Leigh (Migration)

[2021] AATA 4579

Leigh  (Migration) [2021] AATA 4579 (12 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Olivia Leigh

CASE NUMBER:  2110039

HOME AFFAIRS REFERENCE(S):          BCC2020/2401557

MEMBER:Joseph Lindsay

DATE:12 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 12 November 2021 at 4:10pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect answer in application – specified work in regional Australia – employer reported no record of applicant – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994

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 applicant attended an audio hearing with the Tribunal on 4 November 2021 to give evidence and present arguments.

3. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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.

6. 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?

7. 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 Tribunal has considered the s.107 notice dated 12 July 2021.

8. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101(b) of the Act where the applicant provided incorrect information in her application for a Working Holiday (Extension) visa when on 7 September 2020 the applicant lodged an application for a Working Holiday (Extension) (subclass 417) visa using the Department’s online lodgement facility, providing the following answers on the electronic visa form:

   ·In response to the question ‘They have carried out at least six months of specified work’ the applicant answered ‘Yes’.

   ·In response to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’ the applicant answered ‘Yes’.

   ·Under the heading ‘Details of specified work undertaken’, the applicant provided the following answers (in part):

   Employer Details

   Legal registered name: Banana Exchange Pty Ltd

   Trading name: Banana Exchange Pty Ltd

   Australian Business Number (ABN): 86052441139

   Employer business address

   Address: Banana Exchange Pty Ltd

   PO Box 442

   Suburb / Town: Tully

   State / Territory Queensland

   Postcode: 4854

   Work conditions

   Employment type: Direct employment

   Industry type: Agriculture, forestry and fishing

   Industry type sub-group: Plant and animal cultivation

   Description of duties Generally we could get to the farm at 6.30am. Then throughout the day i was generally in the factory where I would undertake a variety of different roles ranging from hanging, clustering, sorting and packing Bananas until 3.30pm with 2 x 15 minute cigarette breaks and 1 x 30 lunch break

   Date from: 09 Mar 2020

   Date to: 30 Aug 2020

   Total days worked: 190

   ·Under the heading ‘Working holiday declarations’, in response to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’, the applicant answered ‘Yes’.

9. The s.107 notice then states that verification checks undertaken by the Department have concluded that the applicant never worked at the business, Banana Exchange Pty Ltd.

10. In the hearing the applicant made admissions that she never worked at the business, Banana Exchange Pty Ltd at any time, and that she has never worked in Tully at any time. The applicant made admissions that she paid another person to complete the visa application on her behalf, but she was aware that the information provided about her work history was false.

11. Accordingly, the Tribunal finds that the applicant has not undertaken 6 months of specified work as the holder of a second Working Holiday visa (subclass 417), and that she has provided an answer to a question that is incorrect and in doing so has breached s101(b) of the Act.

12. 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?

13. 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).

14. 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).

15. To summarise, the Tribunal has carefully considered the applicant’s situation. In the hearing, the applicant made admissions that she paid another person to make the application for the visa on her behalf. The applicant made admissions that she knew that false information had been provided in her visa application.

16. The Tribunal finds that the applicant is young and immature. To be blunt, the Tribunal accepts that the applicant made a stupid error of judgement without properly realising the potential seriousness of the consequences of her actions. The Tribunal is satisfied that the applicant has learned her lesson in this respect. The Tribunal in no way downplays or excuses the applicant’s behaviour. However, in the circumstances the Tribunal is prepared to give the applicant one chance and only one chance. Should there ever be any such repeat behaviour by the applicant in any future visa applications, future decision makers should be aware that this applicant had already been granted their last chance and no leniency should be shown to the applicant.

17. 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 not be cancelled.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Joseph Lindsay
    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.