LU (Migration) - [2019] AATA 5583

LU (Migration) [2019] AATA 5583 (26 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss YUAJIN LU
CASE NUMBER:  1826253
DIBP REFERENCE(S):  BCC2018/657060
MEMBER:Jane Marquard
DATE:26 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Statement made on 26 August 2019 at 12:07pm

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 affirmed
LEGISLATION
Migration Act 1958, ss 101, 107, 609
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act). The visa was granted on 9 September 2017 for a period until 12 November 2018.
The delegate cancelled the visa on the basis that the applicant provided incorrect answers in her visa application and therefore did not comply with s101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 6 August 2019 a letter was sent to the applicant at the email address provided by the applicant to the Tribunal in connection with the review. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 26 August 2019. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received to the hearing invitation. The applicant was also sent two hearing reminders by SMS. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing nor did she contact the Tribunal to explain her failure to appear. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Was there a valid notice issued?
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.
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?
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 s.101 in the following respects. On 9 September 2017 the applicant lodged an application for a Working Holiday (Extension) Visa. In response to the question ‘have you undertaken specified work in regional Australia for a total of 3 months?’, she answered ‘yes’. Asked for details of the specified work undertaken, she provided the ABN of a business, a postcode, a start date and end date. She also declared affirmatively that she had done 3 months specified work on her first Working Holiday Visa. Based on this information the Department granted her the Working Holiday (Extension) visa on 9 September 2017. On 23 October 2017 the business where she claimed that she was employed for three months on her initial Working Holiday visa, confirmed to the Department that she had never worked for them.
The Section 107 notice was sent to the applicant on 23 August 2018. She was invited to respond to the notice within 14 calendar days after receipt of the letter. No response was provided to the Section 107 notice. On 3 September 2018 the Department cancelled the visa.
In her application form for the Working Holiday (Subclass 417) visa, the applicant said that she had undertaken specified work in regional Australia for three months. She provided the ABN of the business where she claimed she had undertaken specified work in regional Australia for three months. The business provided has advised the Department that they have never employed the applicant. On this basis the Tribunal finds that as she did not undertake the specified work at the specified business in regional Australia for three months, she gave or provided incorrect answers in her application form for the Working Holiday (Subclass 417) visa. For these reasons the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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.
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.
The employer has confirmed that the applicant was not employed by it as claimed by the applicant and that she had never worked at that business. The Tribunal notes that the applicant would not have been granted her visa by the Department had she given or provided the correct information as it was a requirement that she do specified work in regional Australia for three months. This weighs significantly against her in the consideration of the discretion to cancel the visa.
There is no information before the Tribunal to suggest that the applicant has engaged in any other instances of non-compliance or any breaches of law. This factor weighs in her favour in the consideration of the discretion to cancel the visa.
The applicant has provided no information about any contributions to the community. This factor weighs against her in the consideration of the discretion to cancel the visa.
The applicant gave or provided the incorrect information in September 2017, which is two years ago. This factor is not of significance in the consideration of the discretion to cancel the visa.
The Tribunal has also considered other matters described in the Departmental PAM 3 guidelines while not binding on the Tribunal. These include whether there are mandatory legal consequences. The Tribunal takes into consideration that as a result of the visa being cancelled the applicant will be subject to s48 of the Act which limits what further visas she can apply for in Australia. However, as the period of expiry of her substantive visa has long passed, it considers this as of less significance as she would have limited options for applying for visas in these circumstances in any event. The Tribunal also takes into account that she may be subject to detention if she becomes an unlawful non-citizen. However given the applicant’s expressed intention to return, she can depart voluntarily to avoid this consequence. The Tribunal notes that she may be subject to a 3 year exclusion period if she applies for a visa to which Public Interest Criterion 4103 applies. While this is a significant consequence of the decision to cancel her visa, the Tribunal does not consider that it warrants the exercise of the discretion not to cancel her visa, when considering the other factors.
There are no known consequential cancellations or hardship that would be caused to her or family members.
Having considered all of the information before it cumulatively, the Tribunal concludes that the visa should be cancelled.
CONCLUDING PARAGRAPHS
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Jane Marquard
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.