Whitehead (Migration)

[2018] AATA 4958

Whitehead (Migration) [2018] AATA 4958 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Bryce Whitehead

CASE NUMBER:  1825141

DIBP REFERENCE(S):  BCC2016/2737544

MEMBER:Ann Duffield

DATE:22 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 22 October 2018 at 1:33pm

CATCHWORDS
MIGRATION – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – disclosure of offences – another identity committed the crime – stolen identity – workers compensation payments – physical injury – support to children – passenger card completed by son – time of last offence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 107, 109


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 444 (Special Category) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to disclose that he had been convicted of several offences. 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 22 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s two children.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

5. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.

6. The applicant is a citizen of New Zealand born on 16 September 1972. He is also known as Scott Layton Bryce Udy.

7. The applicant first arrived in Australia in 1995 and returned to New Zealand temporarily for twelve months in around 2008. He last entered Australia with his two children on 14 June 2009. His children were born on 29 June 2001 (17 years old) and 28 January 2007 (11 years old). The applicant’s youngest child, his daughter, is an Australian citizen.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. 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?

11. 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 Section 102(ii) which requires a non-citizen must fill in his or her passenger card in such a way that no incorrect answers are given. The delegate found that the applicant answered “no” to the question “do you have any criminal conviction/s” on his incoming passenger card dated 14 June 2009.

12. The applicant failed to declare he received the following convictions received in New Zealand:

    a.1995 – assault and wilful damage

    b.1992 – drove whilst disqualified

    c.1991 – theft, operate a vehicle carelessly,  driving whilst intoxicated, failed to comply with prohibition by enforcement officer;

    d.1990 – drove with excess blood alcohol content

    e.1988 burglary x 2

13. The applicant also failed to indicate he had been convicted of the following offences in Australia:

    a.2004 - Dangerous operation of a vehicle x 2; fail to stop vehicle; possessing dangerous drugs; breach of bail condition; breach of order;

    b.2001 – possess utensils or pipes

    c.2000 – Possession dangerous drugs; possess utensils or pipes.

14. The applicant in all was convicted with some 20 offences and given two terms of imprisonment for two years and for three months respectively in relation to two of the twenty charges. The applicant would have objectively failed the character test had these details been provided on the passenger card and may have been refused immigration clearance and refused the grant of the TY444 in 2009.

15. The applicant provided the delegate and the Tribunal with an extensive array of documents supporting his claims, including a long personal explanation for his offences, character references from friends and family. In particular, the applicant provided an explanation about the reasons why he changed his name and the identity theft he claims took place. The Tribunal has no way of verifying these claims and it seems unlikely that someone could get away with stealing the applicant’s identity for such a long period of time without detection, particularly as the applicant’s driver’s licence (the source of the claimed identity theft) was returned to him, by the police 15 years ago. In any case, as the applicant has admitted to the crimes for which he was convicted and which form the basis of the reason that his visa was cancelled, the Tribunal has not given this matter any further consideration.

16. The applicant also provided a notice of consideration of refusal for a firearms licence that he applied for under the name of Scott Udy in 2008. That application was refused because the Police Officer responsible for the refusal found that the applicant:

    a.Was not a fit and proper person;

    b.Had an extensive number of criminal convictions, including drugs, assault, damaging property and failing to appear in accordance with bail;

    c.Did not disclose these criminal convictions on his firearms licence application; and

    d.The respondent in a non-molestation order and a non-violence order.

17. At the hearing the applicant told the Tribunal that the long list of crimes that formed the reason for the refusal of this application were committed by the person who stole his identity. He said that he did not fail to inform the authorities of his crimes, but he obviously could not list the ones committed by the person who stole his identity as he was unaware of them at the time.

18. In his submission to the Tribunal the applicant claimed that he when he arrived in Australia for the last time in 2009, he was tired and overwhelmed having to look after two young children on the flight. He claims that he allowed his young son (then only 8 years old) to help him complete his passenger card under his instruction. He repeated this account at the Tribunal’s hearing.

19. The applicant claims that he is the only support that the children have. He claims that their mother is a criminal, involved in drugs and gambling and faces a period of incarceration as a result of her criminal activities. The applicant claims that his son lived with his mother for a while and also became involved with criminal activity for which he was charged. Since living with the applicant, the applicant claims that his son is a straight a student and has signed up to join the Australian Defence Force Academy pending successful completion of high school. The applicant and his son told the Tribunal that he has been accepted into the Naval College at HMAS Creswell in Sydney and is due to commence next year (2019).

20. The applicant and his children told the Tribunal that their lives were in Australia and if the applicant were to depart, it would impact them significantly. The Tribunal put to the applicant and his children that if they were required to return to New Zealand they could still avail themselves of the government’s services as they had done. They agreed.

21. The applicant told the Tribunal that he was a bricklayer but was on worker’s compensation since damaging his arm in January. He claims that if he returns to New Zealand the compensation payments will stop. The Tribunal asked him if would be able to get relevant treatment for his shoulder if he had to go to New Zealand and he agreed that he would. The applicant told the Tribunal that he would take his daughter to New Zealand if he had to but that his son would continue with his plans to go to Naval College at HMAS Creswell.

22. The applicant claims that the children’s mother no longer have contact with her and would provide no support or assistance to his son if the applicant were to depart Australia, The Tribunal put to the applicant that his son would be at Naval College and all his needs would be met there, including meals and accommodation. The Tribunal put to him that New Zeland was a four hour flight and his son could visit him.

23. The applicant claims that his last offence occurred over 15 years ago and he has not committed any offences since then. He claims that he does not drink or take drugs and is heavily involved with the neighbourhood and school activities.

24. The applicant and his two children presented at the Tribunal hearing. The Tribunal found their evidence to be open and frank.

25. The applicant told the Tribunal that in 2009 he did not tick the relevant box admitting to a criminal record because it had been a stressful flight and his 18 month old daughter had been extremely difficult. The applicant said that he asked his then 8 year old son to complete the form for him. The Tribunal put to the applicant that regardless of the stress he had suffered, as a previous entrant to Australia he must have been aware of the importance of correctly filling out the passenger card. Asked if he admitted to his criminal record during his previous entry to Australia the applicant admitted that he was untruthful at that time.

26. The Tribunal put to the applicant that it found it difficult to accept that he would ask his 8 year old son to fill in the incoming passenger card. The Tribunal put to the applicant that it was forming a view that he filled out the form incorrectly with full knowledge that admitting to a criminal record may put at risk his entry to Australia. The applicant claimed that on his second entry to Australia he was genuinely exhausted and did not pay too much attention to the form.

27. The Tribunal does not accept that the applicant’s failure to declare his past criminal convictions was an honest omission or indeed that his 8 year old son completed the form under his instruction. The Tribunal put to him that it considered his failure to declare his convictions as a serious matter and one that undermined the free exchange of visitors between the two nations. The applicant agreed.

28. For these reasons, the Tribunal finds that there was non-compliance s.102(ii) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

29. 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).

30. 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.

31. 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.

32. The Tribunal has considered these matters in the context of the applicant’s actions and makes the following observations.

33. The applicant’s failure to disclose his convictions occurred in 2009 – almost ten years ago. Neither the Tribunal nor the applicant disputes the commission of those offences. However those offences occurred some 15 years ago and the applicant has not been charged or accused of any crime or offence since that time. He has raised his two children since the ages of 4 and a half and seven months when their mother effectively abandoned them. The Tribunal puts significant positive weight in favour of the applicant in relation to this matter.

34. The applicant has worked and supported those children on his own since that time. He has established a home in which they have all lived for the past seven years and his children are well integrated into the neighbourhood and the community. The Tribunal also accepts that the applicant’s ability to obtain work in New Zealand is restricted by his injury and that the compensation payments in relation to that injury may likely cease if he is no longer resident in Australia. However the applicant and his daughter have rights as New Zealand citizens and there is nothing before the Tribunal to suggest that they would not receive the assistance they may require. Nevertheless the Tribunal accepts that they would suffer some degree of hardship.

35. The applicant’s ability to return to Australia to visit his son would be severely compromised if his visa is cancelled. The Tribunal gives this little positive weight in the applicant’s favour in this regard as that is the intention of the legislation.

36. The Tribunal has weighed these matters carefully and concluded that the particular circumstances of the applicant are sufficiently compelling to move the Tribunal to substitute the delegate’s decision.

    CONCLUDING PARAGRAPHS

37. 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 not be cancelled.

    DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    Ann Duffield
    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.

    102Passenger cards to be correct

    A non‑citizen must fill in his or her passenger card in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given.

    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.