Chou (Migration)

[2020] AATA 1426

Chou (Migration) [2020] AATA 1426 (6 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fan Chou

CASE NUMBER:  1804920

DIBP REFERENCE(S):  BCC2017/4475310

MEMBER:Rachel Westaway

DATE:6 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 06 February 2020 at 1:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector – incorrect information in a previous Working Holiday visa application – applicant did not work for claimed employer – alleged misconduct by a migration agent – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 100, 101, 107, 109
Migration Regulations 1994, r 2.41; Schedule 2 cl 417.211

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 572 Vocational Education and Training Sector visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was deemed to have provided incorrect information on the application for the extension of a subclass 417 working holiday visa. Given this, when the applicant had been granted a student visa subclass 572, and the department became aware of the applicant having never worked at the place he claimed to have worked at, the applicant was deemed not to have complied with a previous 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.

3. The applicant appeared before the Tribunal on 12 March 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. The applicant was represented in relation to the review by his registered migration agent.

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

6. On 8 January 2018 the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC). The applicant responded to the NOICC on 27 January 2018 outlining his claim that the migration agent he had engaged at the time provided the incorrect information on the working holiday visa application. The applicant’s appointed migration agent provided a further response to the NOICC on 29 January 2018.

7. The applicant supplied the following material to the Tribunal:

   ·A copy of the delegate’s decision

   ·A copy of the response to the NOICC dated 27 January 2018 and a copy of the migration agent’s response to the NOICC dated 29 January 2018

   ·Two pay slips from Trodan Produce (WA) Pty Ltd (Supafresh)

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101 of the Act by reason that the applicant provided incorrect information in his visa application which was relied upon to assess whether the applicant met the criteria for the grant of his Working Holiday (subclass 417) visa. 

    Relevant sections of the Act

12. Section 101 of the Act states that:

    ‘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.’

13. Section 99 of the Act provides any information that a non-citizen gives or provides cause 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.

14. Section 107A – possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa.

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

15. Section 100 of the Act states:

    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.

    The Department Review

16. On 2 January 2015 the applicant lodged an online application for a subclass 417 Working Holiday extension visa. In response to the question “Have you undertaken specified work in regional Australia for a total of 3 months?” he answered “Yes”.

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

    Details of specified work undertaken:

    ABN 41149928174

    Postcode 2680

    Start Date 14 February 2014

    End Date 26 May 2014

18. Under the heading “Declaration”, to the question “I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa”, the applicant answered “Yes”.

19. Based on the information provided in the visa application, the delegate assessed that the applicant met the relevant criteria, including the requirement that while holding his initial subclass 417 visa, to have worked the equivalent of at least 3 months’ full-time work in a specified occupation in regional Australia. As such he was granted the subclass 417 Working Holiday (Extension) visa on 12 January 2015.

20. On 05 October 2017, the Department received an email from the company owner/manager of ABR Farming Pty Ltd (ABN 41149928174) which stated that the applicant had never worked for ABR Farming Pty Ltd.

21. Given the applicant had provided detailed responses which indicated he did work there but ABR Farming dispute this, the applicant was notified of the intention to consider cancellation (NOICC) on 08 January 2018.

22. A response from the applicant’s migration agent was received by the Department on 29 January 2018. In the response, they did not dispute there are grounds for cancellation. He stated that his former agent lodged the extension application on his behalf. All communications with the agent was on his old mobile phone that has been replaced several times since then so he is unable to access this information.  He could not remember the agent’s name but stated he spoke Mandarin and was male. He was not aware of how the agent applied for the visa, but he provided all the information that was requested of him and received his second working holiday visa shortly after. He claimed that he knows nothing of ABR Farming Pty Ltd as he arrived in Western Australia and has remained there since and therefore could not have worked in New South Wales where ABR are located. He cannot explain how or why ABR Farming Pty Ltd was listed as the regional employer he worked for. He stated that his agent provided this information and that he relied entirely on the agent's honesty. He himself provided all information accurately and honestly and at no time intended to provide false and misleading or incorrect information.

23. On 19 February 2018 the Department notified the applicant of the cancelation of his student visa pursuant to s109 of the Act on the basis that he had not complied with s.101(b) of the Act. The applicant applied to the Administrative Appeals Tribunal for review of the Department’s decision to cancel his visa.

24. The Tribunal explained the reasons why the visa was cancelled and asked Mr Chou if he was ever employed by ABR Farming and he confirmed he was not.

25. Mr Chou has consistently stated to both the Tribunal and the Department that he was not employed by ABR Farming. Given the applicant’s consistent response, in spite of the details contained within his application, the Tribunal has no reason to believe he ever was employed by ABR Farming. Notwithstanding the fact that the applicant stated his agent supplied the incorrect information, the responsibility sits firmly with the applicant and the incorrect information was provided to the Department.

26. For these reasons, the Tribunal finds that there was non-compliance with Section 107A of the Act.

    Should the visa be cancelled?

27. 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).

28. 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

29. The Tribunal gives no weight to this factor in the cancellation of the applicant’s visa.  The correct information was never presented by the applicant to the Department but rather ABR Farming informed the Department that the applicant had not worked there. The applicant did not undertake any work with ABR Farming, nor did he undertake 3 months of any form of specified regional work between 10 September 2014 and 13 December 2014. He stated he was not aware he needed to complete regional work but this was also a requirement outlined in the requirements of the second working holiday visa he applied for.

30. The applicant supplied the Tribunal with two payslips from Supafresh baby leaves, a company in Western Australia. One was dated 16 October 2014 stating he worked 69.05 hours in the period between 9-15 October 2014. The second pay slip was dated 30 October 2014 relating to the period 23-29 October 2014 indicating and paying him for 52.05 hours. This still did not meet the requirements of the regional work outlined in the visa application and is different to what was put in the application. This information had it have been supplied would still have meant that the applicant would not have met the requirements for the visa. As such the Tribunal gives this consideration no weight in favour of the applicant and not cancelling the visa.

    the content of the genuine document (if any)

31. I give no weight to this consideration as no other document was supplied or is relevant which is genuine and relates to the issues in this matter.

    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

32. I give no weight to this factor in favour of the applicant because the visa would not have been granted to the applicant without this incorrect information being supplied. The applicant was granted the extension to the subclass 417 working holiday visa was granted based in part on meeting the requirements of regulation 417.211 which required the Minister to be satisfied he had undertaken specified work in regional Australia for at least three months full time and had been remunerated for it. Given incorrect information was supplied to support this and the visa was granted on the bases that the applicant had met this criteria it was central to the granting of his visa.  

    the circumstances in which the non-compliance occurred

33. The Tribunal asked the applicant how the incorrect information came to be on the application form. The applicant explained that he engaged a migration agent to help him apply for a second working holiday visa. His English was not good and he delegated the visa application to the agent. He explained that he told the agent the name of the farm where he was working in.

34. He was asked if he had any evidence from the agent. He stated that it has been four years and he does not have the ability to retrieve the contact details for the person who contacted him and the agency and he does not remember who the agent was. He was asked if he understood he would not be entitled to the visa if he had not worked as required. He indicated that he understood. The Tribunal explained that he delegated responsibility to the agent for the application but he is responsible for its accuracy and would have had to sign the application stating that.  The applicant has no evidence to support his statement that his agent put the incorrect information in the form and that it differed from what he provided.

35. There was nothing outside of the applicant’s control which led to the non-compliance.

36. The applicant explained that in the first year that he was in Australia his English was not good and he worked full time and he has documents of salary being transferred into his account and text message details which satisfied the conditions for the second visa. He was surprised when he received a letter from the Department saying his visa was cancelled because he submitted incorrect documents. He tried to find out the information about the agent who had applied for the visa. However, it was a long time ago and he could not find any information about why the explanation given to the department was different to what he asked the agency to submit.

37. Whilst the Tribunal understands that many visa applicants do not speak English, the responsibility still sits with the applicant to ensure he understands the requirements of the visa he was applying for. He is required to adhere to the conditions associated with it. The Tribunal does not consider language barrier to be a reasonable factor in the explanation of his provision of incorrect information. Furthermore the applicant states he had information in text messages pertaining to salaries but did not have evidence any more. The tribunal later received the two pay slips from Supafresh however these did not indicate that the applicant had undertaken the required regional work.

38. The Tribunal gives no weight to the issues raised for non-compliance as the applicant is solely responsible for the information he has supplied to the Department. He is also unable to substantiate his claims that he did email his agent different information which supported what he believed at the time to be evidence of meeting the regional work requirement. 

    the present circumstances of the visa holder

39. The applicant has been staying at home in Australia. He said that he would like to remain in Australia and get his student visa back because if he left he stated he could not return. He said that there is no reason why he cannot return to Taiwan but he wants to remain in Australia and finish his studies. He confirmed he was studying a Leadership and Management course and this course has finished. However he did not finish the course because of the cancellation. He completed the Certificate 2 in English; however the Certificate 3 and 4 in Leadership were impacted by the cancellation. He believes that he will advance further in a career if he has a qualification from Australia and this would be the main serious factor in why he does not want his visa cancelled.

40. The agent stated that he met the applicant 2 years ago and he has been very straightforward and honest, and he can draw the conclusion that the information provided is correct. The agent said that his intention is to study and learn a skill which would be helpful for his employment. At this moment his ambition is to finish his study.

41. The Tribunal has considered the applicant’s current situation and reasons put forward for not returning. The natural consequence of a cancellation of a student visa is the fact that applicant is unable to study and consequently complete their course. The Tribunal appreciates the disappointment this may cause. It also recognises that Australian qualifications are highly sought after. However the Tribunal does not believe this is detrimental to the applicant to the degree that his visa should not be cancelled. The applicant can still study in Taiwan or by correspondence and develop skills in Leadership and Management.

42. The Tribunal has considered the applicant’s agent attesting to his client’s honesty but does not accept that the agent can objectively state that his client did not provide incorrect information when there is no evidence to support this.

43. The Tribunal acknowledges that the applicant would prefer to remain in Australia and obtain Australian qualifications for the reasons outlined above. However the Tribunal gives this minimal weight in not cancelling the visa because the prevention of further study is a natural consequence of a student visa cancellation and the applicant would still have the ability to study such a course in Taiwan or by correspondence.

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

44. The applicant confirmed he did not know of any other compliance issues in regards to breaching visa conditions. The Tribunal expects that all visa holders adhere to the conditions on their visas and as such gives this factor minimal weight in not cancelling the visa.

    the time that has elapsed since the non-compliance

45. The applicant’s visa was cancelled on 19 February 2018.  The applicant has not put forward any considerations pertaining to time and has had the benefit of improving his English in Australia during this period. The Tribunal gives this factor no weight in not cancelling the visa.

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

46. This factor is not applicable.

    any contribution made by the holder to the community.

47. There was nothing put forward by the applicant about his contribution to the community and as such the Tribunal gives this no weight.

    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

48. The visa applicant is currently on a bridging visa in order to remain lawful whilst waiting for the outcome of his review. If the visa is cancelled then the applicant will need to depart the country within a specified time frame. If the applicant does not ensure his bridging visa remain valid and does not depart Australia within the specified time frame he will become unlawful and subject to detention.

1. If the visa is cancelled, the applicant may be barred from applying for further visas and barred from applying for further visas within a specified time frame. These are factors associated with all cancellations of visas and as such the Tribunal gives this no weight in favour of the applicant and not cancelling the visa.

   whether there would be consequential cancellations under s.140

2. There are no other family members attached to the applicant’s visa and as such this factor is not relevant.

   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.   

3. The applicant confirmed this was not relevant in his case and as such the Tribunal gives this no weight.

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

4. The applicant explained that he believed he had evidence which he submitted to support his application indicating he did work in a regional area. When his extension working holiday visa expired he said that he went back to Taiwan and engaged a different agent to help him apply for a student visa to Australia. Later when he came back to Australia on a student visa he was asked if he undertook specified work in a regional area. He said he worked in a regional area called Pinjarra which is south of Perth and he travelled between there and Perth. He was told this farm was in a regional area and as such satisfied the requirements of the visa.

5. However the documents from his work including a bank statement which show funds transferred from the farm to his account as well as tax returns showing information about the company were unable to be found by the applicant and he stated that it has been lost because it was too long ago. Following the hearing he was able to supply two salary slips for work however these do not support the applicant meeting the requirements pertaining to regional work.

6. The Tribunal has considered the applicant’s claim that he did undertake the necessary work, however the application stated that the work was with ABM Farming and the applicant has subsequently confirmed it was not. The additional salary slips provided by the applicant do not support the claim that he meets the requirements and the issue still remains that incorrect information was supplied in the application. Given these factors, the Tribunal is unable to give any weight to not cancelling the applicant’s visa.

7. The applicant explained that he needs his course and qualifications to get a better job in Taiwan as an Australian education is superior. The Tribunal accepts the disappointment associated with the cancellation of a visa however there is nothing preventing the applicant from studying online and whilst the Tribunal accepts that an Australian education is considered highly, not having one would not prevent the applicant from obtaining employment. Given these considerations, the Tribunal gives only minimal weight to not cancelling the visa.

8. The Tribunal has considered the reasons put forward by the applicant to use its discretion and not cancel the visa. It has considered them individually and cumulatively however it places significant weight on the seriousness of the breach. It is imperative that applications for visas are prepared accurately and truthfully and visas are issues based on reliable information provided by applicants. The consequence of not providing such information can mean that the visa is cancelled. The applicant has put forward a range of reasons for the Tribunal to consider its use of discretion and not cancel the visa. In considering these, the Tribunal concludes that the breach is significant and undermines the integrity of the visa process and the reasons put forward for not cancelling he visa are both individually and cumulatively not sufficient to weigh in favour of the applicant.

   CONCLUSION

9. 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

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Rachel Westaway
    Senior 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.