Yeh (Migration)

[2019] AATA 1603

Yeh (Migration) [2019] AATA 1603 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chia-Jui Yeh

CASE NUMBER:  1818207

DIBP REFERENCE(S):  BCC2018/67461

MEMBER:John Cipolla

DATE:16 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 16 January 2019 at 4:31pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Chef – provided incorrect information in second Subclass 417 Working Holiday visa application – did not undertake farm work in remote location for three months – deliberate deception to secure second 417 visa – substantial breach of integrity of Australian Immigration system – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 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 457 (Temporary Work (Skilled)) 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 incorrect information to the Department when he applied for a second Subclass 417 Working Holiday visa.  The delegate noted that when the applicant made the application for the second Working Holiday visa he declared that he had worked in a remote location, namely Oberon Farm in accordance with the requirements of his first Working Holiday visa. Departmental records dated 14 November 2017 indicated that the proprietor of Oberon Farm confirmed that the applicant had never worked for them. The Department concluded that the applicant provided incorrect information stating that he had worked at Oberon Farm between 13 October 2014 and 31 January 2015. The delegate considered whether or not the visa should be cancelled and concluded having regards to relevant factors that it should.

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

4. The applicant appeared before the Tribunal on 21 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ngoc Vu the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. 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.

8. 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.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.109 and that the notice issued under s.107 complied with the statutory requirements.

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

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in that the applicant provided incorrect information in his visa application for a second working holiday visa, claiming that he had worked for 3 months at Oberon Farm, a condition he was required to meet as a first time 417 visa holder, when in fact the employer, Oberon Farm confirmed that he had not worked for them as claimed.

11. At the review hearing the applicant confirmed that he had not worked for Oberon Farm as claimed and that he had provided incorrect information to the Department in his second 417 visa application. 

12. Based on the evidence before it, 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?

13. 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).

14. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

15. 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.

    Review Hearing

16. The Tribunal conducted a hearing on 21 December 2018 and the applicant and his partner gave evidence to the Tribunal.

17. At the outset of the review hearing the Tribunal made reference to the issues in review. The Tribunal also explained for the benefit of the applicant the merits review process and the prospective outcomes of the review.

18. The applicant advised that he was born in Taiwan on 6 September 1989. The Tribunal asked the applicant about his international travel history and he advised that he had travelled to Japan, Macau, the Netherlands, Belgium and France. The applicant stated that he was a trained chef and specialised in Western cuisine.

19. The Tribunal asked the applicant what year he travelled to Australia for the first time and he advised in September 2014 as the holder of a Subclass 417 working holiday visa. The applicant stated that the visa was valid for one year until September 2015. The applicant advised that he made an application for a second working holiday visa on 2 April 2015 and that he engaged an agent to assist him in the preparation of the application.

20. The Tribunal made reference to the fact that in order to be granted a second Subclass 417 visa an applicant needed to establish that they had undertaken 3 months remote farm work in Australia during the period they held their first 417 visa. The Tribunal asked the applicant whether he undertook this work whilst he held his first Subclass 417 visa and the applicant advised that he did not. The Tribunal asked the applicant whether he knew at the time that he signed the application for his second Subclass 417 visa that it contained incorrect information and the applicant advised that he did.

21. The Tribunal asked the applicant when he made an application for a Subclass 457 visa. The applicant stated that he applied for and was issued with his second Subclass 417 visa and approximately 6 months later made an application for a Subclass 457 visa which was granted to him in either October or November 2016 on the basis that he had been successfully nominated to work as a Chef for an Australian business. The applicant advised that the Subclass 457 visa was granted for a period of 4 years and was due to expire in either October or November 2020.

22. The Tribunal asked the applicant for the details of the sponsoring business and he advised that the details were in his mobile phone which was not in his possession and the applicant stated that the sponsoring business owned a number of restaurants in a range of locations around Sydney and that he worked as a Chef for this business and that he also worked for this business whilst holding a Subclass 417 visa. The applicant advised that the business had a restaurant in Bondi Beach called North Bondi fish located on the northern end of the beach, a second restaurant at the Opera Bar underneath the Sydney Opera House and a third restaurant at the Edinburgh Hotel at Museum Station.

23. The Tribunal asked the applicant whether he was working now and he advised that he was and that after the cancellation of his visa the business that sponsored him for the Subclass 457 visa sacked him because of the cancellation.  The applicant advised that he was currently working for a restaurant opposite the Queen Victoria business in Sydney called The Grounds.

24. The Tribunal asked the applicant about his partner’s immigration status in Australia. The applicant advised that his partner was on a Subclass 457 visa and that he worked for the same company that sponsored him for a Subclass 457 visa and that he was employed as a Chef.

25. The Tribunal asked the applicant where he was currently living and he advised at Haymarket in rental accommodation.  The applicant advised that he and his partner had lived in these rental premises for a number of years and that their landlord was happy to enter into a further lease agreement once the immigration issues of the applicant had been sorted out.

26. The Tribunal noted that the applicant had only ever held temporary visas in Australia and asked what problems he would face returning to his home country of Taiwan. The applicant stated that his country was not so friendly towards homosexual people and that he would miss his partner in Australia who he had been in a long-term relationship with. The Tribunal asked the applicant how long his partners 457 visa had to run and the applicant advised it was valid until about March or April 2019 at which time the applicant’s partner could make an application for permanent residence and that it was his intention to do so.

27. The Tribunal asked the applicant whether Taiwan had a reputation for persecuting homosexuals and the applicant stated that the attitude towards homosexuality in Asian countries was not so friendly. The Tribunal asked the applicant whether he lived openly in Taiwan as a homosexual and he advised that he did not. The Tribunal asked the applicant why not. The applicant stated that if you exhibited homosexual affection in public that you would face discrimination. The applicant stated that you also would face discrimination within your family unit. The applicant stated that if he had to return to Taiwan he would look at going to other countries that were more tolerant towards homosexuals and that he had been told by his agent in Australia that if his visa remained cancelled he would be precluded from re-applying for further visas to Australia for a period of 3 years.

28. The Tribunal asked the applicant whether he had a good relationship with his family in Taiwan. He advised that his relationship with his father was okay, that he had a conventional relationship with his mother. He advised that there were 3 children in his family and that he was the oldest and that his parents had split up.

29. The Tribunal asked the applicant whilst on his Subclass 457 visa, up until the point of its cancellation, whether, he was complying with visa conditions and the applicant advised that he was. The Tribunal asked the applicant whether he was a valued employee of his sponsoring business and he advised that he was. The Tribunal asked the applicant whether his former sponsoring employer would employ him again if his visa cancellation was set aside and he advised that he believed that they would.

30. The Tribunal took evidence from the applicant’s partner Mr Ngoc Vu.  The witness advised that he came to Australia in February 2016 from Vietnam. The witness advised that he was a qualified chef and that he had 8 years of international hotel experience in Vietnam prior to coming to Australia. The witness stated that he currently held a Subclass 457 visa which was valid until February 2020 that he worked for a business called Solitel which ran a number of restaurants in Sydney including the Opera Bar. The witness stated that he met the applicant whilst they were both working as chefs at the Opera Bar in Sydney. He advised that the applicant studied to become a Chef in Taiwan and had international experience as a Chef. The witness described the applicant as hard-working and that he was considered to be the best Chef in the kitchen at the Opera Bar and that if his visa cancellation was set aside he would be re-employed by the business.

31. The witness stated that he planned to remain in Australia if he was able to obtain permanent residence. The Tribunal asked the witness what problems existed for homosexuals in Vietnam. The witness stated that people in Vietnam did not know that he was gay except for his mother. The witness stated that he was not sure about the law in Taiwan but he did not think it supported same-sex relationships and same-sex marriage. The witness stated that he had been in a relationship with the applicant for a period of 2 years and it was a stable relationship and that he was committed to it. The witness stated that he believed that the applicant had complied with the conditions attached to his Subclass 457 visa prior to that visa being cancelled. The hearing concluded.

32. The Tribunal received a post hearing submission from the applicant which it has duly considered. This was in the form of 2 references one from the Head Chef, Jesse Orleans, of The Grounds, the applicant’s current employer, dated 6 January 2019.  In this reference Mr Orleans notes that the applicant had been employed since July 2018 as a Chef and that he was a very important member of the team, was hard-working, committed to tasks and had a great attitude when it came to the challenges of a busy restaurant. The other was from Daniel Totaro the Head Chef of the Solatel hospitality group, the applicants 457 employer, prior to the cancellation of his visa.  Mr Totaro stated that the applicant was an important staff member, that he was influential, intelligent and highly motivated. He stated he was capable of effectively managing a small team. He stated it was a pleasure to have the applicant working in the team and that he brought very high skills to the position. Mr Totaro stated he would have no hesitation in re-employing the applicant in the future.

    FINDINGS AND REASONS

33. The Tribunal is satisfied that the delegate has reached the necessary state of mind to engage s.107 and that the notice issued to the applicant under s.107 of the Migration Act complied with the statutory requirements.

    Non Compliance

34. The Tribunal must first decide whether there was non-compliance by the applicant in the ways described in the s.107 notice. The non-compliance identified in that notice was non-compliance with s.101 of the Migration Act. This requires that a non-citizen must fill in or complete his or her application form for a visa in such a way that:

    (a)All questions on it are answered; and

    (b)No incorrect answers are given or provided. 

35. The applicant during the cancellation process was given an opportunity to comment on the grounds of non-compliance as outlined in the s.107 notice. The applicant at the review hearing conceded that there was non-compliance with s.101 of the Migration Act.

36. The Tribunal is therefore satisfied that the applicant failed to comply with s.101 of the Migration Act in the way that has been described in the s.107 Notice.

    Consideration of Discretion

37. As the Tribunal has decided there was non-compliance in the way described in the notice given to the applicant under s.107 of the Migration Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1).

    Matters Raised by the Applicant in Response to the s.107 Notice and before the Tribunal are discussed below in the Context of the Prescribed Circumstances and other Considerations

38. The prescribed circumstances for the purposes of s.109(1)(c) of the Act are set out in r.2.41 of the Migration Regulations. The Tribunal’s consideration of these matters is as follows:

    The Correct Information

39. The correct information is that the applicant at the time of applying for his second Subclass 417 visa had not undertaken specified work in regional Australia for a total of 3 months as required. The applicant declared in his second 417 visa application that “ I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa.” In the application the applicant specified that the work that he had undertaken to meet this criterion was work at Oberon Farm, located at postcode 2787, from 12 October 2014 through to 31 January 2015.

40. Enquiries undertaken by the Departmental delegate indicate that the applicant never undertook this work.  The applicant in response to the NOICC advised that he was assisted by friends in completing the second 417 application and concedes that as a result of this he did provide false information.  He further stated that his capacity to undertake regional work was compromised by him suffering with seasonal effective disorder especially when exposed to sunlight.

41. The Tribunal gives this consideration no weight in favour of the applicant.

    The Content of the Genuine Document (if any)

42. This sub-regulation is not relevant to the decision before the Tribunal.

    The likely Effect on the Decision to Grant a Visa or Immigration Clear the Visa Holder of the Correct Information or the Genuine Document

43. The evidence before the Tribunal indicates that had the applicant provided the correct information, namely that he had not engaged in the requisite work in rural New South Wales he would not have been issued with the second 417 visa.

44. The Tribunal gives this consideration no weight in favour of the applicant.

    The Circumstances in which Non-compliance Occurred

45. The applicant claims that he was reliant on friends to assist him in the completion of the visa application.  A visa applicant is responsible for the information that they provide to the Department in a visa application.  The forms are clear and prescriptive and there is information on the Departmental website to assist an applicant in completing a visa application. Further to this an applicant signs the visa application attesting to the fact that all of the information provided is true and correct and that any information that becomes incorrect during the processing of the visa needs to be corrected. The Tribunal gives this consideration no weight in favour of the applicant.

    The Present Circumstances of the Visa Holder

1. The applicant has been working for an extended period for Australian businesses as a Chef and the evidence before the Tribunal indicates that the applicant has been a highly valued employee of the business that sponsored him for his 457 visa up until the time his visa was cancelled, at which time his employment was terminated.  The applicant has been working as a chef for another business, The Grounds, since the cancellation of his 457 visa as the holder of a Bridging visa with work rights.  Once again the applicant is getting glowing reviews from his current employer.  The evidence before the Tribunal indicates that the applicant has extensive experience at an international level as a Chef and that his skill set and experience has been highly valued by the kitchens that he has worked in during the time that he has been in Australia. Indeed as has been noted above the references provided by his 457 sponsoring employer indicate that he was a capable manager of a small team and that they would not hesitate in re-employing the applicant or recommending him to other companies. His current employer says that he is hard-working and committed with a great attitude to work in a busy restaurant.  Had the applicant complied with the requirements of his first subclass 417 visa and undertaken work in regional Australia for 3 months, and in due course applied for a Subclass 457 visa with an unblemished visa history, that his skill set and experience, which has been clearly valued by Australian companies, may have led the applicant on a pathway to permanent residence.

2. The evidence before the Tribunal indicates that the applicant has been in a long term same sex relationship with a Vietnamese national who is in Australia as the holder of a Subclass 457 visa. The applicant’s partner also works as a Chef and has international hotel experience. Evidence provided at review indicates that the applicant’s partner hopes to pursue an application in the future for permanent residence and had hoped that the applicant would be included in that application.

3. The Tribunal gives some weight to these considerations in not cancelling the applicant’s visa.

   The Subsequent Behaviour of the Visa Holder Concerning their Obligations under Subdivision of Division 3 or Part 2 of the Act

4. The evidence before the Tribunal indicates that the applicant co-operated with the Department when he was issued with a NOICC and that he was honest and forthcoming in his responses to the Department.

   Any Other Instances of Non-Compliance by the Visa Holder known to the Minister

5. Apart from the non-compliance described in the decision there is no evidence of other instances of non-compliance by the visa holder.

   The Time that has Elapsed since the Non-Compliance

6. Almost four years has elapsed since non-compliance with Section 101 of the Migration Act.

   Any Breaches of the Law since the Non-Compliance and the Seriousness of those Breaches

7. The evidence before the Tribunal indicates that the applicant has breached Section 101 of the Migration Act by failing to provide correct information to the Department. There is no evidence of a breach of other migration laws.

   Any Contribution Made by the Holder to the Community

8. There is no evidence from the applicant, apart from the contribution he has made in the Australian labour market that he has made any contribution to the community.

   CONCLUSIONS

9. In the case before it the Tribunal is satisfied to the requisite degree that the applicant has committed a substantial breach of s.101 of the Migration Act, in a deliberate deception that was calculated to secure him a second 417 visa, namely the applicant’s provision of incorrect information pertaining to a criterion that was critical to satisfy for the grant of a second Subclass 417 visa. The Tribunal finds that this represents a substantial breach of the integrity of the Australian Immigration system.

10. Having regard to the facts before it, 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 prescribed circumstances, the Tribunal is satisfied that the applicant’s Subclass 457 (Temporary Work (Skilled)) visa should be cancelled.

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    John Cipolla
    Senior 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.