Tribunal: Deputy President Jan Redfern and Member Rania Skaros

The applicant’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection. On 30 January 2018, the Administrative Appeals Tribunal affirmed the decision.  

Section 109(1) of the Migration Act 1958 allows the Minister to cancel a visa if the visa holder has not complied with section 102, along with other sections. It was alleged that the applicant provided incorrect information on his passenger card, explicitly prohibited by section 102.

The applicant arrived in Australia in January 2011 on a Student visa and was granted a Temporary Work visa on 30 April 2015. On a flight out of Australia in August 2015 the applicant marked ‘no’ on the outgoing passenger card in response to the question ‘are you taking out of Australia AUD $10,000 or more in Australian or foreign currency equivalent?’ The applicant was subject to a baggage search at the airport and more than AUD $24,000 was found. The applicant acknowledged he provided incorrect information in his outgoing passenger card. The Tribunal needed to consider whether this was the type of conduct section 102 prohibited. If found to be so, the Tribunal must go on to decide whether the applicant’s visa should be cancelled. This is because cancellation in this context is not mandatory, but discretionary.

The Tribunal had to first determine whether the outgoing passenger card qualified as a passenger card for the purposes of section 102 and if so, whether the question formed part of the passenger card. After considering the definition of ‘passenger card’ for the purposes of Subdivision C of Division 3 of Part 2 of the Act, the Tribunal found it was.[1]

Secondly, the Tribunal determined whether or not the power to cancel the visa under section 109 only applied to the cancellation of visas that were granted on the basis of the incorrect information that was supplied. The Tribunal found that the text and purpose of the relevant legislation did not restrict the power of cancellation under section 109 to incorrect information upon which a visa is granted.

Thirdly, the Tribunal considered whether or not the applicant in fact did not comply with section 109. The applicant claimed he unintentionally provided incorrect information as he did not know the exact amount of money he was carrying, although he was aware that it was more than AUD$10,000. The Tribunal found section 102(b) does not require intention or knowledge and therefore the applicant didn’t comply with section 109.

Lastly, and most critical to the decision, was the question of whether the discretion to cancel the visa should be exercised. To do this the Tribunal must consider the applicant’s submissions, any other relevant considerations and the prescribed circumstances which are set out in regulation 2.41 of the Migration Regulations 1994.

As part of that process, the Tribunal considered the applicant’s present circumstances. In particular, the fact that the applicant had pleaded guilty to serious offences, was convicted of those offences and was serving a period of parole at the time of the decision.  The Tribunal noted the sentencing judge’s finding that the applicant had a character of a ‘relatively low moral standard’. This was found as a matter that weighs heavily in favour of cancellation. The fact that the applicant was a valued employee and may have employment for a period if the cancellation of his visa was set aside was favourable to the applicant. However, given the applicant held a temporary work visa and the uncertainties regarding his employment the Tribunal assessed this matter as neutral or marginally in favour of the applicant. The Tribunal gave some weight in the applicant’s favour to the difficulties he may face in returning to Lebanon.

The Tribunal concluded that the visa should be cancelled after considering all the relevant circumstances, stating that while a number of the matters weighed in the applicant’s favour, those matters were outweighed by the factors that favour cancellation.

Read the full written decision on Austlii.

 

[1] The definition of ‘passenger card’ for the purposes of Subdivision C of Division 3 of Part 2 of the Act is set out in section 97.