Tan (Migration)

Tan (Migration) [2019] AATA 974 (10 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Mei Teng Tan
CASE NUMBER:  1722629
DIBP REFERENCE(S):  BCC2017/2669102
MEMBER:Michelle East
DATE:10 January 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.
Statement made on 10 January 2019 at 3:17pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – applicant deliberately provided incorrect information –applicant has already returned to Malaysia – barred for a 3 year period – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 99, 100, 101, 102, 103, 104, 105, 107, 109, 189, 198, 360
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had provided incorrect answers to the Department in her visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the delegate’s decision was attached to the application for review.
On 26 October 2018 the Tribunal wrote to the applicant inviting her to a hearing on 11 December 2018. On 30 October 2018 she responded to the Tribunal by email stating, ‘I decided to leave Australia, I flight to Malaysia this midnight. Thank you.’
The Tribunal wrote to the applicant on 31 October 2018 acknowledging receipt of her email and seeking her response on whether she wished to withdraw her review application or if she was willing for the Tribunal to decide her application on the papers without proceeding to a hearing.
The applicant responded by email dated 8 November 2018 stating, ‘I wish to process without hearing with my case. I have spend all my money and I have to leave, after I bought the flight ticket few days after then I received your email’.
If an applicant consents to the Tribunal deciding the review without him or her appearing before it, the exception in ss.360(2)(b) will apply.
The Tribunal is satisfied based on the correspondence received from the applicant that she has consented to her application being reviewed on the papers without an oral hearing.
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
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.
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.
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?
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). Under s.101(b), a non-citizen must fill in his or her application form in such a way that no incorrect answers are given.
By operation of s.99 of the Act, 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 s.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.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act in response to the Character declarations section of the form in response to the question, ‘Has any applicant ever been removed, deported or excluded from any country (including Australia)?’ The applicant responded ‘No’.
The applicant was notified of the intention to consider the cancellation by email to the address provided by the applicant on 17 August 2017. The applicant had been interviewed by Australian Border Force officers at her home on 27 July 2017. She advised the officers that upon arriving into Australia in October 2011 at Perth International Airport, she had been interviewed and refused entry into Australia, returning to Malaysia. She said she did not declare her refused entry into Australia on her current visa application because she did not want it to affect her current studies.
The applicant sought and was granted a further 5 day extension within which to respond to the NOICC. She provided a submission in response dated 31 August 2017 together with copies of academic achievements attained up to and including March 2017 as well as evidence of her contribution to Red Cross.
In her submission the applicant stated that she did not think she had been removed or deported from Australia. Specifically:
a.‘In 2011 when I arrived in Australia I was informed at the airport that my visa has been cancelled and I went back to Malaysia. I was not knowing that my visa has been cancelled otherwise I wouldn’t have fly from Malaysia.
b.‘I lodged the application on 27^th of June 2016. It was lodged after 4 years and 8 months from the time my visa was cancelled. So it should not have influenced the decision even if I would have said yes to the answer. It was not very wise on my part to answer no to that question. But I thought I was not deported so I said no to the answer’.
c.‘As I have explained to you, I have given wrong answer because a friend of mine told me that I can be in trouble if I say yes to the question. So I answered no to the question, but the incident happened 5 years back. I have explained you my current situation and apart from this one mistake I have never done anything wrong in the last 5 years since I am on a student visa.’
As outlined in the delegate’s decision, the applicant was interviewed at Perth Airport by Immigration Inspectors when she arrived in Australia on 23 October 2011. She was provided with a Cantonese Interpreter and was found to be in non-compliance with condition 8202 of her Subclass 572 student visa because she had not been studying since 24 September 2010. The delegate’s decision further records that during the interview process the applicant had been advised verbally and in writing that she had been refused immigration clearance and was also advised of a possible three year exclusion period from the date of cancellation.
The Tribunal is satisfied based on the information before it, including the detail provided in the delegate’s decision that the applicant was aware that her visa had been cancelled in October 2011 for non-compliance with condition 8202 of her Subclass 572 student visa and returned to Malaysia the day after this cancellation. By answering ‘no’ to the question whether she had been removed, deported or excluded from any country (including Australia), the applicant was non-compliant with s.101(b) of the Act in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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.
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
The applicant declared in her visa application that she had not been removed, deported or excluded from any country (including Australia).
The Tribunal has found that the correct information at the time of the application and at the time of the decision was that the applicant was removed, deported or excluded from Australia in 2011 after cancellation of Subclass 572 student visa for breach of condition 8202.
The correct information was not provided and this is a significant issue which weighs in favour of cancellation.
The content of the genuine document (if any)
This is not relevant in this case.
Whether the decision to grant a visa or immigration clearance was based wholly or partly on incorrect information
If the applicant had correctly declared that she had been removed, deported or excluded from Australia at the time of her visa application, the Subclass 572 visa may not have been granted. By providing an incorrect answer, her application was unable to be properly assessed.
The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information. This weighs in favour of cancellation.
The circumstances in which the non-compliance occurred
Based on the evidence before it, including that which is outlined in the applicant’s response to the NOICC and information detailed in the delegate’s decision, the Tribunal is satisfied that the applicant intentionally gave incorrect information on her application for her student visa.
In her response to the NOICC, as outlined in paragraph 18 above she provided various explanations as to why she provided this incorrect information.
The Tribunal is not satisfied that her responses were unintentional or that she was misled by her friend. It is the visa applicant’s responsibility to correctly complete the application form. The record of the circumstances of the cancellation of her student visa in 2011 is detailed in the delegate’s decision and the Tribunal is satisfied she would have been aware of her visa cancellation at that time with the subsequent return to Malaysia.
The Tribunal also notes the applicant has been the holder of several other visas since 2011, completing further qualifications.
The Tribunal finds this weighs in favour of visa cancellation.
The present circumstances of the visa holder
The applicant has advised the Tribunal and a review of her movement records reflect she has returned to Malaysia. She appears to have completed several more qualifications prior to her visa being cancelled. She said she would be returning to Malaysia to start her own business.
The Tribunal finds this weighs in favour of visa cancellation.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations. The Tribunal gives this some weight in the applicant’s favour
Any other instances of non-compliance by the visa holder known to the Minister and any breaches of the law since non-compliance
As reflected in the delegate’s decision, the applicant has applied for several tourist and student visas since she was refused entry to Australia in 2011 and according to the delegate’s decision, did not declare in any of those applications that she had been previously removed, deported or excluded.
The Tribunal is not aware of any breaches of the law since the non-compliance.
The Tribunal gives this significant weight in favour of visa cancellation.
The time that has elapsed since the non-compliance
The applicant lodged her visa application on 27 June 2016 and was granted a Subclass 572 visa on 4 August 2016.
The Tribunal finds this weighs in favour of visa cancellation as the breach occurred relatively recently.
Any contribution made to the community
The applicant in her response to the NOICC stated that she has made regular financial contributions to the Red Cross and also donates unwanted items.
The correspondence from Red Cross indicates they were unable to process her payment and the Tribunal is unable to verify the applicant’s claims that she was a regular contributor.
The Tribunal finds this factor neutral in the exercise of its discretion.
As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s. 109. They are:
·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
·whether there would be consequential cancellations under s.140
·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.
·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
There is nothing before the Tribunal to indicate that there are any persons in Australia whose visas would, or may, be cancelled under s.140.
There is no evidence before the Tribunal and no claims were made by the applicant to suggest that there are any obligations under any relevant international agreements that would be breached as a result of the visa cancellation.
Regarding mandatory legal consequences of a decision to cancel the visa, there is evidence before the Tribunal that the applicant would be barred for a 3 year period from having any new application for most temporary visas approved. She would also be barred under s.48 of the Act for applying for certain visas onshore. A decision to cancel the visa might also result in the applicant becoming an unlawful non-citizen liable to detention under s.189 and removal under s.198 of the Act if she did not voluntarily depart Australia. The Tribunal notes however that the applicant has already returned to Malaysia. The Tribunal does note however her bar from applying for new visas.
The Tribunal has no evidence as to whether any hardship may be caused to the visa holder or any of her family members.
The Tribunal has considered the factors identified by the legislation and policy as well as the evidence available in relation to the applicant’s circumstances and has decided to exercise its discretion to cancel the visa.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.
Michelle East
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.

[2019] AATA 974

10 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction