Chen (Migration)

[2018] AATA 5449

Chen (Migration) [2018] AATA 5449 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ming Zhong Chen

CASE NUMBER:  1814131

DIBP REFERENCE(S):  BCC2018/657384

MEMBER:Moira Brophy

DATE:18 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2018 at 3:50pm

CATCHWORDS
MIGRATION – Cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – three months of specified regional work requirement not met – applicant provided false information –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate of the Minister for Immigration cancelled the applicant's Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act) on the basis that on 23 August 2017 the applicant provided incorrect answers in his application for the extension of his Working Holiday visa. One of the requirements for the 12 extension is that the visa applicant must have completed three months of specified regional work. On his application for the extension the applicant claimed that he had completed this work at a specific location in 2017 however the owner of the farm business for which the applicant had claimed to have worked subsequently advised the Department that the applicant had never worked for that business.

3. The applicant, Mr Ming Zhong Chen appeared before the Tribunal on 15 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. His agent did not attend the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Background.

6. The applicant seeking review is a citizen of Taiwan and is 27 years of age. He was initially granted a Subclass 417 (Working Holiday) visa on 17 October 2016 and arrived in Australia on 6 November 2016. On 23 August 2017 he applied for a 12 month extension of his visa while he was the holder of a working holiday visa and he was granted the visa extension on 15 September 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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.

9. 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.

10. 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?

11. 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.

12. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.109 of the Act in the following respects.

13. On 17 April 2018 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The notice advised the applicant that the delegate considered there had been non-compliance with s.101 of the Act which provided that a non-citizen must fill in his application in such a way that no incorrect answers are given or provided.

14. The delegate stated that the applicant had lodged an application for a Subclass 417 Working Holiday (Extension) visa on 23 August 2017 by using the Department's online facility. As part of that application he completed an electronic application form and provided the following answers: In response to the question “Have you undertaken specified work in regional Australia for a total of three months?” the applicant answered “Yes”.

15. Under the heading of “Details of specified work undertaken” he provided the following answers:

    ABN 57229236863

    Postcode 2440

    Start date 05 January 2017

    End date 19 April 2017.

16. Under the heading “Declaration” and in response to the declaration “I am applying for a second Working Holiday visa and have done three months specified work on my first Working Holiday visa” the applicant answered “Yes”.

17. The delegate noted that, based on this information, the Departmental decision maker assessed that the applicant met the criteria for the visa including that he had worked the equivalent of at least three months full-time work in a specified occupation in regional Australia and on 15 September 2017 he was granted a subclass 417 Working Holiday(Extension) visa (Class TZ).

18. The notice then set out the information which indicated that those answers were incorrect. The delegate stated that on 19 October 2017 the Department received an email from the owner of Little River Farm Company (ABN 57229236863) stating that the applicant had never worked for Little River Farm Company.

19. The delegate informed the applicant that based on this information he did not consider that the applicant has complied with s. 101(b) of the Act because when he lodged his application for the visa the answers he gave were incorrect. He considered the answers to the questions were incorrect because the applicant claimed that Little River Farm Company (ABN 57229236863) was the sole employer with whom he had undertaken specified work. However, Little River Farm Company (ABN 57229236863) had advised the Department that the applicant never worked for them.

20. On 17 April 2018 the applicant was invited to comment on the possible non-compliance by providing a written response why his visa should not be cancelled. There was no response to the Notice of Intention to Consider Cancellation (NOICC).

21. At the time of hearing the applicant told the Tribunal he had come to Australia in response to a notice he had responded to on Facebook. It advertised there was work in regional Australia for backpackers. He had been met at the airport and taken to a strawberry farm that was some four to five hours from Sydney. He said once he got to the farm he discovered there was no work for him. He spent around a month there waiting to see if any work would become available and when there was not any work he had left the farm and travelled to Sydney. He said that was the only time he could recall that he had sought work in regional Australia and in fact he had not worked as despite the promises made to him there had not actually been any work.

22. Taking into account the evidence before the Tribunal, the Tribunal finds that the applicant has never undertaken specified regional work with the claimed employer Little River farm Company (ABN 57229236863). On the evidence before the Tribunal the Tribunal finds that the applicant provided incorrect information as identified and particularised in the NOICC sent to him of 17 April 2018.

23. 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?

24. 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).

25. 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.

26. 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.

27. The Tribunal notes that the NOICC issued by the delegate invited the applicant to comment on the possible non-compliance and also on matters relevant to the discretion to cancel his visa. The applicant did not respond. At the time of hearing the Tribunal raised with the applicant the requirements to provide factually correct information to the Department and the applicant said he understood that requirement. When asked why he had not responded to the NOICC the applicant said when he had received the letter he had contacted a lawyer for assistance.

28. At the time of hearing the applicant told the Tribunal he was living in a shared apartment in Sydney and that he cleans the unit in exchange for free accommodation. He said he had been at the same address for about a year. He said he has savings he uses to support himself and he is able to seek assistance from his family in Taiwan if he needs to. He said after he left the strawberry farm to come to Sydney he had worked casually in restaurants and bubble tea shops. He tended to only work for short periods as he took regular holidays.

29. When asked about the circumstances that led to his providing false information as to his working on the farm he said he had met someone who had said they would arrange the extension for him. He had paid some money to him and left it all to him. He said that person was named ‘Mark’ and he has now run away as he had ‘cheated’ a lot of people.

30. The Tribunal has considered the prescribed factors set out in r.2.41 of the Regulations and the matters set out in PAM Guidelines. The Tribunal notes that there is little evidence to indicate that the Tribunal should not exercise its discretion cancel the visa.

31. At the time of hearing the Tribunal asked the applicant what factors he would like the Tribunal to consider and he said he had come to Australia to study and to learn English but had not been able to do that because of there being a problem with his visa. He said he had paid money for his visa to be fixed up and now he had these problems. It was not his fault.

32. After consideration of the evidence the Tribunal finds that the correct information is that the applicant has not undertaken the specified regional work which is a requirement for the extension of a working holiday visa and that the decision to grant the visa was based on the incorrect information.

33. The incorrect information was provided in the application lodged on 23 August 2017. The Tribunal notes that over 12 months has elapsed since the non-compliance.

34. There is no evidence before the Tribunal regarding the subsequent behavior of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; or other instances of non-compliance by the visa holder or any breaches of the law since the non-compliance.

35. At the time of hearing the Tribunal asked the applicant of evidence of any contribution made by the applicant to the community. He said he had befriended tattoo artists but was not able to provide evidence of any other links to the community.

36. If the applicant's visa is cancelled he may be subject to detention unless he voluntarily departs Australia. The Tribunal raised this with the applicant at the time of hearing and he indicated he understood the effects on him if the decision of the delegate were to be affirmed. He indicated he was prepared to return to Taiwan. There is no information indicating that there are any consequential cancellations under s.140 of the Act, or any family members who would be affected by the cancellation and there is no claim or evidence indicating any breach of international obligations as a result of the cancellation.

37. The Tribunal finds that the applicant's conduct in providing incorrect information in relation to an essential criterion for the extension of the working holiday visa is a significant factor in its consideration. Further there is little or no evidence of any countervailing factors which might indicate that the visa should not be cancelled.

38. 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

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

    Moira Brophy
    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.