Chao (Migration)

[2019] AATA 3892

Chao (Migration) [2019] AATA 3892 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kuo-Fan Chao

CASE NUMBER:  1832554

DIBP REFERENCE(S):  BCC2018/4658541

MEMBER:Jason Pennell

DATE:1 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 1 August 2019 at 3.11pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – incorrect information in previous visa application – Working Holiday visa application – regional work requirement – evidence of employment – employer deregistered and ceased trading – consideration of discretion – payslips not legitimate – grant of visa based on incorrect information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 109
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 Immigration to cancel the applicant’s Subclass 010 (Bridging A) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that in relation to his application for a Working Holiday Visa, the applicant did not provide correct information to the Department in his application for a Working Holiday (Extension) (subclass 417) visa (‘Working Holiday visa’) regarding specified work undertaken. 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 12 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

1. 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.

2. 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.

3. 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?

1. 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) of the Act by reason that the applicant provided incorrect information to the Department in his application for a Working Holiday visa regarding the specified work undertaken.

2. Section 101 of the Act states :

   ‘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.’ 

3. Pursuant to s.99 of the Act, any information that a non-citizen gives or provides causes to be given to provided, or that is given or provided on his or her behalf, to the Minister, an officer, and authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under the Act in relation to a non-citizens application for a visa is taken for the purposes of s.100, s.101(b), s. 102(b), s.104 and s.105 of the Act to be an answer to a question in the non-citizens application form, whether the information is given or provided orally or in writing at an interview or otherwise.

4. Section 107A of the Act provides:

   ‘The possible non-compliance 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 s.109; include non-compliance that occurred at any time, including non-compliances in respect of any previous visa held by the person. ‘

5. Section 107A of the Act provides that failure to comply with s.101 of the Act in connection with a previous visa application may be grounds for cancellation if the visa holder’s current visa. As such providing incorrect information on the application form for the Working Holiday visa granted on 8 June 2017 can result in the applicants Bridging A (subclass 010) visa granted on 14 June 2018 to be cancelled.

6. The applicant has resided in Australia since 15 June 2015.

7. On 24 May 2017 the applicant submitted an application for a Working Holiday visa. At page 2 of the application form, in response to the question ‘Do you have approved evidence that you have undertaken specified work in regional Australia for a total of 3 months?’ the applicant answered ‘Yes.’

8. At the section ‘Details of specified work undertaken’ the applicant provided the following response:

   ‘Details of specified work undertaken’

   ABN:70169499594

   Postcode: 4510

   Start date: 5 August 2016

   End Date: 21 November 2016’

9. The application included a declaration by which the applicant declared that the information provided:

   (a)was complete, correct and up to date;

   (b)that he understood that if documents are found to be fraudulent or the information to be incorrect after the grant of the visa, his visa may subsequently be cancelled; and

   (c)that he was applying for a second Working Holiday Visa and that he had done three (3) months specified work on his first Working Holiday Visa.

10. On the basis of the information provided by the applicant and him meeting all other criteria, the applicant was granted the Working Holiday Visa on 8 June 2017.

11. On 14 June 2018 the applicant applied for a Student (subclass 500) visa. The Student visa application is to be assessed on its own merits. As such the applicant will be permitted to remain in Australia for this process regardless of the outcome of this cancellation matter.  The applicant stated that he has completed a certificate IV Spoken and written English and the National Training centre and that he has enrolled in Advanced Diploma of leadership and management at Zarah Institute of Education. The course was due to commence on 8 July 2019. The applicant confirmed to the Tribunal that he he had not been granted a student visa.

12. On 24 July 2018 the department requested that the applicant provide evidence regarding his previous employment for the three months while he was holding the Working Holiday visa granted on 24 May 2016. In response the applicant provided payslips from Gana Farm Pty Ltd (ABN: 70 169 499 594) (‘Gana Farm’) for the periods 8 August 2016 to November 2016.

13. According, to the Australia Securities and Investments Commission (ASIC), the regulator for Australian companies, Gana Farm was deregistered and ceased trading on 9 October 2016.[1] Based on the ASIC Connect search the Tribunal finds that the Gana Farm was deregistered on 9 October 2019.  As a result, it finds that the applicant could not have been employed by Gana Farm after 9 October 2016.

    [1] ASIC Connect Extracted from ASIC's database at AEST 11:57:26 on 01/08/2019; >

    The grant of the Working Holiday visa was based the fact that the applicant satisfied certain criteria, including, pursuant to subclause 417.211(5), that he completed a period of specified work in regional Australia to be or equivalent to at least three (3) months of full time work. 

14. Therefore, based on the information provided by ASIC, the applicant has provided the department with incorrect information regarding the specified work undertaken in that he could not have completed at least three (3) months of full time work at Gana Farm from 5 August 2016 to 21 November 2016, as the company was deregistered on 9 October 2016. 

15. For these reasons, the Tribunal finds that the applicant did not comply with s.101 (b) of the Act, in the way described in the s.107 notice.

Should the visa be cancelled?

1. 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).

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 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.

1. 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.[2] 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.

   [2] MIAC v Khadgi (2010) 190 FCR 248.

2. The department notified the applicant of its intention to consider cancellation (NOICC) of his Working Holiday Visa by a notice dated 12 October 2018. The applicant provided a response to the department’s NOICC on 25 October 2018.

3. The applicants response to the department was that:

   (a)he used a Chinese farm work recruitment agency to source regional work.

   (b)he liaised with the recruitment agency and received all the information about the farm for them.

   (c)it was not his intention to misled the department. It was an innocent mistake contributed by the information given by the recruiter.

   (d)there is no evidence indicating that the visa holder did not complete his specified work for the specified period;

   (e)he was unaware that the company had been deregistered.

4. On 30 October 2018 the department cancelled the applicant’s visa.

5. The applicant claims that he was not aware that the Gana Farm had been deregistered. The Tribunal considers that it if the applicant had been working for Gana Farm as claimed, it is not creditable that he was not aware that the company was deregistered with ASIC as all employees would have ceased their employment when the business ceased trading on 9 October 2016.

6. The applicant’s evidence to the Tribunal was that he had worked at a number of farms primarily picking strawberries and raspberries. His evidence was that during the period from August 2016 to November 2016 he worked picking strawberries and raspberries on two farms in and around Caboolture, Queensland. The applicant was asked to specifically say where the farms he worked on were located. However, despite claiming that he had worked in the area for a period of at least three months he was not able to say where the farms were located. In addition the applicant, when asked, was not able to identify any landmark which the farms may have been close to.

7. The applicant’s evidence to the Tribunal was that he had received payments directly from the farms on which he worked. His evidence was that he was not provided any payslips at the time he received his money.  However, the applicant confirmed to the Tribunal that the amounts recorded in the payslips provided by the applicant to the department correctly recorded the amounts he had received.

8. In light of the applicant’s evidence, the Tribunal put to the applicant that the payslips from Gana Farms provided to the department must be incorrect given that he had received cash payments from two different farms and that Gana Farm had been deregistered on 9 October 2016. The applicant’s response was that he had used the assistance of a recruitment agency to source his regional employment and that his payslips reflected the work that he had performed. The applicant’s evidence was that he had made attempts to contact the recruitment agency to gain further evidence of his employment but that he had been unable to make any contact.  At the request of the applicant the tribunal granted him additional time to obtain evidence of his employment during the period between August and November 2016. By an email dated 18 July 2019 the applicant states that he was on the farm for more than 400 days, however, he failed to provide any further evidence of his employment during the relevant period. 

9. Therefore, based on the applicant’s evidence that he was employed and paid by two separate farms and given the fact that Gana Farm was deregistered on 9 October 2016, the Tribunal finds that the applicant’s payslips after Gana Farm was deregistered are not legitimate.

10. The applicant stated that there is no evidence that indicates that he did not work at Gana Farm for the specified period. However, the Tribunal consider that the public information from ASIC is a reliable source of information to determine the company’s deregistration and cessation of trading. As a result the Tribunal finds that any employees of Gana Farms ceased their employment with the company when it was deregistered on 9 October 2016. As a result the Tribunal fids that the applicant was not employed by Gana Farms from 9 October 2016.

11. The applicant stated that it was not his intention to mislead the department and that it was an innocent mistake contributed by the recruitment agency. However, despite having been given plenty of opportunity to resolve the departments concerns over his employment during the relevant period, the applicant has failed to provide any reliable evidence to support his claimed employment or resolve the concerns about his non-compliance raised in the NOICC.

12. As such the Tribunal finds that the applicant did provide incorrect answers to the department to facilitate him being granted the Working Holiday Visa. In addition it finds that the applicant obtained the Working Holiday Visa in circumstances in which he was not eligible for it to be granted to him.  

Mandatory Legal Consequences.

1. The tribunal has considered that cancellation of the applicant’s visa may result in him being detained under s.189 of the Act and liable to be removed from Australia under s.198 of the Act, as he would no longer hold a valid visa.

2. In the event that the applicant’s visa is cancelled he would be subject to s.48 of the Act. That is he would have limited options to apply for a further visa in Australia, and to the provisions of Public Interest Criterion 4013, which would prevent the grant of further certain visas to him for a period of three years from the date of the cancellation.

3. The Tribunal considers and finds that these are standard legal consequences of a visa cancellation outcome and as such give these considerations minimal weight in the applicant’s favour.

International obligations that may be breached as a result of the cancellation

1. There is no information before the tribunal to suggest that the circumstances of this case would engage any other of Australia International obligations. As such the tribunal has given no weight to this matter in the applicant’s favour.

Degree of hardship that may be caused to the applicant

1. The applicant claims that if his visa is cancelled he will suffer hardship by having to return Taiwan and as such will be prevented for obtaining his student visa and from commencing his course in Australia.  While the tribunal recognises that this will cause some hardship to the applicant, it notes that there are education providers in Taiwan that offer similar courses to the one he intended commencing in Australia. As such the Tribunal has given some weight in the applicant’s favour in relation to this matter.

Past and present behaviour of the applicant

1. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

1. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.   

2. Accordingly, 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

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Jason Pennell
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

1. Completion 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.

2. Information 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.

3. Incorrect 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.

4. 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.

5. Notice 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.

6. Decision 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.

7. Cancellation 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.