Buete (Migration)

Buete (Migration) [2022] AATA 124 (17 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Aurelie Josiane Buete
CASE NUMBER:  2114651
HOME AFFAIRS REFERENCE(S):          BCC2020/2748738
MEMBER:Bridget Cullen
DATE:17 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Statement made on 17 January 2022 at 6.32pm
CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers in second extension application – 6 months of specified work in regional area while holding first extension – verification checks – discretion to cancel visa – application completed and lodged by agent – attempt to distance from agent’s actions – letters purportedly from previous employer actually written by applicant – visa would already have ceased in any case – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(1), 107, 109(1), (3)
Migration Regulations 1994 (Cth), r 2.41

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act by providing incorrect information in her visa application, and the delegate, after weighing up relevant factors, decided that it was appropriate to cancel the applicant’s visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 8 December 2021 to give evidence and present arguments.
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
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.
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.
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.
The Tribunal, in making its decision, has the following evidence and material provided to it:
·The Department’s file, which contains the material before the delegate when they made the decision to cancel the applicant’s visa;
·Submission prepared by Bottoms English Lawyers – dated 20 October 2021;
·Applicant statement received 13 November 2021;
·Payslips and Email Correspondence with former employer, received 16 November 2021;
·Two statements purportedly from Sean Galvin, owner of Kingsford Riverside Inn Motel; and
·Post-hearing statement from the Primary Review Applicant.
Was there non-compliance as described in the s 107 notice?
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). The non-compliance is described as follows, extracted from the Delegate’s decision record:
Evidence of non-compliance:
On 3 November 2020 the visa holder lodged an application for a Working Holiday (Extension) (subclass 417) visa using the Department’s online lodgement facility, providing the following answers on the electronic visa form:
Under the heading ‘Application Type’, where the applicant is requested to declare:
‘They have carried out at least six months of specified work’ she answered ‘Yes’.
‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’ you answered ‘Yes’.
Under the heading ‘Details of specified work undertaken’, she provided the following answers:
Legal registered name:                    Pearl Recruitment Group (WA) Pty Ltd
Trading name:   Pearl Recruitment Group (WA) Pty Ltd
Australian Business Number (ABN): 75145084046
Postcode:  6753
Industry type:     Construction
Total days worked:      190
Under the heading ‘Working holiday declarations’, in response to the question
‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’, she answered ‘Yes’.
In support of her application, she uploaded copies of the following documents relating to his claimed employment:
·     Screenshot of an undated ‘Smart Access’ bank account showing a balance of $2,512.24.
Based on the above information, as well as meeting other relevant criteria, she was granted the Working Holiday (Extension) visa on 3 November 2020.
Subsequent information received by the Department
The Department initiated employment verification checks with Pearl Recruitment Group (WA) Pty Ltd, the business registered under ABN 75145084046, to verify the visa holder’s employment claims. On 19 November 2020, Pearl Recruitment Group (WA) Pty Ltd contacted the Department and advised the visa holder had never worked at their business.
The applicant has tried to distance herself from the false information provided with her visa application, claiming that she did not know that her agent would lie, and that she should be able to trust her agent. The Tribunal does not accept that the applicant was unaware of the lie that was perpetuated on her behalf.
The applicant agrees that she never worked for Pearl Recruitment Group (WA) Pty Ltd. She says that she gave her former agent her payslips, and she “didn’t know what he applied with” until she saw the application made on her behalf when she engaged a lawyer and it was shown to her. The applicant’s lawyers submitted in a letter filed in the Tribunal on her behalf, that she was not aware of the requirements for this visa.
The Tribunal asked the applicant why she didn’t check with the Department what her options were. She said that she didn’t think about asking the Department.
The applicant concedes that she “didn’t do all the 6-months” necessary to obtain the Working Holiday (Extension) (subclass 417) visa. She discussed wanting to apply for a student visa at the point in time she made the application for the visa that is the subject of this review but says that she didn’t have the funds.
The Tribunal thinks it implausible that the applicant was unaware that she had falsely claimed to have completed employment with the Pearl Recruitment Group (WA) Pty Ltd in her visa application. It is clear that the applicant knew that she was not eligible for a visa as she knew that she had not completed the required six months of specified work.
The information was false, and the Tribunal finds that the applicant was aware it was false as she knew she did not meet the visa criteria.
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?
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).
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. 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.
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, had it been given, would have resulted in the applicant’s visa application being refused as she had not completed the required work. The applicant has benefitted from the provision of the false information, in that the visa was granted in circumstances where it ought not to have been approved.
Had the Department not cancelled the visa, it would have expired on 6 Nov 2021. The Tribunal takes the view that the applicant has now stayed in Australia for more than 14-months on a visa that she was not entitled to in the first place. The applicant was in Australia on a temporary visa, with no entitlement to say in the country indefinitely. The Tribunal weighs this, as well as the recency of the applicant’s conduct (2020), as factors that weigh strongly in favour of cancellation.
The applicant’s present circumstances are that she is struggling to support herself in Australia. The applicant says that she worked very hard for $170 a week, in a good week, and then referred to the struggles that she says Australian fruit pickers have. She says that she sends money to her family back in France. The applicant said that she finds it difficult to support herself. She is currently residing, allegedly for free, at the Kingsford Riverside Inn Motel, where she previously worked.
The applicant does not presently have working rights. The last time she had working rights was on 22 October 2021, when her visa was cancelled. The Tribunal asked if she was working in the hotel, which she denied. She had relocated from her previous accommodation in Waverley to the Kingsford Riverside Inn Motel on the day of the hearing, as she was required to pay to live in Waverley.
The Tribunal weighs the applicant’s current circumstances in favour of cancellation. The Tribunal thinks it somewhat implausible that the applicant would be receiving free accommodation in circumstances where she is not actually working. The Tribunal does think, based on the conversation it had during the hearing with the applicant, that the applicant believed that the Tribunal would make a decision on the day of the hearing such that her work rights would be restored.
The Tribunal asked the applicant how she would support herself if the cancellation was set aside, and what she planned to do in relation to a further visa. She says that she is looking to obtain a COVID visa to work in hospitality or mining. The applicant told the Tribunal that her previous sponsor, the Kingsford Riverside Inn, was willing to sponsor her for a visa.
On 7 December 2021, just prior to the hearing, the applicant submitted what purported to be a letter of support from her previous employer. The Tribunal thinks it important to reproduce the full letter, here, in order to make plain the Tribunal’s concerns that the reference has been written by the applicant, not the purported author.
The 7 December 2021 reference reads as follows:
Sean … Owner of
Kingsford Riverside Inn Motel
114 Kingsford Smith Drive
Hamilton
Hello, I have employed Mrs BUETE Aurelie from last year till End of February this year in my Motel. She was good in her job, cared a lot about what she was doing and she was an asset in my team. I formed her in housekeeping but also at the reception. At the end, she was capable of forming the newest. I proposed her a sponsorship as it’s hard to find good and reliable workers especially Since Covid 19… at this time she wanted to enjoy the rest of Australia and then come back which I understood.
Since she left, I had more than 15 people coming to work but not reliable at all, anyone I could trust the way I trust Aurelie.
I asked her to come back, my sponsorship still waiting for her, she was happy when I told her and told me about her financial hardship at the moment…
I’m happy to sponsor Aurelie in my Motel because I can’t find any good worker, I’m happy to wait until she got her Work right again and then restart with her ASAP as I am in an urgent need
Thank you
YOU WILL NEED TO ADD THE TAMPON OF THE MOTEL LIKE SOMETHING SERIOUS AND THAT PROVES THAT IT IS SERIOUS …
AND OF COURSE YOU CAN SAY THAT THE WAY YOU WANT ITS JUST AN EXAMPLE
The Tribunal pointed out that the purported reference was sent to the Tribunal from the applicant’s email address. The Tribunal asked the applicant about the content of the reference, as it was unsigned and appeared to be a draft. The applicant then said that her former employer asked her to provide him with a draft to sign.
The Tribunal said that it could take the view that the Kingsford Riverside Inn was not serious about sponsoring the applicant, given that it had placed the onus of writing a reference letter on the applicant. This, to the Tribunal, suggests that there are no meaningful plans by Kingsford Riverside Inn to sponsor the applicant, which would require that they expend funds associated with the application.
The applicant said that she would obtain further information following the hearing about the Kingsford Riverside Inn Motel’s plans to sponsor her. She filed a further letter purporting to be from Sean Galvin, her former supervisor. This letter was also unsigned. Mr Galvin did not give evidence to the Tribunal.
The second letter reads as follows:
KINSFORD RIVERSIDE INN
114 KINGSFORD SMITH DRIVE
HAMILTON ,QLD, 4007.  06-12-2021
TO WHO IT MAY CONCERN
WITHOUT ANY BIAS    GOOD AFTERNOON.
I HAVE EMPLOYED AURELIE BUETE ON ANOTHER OCCASION FROM LAST YEAR 2020 TILL FEBRUARY OF 2021 AT MY MOTEL .IN THIS TIME I FOUND HER TO BE VERY GOOD AT HANDLING THE TASKS THAT WERE ASKED OF HER AND WAS SORRY TO LOSE HER TO THE CONTINUAL TRAVEL BUG. THE TASKS VARIED IN THE DAILY RUNNING OF THE MOTEL BUT MAINLY FOCUSED ON CLEANING.AS TIME PROGRESSED DURING HER WORK COMMITMENT AURELIE SHOWED THAT SHE WAS LEARNING AND CHAMPIONING HER POSITION WITHIN OUR ORGANISATION AND I OFFERED HER THAT SHOULD SHE LIKE TO STAY ON IT COULD BE SOMETHING THAT WE MAY DISCUSS. UNFORTUNATELY AS MENTIONED EARLIER TRAVEL WAS THE WINNER AND SHE MOVED ON BUT KNOWING THAT A POSITION WAS HERE SHOULD SHE BE INTERESTED.
SINCE AURELIE LEFT I HAVE HAD SOME 10 TO 12 CLEANERS COME AND GO AND ALSO THE COVID 19 PANDEMIC WHICH HAS FESTERED OUR INDUSTRY AND IT HAS BEEN IMPOSSIBLE TO FIND GOOD RELIABLE STAFF. I CONTACTED AURELIE AND OFFERED HER BACK HER POSITION AS CLEANER TO FIND THAT SHE HAS COME INTO SOME FINANCIAL HARDSHIP NOT UNLIKE MANY OF US DURING THIS UNCERTAINTY OF COVID 19. SO I WAS PLEASED WHEN SHE SAID YES THAT SHE COULD RETURN BUT SHE EXPLAINED THERE WERE SOME WORK ISSUES THAT HAD TO BE SORTED . ONCE AURELIE HAS HER RIGHT TO WORK REINSTALLED I AM MORE THAN HAPPY AND EVEN DURING THE TIME OF YOUR CONSIDERATION OF THIS PROCESS TO RETAIN HER BACK IN POSITION OF CLEANER.I WOULD ALSO AT SOME POINT IN THE FUTURE BE PREPARED TO CONSIDER SOME LEVEL OF SPONSORSHIP TOWARDS AURELIE WORK SITUATION SHOULD THIS MAKE IT EASIESR FOR HER TO CONTINUE HER STAY IN OUR COUNTRY . SHOULD YOU HAVE NEED TO CONTACT ME I AM REACHABLE ON MY BUSINESS PHONE   0738621317   OR MY MOBILE   0437590520
KINDEST REGARDS   IN CONSIDERATION
SEAN T. GALVIN .
The Tribunal is not prepared to place any weight on these letters, which appear to be drafts prepared by the applicant, as evidence that she will be able to obtain an employer sponsored visa. The Tribunal weighs this neutrally, as a discretionary factor to be considered in relation to cancellation, as the information before the Tribunal does not suggest that the applicant has strong future prospects of obtaining a sponsor.
There is no information before the Tribunal that suggests that the applicant has engaged in any breaches of the law since the non-compliance, which the Tribunal weighs slightly in the applicant’s favour as a factor against cancellation. The Tribunal expects that entrants to Australia comply with the law, so while the applicant appears to have complied with Australian law, this is simply what is expected.
Although the Tribunal queries whether the applicant may be working without working rights, given the provision of free accommodation by her former employer, there is no evidence of any other instances of non-compliance by the visa holder known to the Minister before the Tribunal. The Tribunal weighs this as a factor slightly in the applicant’s favour as a factor against cancellation.
The applicant has engaged with the Tribunal process and acted courteously before the Tribunal. She expresses contrition for her mistakes in relation to this visa. The Tribunal weights this in the applicant’s favour, as a factor against cancellation. The applicant has engaged positively with the Australian community during her stay, but has not made any significant contributions beyond the sort of positive engagement that is expected of all law abiding persons. The Tribunal weighs this as a factor slightly in the applicant’s favour as a factor against cancellation.
The applicant is a single woman with no children, and there are no consequential cancellations under s.140. The applicant has not applied for protection or claimed that returning to France would result in her suffering significant fear or harm. As such, the Tribunal does not give any weight to these factors either for or against cancellation.
The Tribunal has considered that the applicant would be an unlawful non-citizen if her substantive visa is cancelled and may be detained under s.189 of the Act; and removed from Australia under s.198 of the Act. The Tribunal has also considered the applicant becoming subject to s.48 of the Act, which will prevent the applicant from applying for certain visa types while remaining in Australia, and their affectation by PIC 4013, limiting the grant of temporary visas for a specified period.

The Tribunal gives the behaviour outlined above, whereby the applicant provided the Department with incorrect information about her employment, significant weight in favour of cancellation. The behaviour indicates an intentional willingness to circumvent the requirements of the Australian Migration Act and Regulations.
The applicant provided incorrect information on her visa applications, resulting in her obtaining a visa that she knew was not entitled to.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Bridget Cullen
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.

[2022] AATA 124

17 January 2022

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Immigration

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Procedural Fairness

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