worker, since May/June 2019.  He was originally working at a processing plant in Warrnambool Victoria but since February 2022 had been working at a plant in Melbourne.

30. The applicant explained that he rents a room in a rental house in Sunshine and lives alone.

31. The applicant further explained that he is a single man who has never been married and has no children.  He has been involved in a relationship with a young woman for the past eight months. She is a New Zealand citizen and lives in Melbourne.  The applicant said that it was unlikely that his girlfriend would accompany him if his visa is cancelled, and he departs Australia.

32. Apart from his work and his relationship, the applicant enjoys playing sport including ice skating, cycling and scuba diving.  At present the applicant is working 20 hours per week but would like to increase his work hours if his visa permits.  He provides financial support to his family in Malaysia, sending them regular money transfers.

33. The applicant told the Tribunal that he had no plans in the event his visa is cancelled, although he thought he could find work in the United Kingdom or the United States of America.

34. The applicant expressed regret for his behaviour in providing incorrect information in his visa application form.

    Documentation in relation to prescribed circumstances

35. The applicant provided the following documentation to the Tribunal regarding his present circumstances and the contribution made by him to the community:

    ·     Applicant’s statement dated 5 December 2022.

    ·     Reference letter, Chuck Liu, dated 1 December 2022.

    ·     Articles regarding labour shortages in the meat processing industry.

    ·     The Midfield Group job vacancies list.

    ·     Job advertisements, SEEK.com, listed on 8 December 2022.

36. Mr Chuck Liu is the Human Resources Recruitment Coordinator for Whales Regional Workforce (WRW). In his reference letter Mr Liu states:

    ·     Whales Regional Workforce is a professional labour hire provider which offers staffing solutions to its clients in the Australian meat and horticulture sectors where labour shortages are significant.

    ·     He has observed the applicant performing his work as a meat processor.

    ·     He recommends the applicant as an excellent worker who is well-known in the meat processing industry for his dedication, skill level and diligence in his work.

    ·     The applicant has been working in the lamb and beef machinery line for The Midfield Group for the past two years.  He possesses good knowledge and great technical skills in machine operations.  Using the machines, the applicant is skilled in using a knife to bone the meat in the correct way to trim the fat.  He is also able to independently address processing problems, which is a valuable skill for the job.

    ·     The applicant shows excellent leadership skills and is well respected by his colleagues.  He is a good team player and collaborates well with his co-workers.

    ·     WRW has ongoing hiring problems due to its clients’ location in regional areas and the impact of the Covi-19 pandemic.  Many recruits leave their employment within a short period of time.  The company currently has 15 positions similar to the applicants to fill but only eight suitable candidates.  The ongoing labour shortage is difficult for both WRW and their clients.

    ·     New staff in the meat processing industry take three to six months to train which requires a significant investment by staff training them.  A staff member with the applicant’s skills take between 12 to 18 months to train.

    ·     If the applicant ceases his employment, it will add to the WRW’s labour shortage difficulties and would require the recruitment of additional staff.  In the short term it would also require the current staff to work extra shifts and the employer will be forced to budget for overtime payments.

    ·     If the current  staff are unwilling to undertake the required overtime to cover the applicant’s work, the employer will incur additional expenses for recruitment and training of new staff and will affect overall productivity and performance.

    ·     The overworking of existing staff may also lead to them leaving their employment.

    ·     WRW hopes that the applicant will be permitted to remain in his employment and continue to assist the company in training Australian and temporary workers in their duties.

37. The articles, job vacancies list and job advertisements indicate that The Midfield Group is a large and significant employer in the farming, meat processing and distribution industries.  The material further shows that there is a shortage of skilled meat processing workers in Australia.

38. In his statement the applicant submits that the following compelling circumstances that affect the interests of his Australian employer:

• He has been employed in the meat processing industry for three and a half years and working for Midfield Group for 18 months.  During that period, he has gained skills in deboning meat and removing fat from beef and sheep carcases.  He has also gained experience in using meat processing machinery and applying work safety principles.

• Given his experience in meat processing, he is responsible for training less experienced colleagues in using boning knives and processing animal carcases in a safe manner.

• He is currently working long hours because Australia is experiencing a shortage of meat processing workers.

• If his visa is cancelled, his employer’s daily production will be affected, and the company will be required to recruit replacement workers for him.  The company’s training procedures will also be affected as they will lose his experience and skill in training new workers.

• He acknowledges the mistakes he made in his visa application and is sorry for them.

• The subclass 408 ‘working holiday’ visa which the delegate cancelled is only valid for one year. Although this is for a limited period, he will make a significant contribution The Midfield Group which is an employer in a regional area.

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

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act in the following respects:

2. The applicant made the application for the Subclass 408 (Temporary Activity) visa on 17 March 2021.

3. The Tribunal finds that in his Temporary Activity (subclass 408) visa application , the applicant stated that he was a Taiwanese citizen who held a Taiwanese passport (number 316252148) which was issued on 18 January 2018 and expires on 18 January 2023.

4. The Tribunal is further satisfied that on the visa application form the applicant answered “No” to the following questions:

   ·Is this applicant currently or have they ever been known by any other names?

   ·Is this applicant a citizen of any other country?

   ·Does this applicant have any other current passports?

   ·Does this applicant have any other identity documents?

   ·Has the applicant ever been removed, deported, or excluded from any country (including Australia)?

   ·Has the applicant ever overstayed a visa in any country (including Australia)?

1. Under the Declarations section of the visa application form, the applicant acknowledged the following statement:

   Giving false or misleading information is a serious offence.

2. The applicant further declared that he:

   ·     Had provided complete and correct information in every detail on the form and on any attachments to it.

   ·     Understood that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s); and any of their family unit may become unable to be granted a visa for a specified period.

   ·     Understood that f documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

   ·     Will inform the Department in writing immediately as they become aware of a change in circumstances (including change of address) or if there is any change relating to information they have provided in or with this application, while it is being considered.

3. The applicant was granted the Subclass 408 (Temporary Activity) visa on 12 August 2021, with an expiry date for the visa of 12 August 2022.

4. Subsequently, the Department became aware that the applicant was the holder of a Malaysian passport (number A28188506) in the name Siew Yi Shang and a Malaysian passport in the name Yi Shang Siew (number A50050788) which is valid until 23 January 2023.

5. The Department further became aware that on 18 November 2014 the applicant was granted a Student (Vocational Education Sector) (subclass 572) visa in the identity of Yi Shang Siew and that on 7 December 2016 this visa was cancelled under s 116(1)(b) of the Act, on the basis that he was not enrolled in a registered course of study.  Upon the cancellation of the applicant’s Student visa, he was affected by Public Interest Criterion (PIC) 4013 for a period of three years as his visa had been cancelled on the basis that he had not complied with a condition attached to his visa. After the cancellation of the applicant’s Student visa, he remained unlawfully in Australia until he was granted a Bridging E (subclass 050) visa on 1 November 2017 which is the date he departed Australia.

6. The Tribunal finds that the applicant gave incorrect answers in his visa application form and failed to inform the Department that he was a Malaysian citizen, held two Malaysian passports (numbers A28188506 and A50050788) in the names Siew Yi Shang and Yi Shang Siew respectively and that his previous Student visa had been cancelled and he was excluded from Australia for a period of three years.

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

8. Based on the Departmental file and the applicant’s evidence at the hearing, the Tribunal is satisfied that:

   ·     The Department sent the s 107 Notice to the applicant at the address he provided to the Department in his visa application form.  This Notice was delivered to that address by Australia Post on 11 April 2022, as evidenced by the Australia Post Tracking History and postal receipt contained in the Departmental file.

   ·     The applicant did not advise the Department of his change of address in February 2022.

   ·     The applicant received the email sent to him by the Department on 28 March 2022, requesting him to contact it in relation to his visa with details of his address and telephone number within five day of receipt of the message.  The applicant did not respond to this email.

9. Accordingly, the Tribunal is satisfied that the s 107 Notice delivered to the address provided by the applicant for the purpose of his visa application and is a valid notice to the applicant.

Should the visa be cancelled?

1. 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).

2. 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 reg 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.

1. 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.

   Regulation 2.41(a), (b) and (c)-the correct information, the content of the genuine document (if any), and 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

2. Based on the information in the Departmental file and the applicant’s oral evidence, the Tribunal is satisfied that the applicant is a dual Taiwanese and Malaysian citizen who holds a Taiwanese passport (number 316252148) which commenced on 18 January 2018 and expires on 18 January 2023.

3. The Tribunal is further satisfied that the applicant holds a Malaysian passport (number A28188506) and is also the holder of a Malaysian passport (number A50050788) which expires on 23 January 2023. 

4. The Tribunal finds that in his Temporary Activity (subclass 408) visa application , the applicant stated that he was a Taiwanese citizen who held a Taiwanese passport (number 316252148) which was issued on 18 January 2018 and expires on 18 January 2023.

5. The Tribunal is further satisfied that on the visa application form the applicant answered “No” to the following questions:

   ·Is this applicant currently or have they ever been known by any other names?

   ·Is this applicant a citizen of any other country?

   ·Does this applicant have any other current passports?

   ·Does this applicant have any other identity documents?

   ·Has the applicant ever been removed, deported, or excluded from any country (including Australia)?

   ·Has the applicant ever overstayed a visa in any country (including Australia)?

6. Under the Declarations section of the visa application form, the applicant acknowledged the following statement:

   Giving false or misleading information is a serious offence.

7. The applicant further declared that he:

   ·     Had provided complete and correct information in every detail on the form and on any attachments to it.

   ·     Understood that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s); and any of their family unit may become unable to be granted a visa for a specified period.

   ·     Understood that f documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

   ·     Will inform the Department in writing immediately as they become aware of a change in circumstances (including change of address) or if there is any change relating to information they have provided in or with this application, while it is being considered.

8. The applicant was the holder of a Malaysian passport (number A28188506) in the name Siew Yi Shang which was issued on 23 January 2013 and expired on 23 January 2018 and a Malaysian passport in the name Yi Shang Siew (number A50050788) which was issued on 23 January 2018 and is valid until 23 January 2023.

9. On 18 November 2014 the applicant was granted a Student (Vocational Education Sector) (subclass 572) visa in the identity of Yi Shang Siew.

10. On 7 December 2016 the applicant’s Student visa was cancelled under s 116(1)(b) of the Act, on the basis that he was not enrolled in a registered course of study.  Upon the cancellation of the applicant’s Student visa, he was affected by Public Interest Criterion (PIC) 4013 for a period of three years as his visa had been cancelled on the basis that he had not complied with a condition attached to his visa. After the cancellation of the applicant’s Student visa, he remained unlawfully in Australia until he was granted a Bridging E (subclass 050) visa on 1 November 2017 which is the date he departed Australia.

11. The Tribunal is satisfied that the decision to grant the subclass 408 visa to the applicant was based partly on the incorrect information provided by him and information that his previous student visa had been cancelled and he has been excluded from Australia for a period of three years from that date would have relied on by the Department in making its decision.

    The content of the genuine document (if any)

12. This 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

13. The Tribunal is of the view that if the correct information about the applicant’s identity, his Malaysian passports, the previous cancellation of his student visa and his exclusion from Australia for a period of three years it is at least possible and in the Tribunal’s view likely that the decision to grant the visa would have been affected.  The Tribunal is satisfied that the decision to grant the visa was based at least partly, on incorrect information.

    Regulation 2.41(d)-the circumstances in which the non-compliance occurred

14. The Tribunal accepts the applicant’s explanation that his reason for giving incorrect information in his visa application form about his citizenship of any country in addition to Malaysia, his Malaysian passports and his previous exclusion from Australia was due to his concern that is subclass 408 visa application would not be granted if the Department was aware that his previous student visa was cancelled on 7 December 2016 and he was excluded from Australia for a period of three years.

    Regulation 2.41(e)-the present circumstances of the visa holder

15. The Tribunal accepts that the applicant is a skilled and experienced meat processing worker who has been employed by The Midfield Group for 8 months and has the prospect of ongoing employment if his visa is not cancelled and he remains in Australia.

16. It further accepts that he is a single man who has never married and has no children.  He is currently involved in a romantic relationship with a young woman, which is unlikely to continue if his visa is cancelled and he departs Australia.

17. Although the Tribunal was not provided any documentary evidence regarding money transfers made by the applicant to his mother and sister in Malaysia, the Tribunal accepts his oral evidence that he regularly provides financial assistance to his family overseas.

    Regulation 2.41(g)- the other instances on non-compliance by the visa holder known to the Minister

18. The applicant’s student visa was cancelled by the Department on 7 December 2016 based on  his non-compliance with the conditions of that visa.

    Regulation 2.41(h)-the time that has elapsed since the non-compliance

19. The period of 22 months has elapsed since the applicant lodged his subclass 408 visa application was lodged and the non-compliance occurred.

    Regulation 2.41(j)-any breaches of the law since the non-compliance and the seriousness of such breaches

20. There is no evidence before the Tribunal that the applicant has committed any breaches of the law since the non-compliance occurred or since his arrival in Australia.

    Regulation 2.41(k)- any contribution made by the holder to the community

21. The Tribunal has considered the material provided by the applicant in support of his claim that he has made a significant contribution to the Australian economy in his work as a meat processor.  These centre on his value to his employer and the skills he has developed in an industry where there are staff shortages, and which makes a valuable contribution to the Australian economy.

22. The Tribunal accepts that WRW and The Midfield Group (together with other employers in the agricultural sector)are experiencing difficulties in recruiting suitable staff.  The Tribunal further accepts that if the applicant’s visa is cancelled and he is forced to leave his employment it will be difficult to replace him with a suitably skilled worker.

23. However, against these factors the Tribunal has weighed the seriousness of the applicant’s behaviour in deliberately withholding information from the Department about his identity, passports, and cancellation of his student visa.

    Whether there are mandatory legal consequences

24. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia.  The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention but may be subject to an exclusion period.  There is no suggestion that the applicant will be indefinitely detained.

    Whether there would be consequential cancellations under s 140

25. Given the applicant is a single man with no dependents, the Tribunal is not satisfied that there would be any consequential cancellations under s 140 of the Act.

26. The Tribunal is satisfied there are no children whose interests would be affected by the cancellation of his visa or consequential cancellation.

27. The Tribunal is not satisfied the cancellation of the applicant’s visa would lead to his removal in breach of Australia’s non-refoulement or family unity obligations.

    Departmental PAM 3 guidelines

28. 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.  In considering  these matters, the Tribunal makes the following findings:

    ·     The Tribunal accepts there would be a degree of financial hardship for the applicant if he is forced to leave his employment in Australia and re-establish his career elsewhere.  However, it notes that he is a skilled and experienced meat processing worker and that he has considered obtaining such work overseas.  The Tribunal further considers that there will be a financial impact (at least in the short-term) on his family in Malaysia if he is not working  whilst he re-establishes himself in another country and cannot afford to provide financial assistance to his mother and sister.

    ·     The Tribunal has considered the impact on the applicant relationship with his girlfriend if he is forced to leave Australia and she chooses to remain her.  The Tribunal accepts that their separation is likely to be emotionally distressing to them both.

29. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has formed the view that the applicant did not comply with s 101and s104 of the Act and that there are grounds for cancelling his visa.

30. The Tribunal acknowledges that he has established a life in Australia where he has gained employment and made a valuable contribution to his employer’s business.  He has also formed a personal relationship with a young woman, which he wishes to continue.

31. The Tribunal acknowledges and has given weight to the applicant’s expression of  regret for providing incorrect information in the visa application regarding his identity, additional passports, previous visa cancellation and period of exclusion from Australia.  It also accepts that he is making a valuable contribution to an industry which provides food to the community and generates benefit to the Australian community.

32. However, the Tribunal has also formed the view that the applicant was deliberately untruthful in his dealings with the Department and that he deliberately mislead the Department by answering “No” in the visa application form to questions about whether he was known by any other names, was a citizen of any other country, had any other passports or identity documents or had been excluded from any country (including Australia) when he was aware that he was known by another name, was a citizen of Malaysia, held a Malaysian identity card and passports and had previously been excluded from Australia.  The Tribunal has formed the view that in failing to provide this information, the applicant  sought to mislead the Department in order to obtain the visa and that is a significant factor in favour of the cancellation.

33. 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

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 408 (Temporary Activity) visa.

Amanda Mendes Da Costa
Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. 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.

1. Notice 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.

2. Decision 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.

3. Cancellation 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.