Gray (Migration)

[2021] AATA 4861

Gray (Migration) [2021] AATA 4861 (13 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amy Gray

CASE NUMBER:  2105406

HOME AFFAIRS REFERENCE(S):          BCC2020/2243076

MEMBER:Nora Lamont

DATE:13 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2021 at 2:10pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – ground for cancellation – incorrect information in visa application – completion of specified work – no response to s.359A invitation – consideration of discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 359A, 359C, 360, 363A

Migration Regulations 1994 (Cth), r 2.41

CASES
Hasran v MIAC [2010] FCAFC 40
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 Home Affairs 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 incorrect answers claiming to have completed work for a construction company she did not work for. 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. On 10 August 2021 the applicant was invited to participate in a hearing. The original invite was for a standard hearing but given the COVID situation it was changed to a vide hearing. On 11 August the applicant’s representative sent in a postponement request stating that due to the lockdown in Sydney the applicant did not have any privacy from her roommate and wished to postpone the hearing. The Tribunal agreed to postpone and rescheduled the hearing for 7 October 2021 via video.

   359A

4. On 26 August a letter was sent under 359A of the Migration Act to the applicant via her representative with the following particulars:

5. In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review. Please note, however, that we have not made up our mind about the information. The particulars of the information are:

   On your visa application, lodged electronically on 22 July 2020, you stated you worked for EKC Construction and fulfilled 88 days of specified work as required for the second year 417 Working Holiday visa. Compliance checks conducted by the Department of Home Affairs (‘the Department’) on 28 August 2020 showed you were not employed by EKC
   Construction and you did not fulfil the required 88 days of specified work.

   When asked to respond to the Notice of Intention to Consider Cancellation of your
   visa, sent to you by email on 6 April 2021, you did not respond to the Department
   and your visa was subsequently cancelled.

   Your application is one of seven applications lodged through Teresa Sweeny's
   account at the Department all lodged on the same day, 22 July 2020, with the
   same claims to have worked at EKC Construction when in fact none of the seven
   applicants did actually work for EKC Construction.

   This information is relevant to the review because if the Tribunal was to accept this
   information it may rely on this information and determine that you provided false and
   misleading information on your application and that you did not complete the required
   88 days of specified work.

   If we rely on this information in making our decision, we may find that you did not
   complete the required 88 days of specified work, and therefore are do not meet the
   criteria for being granted a Working Holiday visa. This may be the reason, or part of
   the reason, for affirming the decision under review. You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 9 September 2021. If the
   comments or response are in a language other than English, they must be
   accompanied by an English translation from an accredited translator.
   If you cannot provide your written comments or response by 9 September 2021, you
   may ask us for an extension of time in which to provide the comments or response. If
   you make such a request; it must be received by us by 9 September 2021 and you
   must state the reason why the extension of time is required. If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

6. The applicant did not provide comments or a response to the Tribunal’s 359A invitation within the prescribed period and no extension of time in which to respond was requested.

7. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via email in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

8. On 10 September the Tribunal cancelled the applicant’s hearing scheduled for 7 October 2021.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. 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?

12. 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 s101(b) of the Act.

13. On page 1 of the online application form, under the heading “Application Type”, in response to the question “Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?”, the visa holder answered “Yes”. The Tribunal consider this answer to be incorrect because EKC Construction Pty Ltd, confirmed that the visa holder was not employed by the company, and did not complete any specified work with the company.

14. On page 5-6 of the online application form, under the heading “Details of specified work, undertaken”, the visa holder declared she had undertaken specified work in the construction industry, with EKC Construction Pty Ltd – ABN 52607542503, working by direct employment between 02 March 2020 and 05 July 2020. The Tribunal considers this answer to be incorrect because EKC Construction Pty Ltd, confirmed that the visa holder was not employed by the company, and did not complete any specified work with the company.

15. On page 9 of the online application form, in response to the questions “Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa” and “All claimed specified work has been remunerated in accordance with relevant Australian legislation and Awards or voluntary bushfire recovery work”, the visa holder answered “Yes”. The Tribunal consider this answer to be incorrect because EKC Construction Pty Ltd, confirmed that the visa holder was not employed by the company, and did not complete any specified work with the company.

16. The applicant provided incorrect information on her visa application and was granted the visa based on these answers, however, as these answers were incorrect there was non-compliance.

17. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

18. 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).

19. 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.

20. 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.

21. The applicant did not respond to the s107 notice and has not responded to the Tribunal. The applicant also has a Representative who also did not respond to the Department or the Tribunal.

22. The applicant was requested to provide further information under 359A of the Migration Act, but the applicant has failed to respond to the Tribunal. Therefore, the Tribunal did not receive the correct information from the applicant. The content of the genuine document does not apply in this case.

23. The decision to grant the visa was made on the incorrect information and at no point has the applicant attempted to provide the correct information to either the Department or the Tribunal.

24. There are no other instances of non-compliance before the Tribunal. The time that has elapsed since the non-compliance has been since 22 July 2020.

25. Further, the Tribunal is not aware of the present circumstances of the applicant, whether she is working or whether they have contributed to the community in anyway. The only response received from the applicant was a request to change the date of the initial hearing.

26. 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

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

    Nora Lamont
    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.