Wang (Migration)

[2019] AATA 2743

Wang (Migration) [2019] AATA 2743 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yue-Chun Wang

CASE NUMBER:  1814248

DIBP REFERENCE(S):  BCC2018/1121704

MEMBER:Linda Symons

DATE:14 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 14 February 2019 at 4:40pm

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 – claims that agent lodged unauthorised repeat application – return visits to Taiwan – credibility issues – no contact with Department to correct answer – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 5, 46, 48, 97-105, 107-109, 140, 189, 198, 359AA
Migration Regulations 1994, 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 applicant is a national of Taiwan and was born on 2 February 1988. She was initially granted a Subclass 417 (Working Holiday) visa on 19 July 2016. She arrived in Australia on 25 August 2016 and her visa was valid until 25 August 2017. On 27 April 2017, she applied for a 12 months extension of her Subclass 417 (Working Holiday) visa. One of the requirements for a 12 months extension of that visa is that she must have completed 3 months of specified work in regional Australia. In her visa application, she claimed that she had completed 3 months of specified work in regional Australia. On 27 April 2017, she was granted a 12 months extension of her Subclass 417 (Working Holiday) (Extension) visa. 

3. On 14 May 2018, the delegate cancelled the Subclass 417 (Working Holiday) (Extension) visa under s.109(1) of the Act on the basis that on 27 April 2017 the applicant provided incorrect answers in her application for a Subclass 417 (Working Holiday) (Extension) visa. The delegate found that she stated in her visa application that she had been employed by a farm business in 2016 and that farm business had subsequently informed the Department of Home Affairs (the Department) that she had never worked for that farm business.

4. On 16 May 2018, the applicant applied to the Tribunal for a review of that decision. On 17 October 2018, the Tribunal wrote to the applicant and informed her that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited her to appear before it on 28 November 2018 to give evidence and present arguments relating to the issues arising in her case. This letter was sent to her then migration agent by email on 17 October 2018.

5. On 21 November 2018, the Tribunal received an email from the applicant’s current migration agent stating that he is now instructed to act for the applicant. On 22 November 2018, the Tribunal wrote to the applicant and her current migration agent confirming the hearing on 28 November 2018. These letters were sent by email on 22 November 2018. On 23 November 2018, the Tribunal received an email from the applicant’s migration agent requesting a postponement of the hearing until after 10 March 2019 as the applicant was unfit to attend a hearing before that date. The Tribunal was provided with an Initial Psychological Assessment Report dated 22 November 2018 from Mr H.R Dadgostar which recommended that the applicant not be involved in any legal proceedings for the next 2 weeks.

6. The Tribunal postponed the hearing to 17 December 2018. On 26 November 2018, the Tribunal wrote to the applicant and her migration agent informing them of the new hearing date. These letters were sent by email on 26 November 2018. On 11 December 2018, the Tribunal received an email from the applicant’s migration agent requesting a further postponement of the hearing.

7. The Tribunal was provided with a Progress Psychological Assessment Report dated 6 December 2018 from Mr H.R Dadgostar which indicated that the applicant informed him that she was stressed and depressed, could not attend any formal proceedings and wanted to postpone them. It indicated that her reported symptoms are suggestive of the presence of high levels of clinical depressive symptoms and anxiety symptoms. The Report indicated that there was no change from the initial risk assessment but recommended that the applicant not be involved in any legal proceedings for the next 2 months.

8. The Tribunal considered the request for a further postponement of the hearing and the two Reports from Mr H.R Dadgostar and declined the request for a further postponement of the hearing. On 13 December 2018, the Tribunal wrote to the applicant and her migration agent, informed them that the Tribunal had decided not to postpone the hearing and confirmed the hearing date on 17 December 2018.

9. The applicant appeared before the Tribunal on 17 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. The applicant was represented in relation to the review by her registered migration agent, Mr Charles Dynasty, who attended the hearing.

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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should affirmed.

    CONSIDERATION OF EVIDENCE AND FINDINGS

13. 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.

14. 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.

15. In this case, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

16. 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 of the Act in the following respects:

17. On 20 April 2018, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of her Subclass 417 (Working Holiday) (Extension) visa as she considered that there had been non-compliance with s.101 of the Act. The NOITCC stated that s.101 of the Act provided that a non-citizen must fill in or complete his or her application in such a way that no incorrect answers are given or provided.

18. The NOITCC stated that the applicant lodged an application for a Subclass 417 (Working Holiday) (Extension) visa on 27 April 2017 via the Department’s online facility.  The NOITCC stated that in response to the question “Have you undertaken specified work in regional Australia for a total of 3 months?” she answered “Yes”.

19. The NOITCC stated that under the heading “Details of specified work undertaken”, she provided the following answers:

    ABN               16193574642

    Postcode        2800

    Start Date       16 September 2016

    End Date        30 December 2016    

20. The NOITCC stated that under the heading “Declaration” and to the question “I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa”, she answered “Yes.” 

21. The NOITCC stated that, based on the information provided in the visa application, the delegate assessed that she met the relevant criteria including the requirement that, while holding her initial Subclass 417 (Working Holiday) visa, she worked the equivalent of at least 3 months full time work in a specified occupation in regional Australia and granted her a Subclass 417 (Working Holiday) (Extension) visa on 27 April 2017.

22. The NOITCC then set out the information indicating why those answers were incorrect. The NOITCC stated that on 2 November 2017 the Department received an email from the company owner of K.A Irvine & M. Irvine (ABN 16193574642) stating that they have never employed any visa holders at the business K.A. Irvine & M. Irvine.

23. The NOITCC stated that, based on the above evidence, the delegate considered that the applicant did not comply with s.101(b) of the Act because when she lodged her application for a Subclass 417 (Working Holiday) (Extension) visa on 27 April 2017 the answers she provided (referred to in paragraphs 18, 19 and 20 above) were incorrect because K.A. Irvine & M. Irvine, the sole employer with whom she claimed to have undertaken that work, has advised that she never worked for them. She was invited to comment on the possible non-compliance by providing a written response within 14 days as to why her visa should not be cancelled.

24. On 30 April 2018, the applicant’s former migration agent, Siwei Hu from W.B. Legal, sent an email to the Department indicating that they were instructed to act on behalf of the applicant on 30 April 2018 and requested an extension of time to enable them to obtain instructions and provide a response to the NOITCC. On 9 May 2018, the delegate sent an email to the applicant’s former migration agent indicating that there is no provision in the Act to allow for an extension of the time period in which to respond to the consideration to cancel a visa under s.109 of the Act or to make allowance for requests under the Freedom of Information Act. She indicated that any information provided by them to the Department prior to a decision being made would be taken into consideration. There is no indication on the Department’s file or in the NOITCC to indicate that any further response was provided to the Department prior to a decision being made to cancel the visa on 14 May 2018.

25. The applicant gave oral evidence to the Tribunal that she was not aware that an application for a Subclass 417 (Working Holiday) (Extension) visa had been lodged on her behalf on 27 April 2017 until after the fact and that this was not done on her instructions. She was represented by her former migration agent at the time the application for review was lodged with the Tribunal on 16 May 2018 and by her current migration agent since at least 21 November 2018. No written evidence or submissions have been lodged with the Tribunal in this regard. Her migration agent did not raise any issue in relation to ss.98 or 101 of the Act at the hearing. However, in view of her evidence, the Tribunal will consider whether the visa application was filled in or completed on her behalf as a preliminary matter before considering whether there was non-compliance as described in the NOITCC.

26. The applicant gave evidence to the Tribunal that she instructed an agent named Mr Wu at the end of April 2017 to find her some farm work in regional Australia. She stated that she provided him with her passport and other documents. She stated that she gave him her passport and other documents because she thought he wanted to give the documents to a prospective employer. She stated that she was aware that she needed to work in a remote area for 3 months to be able to apply for a second Working Holiday visa. She stated that Mr Wu prepared her second application for a Working Holiday visa. She stated that she was prepared to start farm work and that is why she applied for a second Working Holiday visa.

27. The applicant gave evidence that she waited for one or two months and in May 2017 or June 2017 Mr Wu informed her that her “visa was okay and everything was finalized”. She stated that in about June 2017 she received a letter which was from the Department informing her that she had been granted the visa. She stated that she was surprised and told Mr Wu this was not the result she wanted from him. She stated that he told her not to worry about it.

28. The applicant’s evidence that she instructed Mr Wu at the end of April 2017 to find her farm work in a remote area for 3 months is not consistent with her behaviour in applying for an ABN to set up her own pet beautician business in Sydney. The Tribunal is also of the view that if she genuinely intended undertaking specified work in regional Australia for 3 months, whilst the holder of her first Subclass 417 (Working Holiday) visa, she would not have waited until the end of April 2017 to start looking for the work particularly when her visa was due to expire on 25 August 2017. Her behaviour raises serious doubts that she ever intended undertaking specified work in regional Australia or that she instructed Mr Wu to find her such work.

29. The Tribunal asked the applicant what she did after she received the Subclass 417 (Working Holiday) (Extension) visa. She responded that Mr Wu told her that she was not allowed to do certain things like tell other people about this information, depart Australia or do certain types of work. She stated that he threatened her that if she told other people about it he would report her to the Department and they would come and take her. She stated that she did not tell her friends or the Department about it as she was scared. She stated that after threatening her, Mr Wu disappeared.  

30. The applicant’s evidence that Mr Wu told her not to do certain things like depart Australia, that he threatened her and she followed his directions because she was scared is not consistent with her evidence that he gave her the Subclass 417 (Working Holiday) (Extension) visa in about June 2017 and she departed Australia in July 2017. Her willingness to do something he told her not to do raises concerns about the credibility of her evidence that she did not inform the Department that her application for the Subclass 417 (Working Holiday) (Extension) visa contained incorrect information because she was scared of Mr Wu. It also raises serious doubts that Mr Wu lodged the second visa application without her knowledge or instructions.  

31. The applicant gave evidence to the Tribunal that a former room-mate referred her to Mr Wu. She stated that she never met him face to face and only contacted him through “Live App”. When asked how she was able to give him her passport and other documents, she responded that she transferred the documents to “LiveApp”. She stated that she paid him for his services. When asked how she paid him, she stated that she transferred money to his account.

32. The Tribunal finds the applicant’s evidence to be inconsistent, implausible and unconvincing. Firstly, her evidence that she was prepared to start farm work and that is why she applied for a second Working Holiday visa is inconsistent with her evidence that she was not aware that a second application for a Working Holiday visa had been lodged on her behalf. Secondly, her evidence tends to indicate that she was prepared to lodge a second Working Holiday visa based on her willingness to “start farm work” at some future date rather than having completed the work before applying for the second Working Holiday visa. Thirdly, the Tribunal finds it implausible that Mr Wu would have applied for a Subclass 417 (Working Holiday) (Extension) visa without instructions to do so or being paid to do so. There was no benefit to him to do so. The only person who benefitted from this was the applicant.  

33. In view of the above, and for other reasons referred to below, the Tribunal has concerns in relation to the applicant’s credibility. When the Tribunal raised its doubts that Mr Wu would have acted without her instructions and its concerns in relation to her credibility with her, she responded that she did not know Mr Wu and whether he was a migration agent or an employment agent. She stated that an education provider referred her to a migration agent who explained things to her. She stated that he had an office, they had a face to face discussion and he explained things to her. She stated that she only employed Mr Wu to look for work on a farm. She stated that she did not know that things would become like this.  

34. The applicant’s migration agent made oral submissions that when he interviewed the applicant she always smiled and laughed and cried. He stated that he was concerned about her mental status and referred her to an expert. He stated that he has submitted two Reports from a Psychologist. He submitted that, from his observations, her evidence was not to the point, she avoided answering questions or provided inaccurate answers and her answers went around in circles. When asked if he wished to make any submissions about the cancellation of the visa, he stated that there are many migration agents who assist clients by lodging “dodgy applications”. He stated that there are many migration agents who do “dodgy things”. He stated that OMARA is still cancelling migration agents’ registration.

35. The Tribunal has considered the two Reports from Mr H.R Dadgostar, Psychologist, dated 20 November 2018 and 6 December 2018. The Tribunal has a number of concerns in relation to these Reports and places little weight on them for the following reasons. Firstly, Mr H.R Dadgostar does not provide full details of his qualifications or relevant work experience in either of his Reports and the Tribunal is therefore unable to consider why the applicant’s migration agent refers to him as an expert.  

36. Secondly, in both his Reports Mr H.R Dadgostar stated that the applicant was referred to him for a psychological assessment in regard to her psychological state from May 2017 to the present date. Neither of his Reports indicate when she first consulted him or how many sessions he has had with her. Her evidence is that she consulted him for the first time in November 2018 and has seen him on a total of two occasions. She stated that he is the only Psychologist she has consulted in Australia. If he met her for the first time in November 2018, he has no personal knowledge of her psychological state prior to then and has to entirely rely on a history provided by her.

37. Thirdly, in his Report dated 20 November 2018, Mr H.R Dadgostar stated that the applicant wished to use the results of his assessment “to mitigate the reason for her visa compliance issue” to the Tribunal. In his concluding remarks he stated that he did not recommended that she be involved in any legal proceedings for the next two weeks. In his Report dated 6 December 2018, he stated that she wished to use the results of his assessment “to mitigate the reason for her inability to attend the hearing” at the Tribunal. In his concluding remarks he stated that he did not recommended that she be involved in any legal proceedings for the next two months. There is very little difference between his first and second Reports. As the Tribunal did not have the benefit of speaking to Mr H.R Dadgostar, it was unable to clarify with him why he changed his recommendations in his second Report.

38. Fourthly, the applicant consulted Mr H.R Dadgostar after she was notified on 17 October 2018 of the Tribunal hearing on 28 November 2018. It is evident from Mr H.R Dadgostar’s Reports that she consulted him for the purpose of obtaining evidence to support her application before the Tribunal. Mr H.R Dadgostar’s Reports indicate that he relied on the history she provided him and a psychometric assessment (the Kessler-10) which is a ten item self-report questionnaire. It is not the role of Mr H.R Dadgostar to assess the veracity of the history provided by her. If he was provided with inaccurate information, this may impact on the conclusions he reached.

1. Fifthly, there are a number of inconsistencies between the history provided by the applicant to Mr H.R Dadgostar (as indicated in his two Reports) and her evidence to the Tribunal. For instance, she told Mr H.R Dadgostar that Mr Wu told her not to travel out of Australia and as a consequence of his wrong actions she was devastated knowing that her father was ill and she could not return home, was afraid she may not be able to see her family again, was in extreme despair and guilt because she could not care for or spend time with her family members and see her father for the last time. She gave evidence to the Tribunal that she returned to Taiwan in March 2017 to visit her sick father and was there for 10 days. She gave evidence that she returned to Taiwan again in July 2017 to attend a customary ceremony after her father’s death. She stated that she was there for one night. She did not inform Mr H R Dadgostar of these trips to Taiwan.

2. The applicant told Mr H.R Dadgostar that she has been feeling lonely in Australia, does not have many friends, often locks herself at home, has lost interest to engage in social activities or interactions and feels isolated from the social world. Her activities in Australia are not consistent with this history. Her evidence to the Tribunal is that, since first arriving in Australia on 25 August 2016, she has been working as a pet beautician. She stated that she initially worked as an employee, then obtained an ABN in May 2017 or June 2017 and set up her own pet beautician business. Her evidence is that she has had two boyfriends in Australia.

3. The records of the Department indicate that, after first arriving in Australia on 25 August 2016, she left Australia on 1 March 2017 on a flight to Singapore. She returned to Australia on 27 March 2017 on a flight from Kuala Lumpur. She departed Australia again on 19 July 2017 on a flight to Kuala Lumpur and returned to Australia on 23 July 2017 on a flight from Singapore. The Tribunal put this information to her, pursuant to s.359AA of the Act, and noted that her actions were not consistent with the history she provided Mr H.R Dadgostar and raised concerns in relation to her credibility. Her response did not address the issue raised with her nor did she explain why she was travelling to and from Singapore and Kuala Lumpur if she went to Taiwan to visit her family as claimed. Further, she was absent from Australia for 26 days on her first trip, her evidence is that she spent 10 days visiting family in Taiwan and she offered no explanation for where she spent the rest of her time away from Australia.  

4. In view of the above, the Tribunal does not accept Mr H R Dadgostar’s opinion that the applicant was not fit to attend the Tribunal hearing because of her fragile mental health. The Tribunal had the benefit of speaking to her for several hours with the assistance of an interpreter. The Tribunal is satisfied that she understood the proceedings and was able to participate in the hearing in a meaningful way. 

5. Having considered all the evidence and the oral submissions, the Tribunal finds that the applicant is not a credible witness. The Tribunal does not accept that she instructed Mr Wu to find her farm work in a remote area. The Tribunal does not accept that Mr Wu filled out the application for a Subclass 417 (Working Holiday) (Extension) visa without her instructions and that she only found out about it after the visa was granted. The Tribunal does not accept that Mr Wu threatened her not to do certain things and she complied with his demands because she was scared of him.

6. The Tribunal finds that Mr Wu acted on the applicant’s instructions when he filled out the application for a Subclass 417 (Working Holiday) (Extension) visa and did so on her behalf with her knowledge and consent. In view of the provisions of s.98 of the Act (referred to below), she is taken to have filled in the visa application.  

7. The applicant gave evidence that she worked as a pet beautician in Taiwan for 8 or 9 years. She stated that after coming to Australia on 25 August 2016 she has only worked as a pet beautician in Sydney. She stated that she was initially employed by others but then obtained her own ABN in May or June 2017 and was thereafter self- employed. She stated that she has not undertaken any other work in Australia.

8. In view of the above, the Tribunal finds that the applicant provided incorrect information in her application for a Subclass 417 (Working Holiday) (Extension) visa as particularised in the NOITCC. Specifically, the Tribunal considers that her answers to the following questions and the declaration in the visa application lodged on 27 April 2017 were incorrect:

   “Have you undertaken specified work in regional Australia for a total of 3   months?” where the applicant answered “Yes”.

   “Details of specified work undertaken”, where the applicant answered:

   ABN               16193574642

   Postcode        2800

   Start Date       16 September 2016

   End Date        30 December 2016    

   “Declaration” and to the question “I am applying for a second Working Holiday visa   and have done 3 months specified work on my first Working Holiday visa”, where the                   applicant answered “Yes.” 

9. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

10. 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) of the Act. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2) of the Act.

11. 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) of the Act. 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.

12. 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.

13. The Tribunal notes that the applicant did not respond to the NOICC issued by the delegate when invited to comment on the possible non-compliance and also on matters relevant to the discretion to cancel her visa other than for her former migration agent writing to the Department on 30 April 2018 and requesting an extension of time to respond. The Tribunal notes that the delegate informed him that there were no provisions under the Act to allow for an extension of time to respond but indicated that any information provided to the Department prior to a decision being made would be taken into consideration. No response was provided to the Department and the decision was made on 14 May 2018.   

14. The applicant gave evidence to the Tribunal that her application for a Subclass 417 (Working Holiday) (Extension) visa was not prepared on her instructions and that she was unaware that Mr Wu had made the application on her behalf until after the visa was granted and he sent her the notification letter which she received in about June 2017.For the reasons given above, the Tribunal has not accepted this evidence and has found that Mr Wu acted on her instructions when he filled out the application for a Subclass 417 (Working Holiday) (Extension) visa on her behalf and that, pursuant to s.98 of the Act, she is taken to have filled in the visa application. 

15. The Tribunal has considered the prescribed factors set out in r.2.41 of the Regulations and the matters set out in the PAM Guidelines. The Tribunal finds that the correct information is that the applicant has not undertaken the specified work in regional Australia which is a requirement for the extension of a Working Holiday visa. The Tribunal finds that the decision to grant the Subclass 417 (Working Holiday) (Extension) visa was based on the incorrect information that was provided in the visa application lodged on 27 April 2017.

16. At the time the application for the Subclass 417 (Working Holiday) (Extension) visa was lodged on 27 April 2017, the applicant was the holder of a Subclass 417 (Working Holiday) visa which was due to expire on 28 August 2017. She had not undertaken any specified work in regional Australia at that time. She had been living in Sydney since she first arrived in Australia on 25 August 2016 and had been working as a pet beautician. She was initially working as an employee, obtained an ABN in May or June 2017 and set up her own pet beautician business thereafter. She claims that she instructed Mr Wu, at the end of April 2017, to find her some farm work in regional Australia and that is all she instructed him to do. She claims that she was not aware that he lodged an application for a second Working Holiday visa until after the visa was granted. For the reasons given above, the Tribunal has not accepted that she instructed Mr Wu to find her farm work in a remote area. The Tribunal has found that Mr Wu acted on her instructions when he filled out the application for a Subclass 417 (Working Holiday) (Extension) visa and did so on her behalf with her knowledge and consent.

17. The applicant’s present circumstances are that she is a single woman from Taiwan. She came to Australia on 25 August 2016 on a 12 months Working Holiday visa and has been living here since then. Since shortly after her arrival in Australia she has been working as a pet beautician. She has had her own pet beautician business since May 2017 or June 2017. Her evidence is that she met a man named Araward in October 2017 and they formed a girlfriend/boyfriend relationship in November 2017 or December 2017. She stated that he ended the relationship in February 2018 or March 2018. She stated that he threatened to publish films about her in the media. She stated that he then got a new girlfriend and is now married to her. She initially stated that she does not have a new boyfriend and later stated that she did.

18. The applicant gave evidence that she applied for a Student visa but her application was refused. She stated that she has been studying English in Australia and hopes to be able to continue her studies in Australia and obtain skills here. She stated that she would like to do further studies here as it is a pathway to a substantive visa.

19. The applicant gave evidence that her mother and four sisters live in Taiwan. She stated that her father passed away in 2017. She stated that in Taiwan she lived with her family in the country side but moved to the city for work. She stated that she worked as a pet beautician in Taiwan. She stated that since coming to Australia she has been sending money to her mother to repay family debts. She stated that her sisters “blame” her for not returning to Taiwan when their father passed away.

20. The Tribunal asked the applicant whether there was any reason why she could not return to Taiwan and she responded that Mr Wu told her that she cannot return to Taiwan. When asked why, she responded that she did not know. She stated that he told her that she was not allowed to depart Australia and, if she tried to depart, he would report her to the Department. This is not consistent with her evidence that she departed Australia in July 2017 and returned to Taiwan to participate in a customary ceremony after her father’s death. When asked if there was any other reason why she could not return to Taiwan, she responded that she was studying English, it was a pathway to another course and she wanted to get further qualifications. She stated that she is interested in studying business and cookery in Australia and to obtain skills in fine dining.

21. The Tribunal has considered the applicant’s subsequent behaviour concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act.  Section 105(1)(a) provides that if a non-citizen becomes aware that an answer given or provided in his or her application form was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer. The applicant claims that she was unaware that the application for a Subclass 417 (Working Holiday) (Extension) visa had been made on her behalf. She claims that she first became aware of this when Mr Wu sent her the letter from the Department in relation to the grant of the visa and she spoke to him about it.

22. The applicant’s evidence is that she was aware that it was a requirement for a Subclass 417 (Working Holiday) (Extension) visa that she had undertaken 3 months of specified work in regional Australia and that she did not do so. Her evidence is that, after becoming aware that the visa had been issued to her based on incorrect answers, she did not inform the Department of what had happened, or the incorrectness of the answers provided in her visa application and of the correct answers. The fact that she did not do so tends to indicate that she was complicit in providing the incorrect answers in her visa application. When this was raised as an issue with her, she responded that she told Mr Wu she was going to report it to the Department. She stated that he responded that she could do that but she would be the one who would be taken and deported and they would not be able to locate his information.

23. The fact that the applicant did not inform the Department that incorrect answers had been provided in her visa application to obtain the second Working Holiday visa, after she claims to have found out about it, tends to indicate that she was more concerned about not being deported than by correcting a wrong, even on her own version of events. The Tribunal has not accepted her version of events and is of the view that her behaviour indicates that she had no intention of complying with her obligations under Subdivision C of Division 3 of Part 2 of the Act. 

24. The Tribunal has considered whether there have been any other instances of non-compliance by the applicant. There is no evidence before the Tribunal to indicate that there have been any other instances of non-compliance by the applicant other than those referred to above.

25. The Tribunal has considered the time that has elapsed since the non-compliance. The applicant’s non-compliance with s.101(b) of the Act occurred on 27 April 2017. Her non-compliance with s.105(1)(a) of the Act, continued thereafter.   

26. The Tribunal has considered any breaches of the law since the non-compliance and the seriousness of those breaches. The applicant gave evidence that she has not got into any trouble with the law, been issued with any fines or attended Court in Australia. There is no evidence before the Tribunal to indicate that she has breached the law since the non-compliance.

27. The Tribunal has considered any contribution made by the applicant to the community. When asked whether she had made any contribution to the community, she responded that she did not know. She then stated that she hopes to build a pet home for homeless pets. She stated that because of her current problems she is scared to get in touch with people in the community. The Tribunal does not consider her employment as a pet beautician to be of any significance or a contribution to the community.

28. The Tribunal has considered relevant Departmental Policy Guidelines in PAM 3. Briefly, they are:

    ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140

    ·whether there are mandatory legal consequences to a cancellation decision; for example whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non-refoulement obligations

    ·whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister's personal intervention (e.g.s.46A, s.46B, s.48, 48A etc.)

    ·whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and is liable to be detained under s.189 and removed under s.198

    ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation;  for example:

    if there are children in Australia whose interests could be affected by the   cancellation, or who would themselves be affected by consequential   cancellation, the best interests of the children are to be treated as a primary             consideration

    whether the cancellation would lead to the person's removal in breach of   Australia's non-refoulement obligations - that is, removing a person to a   country where they face persecution, death, torture, cruel, inhuman or   degrading treatment or punishment and

    ·any other relevant matter

29. If the applicant’s visa is cancelled she will become an unlawful non-citizen and may be liable to be detained under s.189 of the Act and removed under s.198 of the Act unless she departs Australia voluntarily. It is unlikely that she would 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 arrangements to depart Australia voluntarily. As there is no reason why she cannot return to Taiwan, there is no prospect of indefinite detention if she does not depart Australia voluntarily.

30. The evidence before the Tribunal does not indicate that there are any persons in Australia whose visas would, or may be, cancelled under s.140 of the Act or any family members including children who would be affected by the cancellation. There is no claim or evidence before the Tribunal to indicate any breach of international obligations as a result of the visa cancellation.

31. The Tribunal has considered other relevant matters. The applicant gave evidence that she had a boyfriend in Australia but he terminated their relationship in February 2018 or March 2018. She initially stated that she does not have another boyfriend and later stated that she does. She did not provide any details about him and he did not attend the hearing. There is no evidence before the Tribunal to indicate that she has formed any business ties through her business as a pet beautician. The Tribunal is not satisfied, on the evidence before it, that she has strong personal or business ties to the Australian community. 

32. The applicant has alleged that Mr Wu prepared her application for the Subclass 417 (Working Holiday) (Extension) visa and lodged it with the Department without her knowledge or instructions to do so. The Tribunal has not accepted this and has found that Mr Wu prepared and lodged her visa application on her instructions. If Mr Wu provided her with immigration assistance in breach of the provisions of the Act, she needs to make a complaint to the Department and OMARA for their consideration as to whether the provisions of the Act have been breached. The Tribunal does not consider the fact that he may not have been a registered migration agent and acted in breach of the provisions of the Act outweighs the other matters considered by the Tribunal as to whether to exercise its discretion.   

1. The Tribunal finds that the applicant’s conduct in providing incorrect answers in relation to an essential criterion for the grant of the Subclass 417 (Working Holiday) (Extension) visa is a significant factor in its consideration. There is no evidence before the Tribunal of any significant countervailing factors to indicate that the visa should not be cancelled.

   CONCLUSION

2. 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

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

   Linda Symons
   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.