Liu (Migration)

[2019] AATA 6648

Liu (Migration) [2019] AATA 6648 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yu-Chun Liu

CASE NUMBER:  1826030

DIBP REFERENCE(S):  BCC2018/274070

MEMBER:Sheridan Lee

DATE:18 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 18 December 2019 at 3:59pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – incorrect information in previous visa application – Working Holiday (Extension) visa application – regional work requirement – claimed work experience – consideration of discretion – grant of visa based in incorrect information – circumstances giving rise to non-compliance – pressure from former employer – no attempt to rectify information with the Department – knowingly repeat false information – highly valued by current employer – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 417.211

CASES
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 Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that she provided incorrect answers on her earlier Subclass 417 Working Holiday (Extension) visa application. 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 10 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current employer, Mr John Weaving, and the applicant’s partner, Mr Michael Tan. 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 her registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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.

7. 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.

8. In the current matter, a delegate of the Minister issued a notice of intention to cancel (the notice) under s.107 on 15 August 2018. Having reviewed the notice, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice complied with the statutory requirements.

   Alleged non-compliance

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 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 s.101(b) on the basis that the applicant provided incorrect answers on her Subclass 417 visa application form in respect of her claimed regional work experience.

10. As outlined in the delegate’s decision, which was provided to the Tribunal by the applicant, on 22 June 2015 she lodged an online application for a Subclass 417 Working Holiday (Extension) visa. This visa allows the holder of a working holiday visa to have a second working holiday in Australia. It was a requirement for the grant of the visa that the applicant had undertaken specified regional work for a period of three months within certain industries, including the agriculture, forestry, mining, construction and fishing industries.[1]

    [1] Regulation 417.211.

11. On the application form, the applicant answered ‘Yes’ to the following question and declaration:

    Have you undertaken specified work in regional Australia for a total of 3 months?

    I am applying for a second working holiday visa and have done 3 months specified work on my first working holiday visa

12. She provided the following details for the specified work undertaken:

    ABN:              41796539729

    Postcode:       3549

    Start date:      10 November 2014

    End date:        27 February 2015

13. The applicant was granted her second working holiday visa in reliance on the information she provided. On 22 September 2016, the applicant was granted a Subclass 457 visa, sponsored by Mildura Denture Clinic.

14. On 16 October 2017, the Department received advice from Mr Peter Corcoran, proprietor of Corcoran Farming, alleging that the applicant had never worked for the business. Consequently, on 15 August 2018, the Department issued a notice under s.107 outlining the alleged non-compliance.

15. The applicant responded to the notice on 27 and 28 August 2018. In her written statement, the applicant conceded that she never worked for Corcoran Farm. She went on to provide an overview of the circumstances that led to the breach. The circumstances in which the non-compliance occurred will be discussed below.

16. The applicant was responsible for ensuring the accuracy of her Working Holiday (Extension) visa application and has conceded that the application form included incorrect answers. The Tribunal finds that there was non-compliance with s.101(b) 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).

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 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.

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.

20. The applicant submitted an application for a Subclass 417 Working Holiday (Extension) visa, claiming that she had completed three months’ work on a farm in Victoria. The correct information is that she did not undertake work on the farm, or in any other industry specified for the purposes of r.417.211. The requirement to undertake specified regional work for a period of three months within certain industries is a key criteria for the grant of a second working holiday visa. It is clear that without the inclusion of the work experience, the applicant would not have been granted the Subclass 417 visa.

21. In her written statement, provided to the Department in response to the notice, the applicant outlined that she is qualified and experienced as a dental technician. In approximately January 2015, she commenced work as a dental technician at Gympie Dental Lab. The statement alleged that the applicant was not paid for overtime performed and did not accrue any leave. As a result, the applicant gave notice of her resignation in March 2015.

22. In response to the applicant’s notice, the employer offered her a bonus, increased her pay to $25 per hour and promised to sponsor her for a Subclass 457 visa. The applicant worked for Gympie Dental Lab for a year on the basis of her employer’s promise to sponsor her for a Subclass 457 visa. Consequently, she ran out of time to complete the necessary three months of specified work in regional Australia.

23. The applicant consulted a migration agent who promised to secure her a second working holiday visa for $900. The successful application was prepared using the false work experience.

24. At the Tribunal hearing, the applicant gave evidence that her employer at Gympie Dental Lab required her to work from 8am until 6 pm, take a two hour break, and then work from 8 pm until 10 pm. When her first working holiday visa was close to expiry, she considered applying for a second working holiday visa or a student visa. Her employer was not supportive of either option as she would need to perform specified work for three months or be restricted to work 20 hours per week and travel to Brisbane to study.

25. The applicant alleged that her former employer put her under a lot of stress. He told her she couldn’t speak English well and that she wouldn’t find another job. In her written statement, she alleged that the proprietor of Gympie Dental Lab requested the applicant to pay $70,000 in return for sponsoring her for a Subclass 457 visa. The applicant did not report her concerns to the Department of Immigration or the Fair Work Ombudsman.

26. The applicant felt stuck. She gave evidence that when her second working visa application was made, she didn’t review the material and wasn’t aware of what was included. She became concerned that her application included false information when she saw a post on Facebook which outlined that a lot of people had secured visas by providing false information. The applicant’s friend then told her that the agent who assisted with her application was in trouble. The applicant did not contact the Department in relation to her concerns.

27. After she secured the second working holiday visa, the applicant worked for Gympie Dental Lab for another six months. She then departed to work for her current employer, Mildura Denture Clinic, which went on to sponsor her for a Subclass 457 visa. She relocated to Mildura, where she has been living since 2015.

28. On her Subclass 457 visa application, the applicant again included the false work experience at Corcoran Farm. At the hearing, the applicant confirmed that she personally completed the Subclass 457 visa application.

29. The applicant gave evidence that when she started in her current job, she realised that her former employer had not been truthful – she can speak English and is a competent worker.

30. Attached to the applicant’s response to the Departmental notice was a letter of support from Mr John Weaving, Director of Mildura Denture Clinic (undated). The letter outlined that the business found it virtually impossible to find a suitable employee. It had advertised nationally on Seek with no results. Losing the applicant would have damaging effects on the provision of dental services within the region.

31. The applicant also supplied a letter of support from Mr Paul Danenberg from Danenberg Dental Surgery in Mildura (undated). Mr Danenberg’s surgery utilises the services of the on-site Dental Laboratory that employs the applicant. He outlined that the applicant is hardworking and confirmed that she had worked for the business for 2 ½ years at that time. Mr Danenberg’s letter again emphasised the difficulties finding suitable employees in a rural location.

32. At the hearing, Mr Weaving gave evidence about the difficulties he has faced hiring technicians to work in his Mildura business. He explained that around 100 technicians are qualified in Melbourne each year and none of them want to work in Mildura.

33. The lab at Mildura Denture Clinic processes approximately 100 patients a week. In addition to running the Denture Clinic, Mr Weaving works approximately 15 hours a week at Sunrasia Community Health and tutors dentists to do prosthetics at the RMIT University campus in Mildura. Since the applicant commenced, Mr Weaving has been in a position to reduce his working hours and take more leave.

34. It was clear from Mr Weaving’s evidence that he values the applicant’s contribution to both his business and lifestyle.

35. The Tribunal also took evidence from the applicant’s partner, Mr Michael Tan. Mr Tan and the applicant met at church in around 2016. The couple now live together in Mildura, where he is the manager of a financial planning firm.

36. Mr Tan gave evidence that the applicant is very active in the Mildura Chinese Christian Fellowship: she organises activities; cooks; and welcomes new members. It would be a big loss to the community if she were forced to depart Australia. Mr Tan further outlined that he would be personally upset if the applicant were to depart. He noted that she has not family remaining in Taiwan and he would have no right to reside in Taiwan as he is not Taiwanese.

37. The applicant gave evidence that she volunteers to cook on Thursdays at a community lunch and at the op shop on Saturdays. She also cooks once a months for the Chinese Church and once a fortnight for the youth fellowship at the church.

38. The applicant confirmed that she has had no further compliance issues with the Department and no legal issue while she has been in Australia.

39. The Tribunal notes that if the applicant’s Subclass 457 visa were cancelled, it would result in the applicant becoming unlawful and subject to detention if she failed to depart. She would be restricted from applying for most visa types onshore and subject to a temporary restriction on applying for certain visas from offshore. There would be no consequential cancellations under s.140.

40. There are no issues in respect of Australia’s international obligations raised on the available evidence.

41. As outlined to the applicant at the hearing, after considering the prescribed circumstances and other considerations, the Tribunal’s primary concern is that the applicant was aware the information on her working holiday visa application form was incorrect. If not immediately, then certainly prior to applying for her Subclass 457 visa. At no stage did she seek to update the Department about her work history and knowingly repeated the false information on her Subclass 457 visa application. The false information that was included on the working holiday visa application was pivotal in securing the visa approval. This is a significant breach of her obligations.

42. The Tribunal has weighed this against the applicant’s employment in a regional location in an occupation for which it is difficult to find suitable candidates. It is clear on the available evidence that she is highly valued by her employer of the last four years, who travelled to Melbourne to attend the hearing to speak in support of her review. Mr Weaving’s evidence about the importance of the Denture Clinic in servicing the Mildura region was convincing.

43. There is no evidence before the Tribunal to suggest that there have been other instances of non-compliance by the visa holder and there is nothing to suggest that there have been breaches of the law more generally.

44. The Tribunal accepts that the applicant was placed in a difficult position by her former employer and faced little option but to repeat the false information once it had been included on the working holiday visa forms. Nevertheless, the Tribunal would encourage the applicant to report such behaviour to the appropriate authorities in future.

45. The applicant has no family remaining in Taiwan and has formed a romantic relationship with a fellow church member in Mildura. She contributes a significant amount of time to assisting the local community through the Mildura Chinese Christian Fellowship. On balance, the Tribunal considers that factors in favour of cancelling the applicant’s visa are outweighed by those in favour of not.

46. 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

47. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Sheridan Lee
    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.