Bales (Migration)

[2022] AATA 2581

Bales (Migration) [2022] AATA 2581 (27 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Anna Bales

CASE NUMBER:  2119801

HOME AFFAIRS REFERENCE(S):          BCC2021/335891

MEMBER:Mark Bishop

DATE:27 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 27 July 2022 at 1:00pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information provided in second extension application – six months of specified work in regional area while holding first extension – verification checks – discretion to cancel visa – COVID restrictions and prevalence in home country – work record, including some work in critical sectors in regional areas – no response to tribunal’s invitation to provide current information – applicant departed Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 362B, 379A(4)

Migration Regulations 1994 (Cth), r 2.41

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 Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information in the Working Holiday (Extension) visa application as she did not work at the named employer. 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 did not appear before the Tribunal.

4. The review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) and the invitation has not been returned to sender. The Tribunal gave consideration to the fact that movement records showed the applicant departed Australia on 19 May 2022.

5. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. 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

7. 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.

8. 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.

9. 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?

10. 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 the following section of the Act:

    Section 101 Visa applications to be correct:

    oA non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.

    oThe applicant provided employer detail, employer business and address, work conditions and period of employment.

    oThe department initiated employment verification checks with Mat Mining Pty Limited, the business registered under ABN 21103091783, to verify the applicant  employment claims. On 13 January 2021, Mat Mining Pty Limited contacted the Department and advised the applicant never worked at their business.

11. The department made a finding the information provided by the applicant was incorrect, as verification checks undertaken by the department concluded that the applicant never worked at the business, Mat Mining Pty Limited. Therefore the applicant did not undertake six months specified subclass 417 work.

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

    Should the visa be cancelled?

13. 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).

14. 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 reg 2.41 of the Regulations.

15. In response to the NOICC (Doc ID number 9317852) the applicant provided a written response (Doc ID number 9317855). In summary the applicant advised as follows:

    ·The applicant stated that throughout the COVID-19 lockdown she was living and working in Sydney. She stated that it was a scary and uncertain time and with the COVID-19 situation in the UK in addition to the constantly changing Australian border requirement she panicked and did not know what to do or how to complete her regional work.

    ·She stated she felt staying in Australia was the safest option for both her and her family who were caring for their elderly grandfather in the UK.

    ·The applicant stated that at the time she was unaware that a specific visa (408) had been created for people in her circumstances.

16. In response giving reasons as to why the visa should not be cancelled the applicant advised (in addition to the summary provided in paragraph 13 above) as follows:

    ·That during her time in Australia, she made a positive contribution when the country needed it most.

    ·That in early 2021, she moved to Darwin to work in the hospitality industry which had recently been named a critical sector due to worker shortages.

    ·She also secured a work from home role for Western Sydney Health (Medibank) when NSW cases were at their peak, in which she provided daily wellbeing check to patients on the COVID community hotline to review symptoms and ensure isolation restrictions were being adhered to.

    ·That she is currently working in the resources sector for Rio Tinto at various sites throughout Western Australia. She states that this sector is one of the biggest contributors to the Australian economy and that it is currently desperate for people to work in mining to keep the economy afloat.

17. On 12July 2022 the Tribunal wrote to the applicant and invited her to attend  hearing. The Tribunal invited the applicant to “please provide all documents you intend to rely on to support your case by 20 July 2022.”

18. The applicant did not respond to this invitation. The applicant did not provide any documents to the Tribunal. Movement records show the applicant departed Australia on 19 May 2022.

19. The Tribunal has considered the decision record. There is no challenge to any of the findings of the delegate. The Tribunal has considered the information set out in paragraphs 15 and 16 above. The Tribunal has considered the matters set out in paragraph 14 above.

    CONCLUDING PARAGRAPHS

20. 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

21. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Mark Bishop
    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.