PARK (Migration)

[2019] AATA 4534

PARK (Migration) [2019] AATA 4534 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jieun PARK

CASE NUMBER:  1913281

DIBP REFERENCE(S):  BCC2018/4185530

MEMBER:Linda Holub

DATE:15 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 15 August 2019 at 5:07pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – ground for cancellation – incorrect information in visa application – specified work in regional area – consideration of discretion – eligibility for Working Holiday Visa extension – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

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 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 information in her application which was found to be not correct.  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 15 August 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

1. 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.

2. 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.

3. 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?

1. 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 in the following respects: On 27 February 2018 the applicant lodged an application for a Subclass 417 visa and provided answers to questions about having undertaken specified work in regional Australia for a total of three months in the affirmative, and provided details of the specified work undertaken, naming an employer (by ABN number), postcode and period of employment. She also confirmed in a declaration that she has done this work.  Based on that information, she was granted a TZ 417 Working Holiday (Extension) visa on 28 February 2018. 

10) Departmental officers contacted the employer nominated by the applicant and on 20 August 2018 the Department received advice that the applicant has never worked for them.

11) The applicant provided no response to the s107 notice which was dated 7 May 2019. On 22 May 2019 the delegate made a decision to cancel the visa.

12) At hearing the applicant stated that she did not complete the application form.  She stated that someone else did that for her.  The Tribunal asked her if she gave them access to her immigration account.  She responded that she did what other people do.  She stated that she paid for the visa but she did not know it was legally wrong.  She stated that she found out about a person who claimed they could obtain the visa extension for her through a colleague and by paying she would not have to go to a rural area. 

13) In relation to why the applicant did not respond to the Notice of Intention to Consider Cancellation (NOICC) of her Working Holiday (Temporary) (class TZ) Working Holiday (subclass 417) visa, the applicant asked whether it was sent to her by email.  When this was confirmed, the applicant stated that she does not check her email very often and she did not realise it was such an important thing.

14) The Tribunal explained to the applicant that the information provided in her application was that she had worked in regional Australia for three month from 5 September 2017 until 9 December 2017 and an ABN number of her employer was provided when asked where she was during that period the applicant gave evidence that she had worked in Sydney city continuously.

15) The applicant stated that she had no evidence that she gave her authority for a person to provide false information on her behalf but she stated that she had email communication with that person. When asked what the emails contain, she responded there was nothing about the answers referred to previously.  The applicant stated that she had been told that the person will sort out everything but she had no idea what was being provided in the application. 

16) The Tribunal explained the applicant’s responsibility in regard to information being put in a visa application.

17) The Tribunal referred to information contained in the Notice of Intention to Consider Cancelation of her Working Holiday visa which indicates that the Department received confirmation on 22 August 2018 from Drake Australia Pty Ltd, with the ABN of 69139433097 that the applicant had not been employed by the company between September and December 2017 and asked the applicant is she had any comments to make. The Tribunal acknowledged her previous evidence that she had engaged a person to apply for the visa on her behalf and asked her if she wished to add anything further. She responded that she did not realise it was unlawful to do so. The Tribunal referred to section 99 of the Migration Act that any information provided by the applicant or on her behalf is taken to be an answer to a question on the visa application form and explained her responsibility to provide correct information regardless of who submits the application.

18) The Tribunal indicated to the applicant that based on the evidence she had provided that she did not work in a regional area and that someone else lodged her application and provided incorrect information, it appears there was non-compliance as outlined in the NOICC.  The Tribunal explained that it must now consider whether the visa should be cancelled. 

19) : 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?

20) 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).

21) 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 and outlined briefly below. As noted, the applicant did not respond to the Department. She was given an opportunity to provide oral evidence in respect of each of these circumstances:

• the correct information.

The Tribunal again referred to the information that had been provided on the applicant’s application form and indicated that based on the information from Drake Australia and the applicant’s own evidence she did not work in a regional Australia from September to December 2017.  The applicant stated that she had no further comment to make.

• the content of the genuine document (if any).

The Tribunal explained to the applicant that this issue was not relevant as she had not provided a document.

• 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 Tribunal explained to the applicant that the grant of the Working Holiday (Temporary)(class TZ) (Working Holiday) Subclass 417 visa is based on an applicant working in a regional location for the prescribed period.  Her visa was granted on the basis of incorrect information and asked her whether she had any further comment.  She acknowledged the relevance of the information and stated she had no further comment to make. 

• the circumstances in which the non-compliance occurred.

The Tribunal noted the applicant’s earlier evidence that she did not want to work in a regional area because other people told her it was difficult and asked if there were any other matters she wished to put forward.  The applicant responded that was correct.  The applicant stated that she was busy with her work and attending English language classes.  The Tribunal put it to her that she would not have been busy with her work in the city if she had complied with the visa requirements and worked in a regional area.  She responded that she never worked in the farm before and felt very scared and overwhelmed.  In relation to her English language studies, the Tribunal asked her if she have undertaken her study before or after the period of her employment in a regional location.  The applicant again referred to finding the idea of working on a farm very daunting.

• the present circumstances of the visa holder.

The Tribunal asked the applicant about her current circumstances.  She explained that she came to Australia in June 2017 on a working holiday visa because she wanted to study English at that time.  The Tribunal asked her why she had not originally applied to come to Australia on a student visa.  She responded that she wasn’t sure if Australia was a suitable place.  The Tribunal put it to her that her response was not clear.  It appeared that it was a suitable place for her to come on a Working Holiday visa but that she was uncertain as to whether Australia was a suitable place to come on a Student visa.  The applicant responded that she was told Student visa was more difficult to obtain and so she applied for a Working Holiday visa.  She stated that she did not realise it was unlawful to apply in that way and afterwards.

The applicant stated that her application for a Student visa had been refused because of the cancellation of her Working Holiday visa and that she had lodged an application for review with the Tribunal. 

The applicant stated that while she is waiting for the hearing she is studying English.  

• the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act.

The Tribunal explained that other than the fact that she did not respond to the Department after it issued the NOICC, which the Tribunal had already discussed with her there is nothing before the Tribunal in regard to any other issues regarding her subsequent behaviour in relation to 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 Tribunal explained that there is nothing before the Tribunal in regard to any other instances of non-compliance.

• the time that has elapsed since the non-compliance.

The Tribunal noted that the length of time wince the visa was cancelled on 22 May 2019 was not significant.

• any breaches of the law since the non-compliance and the seriousness of those breaches.

The Tribunal explained that there is nothing before the Tribunal in regard to any other breaches of the law.

• any contribution made by the holder to the community.

The Tribunal asked the applicant if she wished to make any submissions regarding any contribution she had made to the community.  She responded in the negative.

22) In considering the applicant’s individual responses to each of the prescribed circumstances the Tribunal did not consider they should be given weight in her favour.  

23) 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 Tribunal explained this that it would also consider matters outlined in the Department’s Guidelines.

• whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

The applicant stated that she is aware that if her visa is cancelled she will have to depart Australia within 28 days even though she did not know that the way in which she applied was illegal.  She stated regardless of that it was her fault.  The Tribunal explained that another mandatory legal consequence if her visa is cancelled is that she will be subject to a provision of the Act which may result in a three year exclusion.  The Tribunal also noted that in the light of her review application in respect of her Student visa the sequencing of decisions is unclear.  That matter would be dealt with by a differently constituted Tribunal and this Tribunal was not in a position to indicate how the respective decisions would be handled by the Department. T

The Tribunal also acknowledged her comments about departure and that if she did not depart voluntarily she may be at risk of detention and that could be detained if you do not leave.  The Tribunal noted that these consequences are mandatory and act as a deterrent to incorrect information being provided.

The Tribunal does not give significant weight to these factors in its consideration. 

• whether there would be consequential cancellations under s.140.

The applicant acknowledged there are no consequential cancellations should her visa be cancelled.

• whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. 

The applicant agreed with the Tribunal that there do not appear to be any international obligations of Australia would be breached if her visa was to be cancelled.

• any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

The applicant was provided with an opportunity to put forward any other matters she considered relevant.  She stated there were no other considerations she wished to submit.

24) Having considered the applicant’s responses and circumstances in relation to the relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, relating to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters, the Tribunal is of the view that they should not be given significant weight.

Non-disclosure certificate

25) There is a certificate made by a delegate of the Minister under s. 375A of the Migration Act in relation to Department's documents. That provision permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed. The certificate relates to Folios OPD2018/413606 and CLD 2018/42925142 the disclosure of which it states would be contrary to the public interest because the provider of the information has not consented to disclosure of the to the review applicant.

26) This certificate is valid and the information to which it relates is relevant to the applicant because the information relevant to her relates to evidence in respect of whether she had worked in a regional location.  The Tribunal pointed out that this information was already known to her because the information regarding the fact that she had not worked in a regional location was referred to in the NOICC of 7 May 2019 and the decision to cancel her visa of 22 May 2019.  The rest of the information relates to other visa applicants and not relevant to her application.

27) At hearing the Tribunal discussed the certificate with the applicant and indicated its finding regarding the certificate’s validity and relevance and the reasons for its findings. The applicant was provided with an opportunity to comment.  The applicant responded that she had no to comment because although she engaged that person, it is her responsibility to ensure that correct information is provided. 

Findings

28) 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

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

Linda Holub
Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

1. Incorrect 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.

2. Visa 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.

3. Notice 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.

4. Decision 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.

5. Cancellation 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.