Tong (Migration)

[2019] AATA 5573

Tong (Migration) [2019] AATA 5573 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kwok Lung Tong

CASE NUMBER:  1812517

DIBP REFERENCE(S):  BCC2018/1121609

MEMBER:Joseph Lindsay

DATE:12 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 December 2019 at 3:45pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information provided in previous working holiday (extension) visa application – claimed a period of specified regional work on initial working holiday visa – named employer advised department that applicant was never employed by her – no response by applicant to department’s communication – no response to tribunal’s communication or appearance at hearing – applicant may have departed Australia – discretion to cancel visa – factors for and against cancellation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 109(1), 359AA

Migration Regulations 1994 (Cth), r 2.41

CASE

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

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

3. The applicant was invited to have a hearing before the Tribunal on 12 December 2019 at 2:30pm. However, the applicant failed to appear for the hearing. Prior to the hearing, on 6 December 2019 the applicant’s representative contacted the Tribunal to advise that they were unable to make contact with their client and that he may have returned to Hong Kong.

4. In any event, the applicant did not attend the hearing and the agent did not attend the hearing. There has been no further contact at all from either the applicant or the agent with the Tribunal.

5. If the applicant had appeared at the hearing, the Tribunal would have had the opportunity to ask questions of the applicant in accordance with s359AA of the Act.

6. The Tribunal would have had the opportunity to ask the applicant why he appeared to provide incorrect answers on his Subclass 417 Working Holiday (Extension) visa application form, including information he provided indicating he had undertaken specified work in regional Australia for a total of three months with a particular employer but that employer subsequently denied that the applicant ever worked for them.

7. The Tribunal would have had the opportunity to ask the applicant why he appeared to provide incorrect information to the Department in order to get his Subclass 417 Working Holiday (Extension) visa, despite the clear warning to him that giving false or misleading information is a serious offence and that if information is found to be incorrect after the grant of a visa, the visa may subsequently be cancelled. The Tribunal would have had the opportunity to ask the applicant why he failed to respond to the notice from the Department dated 11 April 2018 that detailed such concerns. 

8. Accordingly, the Tribunal has decided to make a decision on the available evidence. 

9. 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

10. On 27 April 2018, the delegate decided to cancel the applicant’s student visa. In this decision the term “visa holder” and the term “applicant” are used to describe Mr Kwok Lung Tong.

11. Essentially, the delegate found that the applicant’s circumstances did not comply with s.101(b) of the Act and, accordingly, cancelled the visa under s.109 of the Act.

12. Section 101(b) of the Act states:

    101 Visa applications to be correct

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

    …

    (b) no incorrect answers are given or provided.

13. On 5 June 2016 the applicant lodged an application for a Subclass 417 Working Holiday (Extension) visa via the Department’s online facility.

14. As part of the application, the applicant completed an electronic application form and provided the following answers (in italics) in response to the following questions:

    Have you undertaken specified work in regional Australia for a total of 3 months?

    ‘Yes’

    Under the heading ‘Details of specified work undertaken’:

    ABN: 18602521829

    Postcode: 3630

    Start Date: 16 September 2015

    End Date: 30 December 2015

    Under the heading ‘Declaration’:

    I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa

    ‘Yes’

15. Based on the information provided in the visa application, the delegate assessed the applicant met the relevant criteria, including the requirement that, while holding his initial Subclass 417 visa, he work the equivalent of at least three months’ full-time work in a specified occupation in regional Australia, and on 8 June 2016 granted him a Subclass TZ 417 Working Holiday (Extension) visa.

16. On 20 October 2017, the Department received an email from Claire Louise Haberfield (trading as CD Small Farm Services, ABN 18602521829) indicating that they have never employed anybody at all at the business CD Small Farm Services.

17. Considering the response from Ms Haberfield, it is apparent to the Tribunal that the information the applicant provided in his Subclass 417 Working Holiday (Extension) visa application, as indicated above, was incorrect – and the Tribunal therefore finds that the information the applicant provided in his Subclass 417 Working Holiday (Extension) visa application was incorrect.

18. It is apparent to the Tribunal that in providing incorrect information in the manner described above, the applicant did not comply with s.101(b) of the Act – and the Tribunal therefore finds that in providing incorrect information in the manner described above, the applicant did not comply with s.101(b) of the Act.

19. On 11 April 2018, the Department sent the applicant a notice in accordance with s.107 of the Act advising him, in summary, that: a) the information he provided was incorrect; and b) the applicant had apparently breached s.101(b) of the Act in providing apparently incorrect information in his Subclass 417 Working Holiday (Extension) visa application. For these reasons, the applicant was advised that his student visa was being considered for cancellation in accordance with s.109 of the Act.

20. The applicant never responded to the Department. Accordingly, on 27 April 2018, the delegate cancelled the applicant’s student visa.

21. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder (the applicant) 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.

22. 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.

23. 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?

24. 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.

25. Given the information before the Tribunal as indicated above, the Tribunal is satisfied that the applicant’s non-compliance was identified and particularised in the s.107 notice.

26. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act 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 Migration Regulations 1994 (the Regulations). Briefly, they are:

    a)    the correct information;

    b)    the content of the genuine document (if any);

    c)    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;

    d)    the circumstances in which the non-compliance occurred;

    e)    the present circumstances of the visa holder;

    f)     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

    g)    any other instances of non-compliance by the visa holder known to the Minister;

    h)    the time that has elapsed since the non-compliance;

    j)   any breaches of the law since the non-compliance and the seriousness of those breaches;

    k)    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 Procedures 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.

30. The Tribunal’s assessment of all the prescribed circumstances as set out in r.2.41 is as follows:

    (a) The correct information

31. The visa holder was required to undertake specified regional work for a period of three months within certain industries, including the agriculture, forestry, mining, construction and fishing industries, as part of the eligibility criteria for the grant of the TZ 417 Working Holiday (Extension) visa.

32. The correct information is: the applicant did not undertake specified regional work for a period of three months; he did not work in the agriculture, forestry and fishing industry; and he did not work for CD Small Farm Services (ABN 18602521829, from 16 September 2015 to 30 December 2015.

33. The Tribunal gives this consideration high weight against the applicant.

    (b) The content of the genuine document (if any)

34. The non-compliance in question does not relate to a non-genuine document submitted to the Department. The Tribunal gives this consideration no weight in favour of the applicant as it is not relevant.

    (c) 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

35. The applicant held a Subclass 500 Student visa granted on 27 July 2017 (the visa that is the subject of this review). The applicant previously held a Subclass 417 Working Holiday visa, granted 8 June 2016. In assessing the TZ 417 visa application, the delegate had determined the following requirement was met:

    Regulation 417.211

    If the applicant is, or has previously been, in Australia as the holder of a Subclass 417 visa, the Minister is satisfied that:

    (a) the applicant has carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa; and

    (b) the total period of the work carried out is, or is equivalent to, at least 3 months full-time work; and

    (c) the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

36. The applicant’s regional employment was critical to the grant of the 417 Working Holiday (Extension) visa. The delegate’s decision record makes clear that the Department received advice the applicant had never undertaken the regional work with CD Small Farm Services as he had claimed in his visa application, confirming the information provided in his visa application was incorrect.

37. Accordingly, the Tribunal is satisfied that the decision to grant the 417 Working Holiday (Extension) visa was fundamentally based on incorrect information. Had the correct information been known to the delegate at time of grant, the applicant would have been found not to meet cl.417.211 and would not have been granted the 417 Working Holiday Extension visa.

38. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (d) The circumstances in which the non-compliance occurred (r.2.41(d))

39. The circumstances occurred when the applicant made an application to remain in Australia for a further working holiday visa and provided incorrect information by claiming to have been employed by CD Small Farm Services (ABN 18602521829) from 16 September 2015 to 30 December 2015.

40. The Tribunal accepts that the visa holder deliberately provided incorrect information regarding his specified regional work experience, in order to meet regulatory requirements and be granted the visa. The Tribunal accepts that the visa holder intentionally provided incorrect information in order to prolong his stay in Australia.

41. The Tribunal does not accept that the incorrect answers were provided due to circumstances beyond his control. The Tribunal finds that the applicant deliberately misled the Department to gain an immigration advantage to which he was not entitled.

42. The Subclass 417 Working Holiday Extension visa is for people who have undertaken three months’ work in a regional area of Australia while they held their first Subclass 417 Working Holiday visa. It was open to the applicant to apply instead for another visa more relevant to his circumstances or to depart Australia.

43. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (e) The present circumstances of the visa holder (r.2.41(e))

44. It appears that the applicant may have departed Australia. Accordingly, the Tribunal gives this no weight in the applicant's favour.

    (f) The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act (r.2.41(f))

45. The applicant provided incorrect information in his application for a TZ 417 Working Holiday (Extension) visa in order to facilitate a favourable migration outcome. He did not provide a response to the notice.

46. There is no indication that the applicant made any effort to correct the incorrect information provided to the Department.

47. Accordingly, the Tribunal gives this no weight in the applicant's favour.

    (g) Any other instances of non-compliance by the visa holder known to the Minister (r.2.41(g))

48. There is no information before the Tribunal of any other instances of non-compliance. The Tribunal gives this consideration no weight in the applicant’s favour.

    (h) The time that has elapsed since the non-compliance (r.2.41(h))

49. The non-compliance occurred when the applicant provided incorrect information on his Subclass 417 Working Holiday (Extension) visa application lodged on 5 June 2016.

50. Nearly three and a half years has passed since the non-compliance with s.101(b) of the Act - a significant period of time.

51. The Tribunal finds that despite the time that has passed since the non-compliance occurred, the provision of incorrect information, in this instance, represents a significant risk to the integrity of the 417 Working Holiday visa program.

52. The Tribunal gives this consideration no weight in the applicant’s favour.

    (j) Any breaches of the law since the non-compliance and the seriousness of those breaches (r.2.41(j))

53. There is no information before the Department to indicate there have been any breaches of the law since the non-compliance. The Tribunal gives some weight to this aspect in the visa holder’s favour.

    (k) Any contribution made by the holder to the community (r.2.41(k))

54. There is no specific information before the Tribunal to suggest the applicant has made a contribution to the Australian community. Accordingly, the Tribunal gives this no weight in the applicant's favour.

55. The Tribunal’s assessment includes the following additional matters.

    Whether there are persons in Australia whose visas would, or may, be cancelled consequentially

56. There are no persons in Australia whose visas would, or may, be cancelled under s.140 of the Act. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

57. There is no information before the Tribunal to indicate the circumstances of this case are such that would engage Australia’s international obligations. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    Whether there are mandatory legal consequences to a cancellation decision

58. If the student visa is cancelled the applicant would have become an unlawful non-citizen and could have been liable for detention under s.189 and removal under s.198 of the Act if he did not voluntarily depart. However, it appears that the applicant has departed Australia.

59. In addition, the cancellation could also place a limitation under s.48 of the Act, which means that the applicant will have limited options to apply for further visas in Australia.

60. In addition, the applicant will be prevented by a risk factor that may prevent him from being able to meet Public Interest Criterion 4013. As a result the applicant may not be able to be granted a further temporary visa for a period of three years.

61. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    Any other relevant matters

62. There are no other relevant matters before the Tribunal to consider.

63. 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.

    Conclusion

64. Having decided that, under s.108 of the Act, there was non-compliance in the way described in the notice issued under s.107 of the Act, and having considered all the prescribed matters set out in r.2.41 of the Regulations, the Tribunal finds the reasons to cancel the visa outweigh the reasons not to cancel.

    DECISION

65. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay
    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.