Chiu (Migration)

[2019] AATA 4145

Chiu (Migration) [2019] AATA 4145 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tzu-Yen Chiu

CASE NUMBER:  1917174

DIBP REFERENCE(S):  BCC2018/2989150 BCC2018/4625885

MEMBER:Linda Holub

DATE:11 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 September 2019 at 2:47pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) – Subclass 417 (Working Holiday) – incorrect information – did not work in regional area – debt owed – no evidence provided – decision under review affirmed

LEGISLATION

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

2. The delegate cancelled the visa on the basis that the applicant provided information in her application which was found to be not correct.  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 11 September 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 in the following respects s101 in the following respects: On 8 August 2018 the applicant lodged an application for a Subclass 417 visa and provided answers to questions about having undertaken specified work in regional Australia for a total of three months in the affirmative, and provided details of the specified work undertaken, naming two employers (by ABN number) and the periods of employment. He also confirmed in a declaration that he has done this work.  Based on that information he was granted a TZ 417 Working Holiday (Extension) visa on 24 August 2018. 

2. On 22 and 27 September 2018 the Department received advice from the two employers nominated by the applicant that he had never worked for them.

10) The applicant provided no response to the s107 notice which was dated 20 May 2019. On 26 June 2019 the delegate made a decision to cancel the visa.

11) At hearing the applicant stated that he did not complete the application form.  He stated that when he arrived in Sydney a friend picked him and agent told him he would handle everything.  He stated that did not understand English very well so he left to the agent.

12) The applicant arrived in August 2016 to work, have a holiday and to experience life here.  He came on a Working Holiday visa.  The applicant confirmed he applied for an extension in August 2018. 

13) In relation to why the applicant did not respond to the Notice of Intention to Consider Cancellation (NOICC) of his Working Holiday (Temporary) (class TZ) Working Holiday (subclass 417) visa, the applicant stated that he did not receive it.  The Tribunal notes that it was sent to an address in Shepparton Victoria.  The applicant stated he had lived in Sydney since he arrived in Australia and had never lived in Victoria.  The NOICC was also emailed to the applicant. 

14) The Tribunal explained to the applicant that the information provided in his application was that he had worked in regional Australia for the periods from 20 September 2017 until 21 October 2017 for one employer and from 26 October 2017 until 23 January 2018 with another employer.  The applicant stated that he had been in Sydney the entire time since his arrival and had not worked in regional Australia.  He stated that a friend introduced him for a job and the agent told him that if he takes the job he can get the extension. The work was in a warehouse in Sydney.  He left it to the agent to make the arrangement.

15) The Tribunal explained the applicant’s responsibility in regard to information being put in a visa application.  The applicant acknowledged this.  The Tribunal indicated to the applicant that based on the evidence he had provided he did not work in a regional area and that someone else lodged the application and provided incorrect information, it appears there was non-compliance as outlined in the NOICC. 

16) :For the reasons outlined, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

17) 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). The Tribunal explained to the applicant it would discuss these with him,

18) 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 Tribunal again referred to the information that had been provided on the applicant’s application form and indicated that based on the information available to the Department and the applicant’s own evidence he did not work in a regional Australia from September 2017 until January 2018 that therefore incorrect information was provided in the application.  The applicant had no further comment.

The Tribunal gives this consideration no weight in the applicant’s favour.

• the content of the genuine document (if any).

This issue was not relevant as he had not provided a document.  The Tribunal gives this consideration no weight in the applicant’s favour.

• 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 Tribunal explained to the applicant that the grant of the Working Holiday (Temporary)(class TZ) (Working Holiday) Subclass 417 visa is based on an applicant working in a regional location for the prescribed period.  His visa extension was granted on the basis of incorrect information.  The Tribunal asked if he had any further comment.  He acknowledged the relevance of the information and stated she had no further comment to make.

The Tribunal gives this consideration no weight in the applicant’s favour.

• the circumstances in which the non-compliance occurred.

The applicant stated that he was not aware that it was a requirement of the visa extension that he work in a regional area.  He had nothing further to add in respect of his circumstances.  The Tribunal gives this consideration no weight in the applicant’s favour.

The Tribunal gives this consideration little weight in the applicant’s favour.

• the present circumstances of the visa holder.

The Tribunal asked the applicant about his current circumstances.  The applicant stated that he continued to work in the same warehouse but his employer now had a new agent.  He stated that the new agent checked his visa status and he then realised there was a problem but by that time it was late.  He stated there was nothing further in his circumstances he wished be taken into consideration. 

The Tribunal gives this consideration minimal weight in the applicant’s favour.

• the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act.

The Tribunal explained that no other information before the Tribunal other than the fact that he did not respond to the Department after it issued the NOICC, which the Tribunal had already discussed with him in regard to his subsequent behaviour in relation to her obligations under Subdivision C of Division 3 of Part 2 of the Act.  He had no comment to make.

The Tribunal gives this consideration minimal weight in the applicant’s favour.

• any other instances of non-compliance by the visa holder known to the Minister.

The Tribunal explained that there is nothing before the Tribunal in regard to any other instances of non-compliance.  He had no comment to make.

The Tribunal gives this consideration minimal weight in the applicant’s favour.

• the time that has elapsed since the non-compliance.

The Tribunal noted that the length of time since the visa was cancelled on 26 June 2019 was not significant.  He had no comment to make.

The Tribunal gives this consideration minimal weight in the applicant’s favour.

• any breaches of the law since the non-compliance and the seriousness of those breaches.

The Tribunal explained that there is nothing before the Tribunal in regard to any other breaches of the law.  He had no comment to make.

The Tribunal gives this consideration minimal weight in the applicant’s favour.

• any contribution made by the holder to the community.

The Tribunal asked the applicant if he wished to make any submissions regarding any contribution he had made to the community.  He responded in the negative.

The Tribunal gives this consideration minimal weight in the applicant’s favour.

19) 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 Tribunal explained it would give regard to these circumstances and provide the applicant with an opportunity to comment.

• whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

The applicant stated that he was not aware that if his visa is cancelled he will have to depart Australia within 28.  The Tribunal explained that another mandatory legal consequence if his visa is cancelled is that he will be subject to a provision of the Act which may result in a three year exclusion. 

The Tribunal also noted if he did not depart voluntarily he may be at risk of detention and that could be detained if you do not leave.  The Tribunal noted that these consequences are mandatory and act as a deterrent to incorrect information being provided.  The applicant acknowledged these consequences.  He stated that he knew cancellation of his visa was a serious matter but did not know the particulars. 

The Tribunal does not give significant weight to this factor in its consideration. 

• whether there would be consequential cancellations under s.140.

The applicant acknowledged there are no consequential cancellations should his visa be cancelled.

The Tribunal does not give significant weight to this factor in its consideration. 

• whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. 

The applicant agreed with the Tribunal that there do not appear to be any international obligations of Australia would be breached if his visa was to be cancelled.

The Tribunal does not give significant weight to these factors in its consideration. 

• any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

The applicant was provided with an opportunity to put forward any other matters he considered relevant.  He stated that his family owes money and he needs to work to send them money. The debt is in relation to a high interest loan his parents borrowed after an investment failed.  His father is a bus driver and mother sells goods in the night market.  He stated they have a large debt.  He stated that he gives Australian dollars to a friend who then sends in Taiwan money to his parents. The applicant was asked why he does not send the money directly.  He responded that he cannot use the app because his English is not very good.  The Tribunal put to him that it finds it hard to accept that there are no apps he can use to transfer the money that are accessible in Mandarin.  He responded there are not.  The Tribunal asked the applicant if he can provide evidence of his support of his family. He stated that he cannot because he gives his friend cash.  The Tribunal explained that without evidence it cannot give weight to this claim.

The Tribunal does not give significant weight to this factor in its consideration. 

Findings

20) Having considered the applicant’s responses and circumstances in relation to the prescribed circumstances set out in r.2.41 of the Regulations and the relevant policy set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, the Tribunal is of the view that they should not be given significant weight.

21) 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

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

Linda Holub
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).

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

1. 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.

2. 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.