Singh (Migration)

[2018] AATA 5675

Singh (Migration) [2018] AATA 5675 (5 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raghvir Singh

CASE NUMBER:  1618691

DIBP REFERENCE(S):  bcc2016/1829391

MEMBER:Melissa McAdam

DATE:5 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 November 2018 at 2:14pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – incorrect answers – previously overstayed visa for three years – outstanding government debt – applicant used different name and birth date on previous trip to Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 109, 140, 375A
Migration Regulations 1994, r 2.41, PIC 4004, 4014

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act in that he provided incorrect answers to questions in his visa application form. These answers were in relation to:

   -    whether he has ever been removed, deported, or excluded from any country;

   -    whether he has overstayed a visa in any country; and

   -    whether he had outstanding debts to the Australian government or any public authority in Australia.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. On 11 October 2016 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his Student visa, inviting him to comment on a possible breach of s.101(b) of the Act.  Section 101(b) requires that “A non-citizen must fill in or complete his or her application form in such a way that  … no incorrect answers are given or provided.”

5. The NOICC stated that the Department’s records showed a Student visa application by a person named ‘Ragubir Singh Bhullar’ contained identifying information similar to the applicant’s identifying information.  The Department’s Facial Comparison team had determined that the photo-images of the applicant and Mr Bhullar were of the same person.

6. The NOICC further stated that the applicant had provided the following responses to questions in his visa application form (answers in bold):

   Has any applicant ever been removed, deported, or excluded from any country (including Australia)? No.

   Has any applicant ever overstayed a visa in any country (including Australia)? No.

   Has any applicant ever had outstanding debts to the Australian government or any public authority in Australia? No.

7. The NOICC stated that Mr Bhullar overstayed his student visa and remained unlawfully in Australia between 19 May 2010 and 20 May 2013, and between 2 June 2014 until 28 October 2014. On his departure from Australia on 28 October 2014 he confirmed he had overstayed his visa to an Immigration Inspector who advised him a three year exclusion period may apply to him.

8. The NOICC stated that Mr Bhullar has a current debt to the Commonwealth of $900 for legal fees and $1604 for a Refugee Review Tribunal fee.

9. The NOICC set out that this prevented Mr Bhullar from being granted a further visa due to Public Interest Criterion 4004 – outstanding debts to the Commonwealth; and Public Interest Criterion 4014 - leaving Australia while not holding a visa and more than 28 days after last holding a substantive visa.

10. On 17 October 2016 the applicant replied by email to the Department, stating (in summary):

    He is very sorry about what he did. He changed his name and date of birth because all his identity proof documents are under the name “Raghvir Singh”. He can provide his Indian Vote Card and Income Tax PAN Card.  He did not change his name officially because his Agent told him his proofs were all under that name. He is extremely sorry about this.  He wants one more chance to correct things.  He doesn’t have a criminal record. He (‘We’) was in deep depression and could not reply to the Department. Please do not cancel his visa or his (‘our’) future will be destroyed. He (‘We’) has a problem in India so do not cancel his visa.  Two lives depend on this. He did not know he was going to be in this much trouble.

11. The delegate cancelled the visa on the basis that the applicant had not complied with s.101 of the Act.

    Pre-Hearing Submission

12. On 24 September 2018 the applicant sent the following document copies to the Tribunal:

    a.The applicant’s Indian ‘Income Tax Department’ Card, in the name ‘Raghvir Singh Bhullar’ with date of birth, ‘02/12/1988’.

    b.The applicant’s Indian ‘Election Commission of India Identity Card’, in the name ‘Raghvir Singh’, issued on ‘25/12/2006’.

    c.A ‘Punjab and Sind Bank’ Pass book in the name of ‘Raghvir Singh’.

    Tribunal Hearing

13. The applicant appeared before the Tribunal on 2 October 2018 to give evidence and present arguments.  The following is a summary of the information he provided at the hearing:

    a.His previous passport expired.  He could obtain a passport in India without much proof, as the authorities don’t have computers.  A person just tells the authorities a name and there is no need to provide proof.

    b.He applied for the visa through an agent.  The agent told him to just sign the form and that was it. The applicant did not know about the problem with his answers in the form.

    c.All the information in the form was correct.

    d.He did overstay his visa on the previous occasion he travelled to Australia.  He does not think he has any debts to the Commonwealth as he paid his lawyer the $1600.  His lawyer was Mr Chaudry.  He does not know if Mr Chaudry will confirm this. He has no record of paying Mr Chaudry the money.  He did not receive a receipt for the payment.

    e.The Tribunal asked the applicant what his true name is. In response the applicant stated that at the moment it is ‘Raghvir Singh’.  There is a common problem in his country where there is a mistake when they write documents. His parents are not educated.  He does not even have a date of birth certificate.

    f.His true date of birth is 2 December 1988.  Previously he wrote it was 6 December 1988. He did this because the only identity document he had was a high school certificate.

    g.His full name is “Raghvir Singh Bullar”.

    h.He obtained an Income Tax Department Card in 2015.  He obtained it by presenting his voting card. He confirmed that the Voting Card was issued in 2006 with the name he is currently using.

    i.He did nothing intentionally, he just made a new passport.  He did not know he would be in this big problem. He respects the rules in Australia.  He was in Australia without a visa for two years from 2010.   He had some money problems.  He could not apply for a visa.

    j.There are too many headaches in India to change a name.  He was far from his home city.  

    k.In Australia he works as a driver, about 35 hours a week.

    l.He married his wife in January 2015. Their parents arranged it. His wife is studying here.  It will be hard for her to leave here. It will be hard for her to live here without him.

    m.He came to Australia to accompany his wife who is studying.  She is not living with him in Sydney. She is in Tasmania studying.  She moved there four or five months ago.  He has visited her there once for two or three days.  He remained in Sydney because he has work here.  He is financially supporting his wife.  She is studying full-time.  He transfers about $500 into her account each fortnight.

    n.He cannot return to India to support his wife because it is too hard to get a job in India.   There are only limited jobs available and salaries are low.

    o.He does not know what he will do if his visa remains cancelled.

    Post-Hearing Submission

14. On 6 October 2018 the applicant sent the following document copies to the Tribunal:

    A bank account statement during the period 15 March 2018 and 21 May 2018, showing transfers of several hundred dollars every two (approximately) weeks into a “CBA A/c”.

    Letter to the applicant

15. The Tribunal wrote to the applicant on 10 October 2018 notifying him that the Department had issued a section 375A Certificate over specified folios in its file, BCC2016/1829391, in relation to the cancellation decision. The Tribunal outlined the nature of the documents in the specified folios and informed the applicant it considered the information to be administrative in nature with no additional relevance to its determination. The Tribunal invited the applicant to provide any comments or response about the certificate by 24 October 2018. No response has been received from the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. 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.

18. 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?

19. 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.

20. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 due to the provision of incorrect information in relation to:

    -     whether the applicant had ever been removed, deported, or excluded from any country;

    -     whether the applicant had overstayed a visa in any country; and

    -     whether the applicant ever had outstanding debts to the Australian government or any public authority in Australia.

21. The incorrect information was stated to be the applicant’s answer ‘no’, to each of the above questions.

22. The applicant has confirmed that he used a slightly different name and date of birth on his previous trip to Australia and that both identities belong to him.  The applicant also confirmed he did overstay his visa previously in Australia. The applicant’s movement records show that he was without a visa in Australia between 19 May 2010 and 20 May 2013, and between 2 June 2014 and 28 October 2014.

23. As the applicant has overstayed a visa in Australia the Tribunal finds that his answer ‘no’ to the form question as to whether he had ever overstayed a visa, was incorrect information.

24. The applicant also confirmed that he did owe the Australian government money but stated at hearing that he provided funds to his lawyer to pay that debt before he departed Australia. The applicant was very vague in relation to the details of the payment to the lawyer and was not able to produce any receipts or records of such a payment.  He stated that the lawyer did not provide him with a receipt. The Tribunal considers the applicant’s evidence regarding this matter of poor quality and it does not accept that the applicant gave money to his lawyer to pay his debt to the Australian government. In any event the debt was incurred and was not paid therefore the applicant’s response ‘no’ to the applicable question was incorrect information.

25. Regarding the applicant’s answer ‘no’ to whether or not he had ever been removed, deported or excluded from any country, the Tribunal considers this is not an incorrect answer. The applicant was not deported or removed from Australia, nor had he been formally excluded from Australia.  He was subject to Public Interest Criteria 4004 and 4014 but these are not formal exclusion provisions and both contain exceptions.  Public Interest Criteria 4014 is described in the regulations as a ‘risk factor’.  In the Tribunal’s view, there has not been a decision or act to exclude the applicant from Australia until a visa is refused to him on the basis of the risk factor or some other circumstance. This has not occurred.  Further, given there are exceptions provided for in both Public Interest Criteria, exclusion is not made out until those exceptional circumstances have been judged to be non-applicable.  The Tribunal therefore finds that the applicant has not provided incorrect information in answering ‘no’ to the question whether he has previously been removed, deported or excluded from any country.

26. However, as the applicant’s answers to the questions whether he had ever overstayed a visa, and had outstanding debts to the Australian government, was incorrect information, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

27. 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).

28. 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.

29. 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

30. The correct information is that the applicant did overstay his visa and did have an outstanding debt to the Australian government.  The Tribunal notes that the applicant overstayed his visa by a substantial amount of time, approximately three years.

    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

31. The Tribunal considers it likely that if the Department were aware that the applicant overstayed his visa in Australia, it would not have granted him the subsequent visa to travel to Australia.

    The circumstances in which the non-compliance occurred

32. The Tribunal found the applicant’s evidence as to why he obtained a passport with a different name and date of birth from his previous passport, and used this to apply for another visa to Australia very confused and vague. The reasons he presented shifted between his lack of identity documents at the time (or times) he applied for a passport in India; the lack of need for any documents to be provided to obtain a passport in India; his parents’ lack of education; and the lack of computers in India.  Although the Tribunal repeatedly asked the applicant to clarify his statements the applicant was unable to provide a coherent explanation.

33. The Tribunal considers that there is nothing about the circumstances of the non-compliance which would favour the revocation of the cancellation of the applicant’s visa.

    The present circumstances of the visa holder

34. The visa holder has stated that he needs to remain in Australia to be with his wife and to financially support his wife.  The Tribunal notes however that he has not been living in the same state as his wife for the past several months.  While the Tribunal accepts the applicant is providing his wife with financial assistance in Australia it considers that he would also be able to do so from India. The applicant stated that incomes are lower in India than Australia therefore he will have less money to provide to his wife.  While this may be the case if the applicant returns to India and works there, these difficulties are significantly outweighed by the applicant’s breach in obtaining a visa using incorrect information.

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

    The applicant has been reasonably cooperative with the Tribunal and the Department since receiving the NOICC however the Tribunal did not find him fully forthcoming at hearing.

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

35. The Tribunal is not aware of any other instances of non-compliance  by the applicant.

    The time that has elapsed since the non-compliance

36. Approximately two and a half years have passed since the applicant’s non-compliance.

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

37. The Tribunal is not aware of any instances in which the applicant has breached the law.

    Any contribution made by the holder to the community.

38. The Tribunal is not aware of any contribution made by the aplicant to the community.

    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

39. If the applicant’s visa remains cancelled he would become an unlawful noncitizen.  However,  he would be entitled to apply for a Bridging visa to make his status lawful while he makes arrangements to leave Australia.

40. If the applicant departs Australia while on a Bridging visa or unlawful, he will be subject to Public Interest Criterion 4014 which provides for a 3 year period from the date of departure in which the applicant may not be granted a visa without the Minister’s approval.

    Whether there would be consequential cancellations under s.140

41. There is no indication there are any consequential cancellations arising from the cancellation of the applicant’s visa.

    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.   

1. There is no indication that any international obligations would be breached as a result of the  cancellation of the applicant’s visa.

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

2. There are no indications of any other relevant matters.

   CONCLUDING PARAGRAPHS

3. 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.

4. The Tribunal has considered all factors listed above both individually and cumulatively. The Tribunal finds that the applicant’s breach is a significant and serious matter.  The incorrect information related to matters central to the consideration of the applicant's entitlement to the visa. The Tribunal is not satisfied that the serious nature of the breach and discretionary factors adverse to the applicant are outweighed by any matters favourable to the applicant, such as hardship to him and to his wife and the legal consequences of cancellation.  

5. Therefore the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Melissa McAdam
   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.