Yang (Migration)

[2020] AATA 507

Yang (Migration) [2020] AATA 507 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jun-Hong Yang

CASE NUMBER:  1816212

DIBP REFERENCE(S):  BCC2018/1002839

MEMBER:Antoinette Younes

DATE:20 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2020 at 4:57pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – bogus information – representative provided incorrect information regarding regional work – inability to provide representatives name – qualification will benefit applicant – limited evidence of contribution to community – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 99, 101, 107, 140
Migration Regulations 1994 (Cth), cl 417.211, 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 did not comply with s.101(b) and s.107A of the Act.  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 18 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent.

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?

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.

9. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.107A of the Act.

10. Section 101 of the Act provides that:

    Visa 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.

11. Section 107A of the Act provides that:

    Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    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.

12. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record.  

13. In the course of the hearing, the Tribunal discussed relevant matters, including the information that:

    i)   The applicant breached s.101(b) when applying, on 13 December 2015, for a Working Holiday (Extension) (class TZ subclass 417) visa. Section 107A is therefore applicable.

    ii)     As part of the Working Holiday (Extension) (class TZ subclass 417) visa application form, the applicant provided responses to a number of questions. On page 2, under the question Have you undertaken specified work in regional Australia for a total of 3 months? the applicant responded Yes. On pages 2 and 3, under the heading Details of specified work undertaken, the applicant provided an ABN of 65164372105, postcode of 3500, starting date of 14 May 2015 and end date of 29 August 2015. On page 6, under the heading Declaration, the applicant confirmed that, I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa.

    iii)   Based on the information provided by the applicant, the visa was granted on 18 January 2016.  He then applied offshore and was granted the subclass 500 student visa on 7 April 2017.

    iv)   On 17 December 2017, the Department received an email from the owner of the above ABN stating that the visa holder had never worked for that entity. On the basis of that information, the Department formed the view that the applicant had provided incorrect information when applying for the Working Holiday visa.

    v)    On 3 May 2018, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant responded on 15 May 2018.

14. In the applicant’s response to the NOITCC, the applicant’s representative indicated that the applicant did perform regional work during the period of the first TZ subclass 417 visa but he had no knowledge that incorrect information had been provided in the Working Holiday (Extension) (class TZ subclass 417) application as it was lodged by an agent. 

15. The representative argued that although this does not “negate his obligation for incorrect answers being provided…this information however is importantly relevant to Regulation 2.41…”. 

16. The representative requested an extension of time of 28 days to provide supporting evidence in response to the NOITCC, which was refused by the Department.

    Material provided to the Tribunal

    The applicant provided the following:

17. Undated submissions received by the Tribunal on 17 February 2020.  The representative noted:

    ·The evidence provided to the Tribunal indicates that the applicant is a genuine student in Australia and there are compelling and compassionate circumstances not to cancel the applicant’s visa.

    ·In September 2014, the applicant applied for a working holiday visa which was granted in October 2014. Following the grant, he remained in Taiwan and continued working for an electronic company. Between March and September 2015, the applicant worked and travelled around Australia. Between September and December 2015 for a total of three months, the applicant made a huge effort in seeking fruit picking work experience in regional Australia. In December 2015, the applicant used the services of a migration agent (name provided - the Tribunal will refer to this person as ‘Mr X’) who applied for a Working Holiday (Extension) (class TZ subclass 417) visa which was granted on 18 January 2016. In January 2017, prior to the expiry of the visa in March 2017, the applicant left Australia and returned to Taiwan.  In late March 2017, the applicant lodged a student visa to undertake studies in general English and a Diploma of Business. In April 2017, the visa was granted and the applicant commenced his studies in Australia in June 2017.

    ·The applicant regrets using the services of Mr X and the applicant did not know if he was a registered migration agent. The applicant did not know that Mr X had provided false or incorrect information when applying for the Working Holiday (Extension) (class TZ subclass 417) visa. The ground for cancellation pursuant to s.109(b) exists but there are circumstances warranting a favourable decision. The applicant has committed significant time, individual efforts and funds in his Australian studies. A letter provided by the education provider indicates that from June 2017 to 1 June 2018, the applicant’s attendance in studying was 86%. The applicant would not have applied for the Working Holiday (Extension) (class TZ subclass 417) visa had he known that false information would be provided. Had the applicant been invited prior to the date of the NOITCC, the applicant would have discovered that fraud had been committed by the agent and the applicant would have withdrawn the application and departed Australia. The fact that the applicant lodged his student visa offshore indicates that the applicant did not take advantage of the Working Holiday (Extension) (class TZ subclass 417) visa. The applicant did not intentionally or actively abuse or attempt to circumvent Australia’s migration laws.

    ·The applicant is currently enrolled in a general English course attached to the Diploma of Business course which remains ongoing, and is due to finish on 14 September 2020. The cancellation of his visa would mean that the applicant would not be able to finish his studies. This is not fair given that the applicant had invested much effort and funds on his tuition in Australia. It is in the interest of the educational institution to allow the applicant to complete his course. This is of benefit to the Australian community. The applicant intends to remain in Australia temporarily in order to complete his studies. During his stay in Australia, the applicant has demonstrated that he is a genuine student and he has acted in a positive manner.

18. An undated Statement, one dated 13 June 2018 and an Affidavit dated 13 June 2018 of the applicant outlining his reasons for coming to Australia, including the reputation that Australia has in relation to quality education. His English at the time was poor and he was unable to achieve an overall score of 6.5 in the IELTS. When he came to Australia on the working holiday visa, he temporarily ceased studying and focused on working. He chooses to continue his studies in Australia.  In Taiwan companies value overseas qualifications. It would be difficult for him to catch up based on his current English level and it would take him a long time to complete a bachelor’s degree. His parents are supportive of him. He is working hard at improving his English in order to obtain admission to an engineering degree.

19. In the Affidavit, the applicant outlined his background and the circumstances of him coming to Australia on the working holiday visa. He indicated that:

    ·He saw an advertisement on Facebook about a farm in Canoelands NSW which was recruiting for the harvest of cherries. In the advertisement, the farm also promised that it would provide a statement in support of the application for a Working Holiday (Extension) (class TZ subclass 417) visa. He left his existing job and planned to go to Canoelands but on the day prior he and his friends were due to depart, another friend told him that he just returned from Canoelands and that the farm would not open until the following month. They stayed in Sydney looking for other employment opportunities. In October they found another farm in Queensland which was hiring for the harvest of blueberries. The advertisement claimed the payment of $200 a day but when they arrived, the job was not to pick berries but packing into boxes. They worked from 6 AM in the morning until 3 PM. They received under $50 a day and they were told that the farm would be closed in a month as the harvest season was nearly over. In the middle of October, they went to another blueberry farm in Coffs Harbour. They were told that they would be paid $20 an hour but there was no room for accommodation. When they arrived at Coffs Harbour, the owner did not answer the calls and refused to meet them when they went to the farm.

    ·They found another farm at Coffs Harbour and worked for two weeks, leaving at the beginning of November. He tried to get more work from regional areas but was unsuccessful. He found another job in warehouse management. In mid-September 2015, his friend introduced him to Mr X who told him that he could get him a Working Holiday (Extension) (class TZ subclass 417) visa. Mr X told him that he would take care of everything and that he had many cases like the applicant’s. Mr X asked the applicant some personal information and communication was through social media. Had the applicant known that he did not meet the criteria for the grant of the visa, he would not have applied and he would have left Australia to return to Taiwan. He did not see any documents attached to the application and he was just sent the visa grant letter on 18 January 2016.

    ·He continued to work in Australia in various roles but had an interest in a Master’s degree in engineering. In February 2017, he enrolled in an English course in Taiwan and in March he met an agent called Cindy who advised him that his English is not at the required level for a Master’s degree in engineering. He gave his details to Cindy who applied for the student visa. In June 2017, he came to Australia to undertake an English language course at Salisbury College. He has also worked part-time. He does not believe that his student visa should be cancelled because he has done nothing wrong to contribute to the incorrect information provided in the Working Holiday (Extension) (class TZ subclass 417) visa application.

20. PAYG summary and other tax documents, advertisements of Strawberry and Blueberry Farms, screenshots of untranslated text messages with a “murray”,  visa grants, a cost agreement of language school in Taiwan, an Attendance letter at English course dated 1 June 2018, a genuine student Statement of the applicant dated March 2017, a National United University documents concerning the BSC completed by the applicant in Taiwan, NAB transaction records, Salisbury College documents, and receipts for course payments, as well as COE for various courses.

    Evidence at hearing

21. The applicant gave evidence that he first came to Australia in 2014 and that he has no family in Australia.  He has worked in various jobs and completed an English course, as well as a Certificate IV in Marketing and Communication.  Subsequent to the cancellation, he applied for a further student visa which was refused due to the exclusion period.  He is currently enrolled in a Diploma of Business due to be completed in September 2020.  The Tribunal asked the applicant why he would continue studying in light of the visa cancellation when he could have mitigated adverse financial impacts.  In essence, he said he would like to continue his studies in Australia to enhance career opportunities and Australia would give him an international education.  He said he has enough money to support his studies in Australia.  He said his visa should not be cancelled even though there were mistakes in the visa application because he would like to complete his course.

22. The applicant stated that he worked on a farm for almost a month but none of those work days qualified for the grant of the Working Holiday (Extension) (class TZ subclass 417) visa.  He said he met an agent in Sydney who said he could assist him.  The Tribunal asked the applicant about the agent’s name.  The applicant said he could not recall the name of the agent but his name started with the letter “N” and “Wu” as the agent’s surname.  The applicant said a friend talked to him about Mr Wu who had a farm.  The Tribunal asked the applicant about the name of his friend and the applicant referred to a Lucas Guo whom the applicant met in 2015 through friends.  The applicant stated that Lucas told him about Mr Wu.  They met in McDonald’s at Town Hall.  The applicant paid Mr Wu $1800 and gave him “basic documents”.

23. The Tribunal referred to paragraph 4 of the undated submissions provided on 17 February 2020[1], where there is reference to a specific name of a migration agent (Mr X).  The Tribunal asked the applicant why he could not recall earlier in the course of the hearing that name.  He said he barely remembered the agent’s name, he did not make much effort to recall his name and that he later discovered the agent’s name.  The Tribunal also referred to the applicant’s evidence about the friend’s name being Lucas Guo, a name not mentioned elsewhere, including the Affidavit of 13 June 2018.  He said he only met Lucas on limited occasions and did not maintain contact.  The applicant said he did not think much about this issue, or the consequences.  He said he was in Australia alone and the person gave him the information.  The Tribunal indicated that it would consider his explanations. 

    [1] The representative confirmed that the submissions were finalized on 17 February 2020.

24. As noted in the course of the hearing, the Tribunal has concerns about the applicant’s inability to provide the agent’s specific name in the course of the hearing when and as the representative confirmed in her submissions dated 1 day before the hearing, Mr X is mentioned.  The Tribunal is not persuaded by his explanations; it is reasonable to suggest that given the cancellation, the name of the agent is a significant detail and the fact that the applicant could not provide that name in the course of the hearing raises doubts about the applicant’s evidence.  Although, and as raised in the course of the hearing s.99 of the Act is relevant, the Tribunal considers an intention to provide incorrect information to be a significant matter particularly relevant to the exercise of discretion.   

25. The Tribunal discussed with the applicant the documents provided on 17 February 2020.  In relation to copies of the screenshots of the untranslated text messages of 2017[2], the applicant gave evidence that his friend had communications with Mr X.  The Tribunal acknowledged its own limited expertise in data retrieval and queried the applicant about how such old messages were retrieved.  The applicant said as long as the telephone has not been replaced, it is possible to retrieve.  The applicant stated that the agent promised that a visa would be obtained.  The Tribunal asked the applicant if he has any evidence of communications between himself and Mr X.  He stated he does not as he has replaced his mobile telephone. 

    [2] Located at folios 53 and 54 of AAT file.

26. In oral submissions, the representative argued that the applicant is a genuine student who would like to complete his course, he has sufficient funds, and that he had no knowledge that incorrect information had been provided.  The representative requested “an extension of time by six months” to finish the course.  The Tribunal explained that there is no such provision in this case.

27. The Tribunal has concerns about the applicant as a witness.   As noted above, he could not recall the name of the claimed agent, despite the fact that it was mentioned in submissions provided a day earlier (representative confirmed instructions) and his answers about the name of the friend were confused.  He provided screenshots relating to another person’s communication with a “murray”.  Even if the Tribunal were to accept that such communication took place, this would not necessarily mean that the applicant was in the same position.  The applicant has however accepted that incorrect answers had been provided, but contended this was due to a migration agent and that he did not know that incorrect information was provided.  Although the Tribunal accepts as plausible that a person assisted in the application for the Working Holiday (Extension) (class TZ subclass 417) visa, on the basis of the available information, the Tribunal is satisfied that the applicant did know of the provision of the incorrect responses in the application for the Working Holiday (Extension) (class TZ subclass 417) visa lodged on 13 December 2015. Section 107A is therefore applicable.

1. The Tribunal has noted the applicant’s claims of attempts at finding work but the Tribunal does not consider those to be relevant to the issues concerning the non-compliance.  This case is not about efforts made to find work but whether there is non-compliance as described in the s.107 notice.

2. The Tribunal finds that the applicant provided incorrect answers at pages 2, 3 and 6 of the application form under the heading Your Personal Details, which asks Have you undertaken specified work in regional Australia for a total of three months? to which the applicant responded Yes, under the heading Details of specified work undertaken, when the applicant provided an ABN of 65164372105, postcode of 3500, starting date of 14 May 2015 and end date of 29 August 2015 and under the heading Declaration, when the applicant confirmed that, I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa. 

3. The Tribunal therefore finds that the applicant did not comply with s.101(b) in relation to the Working Holiday (Extension) (class TZ subclass 417) visa and consequently s.107A is enlivened in relation to the student visa subclass 500.

4. For those reasons, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

5. 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).

6. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

7. 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

8. In order to satisfy the criteria for the grant of the Working Holiday (Extension) (class TZ subclass 417) visa, amongst other things, the applicant had to meet the criterion relating to specified regional work for a specified period of time within certain industries, including agriculture, forestry, mining, construction and fishing industries.

9. That criterion is a significant threshold criterion about which the Tribunal has found the applicant provided incorrect information. The applicant provided incorrect information when claiming in the visa application form that he had completed the specified regional work with a particular employer when in fact the applicant had not completed any such work.

10. The correct information is that the applicant did not work for any period of time for the entity with ABN 65164372105, the owner of which confirmed to the Department that the applicant had not undertaken any of the claimed work.

11. The provision of incorrect information is a serious matter and the applicant claims that he did not know that incorrect information had been provided, which the Tribunal has not accepted.

12. Whether or not the applicant had intended to provide incorrect information does not assist the applicant; by operation of s.99, 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 or whether at an interview or otherwise.

13. On the evidence, the Tribunal finds that the applicant provided incorrect information in his responses to the relevant questions in the Working Holiday (Extension) (class TZ subclass 417) visa, as detailed above.

14. The Tribunal considers the provision of incorrect information in an application for a visa to be a serious matter; the provision of incorrect information results in a visa being granted in a case where an applicant does not meet the relevant criteria.

15. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the content of the genuine document (if any)

16. There is no issue in relation to a genuine document.

17. The Tribunal gives this aspect neutral weight.

    ·     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

18. The applicant was granted the Working Holiday (Extension) (class TZ subclass 417) visa subsequent to a determination by the delegate that the applicant met relevant visa criteria, including the requirement that if the applicant is or has previously been in Australia as the holder of a subclass 417 visa, the applicant has carried out specified work in regional Australia as the holder of the visa, that the total period of the work carried out is, or is equivalent to, to at least three months full-time work and that the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards (Regulation 417.211).

19. The Tribunal is satisfied on the evidence that the applicant was granted the Working Holiday (Extension) (class TZ subclass 417) visa wholly or partly on the basis of the incorrect information that he provided when applying for that visa. The applicant’s employment details relating to the regional work was a threshold criterion fundamental to the grant of the Working Holiday (Extension) (class TZ subclass 417) visa.

20. The representative made submissions that the fact that the applicant lodged his student visa offshore indicates that the applicant did not take advantage of the Working Holiday (Extension) (class TZ subclass 417) visa.  Those submissions are not persuasive; the non-compliance with s.101(b) occurred on 13 December 2015 but was only discovered in late 2017, after to the grant of the student visa on 7 April 2017.  The Tribunal is satisfied that the student visa was also granted wholly or partly on the basis of the incorrect information – that there was no non-compliance. 

21. The Tribunal is satisfied that had it been known that incorrect information was provided in the Working Holiday (Extension) (class TZ subclass 417) visa, the student visa would likely not have been granted.  Moreover s.107A, refers to non-compliance that occurred at any time.

22. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the circumstances in which the non-compliance occurred

23. The circumstances of non-compliance occurred when the applicant provided incorrect information when he applied for the Working Holiday (Extension) (class TZ subclass 417) visa, specifically relating to the claims that he had been employed by a particular entity for a particular period of time, which was not correct.

24. The applicant has argued that an agent had provided the incorrect information.  For the stated reasons, the Tribunal has not accepted the applicant’s contentions.

25. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the present circumstances of the visa holder

26. The applicant is currently enrolled in a Diploma of Business course due to be completed in September 2020. 

27. The Tribunal appreciates that the applicant came to Australia on the student visa to study and the evidence shows that he has studied, consistent with that aim.  The Tribunal acknowledges that the applicant wants to complete the current course and that it would be in his interest to do so. The Tribunal accepts the evidence that an Australian qualification is beneficial in terms of employment in Taiwan.

28. However, it is relevant that the applicant has continued to study in Australia despite the cancellation of his visa.  The Diploma of Business course commenced in September 2019 and the visa was cancelled on 30 May 2018.  He also applied for another student visa post-cancellation which has been refused due to the period of exclusion.  Without intending to sound unkind, the applicant has chosen to invest time money in circumstances where he could have mitigated adverse impacts. 

29. The Tribunal gives this consideration limited weight in the applicant’s favour.

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

30. The applicant indicated that he did not know that the agent had provided incorrect answers.

31. The Tribunal has considered the documents provided by the applicant such as screenshots but gives that material limited weight in circumstances where the Tribunal has concerns about the veracity of the applicant’s contentions. 

32. As explained earlier and on the basis of the available information, the Tribunal is not satisfied that the applicant did not know of the provision of the incorrect information. 

33. The Tribunal gives this aspect weight in favour of cancellation.

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

34. There is no evidence of other instances of non-compliance. 

35. The Tribunal gives this aspect neutral weight.

    ·     the time that has elapsed since the non-compliance

36. The non-compliance occurred when the applicant provided incorrect information when he applied for the Working Holiday (Extension) (class TZ subclass 417) visa, lodged in December 2015.

37. There is limited information before the Tribunal to suggest that this period of time in the applicant’s case is significant or substantial, or evidence of strong ties with the Australian community.

38. The Tribunal gives this consideration neutral weight.

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

39. There is no evidence before the Tribunal of any breaches of the law since the non-compliance.

40. The Tribunal gives this aspect some weight in the applicant’s favour.

    ·     any contribution made by the holder to the community.

41. The representative argued that it is of benefit to the education provider and the Australian community to allow the applicant to complete his course.  There is some commercial merit in this argument but the Tribunal is of the view that the provision of incorrect information in a visa application is not in the interest of the education provider or the Australian community.  It undermines aspects of the migration program and the lawful expectation that correct information is provided to the Australian authorities.  Being granted a visa means an applicant has been assessed to meet relevant visa criteria.  The applicant did not meet the criteria for the grant of the Working Holiday (Extension) (class TZ subclass 417) visa. 

42. There is limited evidence of a positive contribution to the Australian community.

43. The Tribunal gives this aspect neutral weight.

44. 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.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

45. The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. To minimise or avoid those potential consequences, the applicant could voluntarily depart Australia. The applicant would also be impacted by s.48 of the Act which means that he may face difficulties in applying for any further visas in Australia and be granted an Australian visa.

46. The Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences.  However removal from Australia would mean that the applicant would not complete the Diploma of Business course.  The Tribunal gives this aspect some weight in the applicant’s favour.

    ·whether there would be consequential cancellations under s.140

47. There is no evidence that the cancellation of the applicant’s visa would result, pursuant to s.140 in the cancellation of any other person.

48. The Tribunal gives this aspect neutral weight.

    ·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

49. There is no information before the Tribunal to suggest that any children would be impacted or that Australia would be in breach of any of its non-refoulement obligations in case of cancellation. 

50. The Tribunal gives this aspect neutral weight.

    ·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

51. The Tribunal appreciates that the cancellation of the applicant’s visa may have adverse financial outcomes.  However, the applicant could have mitigated any such outcome by departing Australia rather than engaging in, and paying for further studies despite the cancellation.

52. The Tribunal gives this aspect neutral weight.

    Concluding remarks

53. The Tribunal has carefully considered the material before it individually and cumulatively. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.

54. 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.

    DECISION

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

    Antoinette Younes

    
    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.

    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.