Piron (Migration)

Piron (Migration) [2021] AATA 4254 (27 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Lea Magdalena PIRON
CASE NUMBER:  2014798
HOME AFFAIRS REFERENCE(S):          BCC2020/1521897
MEMBER:Nathan Goetz
DATE:27 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:
·Public Interest Criterion 4020 for the purposes of cl 417.221(2)(b) of Schedule 2 to the Regulations

Statement made on 27 August 2021 at 5:26pm
CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – false or misleading information – evidence of specified work – ‘adverse information’ – lack of corroborative evidence regarding the applicant’s remuneration – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 417.221; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
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 Home Affairs to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in the review application by registered migration agent 2014022 Ms Alice Laurence.
BACKGROUND
The applicant identifies as a 26-year-old female citizen of France.
She first arrived in Australia on 6 February 2016 holding a TU-573 visa. This visa was valid until 1 November 2017. During the currency of that visa, the applicant departed Australia on 13 December 2016 and returned on 18 December 2016, before departing permanently on 22 December 2016.
On 14 May 2019 the applicant arrived in Australia holding a TZ-417 visa. This visa was valid until 14 May 2020. During the currency of that visa, the applicant departed Australia on 30 November 2019 and returned on 24 December 2019.
On 11 May 2020 the applicant applied for the Working Holiday (Temporary) (Class TZ) that is the subject of this review application. On 22 May 2020 the applicant was granted a bridging visa to regularise her migration status until the visa application was finally determined.
On 15 September 2020 the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 417.221(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not meet Public Interest Criteria 4020.
On 2 October 2020 the applicant applied to the Tribunal to review the refusal decision.
The Tribunal is only required to invite an applicant to appear at a Tribunal hearing to give evidence and present arguments regarding the issues arising in relation to the decision under review if it cannot make a decision favourable to the applicant on the information it has: s.360 of the Act. The Tribunal considered the information it had and did not invite the applicant to appear at a Tribunal hearing.
CRITERIA FOR THE VISA
Public Interest Criterion 4020 (PIC 4020) as required by cl 417.221(2)(b) for the grant of the visa requires that:
·     there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·     the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·     the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·     neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
CONSIDERATION OF THE CLAIMS AND EVIDENCE
Visa application form
The visa application form completed online by the applicant declares that she worked for Sally Edwards at DaisyLea Labradoodles with Australian Business Number 49722142407 through direct employment. She worked there from 2 July 2019 to 2 October 2019 and completed 480 hours work during this 88 day period. The address of her employer was in the 4280 Queensland post code. She described her work in the ‘Agricultural, forestry and fishing industry.’ The sub-group industry was ‘plant and animal cultivation.’ She described her duties as:
I was taking care of the dogs (puppies and adults). My job was to feed them, walk them, wash them and keep their rooms clean. I had to assist the birth and watch over the new born puppies. I also had to take care of the horses. I had to do the same thing than for the dogs.
The applicant declared that she had an hourly rate of pay of $16.09. She detailed her living arrangements onsite. She provided what she identified as three payslips and a bank statement with her visa application form.
The ‘bank statement’ was a screenshot of what appeared to be a mobile banking application in French. As best the Tribunal understands, this was a screenshot of the total amount across four accounts held by the applicant, one of which appeared to be a credit card account. The ‘bank statement’ did not show the depositing or withdrawal of any funds in any of the four accounts.
The ‘payslips’ contained the following information:
·     02/07/2019 to 02/08/2019: 160 units at $16.09 for a total of $2574.40 with tax deductions of $394.60 and $228 in superannuation contributions.
·     02/08/2019 to 02/09/2019: 160 units at $16.09 for a total of $2574.40 with tax deductions of $394.60 and $228 in superannuation contributions.
·     02/09/2019 to 02/10/2019: 160 units at $16.09 for a total of $2574.40 with tax deductions of $394.60 and $228 in superannuation contributions.
The payslips make it clear that the payments less tax deductions were made in cash.
Request by department for more information
On 10 June 2020 the department wrote to the applicant and requested further information from the applicant. A checklist was prepared containing two items Further info required - Specified work and Evidence of specified work.
The letter then went on to ask the applicant a series of questions.
Further info required - Specified work
·     What duties did you perform in relation to DaisyLea Labradoodles?
·     What did you do each day at work?
·     What part of the “plant and animal cultivation” was your work required?
·     How many hours of the day did you perform this work?
·     Please explain how you went about performing this work?
·     How did you receive payment (EFT, cheque, cash)?
·     Please include the address where the work was undertaken.
·     The actual work address, name of the farm, name of the farmer and a contact phone number
·     A full bank statement (bank transaction statements should show all transactions within the declared specified work period and income received from declared employer and the name of the account holder.
·     The letter detailed that these documents needed to be upload to the applicant’s online immigration account and the format of those documents.
Evidence of specified work
You need to provide evidence to support your claims that you have:
·     Undertaken specified work for at least three months; and
·     Been remunerated in accordance with relevant Australian legislation and awards by your nominated employer, for the periods of your employment you have listed on your application form.
·     The letter detailed what was considered by the department to be ‘primary forms of evidence’ needed to assess the applicant’s visa application.
For the sake of completeness, the Tribunal notes that the request for further information letter was not presented in a particularly clear fashion.
Response by the applicant to the department request
The applicant provided five screenshots of each page of a bank statement from a foreign bank that had been printed out, and a screenshot of an online summary of an ANZ bank account that had the total amount in a particular account.
The applicant also provided a written statement:
During my 88 days of specified work at DaisyLea Labradoodles, which is breeding labradoodles dogs. My main job was to take care of the animals.Everyday I would feed the dogs, clean their room, walk them, and make sure that they were all healthy. Once every week, I would wash the dogs. For the puppies, I would check their growth by checking if they were eating enough and weight them everyday. I would also assist the birth and take care of the new moms. I would also take care of the horses: feed them 3 times a day, put them in their paddock every morning and bring them back to the stable every night. Once every 2 weeks, I would wash them. I worked 6 hours a day. I was paid in cash, therefore I don’t have any bank statement. During these 3 months, I paid mainly in cash and used my french card/bank account to buy groceries since all my saving were on it. See the other attached documents to see my australian and french bank account during my 88 days of specified work. My pay-slips already have been uploaded in my files when I first applied on the 11th of May 2020.
Department invitation to the applicant to comment on ‘adverse information’
The department wrote to the applicant and wrote that during the process the department received information that may lead the department to refuse the visa. The invitation provided the statutory regime concerning PIC 4020. The letter then went on to detail the ‘adverse information’ as:
The department has considered the applicant’s work claim with Daisylea Labradoodles. Department checks indicate that the work declared with Daisylea Labradoodbles and evidence provided in support of this work claim may be false or misleading in a material particular. The department has information to suggest that the work undertaken during the claimed period with Daisylea Labradoodles was not specified work and that the applicant was not remunerated for the work with Daisylea Labradoodles as claimed and as indicated by the evidence.
The letter went on to detail that the delegate had reason to believe that the information provided in support of the claim that the applicant that she had undertaken the specified work was false or misleading. As there was evidence to suggest that the applicant had provided, or caused to be provided, false or misleading information, the applicant may have failed to satisfy PIC 4020(1), with the result that the visa applicant may be refused.
The letter invited the applicant to comment on this information.
Applicant’s response to department’s invitation to comment on ‘adverse information’
The applicant responded with a written statement as follows:
I did my 88 days of specified work at DaisyLea Labradoodles which breeds labradoodles dogs. I was working 6 hours a day and this was my daily routine:
·     start at 6:30am
·     feed the dogs
·     clean the enclosures
·     walk the dogs
·     take care of the new born puppies (weight them and check if they are eating enough)
·     put the horses in their paddocks
·     feed the horses
·     clean the paddocks
·     walk the dogs
·     feed the horses
·     feed the dogs
·     walk the dogs
·     bring the horses to the stables
·     feed the horses
The other workers and I had to take care of 6 adult dogs and the puppies. Every week we had to wash the dogs and clean the horses water (big tubs in their paddocks). I had to wash the horses every two weeks. About the living situation, I was living on the farm with seven other girls. We were living in an old barn that the owner turned into a small house. We had a living room, a small kitchen, a bathroom with a laundry machine and were sharing the upstairs bedroom with bunkbeds (see video attached). The bed sheets and towels were provided by the owner. We each paid our part of the rent in cash.
During these three months, I was paid in cash and paid most of my groceries in cash too. Attached, you can see my french bank statement. I used my french card to pay for extras because all my saving are on this bank account. Attached to this document I’ve put some videos and photos of me during my time at the farm: photos and videos of me with the animals, the little house and me working. I hope these documents help clarify the situation.
The applicant provided nine photographs of her with various animals and her residential premises onsite.
The applicant also separately emailed the department to confirm she uploaded a response to her online immigration account and attached the photos as well as seven short videoclips of her at DaisyLea Labradoodles.
Delegate decision
The delegate decision records that:
I have considered the applicant’s response, however I am not satisfied that the evidence and information supplied with the application demonstrate the applicant has carried out specified work and was appropriately remunerated during the period of specified work with Daisylea Labradoodles.
Based on the evidence and information before the Department, I am satisfied that the information submitted to the Department is false and misleading in a material particular, as defined in PIC4020(5). Therefore the applicant does not satisfy PIC4020(1).
As there is evidence before the Minister that the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to this application, I find that the applicant does not satisfy PIC4020(1)(a) and as a result PIC4020 in its entirety.
As the applicant does not satisfy PIC4020, as required by Regulation 417.221(2)(b), I am not satisfied that the applicant meets the requirements of Regulation 417.221 in its entirety.
FINDINGS AND REASONS
The issue is whether the applicant satisfies PIC 4020 as required by cl.417.221(2)(b). If the applicant satisfies PIC 4020 as required by cl.417.221(2)(b), then the Tribunal must remit the matter to the department with a direction that she satisfies this clause. If the answer is no, then the Tribunal must affirm the refusal decision.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal struggles to accept that the applicant has given, or caused to be given, information that is false or misleading in a material particular as found by the delegate. The Tribunal finds great difficulty in the approach taken by the delegate for a number of reasons.
It is clear that despite the claimed ‘checks’ made by the department, no such checks were made. There was no ‘adverse information’ in the sense of some tangible evidence to undermine anything that the applicant claimed in her visa application form. Rather, the claimed ‘adverse information’ was that there was a lack of information to support the applicant’s claim that she had been renumerated as required by the relevant legislation and Award, or that the work she claimed was ‘specified work’ was not in fact ‘specified work.’ The Tribunal cannot accept that a lack of information can possible equate to ‘adverse information.’
In so far as the delegate decision reads, it appears that the ‘bogus document’ refers to the visa application form completed by the applicant. This finding appears to be based on the applicant’s claims in that form concerning her specified work. It also appears that the delegate’s view of the ‘adverse information’ was an apparent ‘lack of information’ concerning the applicant’s claimed specified work and ‘lack of information’ concerning whether the applicant’s payment at a rate of $16.09 per hour was in accordance with relevant Australian awards and standards.
The Tribunal notes that in the visa application form, the applicant declared that she had been renumerated in accordance with the relevant Australian legislation and awards. The Tribunal acknowledges that the delegate requested evidence to demonstrate this, and that the applicant did not provide the evidence requested. However, there is nothing on the department file to demonstrate that $16.09 per hour is not in accordance with relevant Australian legislation and awards.
It appears that the delegate decided that in the absence of the applicant providing some evidence about this fact, then such a claim must be false or misleading. The Tribunal does not accept that this is the case, or that this is a sound approach to take. For the delegate to make a finding that the claim was false or misleading, then the delegate would need to have evidence of a contrary fact. The delegate had none. What the delegate had was a lack of corroborative evidence of the applicant’s claim that she was renumerated as required. If the delegate wished to proceed on that basis, then the delegate should have refused to grant the visa on the basis that the applicant did not satisfy cl.417.211(5)(c), not by finding without an evidentiary basis that the claim was false or misleading,
When it comes to the issue of whether the applicant provided false or misleading information concerning whether the had undertaken specified work, the Tribunal acknowledges that the applicant declared in the visa application form, she declared that she had done so. She identified that she completed this work in the ‘plant and animal cultivation subgroup. The applicant described in detail three times about her duties, attaching various photographs and videos to support her claim that she worked at Daisylea Labradoodles. The Tribunal acknowledges that the delegate requested evidence to demonstrate that this work was ‘specified work’ for the purpose of the visa in the request for further information. The applicant responded with what her duties entailed. The delegate did not refer to the applicable Legislative Instrument concerning ‘specified work’ to demonstrate that the applicant’s claims that either (a) the work she claimed to have done was false or (b) that the claim that she did ‘specified work’ was false because the work she did was not ‘specified work.’ Again, it appears that the delegate proceeded on the basis that because the applicant had not provided corroborate evidence (that is to say, the applicant had not found the applicable instrument, and addressed how her work was in unison with the applicable instrument) then her claim must be false or misleading. The Tribunal does not accept that it is a sound practice to make findings on this basis. If the delegate was of the view that the applicant’s work was not specified work for the purpose of the visa, then the delegate should have refused to grant the visa on the basis that the applicant did not satisfy cl.417.211(5)(a), not by finding without any evidentiary basis that the claim was false or misleading.

For the reasons given above, the Tribunal is not satisfied that the applicant has given, or caused to be given, a document or information that is false or misleading in a material particular. Therefore, the Tribunal is not satisfied that the applicant does not meet PIC 4020.
DECISION
The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:
· Public Interest Criterion 4020 for the purposes of cl 417.221(2)(b) of Schedule 2 to the Regulations
Nathan Goetz
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s 5 Interpretation
(1) In this Act, unless 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.
…

[2021] AATA 4254

27 August 2021

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Immigration

Administrative Law

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Judicial Review

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