Summers (Migration)

[2019] AATA 5631

Summers (Migration) [2019] AATA 5631 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yin Wai Summers

CASE NUMBER:  1711552

DIBP REFERENCE(S):  BCC2016/3309607

MEMBER:James Lambie

DATE:9 December 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa.

Statement made on 09 December 2019 at 2:19pm

CATCHWORDS

MIGRATION – cancellation – Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – incorrect information on visa applications – previous travel to Australia under different name and on different passport – previous criminal arrest, cancellation of visa, detention and removal – ineligible for another Australian visa for three years – change of name in home country for propitious reasons – positive intention to circumvent consequences of cancellation of previous visa – applicant departed Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 109(1), (2), 116(1)(g)

Migration Regulations 1994 (Cth), r 2.41

CASE

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 461 New Zealand Citizen Family Relationship (Temporary) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that Mrs Summers had provided incorrect information as to whether she had been:

   ·Known by any other names;

   ·Charged with any offence currently awaiting legal action;

   ·Removed or deported from any country (including Australia);

   ·Excluded from or asked to leave any country (including Australia);

   ·Known by other spellings of her name;

   ·The holder of other passports or travel documents;

   ·A previous traveller to 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. Ms Summers now resides in New Zealand.  She declined to attend a hearing and requested that the matter be determined on the papers.  Other than a brief communication as to her current residence and intentions, no additional evidentiary material or submissions were adduced.

5. 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

6. 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.

7. 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.

8. 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?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects.  On 23 August 2011, Ms Summers (under her then name of Yin Wai Tung), applied for a subclass TU572 student visa, in which she answered ‘no’ in response to each of the following:  “Have you, or any person included in this application to apply for this visa, ever:

   ·Been charged with any offence that is currently awaiting legal action;

   ·Been removed or deported from any country (including Australia);

   ·Been excluded from or asked to leave any country (including Australia)”.

10. The subclass TU572 visa was granted on 4 November 2011.

11. On 24 April 2012, Ms Summers (under her then name Yin Wai Tung) applied for a subclass UP461 New Zealand citizen (family relationship) temporary visa.  She answered ‘no’ to question 8 on the form, “Have you been known by any other names (including name at birth, previous married names, aliases)” and ‘no’ in question 48 to each of the following: “Have you or any of the secondary persons included in this application, ever:

    ·    Been charged with any offence that is currently awaiting legal action;

    ·    Been removed or deported from any country (including Australia); 

    ·    Been excluded from or asked to leave any country (including Australia).”

12. In support of this application, Ms Summers submitted a Form 80, in which she answered ‘no’ to each of the following:

    ·Have you ever been known by other names or spellings of your name (question7);

    ·Do you currently have, or have you ever had, other passports/travel documents (question 10);

    ·Have you travelled to Australia before (43).

13. Question 57 of this form was in the same terms as the question described in paragraph 8 above.  She answered ‘no’ to each of the same subquestions.

14. The subclass UP461 visa was granted on 15 August 2012.

15. The s.107 notice cites the following as evidence that the answers were incorrect:

    a.On 15 October 2016, the Department received information from the Queensland police that the applicant’s fingerprints were matched to a Xiufang Dong.  Xiufang Dong was charged on 26 June 2010 with the offence of participating in the prostitution of another (s.229H of the Criminal Code (Qld)), and that a warrant was outstanding in that matter.

    b.Xiufang Dong had applied for a subclass UD976 tourist visa on 13 May 2010, issued the same day.  Ms Dong entered Australia on 28 May 2010.

    c.Ms Dong was arrested by Queensland police on 26 June 2010 and interviewed by Departmental compliance officers.  On 30 June 2010 her visa was cancelled, she was detained under s.189(1) and removed from Australia on 2 July 2010.  Because her visa was cancelled under s.116(1)(g), she became ineligible for the grant of another Australian visa for a period of three years from the date of the cancellation of the visa by the imposition of an exclusion period under PIC 4013.

    d.The Hong Kong national identity number [specified] appears on passport number [1 specified] in the name of Xiufang Dong and on passport number [2 specified] in the name of Yin Wai Tung.  This same national identity number appears on the national identity card provided with subclass UP461 temporary visa.

16. In her response to the NOICC, the applicant confirmed that she and Xiufang Dong were one and the same person, that she had previously travelled to Australia as Xiufang Dong from 28 May 2010 to 2 July 2010, that she had been charged with the prostitution offence on 26 June 2010 and that at the relevant time the offence was awaiting legal action, that her tourist visa had been cancelled on 30 June 2010 and that she had been removed from Australia on 2 July 2010 as an unlawful non-citizen.

17. Accordingly, I am satisfied that Ms Summers provided information that was incorrect in each of the answers cited in paragraphs 9, 11, 12 and 13 above. 

18. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) 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

    ·     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.

21. 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

22. In her response to the s.107 notice, the applicant provided the correct information, as listed in paragraph 16 above.  I can give little weight to this factor in her favour because it confirms that the initial information was incorrect and that there are very significant differences between the correct and incorrect information.

    The content of the genuine document (if any)

23. Because there is no genuine document under consideration, I give no weight to this factor.

    Whether the decision to grant a visa or immigration clear the visa holder was based wholly, or in part, on incorrect information or a bogus document

24. If Ms Summers had provided the correct information in her application for the subclass TU 572 student visa in 2011, it would been obvious that, having had her previous visa cancelled, she would not have met PIC 4013 and would therefore be ineligible for the grant of a student visa for a period of three years.  It would then have been most unlikely that the circumstances would have culminated in the later grant of the subclass UP461 New Zealand citizen (family relationship) temporary visa.

25. Accordingly, I can give no weight to this factor in favour of Ms Summers’ application.

    The circumstances in which the non-compliance occurred

26. In her response to the s.107 notice, Ms Summers claimed that:

    ·After being removed to Hong Kong in July 2010, she changed her name from Xiufang to Yin Wai on advice that this was more propitious.  She claimed that in Chinese culture it is common for a person to change their given name if they suffer bad luck;

    ·As part of effectuating the change of name, she obtained a new passport;

    ·Her change of family name from Dong to Tung was not material, merely reflecting a different pronunciation of the same Chinese character;

    ·Her failure to disclose the criminal charges was the result of confusion, she having thought that not having been tried and convicted meant that she had not actually been charged;

    ·Her answer in respect of having been known by any other name reflected her conviction that referring to her previous given name in any manner would bring bad luck and that, in her view, her family name had not changed.

27. I give no weight in her favour to these explanations.  In respect of the questions as to her previous name, they reflect a consciousness that the answers she was giving were incorrect.  The obligation to provide correct information is emphasised in the departmental forms and must prevail over a desire for good luck, however deeply held.  Her failure to disclose the criminal charges cannot reasonably be the result of confusion because the charges were the basis for the cancellation of her tourist visa in 2010.  This was explained to her with the assistance of an interpreter and she confirmed that she understood.

28. Further, she was issued with a Notice of Removal when she was removed from Australia to Hong Kong which advised in writing that the following consequences would apply:

    ·She may not be eligible for the grant of another Australian visa for a period of three years from the date of cancellation, under PIC 4013;

    ·She may not be eligible for the grant of another Australian visa for 12 months after she leaves Australia, under Special Return Criterion 5002;  and

    ·She has an outstanding debt to the Commonwealth for the costs of removal and would need to make arrangements to repay that amount before she could be granted another visa.

29. This notice was read to her with the assistance of an interpreter and she confirmed that she understood.  No arrangements to repay the debt were made.

30. It seems clear from the material before me that Ms Summers, at the time she provided the relevant information in her visa applications was aware that:

    ·she was not eligible for the grant of a student visa for a period of three years as a result of the cancellation of her previous visa and that she provided incorrect information as a means of circumventing the public interest criteria;

    ·she had an obligation to repay her debt to the Commonwealth and provided incorrect information as a means to avoiding it;  and

    ·she faced outstanding charges in Queensland and provided incorrect information as a means of avoiding proceedings for that offence.

31. Accordingly, I am satisfied that the incorrect information was provided with the intention of avoiding the restrictions and other consequences she faced arising from the circumstances of her removal, and did not in any way arise from circumstances beyond her control.  I give considerable weight to this factor towards the cancellation of the visa.

    The present circumstances of the visa holder

32. In her response to the s.107 notice, Ms Summers provided a summary of her circumstances relevant to the exercise of the discretion in her favour, including the purchase of property in Queensland with her husband, her son’s schooling arrangements, her and her husband’s stable long-term employment in Australia, and the difficulties that they would face in relocating to New Zealand or Hong Kong.

33. However, on 19 September 2019, the applicant (through her husband) advised that the family had successfully relocated to New Zealand and no longer intended to reside in Australia.  Accordingly, I give no weight to this factor in the exercise of my discretion.

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

34. There is no evidence suggesting that Ms Summers has subsequently breached any of her obligations under the Act and she has positively asserted that there has been no breach.  I accord some weight to this.

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

35. While there do not appear to be any other known instances of non-compliance in respect of her current visa, it would seem that there were other instances of non-compliance with her 2010 tourist visa, namely, condition 8101 not to work.  The offence with which she was charged indicates that she was engaging in paid work at the time.  Accordingly, I give no weight to this factor in her favour.

    The time that has elapsed since the non-compliance

36. The applicant claimed that, the incorrect information having been given on 23 August 2011 and 24 April 2012, a period of some 5 years had elapsed between then and the delegate’s cancellation of the visa, and some 7 years until consideration by the Tribunal.  I give some weight to this factor, which is tempered by the fact that the non-compliance was detected before the applicant had an opportunity to seek to renew her current visa.

    Any breaches of the law since the non-compliance

37. There is no material before me to suggest that Ms Summers has breached any laws since the non-compliance occurred and I give this some weight in her favour.

    Any contribution made by the visa holder to the community

38. In response to the s.107 notice, Ms Summers claimed that she had actively contributed to the local community in Australia by helping out at her local Buddhist centre by making multiple donations and assisting with preparations for weekly learning sessions.  I give this some weight in her favour.

    Additional factors

39. In addition I have considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, whether indefinite detention is a possible consequence of cancellation and whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

40. Some of these consequences would have applied had the applicant been present in Australia.  However, as she is now resident in New Zealand, there are no consequences in terms of her being subject to detention on cancellation of Australian visa.  Under section 48, she would have limited options to apply for further visa and, under PIC 4013, may be unable to be granted any further temporary visas for a period of three years from the date of the cancellation.  I give this factor little weight because it is an intended consequence of cancellation and, in any event, she is now resident in New Zealand and evinces no interest in returning to Australia.

41. There no consequential cancellations to consider.

42. There are no international obligations that would be breached as a result of the cancellation.  Ms Summer’s son is now over the age of 18 years and lives with her in New Zealand.  The obligation to consider the best interests of children does not arise.

43. In the circumstances I have described, and particularly having regard to the fact that Ms Summers and her family have left Australia, there are no other questions of hardship arising.

44. Taking into account all of the discretionary factors, I have given the greatest weight to the circumstances in which the non-compliance occurred, which indicates a positive intention to circumvent the consequences of the cancellation of the initial visa.

45. 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

46. The Tribunal affirms the decision to cancel the applicant’s Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa.

    James Lambie
    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.