Yang (Migration)

[2019] AATA 5584

Yang (Migration) [2019] AATA 5584 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ming Ching Yang

CASE NUMBER:  1831442

DIBP REFERENCE(S):  BCC2018/1443252

MEMBER:Mark O'Loughlin

DATE:10 December 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 10 December 2019 at 10:27am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance in respect of previous visa – incorrect information on application form for second working holiday visa – specified work in regional Australia for three months during first working holiday visa – incorrect information provided by former agent – discretion to cancel visa – factors for and against cancellation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 99, 101(b), 107, 107A, 109(1), 359A

CASE

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant did not comply with s. 101 (b) the Migration 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 28 October 2019 to give evidence and make representations.  The hearing proceeded with the aid of an interpreter in the Mandarin and English languages.  The interpreter explained at the outset that there are differences between the mainland Mandarin in which she was expert and the applicant’s Taiwanese version of the same language, but the interpreter was careful to clarify any areas of misunderstanding and the Tribunal was satisfied that the applicant’s evidence was communicated effectively.

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. s. 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.101. Broadly speaking, this section requires non-citizens to provide correct information in their visa applications.

6. The exercise of the cancellation power under s.109 is conditional on the Minister issuing a valid notice to the visa holder under s.107, providing particulars of the alleged non-compliance, and giving the visa holder the opportunity to respond.

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, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with paragraph 101 (b) of the Act.

9. The non-compliance was alleged to have occurred when the applicant submitted information in support of an application for a Working Holiday visa on 31 January 2016. This was his second Working Holiday visa and it was incumbent upon him to satisfy the Minister during the currency of his first working holiday visa he had carried out specified work in regional Australia for a total period of at least three months.

10. Relevantly the non-compliance identified in the s.107 notice related to the following questions and answers in that document:

    a.In answer to the question “Have you undertaken specified work in regional Australia for a total of three months?” The answer given was “yes”.

    b.In answer to the question “If yes, in which industry did this work mainly occur? The answer given was “Agriculture, Forestry and Fishing.”

    c.In answer to the question “Do you have approved evidence that you have undertaken specified work in regional Australia for a total of three months?“ the answer given was “yes”.

    d.In relation to details of specified work undertaken, the form provided an ABN, a postcode, a start date of 2 July 2015 and a finish date of 15 October 2015 in relation to that work.

11. The Tribunal put the fact of the s.107 notice containing those questions and answers to the applicant in a way that complies with the Tribunal’s obligations under s.359A.  That was done after the hearing in a letter of 13 November 2019.

12. The applicant provided a response on 26 November 2019 in which he said that the original answers were not provided by him but by his former agent, who he said proved to be a charlatan.  He took the opportunity to emphasise aspects of the evidence that he gave but he did not dispute that the s.107 notice containing the above matters was sent to him on 28 September 2018.  The Tribunal finds that it was.

13. The applicant does not now dispute that those answers (“the answers”) were incorrect and the Tribunal so finds.

14. Pursuant to s. 99 of the Act, the information that the applicant gave or provided or caused to be given or provided or that was given or provided on his behalf in the Record of Responses is taken to be an answer to a question in the applicant’s application form for the purposes of s.101(b) of the Act.

15. The applicant gave evidence that he had retained an agent named Mr Wu to help him lodge the application. He said that Mr Wu told him that he could arrange for a visa in return for payment.

16. The applicant says that he is now lost contact with Mr Wu and that he has not spoken to him since 2017.

17. On the basis of the applicant’s oral evidence and the further submissions made on 26 November 2019, the Tribunal finds that the answers were drafted not by the applicant himself but by someone known to the applicant as “Mr. Wu” who was acting as his agent.

18. Even on that basis, the answers were provided on the behalf of the applicant in relation to his application for a Working Holiday visa and therefore, pursuant to s. 99, are taken for the purposes of s.101(b) to be answers to questions in the applicant’s application form. Because they were incorrect, the Tribunal finds that they constitute non-compliance with paragraph 101(b).

19. The Tribunal further observes that s. 107A of the Act relevantly provides that a visa holder may be notified of, and have his visa cancelled under s. 109, due to non-compliances in respect of any previous visa held by the person.

20. In this matter therefore, the non-compliance with paragraph 101(b) in January 2016 when the visa holder applied for his Working Holiday visa is non-compliance that empowers the Minister to cancel the applicant’s Student visa (subclass 500) granted on 28 July 2017.  There is no suggestion that the visa holder did not comply with paragraph 101(b) when he applied for his Student visa.

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

    Should the visa be cancelled?

22. 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).

23. 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.

24. 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.

25. The correct information is that the answers were fabricated and the applicant had not performed the three months’ work necessary to be eligible for the grant of his second Working Holiday visa.

26. It was a prerequisite for the grant of the second Working Holiday Visa that the applicant had carried out specified work in regional Australia for a total of at least 3 months during the period of the first Working Holiday Visa. Given that the second visa was granted, it is apparent that the decision to grant the second visa was based at least in part on incorrect information. It is unlikely that the visa would have been granted if the applicant had provided correct information. The Tribunal accords this factor significant weight.

27. The applicant gave evidence that he believed that he had paid for a “fake” visa in January 2016 and although the Tribunal accepts that he may not have known exactly what had been done on his behalf, it is clear that he understood he was not entitled to a further visa. The Tribunal accords this factor significant weight.

28. In relation to the applicant’s present circumstances, he gave evidence that he is living with his girlfriend. They are not married and the applicant accepted that the future of the relationship is uncertain. The Tribunal accords this factor limited weight.

29. The applicant gave evidence that he met his girlfriend in about October 2017 and that shortly after they met they began to do “daigou” which involves purchasing items in Australia to send to mainland China for profit. He said that this commonly involves baby formula powder but can also involve other items.

30. The applicant said that this is how they sustain themselves and that he still does it. The Tribunal accords this factor no weight.

31. The Tribunal accepts that the applicant was relatively forthcoming in admitting his fault after he was found out. Tribunal accords this factor some weight.

32. The Tribunal is not aware of any other instances of non-compliance by the visa holder. Tribunal accords this factor some weight.

33. The Tribunal notes that over 3 ½ years has now elapsed since the provision of the false information.

34. The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance. Tribunal accords this factor a little weight.

35. The applicant was unable to give evidence of any contribution made by him to the community. The Tribunal accords this factor a little weight.

36. The applicant provided a statement dated 2 October 2018 in response to the s. 107 notice. He also provided a statement from his girlfriend Susu Zhao dated 29 September 2018.

37. The applicant gave evidence that his girlfriend prepared both statements because her English is better than his, but that they discussed the contents. He said that his girlfriend had read the s.107 notice to him although he did not believe that she had read the details of the wrong information to him at that stage.

38. In the third paragraph of the applicant’s statement it says “To be honesty, I really bought the second year visa in 2015.” The applicant said that that means he paid the agent and the agent filled out the form.

39. The applicant gave evidence that he became aware that he was accused of lying in his visa application when he got the s.107 notice on 20 September 2018.

40. The applicant further gave evidence that he only became aware of what wrong information he was accused of providing when his girlfriend read the delegate’s decision to him after it was delivered on 24 October 2018.

41. The applicant’s statement asks that three matters be taken into account.

42. The first is his girlfriend’s health. He said in evidence that she had a heart condition that was aggravated when he told her that he may need to return to Taiwan.

43. Included in his statement is a note indicating that the applicant’s girlfriend attended the Royal Adelaide Hospital complaining of chest pain.

44. The applicant agreed that the attendance which was on 20 July 2018, predated any suggestion that his visa was to be cancelled and said that the cancellation of his visa did not cause or contribute to his girlfriend’s problems.

45. There is no suggestion that the applicant’s girlfriend currently suffers from any heart condition. The Tribunal does not find that the applicant’s girlfriend suffers from a heart condition and that her capacity to care for herself will be compromised if he is obliged to return to Taiwan.

46. The Tribunal accords no weight to the first reason raised by the applicant.

47. The second reason raised by the applicant is that his girlfriend is studying. There is no evidence that her study will be compromised if the applicant has to return to Taiwan.

48. The Tribunal accords the second reason no weight.

49. The third reason given was the applicant’s relationship with his girlfriend. Although the statement does not explain this reason any further, the applicant gave evidence that he believes that it is unlikely that his girlfriend, who is from mainland China, will be able to travel to Taiwan to live with him if he has to go home. Similarly, he believes it is unlikely that he would be allowed to live in China.

50. The applicant believes that if he is obliged to return to Taiwan it will be difficult for the relationship to continue.

51. On the last page of the applicant’s statement in the first paragraph it says “… we have planned to get married…”. Both the statement of the applicant and that of his girlfriend use the terminology “husband” and “wife” when referring to each other.

52. The Tribunal reminds itself that the applicant’s girlfriend drafted both statements although the applicant directed what was contained in his. When the applicant was asked in evidence whether the couple plan to marry he said that they do not at the moment.  

53. The applicant was asked if his girlfriend would be joining him in Taiwan on his return home and he said that they had not discussed that. He repeated that he was not sure if she can come to Taiwan in the future.

54. To the extent that there is any inconsistency between the applicant’s oral evidence and the evidence contained in the written statements, the Tribunal prefers the applicant’s oral evidence. The Tribunal finds that the applicant and his girlfriend do not have plans to marry and to live together in the future.

55. The Tribunal has regard to the further submissions made on 26 November 2019.

56. The applicant submitted that he was taken advantage of by an unscrupulous and dishonest agent.  That submission was made in oral evidence and the written submissions do not take it any further.

57. The applicant further submitted that part of the purpose of his appeal is to speak out against the wrongful behaviour of his former agent against “almost 200 people” and the hope that enforcement proceedings will be taken against people such as his former agent.  This submission is not relevant to the question of the applicant’s visa and the Tribunal accords it no weight.

58. The applicant makes further submissions about the negative effects of a visa cancellation on his relationship with his girlfriend and on her mental state. The applicant says “I know all of this has influenced her a lot mentally because she needs to prepare for her study and encourage me to spend these difficult days.”  There is no evidence to corroborate any suggestion of a mental condition being suffered by the applicant’s girlfriend. The tribunal finds that these submissions do not take the matter further than the applicant’s oral evidence and the Tribunal accords them no weight.

59. The applicant says that he is prepared to do “community and volunteer work” while his girlfriend finishes her studies.  He does not say what sort of work nor does he say why he has not done so yet.  The Tribunal accords this submission no weight.

60. If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

61. He will need to apply for a bridging visa.  He will become liable to detention under section 189 and to removal under section 198 if he does not get a bridging visa or leave voluntarily.

62. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will not be eligible for the grant of another visa to Australia for 3 years after the cancellation of the Student visa.

63. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

64. The Tribunal is not aware of any other factors relevant to the exercise of its discretion to cancel the visa.

65. The Tribunal has weighed the considerations set out above together and finds that the reasons for not cancelling his visa outweigh the reasons for cancelling it.

66. 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

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

    Mark O'Loughlin
    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.