Monteiro-Lacheze (Migration)

[2021] AATA 1159

Monteiro-Lacheze (Migration) [2021] AATA 1159 (11 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Eva Coralie Irene Monteiro-Lacheze

CASE NUMBER:  2017752

HOME AFFAIRS REFERENCE(S):          BCC2020/1026862

MEMBER:Mara Moustafine

DATE:   11 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 11 March 2021 at 7:47pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – applicant convicted of criminal offences – application for student visa – employment opportunities – availability of her chosen course in France – specified work in regional Australia – visa due to expire – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8, Condition 8547; r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 December 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of France and is 21 years of age. She was initially granted a Subclass 417 (Working Holiday) visa on 16 November 2018 and arrived in Australia on 11 December 2018. On 21 January 2020 she was granted an extension on her Subclass 417 (Working Holiday) visa with an expiry date of 11 December 2020.

3. On 4 November 2020 the applicant a delegate of the Minister for Home Affairs sent the applicant a Notice of Intention to Consider Cancellation (NOICC).

4. The NOICC put it to the applicant that on 1 April 2020 she had been convicted of two offences against the laws of New South Wales, that is, convictions for supply of a prohibited drug (indictable and commercial quantity) and possession of a prohibited drug. As a result, the applicant’s visa was subject to cancellation under s.116 of the Migration Act 1958 (the Act). The applicant was invited to comment on the information in the NOICC and show why the ground or grounds for cancellation did not exist or give reasons why the visa should not be cancelled.

5. On 8 November 2020 the applicant responded with an objection to the cancellation of her visa. She sincerely apologise for her mistakes and submitted that she was unaware of the consequences and had, for the last seven months, been focusing on achieving her goals and making a positive contribution to the Australian economy and social life by following her passion of working in the music industry. This had heightened her awareness about the risks associated with the music industry and the club scene. She posited that many foreigners came to Australia unaware of the rules and regulations and that she could act as a role model for others who were unaware of Australian laws to prevent them from potentially making the same mistake. She said she was planning to apply for a student visa, had found a school and started the enrolment process. She wished to prove to the Australian government that she had learned from her mistakes, grown up and could add value to the country if given the chance to stay. She also submitted that the current situation in France was limiting her ability to pursue her career goals and studies due to COVID-19 lockdown.

6. On 2 December 2020 the delegate cancelled the applicant’s Subclass 417 Working Holiday (Extension) visa under s.116(1)(g) on the basis that the applicant had been convicted of two criminal offences. The delegate considered the reasons put forward by the applicant that her visa should not be cancelled but found, on balance, that the visa should be cancelled.

7. On 10 December 2020 the applicant made an application for review of the cancellation decision. Ahead of the hearing the applicant submitted documents to the Tribunal, including:  

   a.Copies of correspondence with the Department of Home Affairs, including her visa grant letter, the NOICC, her response and the delegate’s cancellation decision.

   b.A conditional letter of admission to Certificate III and Diploma in Music Industry (Sound Production) from TAFE NSW dated 1 December 2020 and invoice for payment of fees dated 10 December 2020.

   c.IELTS English language test results dated 14 December 2020.

   d.A supporting letter from her employer, Hannah Extance, licensee at Showgirls dated 27 February 2021 stating that the applicant had worked for her on and off over the past two years, was ‘a model worker’ and ‘of good character’ and should be given the opportunity to stay in Australia and continue her studies.

   e.A statutory declaration from the applicant’s friend, Kieran James Hough dated 25 January 2021 attesting to her good character and support for her being granted a student visa.

   f.Medical documents, including a GP Mental Health Plan and letter from psychologist dated 2 March 2021 stating that the applicant had attended a counselling session that day due to stress, anxiety and depressive symptoms, including suicide idealisation, related to the legal complexities she was facing and fear of a negative outcome from the review of her visa cancellation.

8. The applicant appeared before the Tribunal by videoconference on 9 March 2021to give evidence and present arguments. The Tribunal considered taking oral evidence from the applicant’s employer, Ms Hannah Extance, but due to technical issues decided to rely on her written statement in support of the applicant.   

9. The applicant gave evidence about her background, visa history, the grounds for cancellation and her current circumstances.

10. 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

11. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

12. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Background

13. The applicant is 21 years of age and was born in Nice, France, where she lived with her family until 2018. Her father, who is a chef, her mother, who works in luxury hotels, and her two older brothers still live in Nice. She completed he baccalaureate (Year 12) in Nice in 2017 and worked selling fast food for six months before coming to Australia on a working holiday visa.

14. She decided to come to Australia because of the opportunities for work in her current job as a bartender and DJ and to study a course she had ‘always dreamed about’ which was not available in France. She heard about these opportunities from a friend who was in Australia doing farm work.  

15. Prior to cancellation of her visa, she held a Working Holiday (Extension) visa but she told the Tribunal her intention was to then apply for a Student visa to study and work in Australia.

    Does the ground for cancellation exist?

16. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. Section 116(1)(g) provides that:

    Section 116     Power to cancel

    (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    ….

    (g)      a prescribed ground for cancelling a visa applies to the holder.

17. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(oa) is relevant.

18. Regulation 2.43 (1) (oa) provides that

    (1)    For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    ….

    (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

19. The NOICC stated that the applicant had been convicted of two offences while the holder of temporary Working Holiday Visa (Extension) visa:

    (1)     Conviction 1 Supply prohibited drug >indictable & <commercial quantity

    (2)Conviction 2 Possess prohibited drug

    For conviction 1, she received a Community Corrections Order for 12 months, commencing on 1 April 2020 and concluding on 31 March 2021.

    For conviction 2, she received a conviction under Section 10A of the Crimes (Sentencing Procedure) Act (1999) with no penalty imposed.

20. The delegate was satisfied that the applicant had been convicted of the offences set out above and found that there were grounds for cancellation pursuant to s.116 (1)(g) of the Act and Regulation 2.43(oa) of the Regulations.

21. In discussion of the delegate’s decision record at hearing, the applicant confirmed that she had been convicted of two offences in New South Wales and agreed that there were grounds for cancellation of her visa.

22. On the basis of the material in the delegate’s decision record and the oral evidence of the applicant at hearing, the Tribunal finds that the applicant was the holder of a temporary visa and has been convicted of two offences against the laws of New South Wales.

23. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

24. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

25. The applicant told the Tribunal at her hearing that the purpose of her travel to Australia was to work and save money on a working holiday visa. After that, she wanted to apply for a student visa to study a course which she claimed she had ‘always dreamed about’ and was not available in France, while working as a bar tender and DJ.

26. In discussion about her activities while on her first working holiday visa, the applicant told the Tribunal that she worked packing bananas on two farms whose names she could not remember, other than one being in Innisfail, Queensland; then as a salesperson for a solar energy company in Sydney, and later as a bar tender and DJ at Showgirls, which she described as a bar with dancers in Kings Cross.

27. Asked why she applied for an extension on her working holiday visa rather than a Student visa if her intention was to study in Australia, the applicant said she had wanted to continue to work and travel to earn more money to fund her studies. While on her extension working holiday visa, granted in January 2021, she said she worked solely at Showgirls as a bar tender and DJ and also travelled to various places in NSW. She claimed she was unaware of conditions attached to her visa, in particular condition 8547, which limited the period of time she could be employed by the same employer to 6 months, although the conditions of her visa were clearly identified in her visa grant letter from the Department, a copy of which she submitted to the Tribunal (paragraph 7a).

28. The applicant said she was still working part-time in the same job at Showgirls, earning just over $1000 per week, and had started studying a Certificate III in Music Industry (Sound Production) in February 2021 for which she was paying herself. She said she planned to apply for a Student visa but had not yet done so as she thought it would be denied due to the cancellation of her working holiday visa.

29. The applicant did not want her visa to be cancelled as she had planned for her future in Australia. She wanted to continue studying her course in Music Industry (Sound Production), which she claimed she could not do in France, variously because the same course was unavailable and that all teaching was online rather than face to face due to COVID-19. Additionally, having been in Australia for over two years, she had friends and a job here and wanted to do volunteering in Australia. She was also afraid that her medical condition would be worse in France because she had been depressed in France but was happy in Australia, where she could work and be independent.

30. The Tribunal put to the applicant that it found implausible her claim that a course in music sound production would be unavailable in France, with its high level of arts and entertainment education. As for courses being taught online due to COVID-19, the Tribunal pointed out that, most teaching in Australia had until recently also been online due to COVID-19 and the situation in France was also likely to be temporary. Asked whether there was any reason that she could not find work as a DJ and bar tender in a nightclub similar to Showgirls in France, the applicant said no.

31. The applicant told the Tribunal that she had never had problems with the law in France and was ‘not interested’ in drug use. The circumstances that led to her conviction were that she was with a friend, who was dealing in drugs at a SASH party in North Sydney. When he was arrested, she was found to be in possession of 10 MDMA capsules, which he had asked her to hold for him. She said she had recently started counselling for her depression over her situation, including her three month imprisonment and everything that happened in 2020. She had not started counselling earlier because she was scared.

32. Pursuant to s.359AA of the Act, the Tribunal invited the applicant to comment on, or respond to, information in Department records that her claimed employment on Rosedale Farm (NSW) in her extension working holiday visa application had been found to be fraudulent as business owner had confirmed that they did not employ anyone. The applicant was advised that the information was relevant to the consideration of whether her visa should be cancelled as it raised concerns about her behaviour toward the Department of Home Affairs, as well as her truthfulness and general credibility. She was advised that she could seek further time to comment or respond to the information.

33. The applicant responded that she was really surprised about the information. She said she had been assisted with the application by an agent to whom she had given all her paperwork and had no idea if he had done anything wrong. As discussed with the applicant, her response does not overcome the Tribunal’s concerns, given that she signed her visa application form, including a declaration stating that everything she had given or caused to be given in support of her application was true and correct, which she confirmed.  

    Non-disclosure certificate

34. In the course of the hearing the Tribunal discussed with the applicant that there was a non-disclosure certificate on the Departmental file. The certificate issued under s.375A of the Act covered information the disclosure of which the Department deemed would be contrary tot eh public interest because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. 

35. The certificate covered three documents. The Tribunal advised the applicant that with regard to two of the documents, it did not consider the certificate to be valid as the information did not fall within the stated reason. The first of these documents related to an email from Manly Court querying the applicant’s status and including the sentencing outcome and a copy of her Community Corrections Order (CCO). The second document was an internal Department document regarding the escalation of the applicant’s case to cancellation of her visa on the grounds of her criminal conviction. The Tribunal told the applicant that these materials were not relevant to its considerations regarding the cancellation of her visa as the outcome was known to both the Tribunal and the applicant. In the case of the first document, the applicant had, in fact, been sent copies of both the sentencing outcome and the CCO.

36. However, with regard to the third document, an unredacted employment verification email,  the Tribunal considered the certificate to be valid as it related to the Department’s investigations of the employment of holiday work visa holders and included the names of third parties. The Tribunal noted that to the extent that the information covered by the certificate was relevant to the its considerations, the Tribunal had already disclosed the information to the applicant based on other materials. The Tribunal had sought her comment or response on this material and noted her response. The applicant was invited to comment on or question the validity of the certificate but declined to do so.

    Conclusions

37. The Tribunal has considered the matters relevant to whether the applicant’s visa should be cancelled.

38. The Tribunal finds that the applicant was the holder of a Working Holiday (Extension) visa which was due to expire on 11 December 2020. In the normal course of events, the applicant would have had to depart Australia at the end of her visa period as by her evidence, she had not undertaken an extra six months of specified work in a regional area during the period of her extension visa. While the applicant claimed that she planned to study in Australia after her working holiday visa ended, according to the Department decision of 2 December 2020, there was no record of a pending Student visa application. By her own evidence to the Tribunal, she has not applied for a Student visa and only started studying a Certificate III in Music Industry (Sound Production) in February 2021.

39. The applicant stated that she wanted to stay in Australia to continue her course which she claimed she could only study online in France due to COVID-19, because she had friends and a job here and feared her depression might be worse in France. The Tribunal does not consider that these matters constitute a compelling need to remain in Australia. The Tribunal notes that the applicant has not applied for a Student visa and only started her course one month ago. As discussed with her, the Tribunal finds it implausible that she would be unable to study a course in music sound production in France, including face to face, once COVID-19 is brought under control. Further, by her own evidence, there is no reason why she could not work as a DJ in a nightclub similar to Show Girls in France.  

40. As discussed with the applicant, the Tribunal finds that her inclusion of fraudulent information in her second working holiday visa application raises serious doubts about her respect for the Department of Home Affairs visa processes and Australian law, as well as her truthfulness and general credibility. 

41. The applicant’s evidence that she was not aware of any conditions on her working holiday visa, in spite of them being clearly identified on her visa grant letter similarly indicates a careless approach to her visa obligations to the Department. Her evidence that she worked solely at the Showgirls nightclub during the period of her visa extension (January – December 2020), suggests that she failed to comply with condition 8547 (employer work limitation) on her visa.  

42. The Tribunal has noted the applicant’s evidence that she had no trouble with the law in France, is not interested in drugs personally. By her own evidence, however, she agreed to hold a commercial quantity of MDMA capsules while her friend was dealing in drugs at a Sydney dance party and was convicted on two criminal offences in NSW as a result. The Tribunal is dubious that she would have been unaware of the consequences of such involvement, as claimed in her response to her NOICC. The Tribunal is not satisfied that the circumstances in which the grounds for cancellation arose were due to circumstances beyond her control.

1. If the applicant’s visa is cancelled she will be required to depart Australia. She holds a passport and there is no reason that she cannot return to France; there is no prospect of indefinite detention. It is highly likely that the applicant will be granted a bridging visa on departure grounds and, even though she will not have a valid visa, she will have sufficient time to make departure arrangements.

2. The Tribunal accepts that the applicant may experience some hardship if her visa is cancelled, including financial, through loss of her job in Sydney, where she is held in high regard by her employer, separation from friends, as well as psychological and emotional hardship in light of her evidence that she had been depressed in France but was happy in Australia, where she could work and be independent.

3. However, as discussed with the applicant at hearing, the two Working Holiday visas she held were temporary visas, granted for the purpose of working to fund an extended holiday in Australia. Her visa extension was, in any case, due to expire within a month of her receiving the NOICC from the Department.  By her own evidence and letters and declarations of support from her employer and her friend (paragraph 7.d and 7.e), she now wishes to remain in Australia for the purpose of studying a course in Music Industry (Sound Production), as well as working in her current role as a DJ and bar tender. While she claims this has long been her intention, the Tribunal notes that she has never applied for a Student visa and only started studying in February 2021.

4. The Tribunal accepts that if her visa is cancelled, the applicant will not be able to apply for a Student visa or other visas from within Australia and may be subject to a three year exclusion period. Thus, her plans to study and work in Australia may be not be realised in the short term. However, as discussed with her, there is no reason why she would be unable to find a similar course and employment in France should she wish to. The applicant might draw on her experience of working and living independently in Australia for over two years, which she said made her happy, to build a similar life in France.

5. The applicant has not made any claims that returning her to her home country would result in her suffering significant fear or harm or that Australia would be in breach of its international non-refoulement obligations, if her visa were to be cancelled and she had to return to her home country. Nor is there any evidence to suggest that the applicant has any children in Australia such that there might be a breach of Australia’s obligations in respect to the International Convention on the Rights of the Child should her visa be cancelled.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Mara Moustafine
   Member