Cunningham (Migration)

[2022] AATA 4570

Cunningham  (Migration) [2022] AATA 4570 (27 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ben Cunningham

CASE NUMBER:  2113267

HOME AFFAIRS REFERENCE(S):          BCC2021/555388

MEMBER:Joseph Lindsay

DATE:27 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 27 October 2022 at 4:40pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – non-appearance before the Tribunal – application dismissed – reinstatement of application – false or misleading information – at least six months of specified work – ‘cash in hand’ – failure to provide payslips – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl.417.221; Schedule 4, PIC 4020

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 made by a delegate of the Minister for Home Affairs on 9 September 2021 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 April 2021. At the time the visa application was lodged, Class TZ contained one subclass, Subclass 417 (Working Holiday). The criteria for a Subclass 417 visa are set out in Part 417 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. It is relevant to provide some background to this matter. On 19 September 2021, the applicant made application to the Tribunal for review of the delegate’s decision.  

4. On 17 August 2022, the Tribunal emailed a hearing invitation to the applicant inviting him to participate in a video hearing with the Tribunal on 2 September 2022 at 11:00 am (AWST). On 19 August 2022, the applicant requested a postponement of the hearing. The request was granted, and the hearing re-scheduled for 20 September 2022 at 11:30am (AWST). On 14 September 2022, the applicant provided a hearing response to the Tribunal.

5. However, on 20 September 2022 the applicant did not participate in a video hearing with the Tribunal. As a result, the Tribunal made the decision to dismiss the matter under s. 362B(1A)(b) of the Act. The applicant was given 14 days to apply for reinstatement.

6. On 2 October 2022, the applicant sent an email to the Tribunal requesting reinstatement. In the email he stated:

   Hello,

   My name is Ben Cunningham and I am writing in relation to a decision to dismiss my review on the grounds of failing to attend my hearing.

   Recently I have split from my long term partner of 4 years under very stressful circumstances and have thus had to change my phone number, primary email address and the place where I call home as I was being harassed. Therefore, can we please use this email for all future correspondence. This has been updated on the AAT website also.

   Firstly, I would like to apologise for not attending my hearing date sincerely. Again, with everything that has been going on in my life and trying to juggle work amongst all of this it has been near impossible and regrettably I have put this at the forefront of my mind and completely missed my hearing date.

   On the 14th/09/2022 I logged into my AAT account and changed my email address due to the previously written about reasons. I done this so that I would still be able to receive correspondence from the AAT regarding my hearing. I have provided evidence of this within this email outlining the date of email change.

   From this, I sat reasonably comfortable knowing that you had my up to date details. However, I was wrong. It seems that the correspondence was still being emailed to my previous email. Hence the very late response (thankfully just within the 14 day time frame).

   Due to this, I would like to make an application for a reinstatement of my hearing, due to the fact that I was and still am going through a very stressful period of time in my life. Upon realising that I had missed my hearing date, I planned to respond immediately to the dismissal and ask for a reinstatement, however due to the outlined reasons my head was still very much all over the place and my mental health seemed to be my main priority at the time. I planned to respond to the dismissal notice with an application for reinstatement. However, having changed my email I did not receive any correspondence. I therefore presumed that I would receive this towards the end of the 14 day guided time frame for a response. I have since come to realise that this was emailed to my previous email address on the 21/09/2022.

   Now I feel I am of sound mind, I am writing to you to ask you to please reinstate my review.

   If you have any questions, please do not hesitate to contact me on this email or [mobile number].

   Many thanks and again.. apologies.

7. Accordingly, the Tribunal gave the applicant the benefit of the doubt and made the decision to reinstate the hearing. The Tribunal invited the applicant to attend a video hearing to be held on 27 October 2022 at 10:00am (AWST).

8. On 14 October 2022, the Tribunal received another request for postponement. This time, the applicant said:

   Hello.

   Firstly, thank you so much for reinstating my hearing date. I really appreciate it.

   I’m emailing with regards to the scheduled date you guys have set.

   Currently I work fifo and am currently out on site working until the 28th of October. The date you have set is the 27th (when I will still be at work).

   These work commitments have been in place for a while and there has been nothing I have been able to do about these dates.

   I have attached a document from my employer to clarify these work arrangements and they have advised that should you wish to speak with them, there is no issue with that.

   I work a 2 weeks on and 1 week off roster. Below is a list of the dates I am away from work and will be on my rest week off up until January 2023 for your convenience…

   29th October - 3rd November 2022

   19th November - 24th November 2022

   10th December - 15th December 2022

   31st December - 5th January 2023

   21st January - 26th January 2023

9. The applicant provided a letter from his employer about his work schedule that stated:

   To whom this may concern,

   I am writing to confirm that Ben Cunningham is engaged to work at Cater Care Randalls from the 14th - 28th October as a utility worker. These shifts will be night shift. He is employed via talentko.

   Should you require any further clarification, please don’t hesitate to contact me.

10. Noting the applicant works on a night shift, there was no barrier to the applicant participating in a video hearing during the day. Accordingly, on 17 October 2022 the Tribunal sent an email to the applicant advising him that the video hearing to be held on 27 October 2022 at 10:00am (AWST) would proceed as scheduled.

11. However, on 27 October 2022 the applicant yet again failed to participate in the video hearing with the Tribunal. The hearing attendant attempted to contact the applicant several times but the attendant was not able to establish contact with the applicant.

12. The Tribunal finds that while there may be some inconvenience to the applicant in being awake during the day in order to participate in the hearing, given that the Tribunal has attempted to be as accommodating and flexible as possible with the applicant in respect to the hearing and that he has had adequate opportunity to make his own arrangements to allow him to participate in the hearing, it is not unreasonable to have continued the arrangement to have a hearing with the applicant on 27 October 2022 at 10:00am (AWST). As at the time of this decision, the applicant has not provided the Tribunal with a reasonable explanation as to his failure to participate in the scheduled hearing.

13. Accordingly, the Tribunal has decided to proceed to make a decision on the information before the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. As part of his application for review, the applicant provided a copy of the delegate’s decision dated 9 September 2021. The delegate’s decision stated that a valid application for a Working Holiday (Third) visa has been made by the applicant, and that a visa cannot be granted unless the relevant criteria specified in the Act and the Regulations are satisfied.

15. The delegate found that the applicant did not meet the legal requirement set out in Regulation 417.221 on the date of decision to refuse the visa application.

16. The core issue was that the delegate found that the applicant did not satisfy PIC4020, as required by Regulation 417.221A on the basis that the applicant had provided false and misleading information in his visa application in respect to his claimed employment.

17. In this respect, the delegate stated as follows:

    On 18 April 2021, the applicant applied for a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa.

    The applicant declared they undertook specified work in the Agriculture industry with employer Howe Farming Enterprises PTY LTD (ABN: 63099827791) from 17/09/2020 to 07/04/2021 in the 4872 regional postcode area.

    The applicant provided the following evidence in support of their application:

    # Bio data page of Passport

    # Screen shot of Account balance

    # 29 weekly Payslips - Howe Farming Enterprises Pty Ltd

    For the purpose of this application, specified work is defined as plant and animal cultivation, fishing and pearling, tree farming and felling, mining, construction, bushfire recovery work and critical COVID-19 work in healthcare and medical sectors in Legislative Instrument LIN 20/182.

    Department checks indicate that the specified work declared by the applicant may be false or misleading in a material particular, as the above employer has verified the applicant completed specified work for the period from 5 March 2020 to 11 June 2020 and from 7 January to 21 January 2021. Of particular relevance is the work undertaken from 7 January to 21 January 2021 as work prior to this period cannot be considered in the assessment of specified work for the third Working Holiday visa application. Work from 7 January to 21 January 2021 is a total of 14 days out of the six months period claimed.

    On 2 August 2021 the applicant was invited to comment on information that the Department had reason to believe to be false and misleading information.

    The applicant was given 28 days to provide a response to this information.

    To date, the applicant has not provided a response to the invitation to comment. Therefore, based on the evidence and information before the Department, I am satisfied that the information and evidence provided in support of the specified work submitted to the Department on 17 April 2021 is false or misleading in a material particular as defined in PIC4020(5). Therefore the applicant does not satisfy PIC4020(1).

    Consideration has been given towards whether or not the applicant has raised any compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen for the purpose of PIC4020(4) above.

    The applicant has not raised any compassionate or compelling circumstances for the purpose of PIC4020(4) above. Therefore the requirements of PIC4020(1) have not been waived.

    As there is evidence before the Minister that the applicant has given, or caused to be given, a false or misleading information in a material particular in relation to this application, I find that the applicant does not satisfy PIC4020(1)(a) and as a result PIC4020 in its entirety.

    As the applicant does not satisfy PIC4020, as required by Regulation 417.221A, I am not satisfied that the applicant meets the requirements of Regulation 417.221 in its entirety.

18. In his written statement to the Tribunal, the applicant stated:

    Cash in hand farm work – flower farm and lemon farm – Yungaburra (Far North Queensland

    Throughout my second year WH visa subclass 417, I completed many various farm duties, such as banana farm work, lemon tree pruning and flower picking. Almost all of this work was cash in hand work and I was therefore not provided with payslips to upload on my visa application.

    Mistakenly, I supplied the Department of Home Affairs with payslips dating back to the year before from the previous farm I had worked at (Howe farming) where I had completed my agricultural work for my second year visa.

    I have worked hard in the agricultural industry throughout my time in Australia and I ask that you reconsider your decision to refuse my third working holiday visa in Australia.

    I have contact details from all the farms that I have worked at from the period of July 2020 to July 2021, who will confirm my employment.

19. It has now been over one year since the applicant made that written statement to the Tribunal in his review application on 30 September 2021. He has not supplied any further information to substantiate the work he claimed he performed such that would satisfy the requirements of a third working holiday visa.

20. In any event, the Tribunal has considered the information the applicant provided in respect to his claimed work history. The Tribunal finds that the onus is on the applicant to provide correct and accurate information in respect to his employment history, and the onus is on him to provide sufficient information such that would reasonably satisfy the Tribunal that he actually had performed at least six months of specified work, and that all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa, as referred to in Reg 417.211(6) of the Regulations.

21. The information before the Tribunal indicates that the claimed work undertaken from 7 January to 21 January 2021 is a total of 14 days out of the six months period claimed. The Tribunal has considered the submission from the applicant that, due to his “cash in hand” work, he was not provided payslips such that he would be reasonably able to substantiate his claim that he had performed at least six months of specified work.

22. The Tribunal has considered the applicant’s submission that he mistakenly provided information about the work he had completed in support of his second Working Holiday visa. However, the Tribunal finds that the applicant has had reasonable and sufficient opportunity to provide evidence such that would reasonably satisfy the Tribunal that the applicant had actually had performed at least six months of specified work. Regretfully, based on the information available to the Tribunal, the Tribunal is not satisfied that the applicant performed at least six months of specified work and that all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa, as referred to in Reg 417.211(6) of the Regulations.

23. Therefore, the applicant does not satisfy cl 417.211(6) of the Regulations.

24. For the reasons above, the applicant does not meet the criteria for the grant of the visa.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Joseph Lindsay

    
    

    Member