Wong (Migration)

[2020] AATA 3469

Wong (Migration) [2020] AATA 3469 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hok Nang Wong

CASE NUMBER:  1830585

DIBP REFERENCE(S):  BCC2018/873124

MEMBER:David McCulloch

DATE:20 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2020 at 3:12pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-appearance before the Tribunal  – ground for cancellation – incorrect information in previous visa application – Working Holiday (Extension) visa application – specified regional work requirement – claimed work history – positive obligation to correct previous incorrect information – consideration of discretion – threshold criterion fundamental to the grant of visa – circumstances giving rise to non-compliance – knowledge of untruthful claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 105, 107, 107A, 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 incorrect information was provided by the applicant in the application form and that the discretion to cancel the visa should be exercised. 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 a hearing of the Tribunal on Wednesday 15 July 2020. The applicant’s migration agent responded indicating that the applicant would not attend the hearing. The Tribunal has therefore proceeded to make a decision based on the material before it, without the ability to ask questions of the applicant in the hearing.

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.

   Was there non-compliance as described in the s.107 notice, and submission and documents?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects, as set out in the s.107 notice dated 30 August 2018:

   This letter refers to your Student (Temporary) (class TU) Student (subclass 500) visa which was granted on 07 April 2017.

   Section 107A relevantly provides as follows:

   107A. The possible non-compliances that:
   (a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
   (b) if so specified, can constitute a ground for the cancellation of that visa under section 109; include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person

   As a delegate of the Minister for Home Affairs, I consider that you did not comply with section 101(b) visa applications to be correct of the Migration Act 1958 (‘the Migration Act’).

   Visa applications to be correct

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

   (a) all questions on it are answered; and

   (b) no incorrect answers are given.

   ·section 101(b). This provision relevantly provides that “a non-citizen must fill in his or her application form in such a way that … no incorrect answers are given.”

   By operation of s107A of the Act, if you did not comply with section 101(b) when you applied for a Working Holiday (subclass 417) visa, granted to you on 02 May 2016, then your Student (subclass 500) visa that you currently hold, may be cancelled.

   If this is the case, your visa may be cancelled under section 109 of the Migration Act 1958.

   By operation of s99 of the Migration Act 1958, 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.

   Evidence of possible non-compliance:

   Hok Nang WONG applied for a Working Holiday (subclass 417) visa on 24 April 2016. As this was the visa holder’s second application for a Working Holiday visa, having already been granted one on 12 April 2015, Hok Nang WONG was required to meet the following regulation at time of application:

   417.211

   (1) The applicant satisfies the criteria in subclauses (2), (4) and (5).
   (2) The applicant:
   [(a) omitted by SLI 2008, 205 with effect from 27/10/2008 - LEGEND note]
   (b) has turned 18 but has not turned 31; and
   (c) holds a working holiday eligible passport.
   [(3) inc note omitted by SLI 2005, 240 with effect from 01/11/2005 - LEGEND note]
   (4) The Minister is satisfied that the applicant:
   (a) seeks to enter or remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia; and
   (b) has sufficient money for:
   (i) the fare to the applicant's intended overseas destination on leaving Australia; and
   (ii) personal support for the purposes of a working holiday; and
   (c) has a reasonable prospect of obtaining employment in Australia; and
   (d) will not be accompanied by dependent children during his or his stay in Australia.
   [s5 of the Migration Act defines enter, enter Australia, entered, and entry, leave Australia and remain in Australia - see also s4 (object of the Act) and s6 (effect of limited meaning of certain expressions) –

   [LEGEND note]
   (5) If the applicant is, or has previously been, in Australia as the holder of a working holiday visa, the Minister is satisfied that the applicant has carried out specified work in regional Australia for a total period of at least 3 months as the holder of that visa.

   Evidence – Application for Working Holiday visa

   Within the application form Hok Nang WONG provided the following information:

   Family name: “WONG”
   Given names: “Hok Nang”
   Date of birth: “17 October 1988”

   Question: Have you undertaken specified work in regional Australia for a total of 3 months?: “Yes”

   Question: If Yes, in which industry did this work mainly occur?: “Agriculture, Forestry and Fishing”

   Question: Do you have approved evidence that you have undertaken specified work in regional Australia for a total of 3 months? “Yes”

   Details of specified work undertaken:

   ABN: “79165239305”
   Postcode: “2680”
   Start date: “06 July 2015”
   End date: “26 October 2015”

   Declaration: “The information provided in this form is complete, correct and up – to – date”

   The Working Holiday (subclass 417) was granted on 02 May 2016 based on the information provided, as above, in the application form”

   Evidence – Departmental records

   On 02 November 2017 B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305 advised the Department of Home Affairs the business has not employed you under the Working Holiday program.

   Consideration regarding evidence

   Your Working Holiday (subclass 417) visa was granted to you on 02 May 2016 on the basis that you claimed you worked for at least three months in specified work in a regional area in Australia. Departmental records indicate that you did not work for B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305, as you claimed.

   The information provided by you in support of your application for a Working Holiday (subclass 417) visa was material to the grant of the visa.

   I consider you have fabricated information that you worked for B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305 for the period 06 July 2015 to 26 October 2015 to facilitate the grant of a Working Holiday (subclass 417) visa.

   Particulars of non compliance

   Given the evidence outlined above, I consider that you have not complied with section 101(b) of the Act because you have provided incorrect answers to the questions in your application Form for a Working Holiday (subclass 417) visa as follows:

   Question: Have you undertaken specified work in regional Australia for a total of 3 months?: “Yes”

   I consider this answer to be incorrect because you claimed you worked for a company with ABN (Australian Business Number) 79165239305 for the period 06 July 2015 to 26 October 2015 and Departmental records indicate that you did not work for B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305. On 02 November 2017 B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305 advised the Department of Home Affairs the business has not employed you under the Working Holiday program.

   Question: If Yes, in which industry did this work mainly occur?: “Agriculture, Forestry and Fishing”

   I consider this answer to be incorrect because you claimed you worked for a company with ABN (Australian Business Number) 79165239305 for the period 06 July 2015 to 26 October 2015 and Departmental records indicate that you did not work for B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305. On 02 November 2017 B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305 advised the Department of Home Affairs the business has not employed you under the Working Holiday program.

   Question: Do you have approved evidence that you have undertaken specified work in regional Australia for a total of 3 months? “Yes”

   I consider this answer to be incorrect because you claimed you worked for a company with ABN (Australian Business Number) 79165239305 for the period 06 July 2015 to 26 October 2015 and Departmental records indicate that you did not work for B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305. On 02 November 2017 B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305 advised the Department of Home Affairs the business has not employed you under the Working Holiday program.

   Details of specified work undertaken:

   ABN: “79165239305”
   Postcode: “2680”
   Start date: “06 July 2015”
   End date: “26 October 2015”

   I consider this answer to be incorrect because you claimed you worked for a company with ABN (Australian Business Number) 79165239305 for the period 06 July 2015 to 26 October 2015 and Departmental records indicate that you did not work for B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305. On 02 November 2017 B & C OWEN FARMING PTY LTD, the business registered under ABN (Australian Business Number) 79165239305 advised the Department of Home Affairs the business has not employed you under the Working Holiday program.

   Declaration: “The information provided in this form is complete, correct and up – to – date”

   I consider this declaration to be incorrect due the incorrect answers to questions, above.

   Section 107A of the Migration Act provides that non-compliance with section 101(b) of the Migration Act in relation to the application for your subclass TZ 417 Working Holiday (Extension) visa may constitute grounds for cancelling your current Student (Temporary) (class TU) Student (subclass 500) visa.

   The powers to issue this Notice, make a decision about whether there was non-compliance in the way described in this Notice, and make a decision about whether to cancel your visa, exist whether the non-compliance was deliberate or inadvertent.

9. Provided on the applicant’s behalf by his migration agent dated 13 September 2018 was a submission in response to the s.107 notice. In addition to submissions as to whether the ground of cancellation is made out, it also makes submissions as to discretionary factors as to whether the visa would be cancelled.

10. The submission states that the applicant had applied for a second working holiday visa through his former representative, Mr Murray Wu, and has been unable to contact Mr Wu and believes him to have fled the country. The submission states that an incorrect answer was provided in relation to whether the applicant had performed specified work in regional Australia.

11. It is submitted that the applicant had a lack of understanding of the visa procedure and the legal requirements for the application, and was advised by Mr Wu that it was possible to apply for a second working holiday visa without having worked in a regional area for three months. Mention is made of the applicant’s unfamiliarity with Australian laws and culture, and his trust in Mr Wu’s professional advice and that the paperwork submitted would be legitimate and correct. It is submitted that the applicant failed to check the paperwork. Reference is made to the applicant’s statutory declaration expressing his regret and remorse in this regard.

12. The submission states that the applicant only became aware of the incorrect answers provided when he received the NOICC, and now informs the Department of the correct answers. It is submitted that the obligation under s.105 of the Act continues to apply despite the grant of a visa, and that it is relevant that the applicant acknowledges there is an incorrect answer and has informed the Department as soon as practicable, being after he learnt of the incorrect answer. It is submitted that the visa cannot be cancelled under s.113 since the applicant has made full disclosure in compliance with s.105.

13. Reference is made to the discretionary grounds, and the submission extracts the relevant section from the Procedures Advice Manual. The submission states that there have been no bogus documents provided to the Department, and this weighs in the applicant’s favour.

14. In regards to the circumstances of non-compliance, it is stated that the applicant received advice from Mr Wu, who represented himself as a migration agent. Mention is made of the policy guideline that a person’s state of mind is relevant in considering whether to cancel a visa. It is submitted that the circumstances should only weigh in the applicant’s favour. Reference is made to the applicant’s circumstances of arriving recently in Australia, lacking understanding of the legal requirements for a second working holiday visa, and his trust in Mr Wu. It is submitted that the applicant is not a native English speaker and faces a language barrier that compounds the applicant’s difficulty in understanding the legal requirements, and that it is therefore understandable as to why the applicant would place complete trust in a migration agent. It is submitted that the applicant understands his mistake and regrets not conducting his own research.

15. The submission states that the applicant does not know of B & C Owen Farming Pty Ltd and has never contacted them. It is submitted that this is a strong indication that the applicant did not knowingly participate in providing incorrect information. It is further submitted that the applicant is a victim of dishonest dealings, and that there are many other people who are victims of the same fraudulent activity and that Mr Wu is being investigated by the Australian Border Force.

16. In regards to the applicant’s present circumstances, reference is made to the applicant’s completion of a Certificate IV in Marketing and Communication in July 2018 and his current enrolment in a Diploma of Business due for completion in July 2019. The submission states that the applicant enrolled in the Certificate IV which led to the Diploma of Business as a packet course, and that he is now more than halfway through his studies. It is submitted that it would be detrimental to the applicant if he is unable to complete his studies. Mention is made of the applicant’s de facto relationship with Ms Yu Yan, and that this has been registered since September 2017. It is submitted that, should the visa be cancelled, then the applicant and his partner would be separated until 2020 as the applicant would be unable to return to Australia. It is submitted that the applicant has integrated into the Australian community, and has established relationships with many people who see him as a person of integrity. Reference is made to the accompanying character references.

17. It is submitted that the applicant has been cooperative with the Department since receiving the NOICC, and acknowledged the incorrect answer, making a full disclosure of the circumstances of the non-compliance. Mention is made of the applicant now being made aware of his obligations under the Act.

18. It is submitted that there are no other instances of non-compliance by the applicant, and that this was a one-off event where the applicant innocently relied on Mr Wu’s advice. Mention is made of the two years since the non-compliance, and it is submitted that this weighs in the applicant’s favour.

19. It is further submitted that the applicant has never been convicted of any offence and is a person of good character. The submission states that the applicant is positively engaged with the Australian community through his studies, and positive relationships with his partner and friends.

20. The submission states that there are no secondary visa applicants whose visas may be cancelled. It is submitted that the application of s.48 will separate the applicant and his partner. It is submitted that the incorrect information provided is on the lower scale compared to provision of false documents, and that this has a minimal impact on the public interest.

21. The applicant’s representative provided various documents to the Department in response to the NOICC. This also contains evidence relevant to issues outlined in the next section of this decision concerning discretionary matters as to whether the visa should be cancelled:

    ·A statutory declaration from the applicant dated 15 September 2018, stating that he had contacted Murray Wu under the impression that he was a migration agent. Mr Wu advised the applicant that he could apply for a second working holiday visa without working in the regional area for three months. The applicant states that Mr Wu completed and filed all paperwork on his behalf. Upon receiving the NOICC, the applicant has attempted to contact Mr Wu but could not get in touch, and found out that some of his former clients have also been affected by him and unable to locate him. The applicant states that, at the time, he was ignorant of the procedures and requirements for obtaining a second working holiday visa, and relied on Mr Wu. The applicant states that he regrets not doing his own research. The applicant states that he understands he should not completely trust a migration agent, and should do his own due diligence before submitting information to the Department. The applicant states that his current migration agent has advised the applicant to check everything before allowing them to submit anything on the applicant’s behalf, and ensure he understands everything before they go ahead with anything. The applicant is now aware that he should notify the Department and his agent immediately if there is incorrect information, and that he may have a three-year bar on visa applications for providing false information. The applicant also states that he is not very good with English and did not understand the legal requirements for the visa application, and allowed Mr Wu to do everything for him. The applicant claims that he has never heard of B & C Owen Farming Pty Ltd. The applicant states that he is not working and is focusing solely on his studies for a Diploma in Business and that he lives with his de facto partner, Yan Yu.

    ·A statutory declaration from the applicant’s de facto partner, Yu Yan, dated 15 September 2018, stating that she is aware of the applicant’s visa status due to providing incorrect answers for a working holiday visa application. The partner states that she has known the applicant since December 2016, and that he is a kind and honest person with a warm heart and integrity, who donated money during the drought in southern Australia. The partner states that the applicant is full of optimism, enthusiasm, discipline, and responsibility. The partner states that the applicant is not working, as he wishes to concentrate on his studies. The partner notes that the applicant has reflected on his past actions and has shown great remorse, that the applicant is worried about how this will affect him in the future for Australia and immigration records, and that he innocently followed the advice of his previous migration agent without conducting due diligence and ensuring the information submitted by the agent was correct. The partner states that she trusts the applicant to conduct himself in an honest manner and will not do anything similar again.

    ·A statutory declaration from the applicant’s landlord, Abraham Akber, dated 13 September 2018, stating that he is aware of the applicant’s visa status due to providing incorrect answers for a working holiday visa application. The landlord states that he has known the applicant since February 2017 when he moved into the landlord’s house to live with his partner. The landlord states that the applicant is an outgoing and careful person, who made them live in a home with harmony. The landlord states that the applicant puts a lot of effort into his study and wants to finish his course. The landlord states that the applicant is a trustworthy person, and believes that his actions were out of character. The landlord notes that the applicant has reflected on his past actions and has shown great remorse, that the applicant is worried about how this will affect him in the future for Australia and immigration records, and that he innocently followed the advice of his previous migration agent without conducting due diligence and ensuring the information submitted by the agent was correct. The landlord states that he trusts the applicant to conduct himself in an honest manner and will not do anything similar again.

    ·A statutory declaration from the applicant’s friend, Pui Ho Li, dated 13 September 2018, stating that he is aware of the applicant’s visa status due to providing incorrect answers for a working holiday visa application. The friend states that he has known the applicant since April 2016 when they attended a mutual friend’s birthday party. The friend states that the applicant is an active person who treats friends sincerely. The friend and the applicant have been on some trips together and celebrate each other’s birthdays. The friend notes that the applicant has reflected on his past actions and has shown great remorse, that the applicant is worried about how this will affect him in the future for Australia and immigration records, and that he innocently followed the advice of his previous migration agent without conducting due diligence and ensuring the information submitted by the agent was correct. The friend states that he trusts the applicant to conduct himself in an honest manner and will not do anything similar again.

    ·A statutory declaration from Li Shan Lu, dated 19 October 2018, stating that he is one of the applicant’s landlords, and that he is aware of the applicant’s visa status due to providing incorrect answers for a working holiday visa application. The landlord states that he has known the applicant since he moved into the landlord’s house in 2017, that the applicant is kind, loyal, and trustworthy. The landlord states that the applicant offered to take care of the landlord’s puppy when they were working and did not ask for anything in return. The landlord states that the applicant is a trustworthy person, and believes that his actions were out of character. The landlord notes that the applicant has reflected on his past actions and has shown great remorse, that the applicant is worried about how this will affect him in the future for Australia and immigration records, and that he innocently followed the advice of his previous migration agent without conducting due diligence and ensuring the information submitted by the agent was correct. The landlord states that he trusts the applicant to conduct himself in an honest manner and will not do anything similar again.

    ·A statutory declaration from the applicant’s friend, Xing Kang Lu, dated 19 October 2018, stating that he is aware of the applicant’s visa status due to providing incorrect answers for a working holiday visa application. The friend states that he has known the applicant since 2017 when they became housemates. The friend states that he and the applicant have a lot in common, and that the applicant is loyal, loving, kind, and willing to help others. The friend states that, when his car was being repaired, the applicant gladly did shopping for him. The friend states that the applicant is a trustworthy person, and that his actions are out of character. The friend notes that the applicant has reflected on his past actions and has shown great remorse, that the applicant is worried about how this will affect him in the future for Australia and immigration records, and that he innocently followed the advice of his previous migration agent without conducting due diligence and ensuring the information submitted by the agent was correct. The friend states that he trusts the applicant to conduct himself in an honest manner and will not do anything similar again.

    ·A statutory declaration from the applicant’s friend, Shuk Pui Yu, dated 19 September 2018, stating that she is aware of the applicant’s visa status due to providing incorrect answers for a working holiday visa application. The friend states that she has known the applicant since October 2016, and that they went to parties together. The friend states that the applicant is a kind and honest person with integrity. The friend states that, when they went to a restaurant, the staff gave the applicant $10 extra in change, and when he realised, the applicant went back immediately and returned the change. The friend states that the applicant loves animals, that he is a trustworthy person, and that his actions were out of character. The friend notes that the applicant has reflected on his past actions and has shown great remorse, that the applicant is worried about how this will affect him in the future for Australia and immigration records, and that he innocently followed the advice of his previous migration agent without conducting due diligence and ensuring the information submitted by the agent was correct. The friend states that she trusts the applicant to conduct himself in an honest manner and will not do anything similar again.

    ·A NSW relationship certificate dated 28 September 2017, stating that the applicant and Yu Yan are in a registered relationship.

    ·A testamur from Salisbury College Australia dated 4 July 2018, stating that the applicant completed a Certificate IV in Marketing and Communication.

    ·A CoE 8B8A4876 issued by Salisbury College Australia dated 28 March 2017, confirming that the applicant is enrolled in a Diploma of Business.

1. It has been acknowledged on behalf of the applicant in response to the s.107 notice that incorrect answers were given in the application as set out in the notice. It is claimed that the applicant was not aware at the time of the incorrect answers as the application was put together by a migration agent with the details unknown to the applicant.

2. Even if this were the case, pursuant to s.100, the applicant’s knowledge is not relevant as to whether incorrect information was provided.

3. It is further claimed on behalf of the applicant that because the applicant has complied with s.105 in indicating in response to the s.107 notice, which caused him to become aware of the incorrect answers, that the answers were in fact incorrect, that the ground of cancellation cannot be made out.

4. This is not what s.105 provides for. That section provides a positive obligation to correct previous incorrect information when it becomes apparent that the information was incorrect. The failure to provide incorrect information would therefore be ground for cancellation. The requirement in s.105 does not then eliminate a ground of cancellation in breach of s.101 on the basis of having subsequently provided the correct information.

5. For these reasons, the Tribunal is satisfied that the ground of cancellation in s.101(b) is made out.

6. The fact of the applicant not being aware of the incorrect information, and providing it as soon as it became known that incorrect information had been provided, would be relevant matters to consider the exercise of the discretion as to whether the visa should be cancelled. These issues are discussed further below.

7. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

8. 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).

9. 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.

10. 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

11. The correct information would have been that the applicant would have answered ‘no’ to the question whether the applicant had undertaken specific work in regional Australia for a total of three months. The information would not have been to have indicated the applicant worked in ’Agriculture, Forestry and Fishing”. The correct information would have been to have answered ‘no’ in indicating whether the applicant had approved evidence that he had undertaken specific work in regional Australia for a total of three months and to have not provided the relevant incorrect details of claimed employment, including the ABN number of the employer and the dates worked. The correct information would not have been to have attested that the information in the form was complete, correct and up-to-date.

12. There is no bogus document therefore the contents of the genuine document are not relevant.

    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

13. The obligation to have previously undertaken specific work in regional Australia for three years is at the core of eligibility requirements for the Working Holiday (Subclass 417) visa.

14. The visa would not have been granted if the correct information had been provided. This is significantly adverse to the applicant.

    Circumstances of non-compliance

15. It is claimed that when the applicant applied for the second working holiday visa, he had a lack of understanding of the requirements for eligibility and his migration agent advised him that it was possible to apply for the second working holiday visa without having worked in a regional area for three months. Due to the applicant’s claimed unfamiliarity with Australian laws and culture at the time, he trusted the professional advice that he was given. The applicant failed to correctly check the paperwork which was submitted on his behalf.

16. The Tribunal has very significant scepticism that the applicant would not have been made aware of a core eligibility requirement for the visa that the applicant had previously worked in regional Australia for three months. This is at the heart of eligibility requirements. The Tribunal also considers it implausible that the applicant would be incorrectly advised by a migration agent as to this core requirement. The Tribunal’s scepticism is reinforced by the applicant attesting to the contents of the application and the application form providing incorrect information in response to at least five questions, including providing details of an ABN number of a farming company worked for and relevant dates of work. This makes it implausible that the applicant would not have been aware of the incorrect information when reviewing the application.

17. Given that the applicant did not attend the hearing, it was not possible to put these concerns to the applicant for response and testing in a hearing. The Tribunal maintains its concerns in relation to the issues expressed in the previous paragraph.

18. The Tribunal does not accept that the applicant would not have been aware of incorrect information being provided in the application form for the working holiday visa in stating that he previously worked for a named farming company in a regional area in Australia for three months. In making this finding, the Tribunal has considered supporting statements on behalf of the applicant attesting to his trustworthiness and good character. However, the Tribunal did not have the opportunity to question the applicant himself in the hearing which he was offered in terms of making its own assessment as to his credibility.

19. The Tribunal is not satisfied that there is a discretionary factor in the applicant’s favour that he was not aware of the incorrect information or that he corrected the incorrect information as soon as he became aware of it upon receipt of the s.107 notice.

    The present circumstances of the visa holder

20. In response to the s.107 notice in September 2018, it was indicated:

    ·the applicant had completed a Certificate IV in Marketing and Communication in July 2018 with satisfactory results and attendance (evidence provided of which);

    ·the applicant was then studying a Diploma of Business which was intended to be completed by July 2019. It is claimed that it would be detrimental to the applicant if he had to leave in the midst of his Diploma of Business;

    ·the applicant is in a de facto relationship with Ms Yu Yan and they registered their relationship in September 2017. Ms Yan is a student visa holder until 2020. She is from China. Should the visa be cancelled, they will be separated until at least 2020;

    ·Ms Yan will be confined to Australia while she is studying a Master’s Degree in Social Work (full-time);

    ·the applicant has integrated into the Australian community since his first arrival in Australia. He has established relationships with people who see him as a person of integrity.

21. As the applicant did not attend the hearing, it was not possible to explore the current circumstances of the applicant including the circumstances that have arisen since the response to the s.107 notice. The Tribunal notes that the Diploma of Business which the applicant had been previously studying would now have been completed, based on its intended finish date.

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

22. For the reasons indicated earlier, the Tribunal is not satisfied that the applicant only became aware of the incorrect answers when sent the s.107 notice. The Tribunal considers that the applicant had been aware previously of the incorrect information at the time of application for the visa and that the provision of the correct information in response to the notice was not the first opportunity that the applicant had to provide the correct information.

23. The Tribunal does not consider there is a discretionary factor in the applicant’s favour because he, at the first opportunity that it became known to him, advised of the correct information.

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

24. There is no evidence before the Tribunal as to other instances of non-compliance of the applicant’s visa. This is a discretionary factor in the applicant’s favour.

    The time that has elapsed since the non-compliance

25. The Working Holiday (Subclass 417) visa was granted to the applicant (including based on the incorrect information) in May 2016. The applicant was granted a Student (Subclass 500) visa on 7 April 2017.

26. The applicant has been in Australia for a reasonably significant length of time including progressing with studies and potentially having other plans in Australia.

27. The Tribunal considers in the applicant’s favour the not insignificant period he has been in Australia since non-compliance and ties in Australia and any future plans here.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

28. There is no evidence of breaches of law by the applicant since non-compliance. This is a discretionary factor in the applicant’s favour.

    Any contribution made by the holder to the community

29. It has been submitted that the applicant has positively engaged in the Australian community through his studies and developed a positive relationship with his partner and other friends in the community. Those with whom he has associated view him as a person of integrity. As indicated, various testimonial statements have been provided to the Tribunal.

30. The Tribunal accepts a degree of integration by the applicant into the Australian community. This is a discretionary factor favourable to the applicant.

    Other matters

31. The applicant, if the visa remains cancelled, could be an unlawful non-citizen and subject to immigration detention. However, the Tribunal considers the applicant would remain eligible to hold a bridging visa while he makes arrangements to depart Australia.

32. It has been indicated that there are no secondary applicants whose visas may be affected by the cancellation.

33. Given that the applicant did not attend the hearing, it was not possible to explore whether there are other relevant factors.

    Weighing of discretionary factors

34. As indicated, the Tribunal is not satisfied that, without the applicant’s knowledge, his previous agent provided untruthful claims that the applicant had previously undertaken specified work in regional Australia for three months. The Tribunal is not satisfied that the applicant was unaware of the requirement to have previously worked in regional Australia for a specified period. These matters are significantly adverse to the applicant, including in the context of having worked previously in regional Australia being a key eligibility requirement and that the visa would not have been granted had this criterion not been met.

35. The Tribunal is not satisfied that the applicant advised the Department that he was aware of the incorrect information as soon as he became aware of the adverse information. The Tribunal considers that the applicant had long been aware of the incorrect information before confirming with the Department the incorrect information. This is adverse to the applicant.

36. In the applicant’s favour, the Tribunal accepts there are no other instances of known non‑compliance by the applicant. The Tribunal accepts that the applicant has not committed any other breaches of the law. The Tribunal accepts the reasonable time that has passed since non‑compliance and the ties that the applicant has made in the Australian community. These matters are favourable to the applicant.

37. It was not possible to explore at hearing the applicant’s current activities in Australia and plans, including the progress of his studies. The Tribunal notes that based on what the applicant indicated in September 2018, he was due to complete a Diploma of Business in July 2019. The Tribunal is willing to accept hardship to the applicant in the event that he has further plans for study or other grounds on which he wishes to stay in Australia.

38. It was not possible to test and explore with the applicant the nature of his previously claimed relationship in Australia and the current status and plans of his partner. However, on the information provided in September 2018, the applicant’s Chinese citizen partner was due to finish her studies in Australia in 2020. That being the case, if the applicant’s partner is yet to complete her studies it will only be several months before due completion, meaning any period of separation on the basis of the applicant having to return to China will be limited.

39. However, the Tribunal accepts that there may be hardship to the applicant based on the separation of the relationship if the applicant’s partner had further intentions to stay in Australia.

40. Balancing issues, the matters adverse to the applicant are significant and serious. Those matters are not outweighed by matters in the applicant’s favour, including the hardship that the applicant may face if the visa remains cancelled.

41. 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

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

    David McCulloch
    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.