WARSAPPERUMA ARACHCHILAGE (Migration)

[2019] AATA 1246

WARSAPPERUMA ARACHCHILAGE (Migration) [2019] AATA 1246 (7 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chinthaka Malinga Jeewan Gunawardana WARSAPPERUMA ARACHCHILAGE

CASE NUMBER:  1801246

DIBP REFERENCE(S):  BCC2016/3474868

MEMBER:Tigiilagi Eteuati

DATE:7 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 07 April 2019 at 6:08pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – incorrect information in visa application – failure to declare past immigration and criminal history in New Zealand – found guilty of assaulting former partner – no conviction recorded – overstayed NZ visa for two years – consideration of discretion – visa granted on the basis of incorrect information – provided inconsistent information to the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information in his application form for a Student visa. 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 appeared before the Tribunal on 30 July 2018 and 24 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife.

4. 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

5. 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.

6. 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.

7. 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.

8. The Tribunal notes that it was precluded from providing certain information to the applicant because of certificates issued pursuant to s.375 and s.375A of the Act. The certificates were shown to the applicant’s legal representative, who did not challenge their validity. The information mentioned in the s.375 certificate was not before the Tribunal and thus could have no adverse impact on the applicant. The information mentioned in the s.375A certificate was not relied upon by the Tribunal as it did not form the reason or part of the reason for affirming the decision under review.

   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 of the Act in the following respects:

   ·     

   In his Student visa application, the applicant indicated that he had not visited any countries in the past 10 years, in circumstances where the Department had information that the applicant had resided in New Zealand, that his visa there was cancelled on

   
   

   14 May 2012 and that he departed New Zealand voluntarily in 2014 after being located by immigration authorities.

   ·     In his Student visa application, the applicant indicated that he had not held a visa to Australia or any other country and that he had not departed a country outside his authorised period of stay. The Department had information that the applicant had in fact held a visa to reside in New Zealand temporarily, that this visa expired in 2012 and the applicant had departed in 2014 outside his authorised period of stay.

   ·     In his Student visa application, the applicant indicated that he had not been convicted of an offence in any country including any conviction which had been removed from the official records. Further, the applicant had indicated that he had never overstayed a visa in any country. This was said to be contrary to information held by the Department which indicated that the applicant had been found guilty of an offence in New Zealand, although no conviction was recorded, and that he had overstayed his visa in New Zealand.

   ·     In his Student visa application, the applicant indicated that he had read and understood the information provided in the application, that he had provided complete and correct information in every detail, that he understood that if any false and misleading information had been provided that he may be refused a visa and that he understood that if after the grant of the visa it was found that information had provided was incorrect that the visa may be subsequently cancelled. This information was provided in circumstances where the applicant had provided incorrect information to the Department.

10. The s.107 notice indicated that the delegate considered that the applicant had not complied with s.101(b) of the Act as he had provided incorrect answers to questions in his Student visa application form. The s.107 notice stated:

    “specifically, as noted above, that you did not declare your past immigration and criminal history in New Zealand which included periods of unlawfulness in the community and having departed New Zealand outside of your authorised period of stay. Information obtained by the Department’s investigations, as noted above, does not support your claims.”

11. The applicant, through his migration agent, replied to the s.107 notice on

    
    

    9 January 2017. The migration agent provided a submission and attached a letter from the New Zealand Ministry of Justice indicating that the applicant had not been convicted of an offence in New Zealand and a statement made by the applicant on 9 January 2018.

12. The applicant did not reply directly to the issue raised in the s.107 notice that he had provided incorrect information in his Student visa application form as to whether he had been convicted of any offences. Rather, the applicant indicated that he had indicated in an incoming passenger card that he had not been convicted of any offences. The applicant indicated that he had done so because, while he knew that he had been found guilty of assaulting his former partner in New Zealand, no conviction was recorded and thus he reasoned that he had not been convicted of an offence. The Tribunal accepts this explanation and finds that the applicant did not provide incorrect information to the Department in relation to being convicted of an offence in the past.

13. In the response to the s.107 notice, the applicant indicated that he did not disclose that he had been in New Zealand with another woman as he was concerned that, if his wife discovered this, their relationship would break down. This was the applicant’s explanation for not disclosing that he had been in New Zealand and overstayed his visa there.

14. The hearing before the Tribunal was conducted over two days, on 30 July 2018 and

    
    

    24 August 2018. On 30 July 2018, the Tribunal adjourned the hearing to allow the applicant to put on further evidence and written submissions.

15. At the hearing, the applicant acknowledged that he had provided incorrect information to the Department and that the discretion to cancel his visa under s.109 of the Act was enlivened. The applicant conceded, and the Tribunal accepts, that the s.107 notice was valid.

16. The applicant indicated that, after he returned to Sri Lanka from New Zealand in 2014, he fell in love with, and married, his wife. His wife wished to study overseas and decided to apply for a visa to study in Australia. The applicant said that they engaged a migration agent in Sri Lanka to assist the couple in making a Student visa application. The applicant’s wife was to be the primary Student visa applicant, and the applicant was to apply for a Student visa as his wife’s spouse.

17. On the first day of the hearing, the applicant told the Tribunal that he had disclosed to his migration agent that he had resided previously in New Zealand, that he had been found guilty of assaulting his former partner, and that he had overstayed his visa for some two years. He said that the migration agent told the applicant that, if the applicant disclosed these matters in his Student visa application form, the applicant would be unlikely to be granted a visa.

18. Both the applicant and his wife indicated that, contrary to the applicant’s submission to the Department that his wife did not know that the applicant had resided in New Zealand previously when responding to the s.107 notice, the applicant’s wife did in fact know that the applicant had resided in New Zealand previously. Both the applicant and his wife indicated that while the applicant’s wife had known that the applicant had resided previously in New Zealand, she had not known about his previous relationship, the assault, or that he had overstayed a visa.

19. Both the applicant and his wife indicated that they acquiesced to the migration agent providing incorrect information about the applicant’s time in New Zealand as they believed that, if the Department was told of the applicant’s time in New Zealand, his offence there and the fact that he had overstayed his visa, the applicant would not be granted a visa for Australia.

20. During the first day of hearing, both the applicant and his wife indicated that the application form was completed by the migration agent, that they had not read the application form but had made the declarations at the conclusion of the application form that they had read the application form and that all the information provided was true and correct. Both the applicant and his wife indicated that they had done so as they trusted the migration agent.

21. However, on the second day of the hearing, the evidence of both the applicant and his wife changed significantly. On the second of day of the hearing, the applicant indicated that he had provided all of the relevant information to the migration agent, including about his time in New Zealand, his overstaying and his offence and told the migration agent to provide only complete and truthful information in the application form. This is to be contrasted with what he told the Tribunal on the first day of the hearing, that he knew that the migration agent had proposed to provide incorrect information in relation to his time in New Zealand and that he had acquiesced to this in order to be granted a visa for Australia.

22. Both the applicant and his wife indicated that they would suffer hardship if the applicant’s visa were to remain cancelled. The applicant’s wife indicated that she was due to complete her studies in Australia in the first semester of 2019. The applicant’s wife had indicated that the couple intended to return together to Sri Lanka after she completed her course in mid-2019. She said that she relied on the applicant to provide her with both financial and emotional support and guidance. She said that she was not sure whether she would be able to complete her studies if the applicant were to return to Sri Lanka. The applicant indicated that he was concerned that if he had to return to Sri Lanka, his wife would cheat on him, as his first partner had cheated on him in New Zealand. Similarly, the applicant’s wife indicated that if the applicant had to return to Sri Lanka, she was concerned that the applicant would cheat on her.

23. The Tribunal notes that in the Student visa application form the applicant’s wife indicated that she had sufficient funds to support herself for the total period of her stay in Australia and provided evidence of these funds. She indicated that a parent would provide the funding for her stay here. Thus, the Tribunal does not accept that the applicant’s wife will not be able to support herself financially between the applicant’s departure from Australia when his Bridging visa expires in May 2019, and when her course ends in June 2019, a period of one or two months.

24. The applicant conceded that there was non-compliance by the applicant in the way described in the s.107 notice and the Tribunal finds that there was non-compliance with s.101 of the Act by the applicant in the way described in the s.107 notice in that the applicant had provided incorrect information that he had never visited New Zealand and never overstayed a visa in New Zealand or departed New Zealand after the period where he was allowed to remain in New Zealand.

    Should the visa be cancelled?

25. 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).

26. 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

27. The correct information is that the applicant had resided in New Zealand in the 10 years before he made the application for an Australian visa in 2016. The applicant also told the Tribunal he had also visited Thailand. The applicant had been found guilty of an offence in New Zealand and no conviction was recorded. Further, the applicant’s visa in New Zealand expired in 2012 and he overstayed in New Zealand until he was located in 2014 and departed New Zealand voluntarily.

    ·     the content of the genuine document (if any)

28. This case does not involve the provision of a bogus document.

    ·     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

29. The Tribunal considers that there was a good chance that the applicant was granted a visa on the basis of the incorrect information he provided to the Department. The applicant was required to meet clause 500.317 of Schedule 2 to the Migration Regulations which required him to meet the Public Interest Criteria (PIC) in Schedule 4 to the Migration Regulations, including PIC 4001 regarding character and PIC 4020 regarding the provision of false information to the Department. It appears that there is a very good chance that the applicant would not have been granted a visa if the incorrect information was not provided to the Department.

    ·     the circumstances in which the non-compliance occurred

30. The applicant has given the Department and the Tribunal different accounts about why he failed to disclose his time in New Zealand and the fact that he overstayed his visa there. In response the s.107 notice the applicant indicated that he did not disclose having resided in New Zealand because his wife had not known about his time in New Zealand and he was worried that she would leave him if she found out about his time in New Zealand.

31. However, at the hearing before the Tribunal the applicant indicated that his wife did in fact know that the applicant had lived in New Zealand. On the first day of the hearing the applicant and his wife indicated that the reason incorrect information about the applicant’s immigration history in New Zealand had been provided to the Department was that their migration agent had told them that if they provided the truthful information, the applicant would not be granted a visa. On the first day of the hearing the applicant and his wife told the Tribunal that they acquiesced to the migration agent providing incorrect information to the Department about the applicant’s migration history in New Zealand.

32. However on the second day of the hearing, the applicant and his wife indicated that they told the migration agent to provide only truthful information to the Department and that it was the migration agent alone who decided to provide incorrect information to the Department.

33. The Tribunal accepts the version of events provided by the applicant and his wife on the first day of hearing. That is, that they acquiesced in the migration agent providing incorrect information to the Department in relation to the applicant’s immigration history in New Zealand as they believed that they would not be granted an Australian visa if they disclosed the truth.

    ·     The present circumstances of the visa holder

34. The applicant’s wife is due to complete her education course in June 2019, some two months from now. If the Tribunal affirms the Department’s decision to cancel the applicant’s visa, his associated Bridging visa will expire sometime in May 2019. That will mean that, unless he is granted another visa, he will be required to depart Australia before his Bridging visa expires in May 2019. It is likely that the applicant will be prevented from being granted another visa for a period of three years from his departure. That will mean that the applicant and his wife will be separated for a month or two while the applicant’s wife completes her course in Australia. The applicant’s wife has indicated that if the applicant’s visa remains cancelled, she will remain in Australia without him to complete her course in mid-2019. She has indicated that after she completes her course she wishes to return to Sri Lanka.

35. If the Tribunal sets the cancellation decision aside, the applicant will be allowed to remain in Australia until August 2019, when his visa would have expired had it not been cancelled. The applicant’s wife has indicated that after she completes her education course in mid-2019 that the couple intend to return to Sri Lanka.

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

36. There is no evidence that the applicant has committed further breaches of the provisions of Subdivision C of Division 3 of Part 2 of the Act. However the Tribunal has taken into account that the applicant has provided inconsistent and contradictory evidence to the Tribunal about why incorrect information was originally provided in the Student visa application form.

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

37. There is no evidence that the applicant has committed further breaches of the provisions of Subdivision C of Division 3 of Part 2 of the Act.

    ·     the time that has elapsed since the non-compliance

38. The visa application form was submitted on 4 October 2016. It is now April 2019.

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

39. There is no evidence that the applicant has been convicted of any breaches of the law since the non-compliance.

    ·     any contribution made by the holder to the community.

40. The applicant has not provided any specific evidence of his contribution to the community in Australia. He has provided evidence that he has been working in order to provide for his wife financially. That has meant that his wife has not had to work, and has been able to focus solely on her studies. The applicant has also provided his wife with emotional support during her time in Australia.

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. 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.

2. If the applicant’s visa remains cancelled he will be able to remain in Australia until his Bridging visa expires in May 2019. If the applicant has not departed by that date, he will become an unlawful non-citizen and will be required to be detained under s.189 of the Act, and removed from Australia under s.198 of the Act. His options for applying for another visa onshore will be very limited. In all likelihood he will have to depart Australia and will be prevented from re-entering Australia for a period of three years.

3. As the applicant’s wife was the primary visa applicant, the cancellation of the applicant’s visa will not result in the cancellation of his wife’s visa.

4. The applicant has not raised that any of Australia’s international obligations would be breached as a result of the cancellation of his visa and the Tribunal finds that no breaches of Australia’s international obligations would arise from the cancellation of the applicant’s visa.

5. The Tribunal accepts that the applicant and his wife will be upset if the applicant’s visa remains cancelled and he has to return to Sri Lanka. The Tribunal accepts that the applicant will not be able to provide his wife with financial and emotional support in Australia for one or two months between the time he must depart Australia in May 2019 and the completion of his wife’s study in June 2019. However, any likely hardship to the couple is ameliorated by the fact that they will only be parted for a very short period of time.

6. The Tribunal has also considered that the applicant committed an assault against a former partner in New Zealand. However, considering that no conviction was recorded, the Tribunal accepts that this offence was at the lower end of the spectrum of seriousness.

7. The Tribunal has found that the applicant acquiesced to his migration agent providing incorrect information to the Department to improve his chances of been granted a visa for Australia. Australia relies heavily on visa applicants being truthful in order to determine whether a person should be granted the privilege of entry and stay in Australia. Australia’s ability to regulate, in the national interest, the coming into, and presence in Australia of non-citizens, is compromised where visa applicants provide incorrect information to the Department. The applicant’s part in providing incorrect information to the Department is serious. The Tribunal has also found that the applicant was less than truthful on occasion with the Tribunal in that he provided inconsistent information to the Tribunal. This fact, coupled with the fact that the applicant has previously provided incorrect information to the Department has meant that the Tribunal cannot be satisfied that the applicant will not continue to provide incorrect information to the Australian government in the future.

8. 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

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

   Tigiilagi Eteuati
   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.