Chaw (Migration)

[2018] AATA 4996

Chaw (Migration) [2018] AATA 4996 (2 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ching Ching Diana Chaw

CASE NUMBER:  1722094

HOME AFFAIRS REFERENCE(S):           CLF2018/32654

MEMBER:Christine Kannis

DATE:2 October 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa.

Statement made on 02 October 2018 at 10:15am

CATCHWORDS
MIGRATION – Cancellation – Electronic Travel Authority – Subclass 60 1 (Electronic Travel Authority) – engaged in unauthorised work – no evidence of hardship submitted – no non-refoulment obligations – decision under review remitted for reconsideration

PRACTICE AND PROCEDURE – decision made on the papers

LEGISLATION
Migration Act 1958 (Cth), ss 116, 363B
Migration Regulations 1994 (Cth), Schedule 2 cls 601.211, 601.212 Schedule 8 condition 8115

CASES
COT15 v MIBP (No.1) [2015] FCAFC 190
MIBP v Le [2016] FCFAC 120

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa under s.116 of the Migration Act 1958 (the Act).

2. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 11 September 2018 the Tribunal sent the applicant an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 2 October 2018 at 9.00 am. The letter informed the applicant that if she was unable to attend the hearing then she should advise the Tribunal as soon as possible. The letter advised that if she did not attend the hearing a decision may be made on the review without taking any further action to allow or enable her to appear before the Tribunal or that her application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

5. The applicant did not respond to the Invitation to Attend a Hearing.

6. On 25 September 2018 and on 1 October 2018 the Tribunal sent the applicant SMS hearing reminders to the phone number provided in the Application for review. 

7. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

8. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under section 362B of the Act.

9. 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

10. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

11. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa.

12. On 3 August 2017 the applicant was granted a visa in Subclass 601 (Electronic Travel Authority) visa with condition 8115 attached. Condition 8115 requires that the visa holder must not work in Australia other than by engaging in a business visitor activity.

13. The evidence before the Tribunal indicates the applicant was located in the employee lunch room at Ti Strawberry Farm in Bullsbrook, WA. At that time she was wearing clothes consistent with those worn by workers on the farm and was with 200 other workers.  As a consequence on 12 September 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of her visa.  The NOICC stated that it appeared the applicant had not complied with the condition 8115 of her visa on the basis that she had been found in the lunch room for workers on a strawberry farm. The NOICC invited the applicant to provide her comments regarding cancellation of the visa at an interview on 14 September 2017.

14. The applicant attended an interview on 14 September 2017 during which she provided the following information:

    ·She believed she was permitted to work.

    ·Due to her limited English language skills she was not aware that she was not permitted to work. 

    ·She is a single mother and she needed to work to pay for her 17 year old daughter’s education. Her daughter lives in Malaysia.

    ·Her intention in coming to Australia was to work and study and she would like to remain in Australia to earn a living.

15. Based on the evidence the Tribunal finds that the applicant was working at Ti Strawberry Farm in Bullsbrook and that condition 8115 was attached to the applicant’s visa at the time she working.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

17. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant and his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

18. As the applicant did not attend the hearing the Tribunal relied on the information contained in the Department’s file and in particular the information she provided at the interview on 14 September 2017.

19. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia, the circumstances in which the ground of cancellation arose and the reason and extent of the breach.

20. The Subclass 601 (Electronic Travel Authority) visa is for short-term visits to Australia of up to 3 months and the visa holder must genuinely intend to visit Australia temporarily as a tourist or to engage in a ‘business visitor activity’ as defined: cl. 601.211 and cl. 601.212.

21. Regulation 1.03 defines business visitor activity and relevantly says that it does not include an activity that is, or includes, undertaking work for, or supplying services to an organisation or other person based in Australia.

22. The Tribunal finds the applicant’s breach of condition 8115 to be significant because she was not engaging in the purpose for which her visa was granted and was engaging in activities expressly excluded as a purpose of the visa.

23. The Tribunal had regard to the applicant’s statement that she believed she was permitted to work. The Tribunal is of the view that as a holder of the visa the applicant had the responsibility to familiarise herself with the conditions of her visa.  The applicant would have been advised of visa conditions at the time of the visa grant.  The Tribunal is not satisfied the applicant took adequate steps to ensure she was complying with her visa conditions and requirements.

24. There was no evidence before the Tribunal to indicate that the applicant’s non-compliance with the visa condition was due to circumstances beyond her control.  Accordingly the Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control.  The Tribunal finds this weighs in favour of visa cancellation.

25. Given the applicant’s failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of her visa.

26. The Tribunal has considered the past and present conduct of the visa holder towards the department.  Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal finds this gives some weight in the applicant’s favour

27. There are no persons in Australia whose visas would, or may, be cancelled under s140.

28. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

29. Given the applicant’s failure to attend the hearing, the Tribunal is not aware of whether the applicant currently claims that Australia’s international obligations would be breached as a result of the cancellation. [Sentence deleted].

30. Although the applicant makes no current claim before this Tribunal with respect to Australia’s non-refoulement obligations, the Tribunal makes the following observations.

31. The non-refoulement obligations of Australia are not required to be taken into account as a mandatory consideration when determining whether to cancel a visa.[1] The extent to which the Tribunal must go into claims that Australia has protection obligations to the person when considering the discretion to cancel the visa will vary depending upon the circumstances of the applicant. 

    [1] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015) at [38].

32. In COT15 v MIBP (No.1) the Full Federal Court upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a protection visa.[2]  The Full Court noted that the Act contemplates that those obligations will be considered in the context of a protection visa application.[3]

    [2] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015).

    [3] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015) at [38].

33. In MIBP v Le the Full Federal Court, agreeing with COT15 v MIBP (No. 1), held that an assessment of Australia’s non-refoulement obligations is not a mandatory consideration where it is open for the visa holder to apply in Australia for a protection visa, even if the visa holder had previously been recognised as a refugee for the purposes of the Refugees Convention.[4]

    [4] MIBP v Le [2016] FCFAC 120 (Allsop CJ, Griffiths and Wigney JJ, 9 September 2016) at [61] and [65], overturning Le v MIBP [2015] FCA 1473 (Logan J, 24 December 2015). This case involved judicial review of a personal Ministerial decision to cancel a K4011 Refugee (Vietnamese) Permit under s.501(2) of the Act.

34. Having carefully considered Australia’s non-refoulement obligations and noting that the applicant has not made claims before this Tribunal (as constituted for this application), the Tribunal is not satisfied that the applicant would face treatment of a kind that would be contrary to Australia’s non refoulement obligations under the international treaties to which it is a signatory. The Tribunal finds that Australia will not breach its obligations under any international agreements if the visa is cancelled.

35. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

36. The Tribunal recognises that the cancellation of the visa is a significant matter.  However on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

37. The Tribunal affirms the decision to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa.

    Christine Kannis
    Member