2105991 (Migration)

[2021] AATA 4092

2105991 (Migration) [2021] AATA 4092 (24 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105991

MEMBER:Nora Lamont

DATE:24 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 24 August 2021 at 10:34am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information in second visa application – three months of specified work – verification checks with employer – unable to find work due to COVID-19 restrictions and paid someone to provide false information – discretion to cancel visa – no approach to department or response to department’s notice – decision under review affirmed

LEGISLATION          
Migration Act 1958 (Cth), ss 101(1), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASE
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa for the following reasons:

   ·In his 22 July 2020 application the applicant claimed that he worked in construction at [Company 1] in NSW and met the requirements of his working holiday visa.

   ·On 28 August 2020, the Department conducted verification checks by contacting [Company 1] – ABN [Number 1] regarding the visa holder’s claims of completing three months of specified work. The company representative confirmed that the visa holder did not complete work with the company and were not recorded in their systems.

   ·The applicant was given the opportunity to respond to a Notice of Intent to Cancel his visa, but he failed to respond.

   ·As such, it appears the visa holder did not comply with his obligations under section 101(b) of the Act, because the visa holder has provided incorrect answers in relation to his second Working Holiday visa application.

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 13 August 2021 to give evidence and present arguments. The applicant was offered a video hearing but declined and the hearing was heard over the telephone given current COVID 19 and the applicant’s residence in WA.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

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

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

9. 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.

10. On 26 October 2019, the visa holder lodged an application for a first Working Holiday visa. The visa was granted on 26 October 2019, and the visa holder arrived in Australia [in] November 2019. On 22 July 2020, the visa holder lodged an online application for a second Working Holiday.

11. On page 1 of the online application form, under the heading “Application Type”, the visa holder answered “Yes” to the following question:

    Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)? On page 5-6 of the online application form, under the heading “Details of specified work undertaken”, the visa holder answered that he worked for [Company 1].

12. On page 9 of the online application form, under the heading “Working holiday declarations”, the visa holder answered “Yes” to the following questions:

    Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa.

    And;

    All claimed specified work has been remunerated in accordance with relevant Australian legislation and Awards or voluntary bushfire recovery work.

13. Based on the above answers, the visa holder was granted a second Working Holiday visa on 22 July 2020.

14. On 28 August 2020, the Department conducted verification checks by contacting [Company 1] – ABN [Number 1] regarding the visa holder’s claims of completing three months of specified work. The company representative confirmed that the visa holder did not complete work with the company and were not recorded in their systems.

15. The Tribunal considers that the applicant did not comply with his obligations under section 101(b) of the Act, because the applicant provided incorrect answers in relation to his second Working Holiday visa application.

    Background

16. At the hearing the applicant was very open and honest with the Tribunal. He told the Tribunal that he went to Queensland to get work on a farm but COVID hit and there was no work. He said a friend told him about a person who could put in his application for a second-year visa with false information and he was panicked about not having work and getting his second visa. He paid $1500 AUD to a person called [Mr A] and the application process was done via email with the email address being [email address]

17. The applicant then went to Perth where he has been working (currently he is working in [City 1]). He has completed four months of work. The Tribunal asked the applicant if he knew [Ms B] to which he stated no. The Tribunal told him that his visa application was lodged through her IMMI account along with six other applicants all who claimed to have worked for [Company 1]. The applicant said he had never heard of her.

18. The Tribunal asked the applicant why he did not respond to the Notice of Intention to Consider Cancellation (NOICC) and the applicant responded that he just panicked and that he knew he had made a big mistake.

19. The applicant did not deny that he provided incorrect information on his application and apologised for doing this. He pleaded with the Tribunal to be allowed to stay in Australia as he loves the country and is extremely remorseful for what has occurred. The applicant is currently working in [City 1] and has been able to be financially support himself.

20. The applicant said he became involved in [a Sport 1] club in Perth and has a room he rents with friends when he isn’t away working in [City 1]. The applicant said he is just a normal guy who screwed up in a sense of panic. His parents live in [Country 1] and he does not know what he will do if he is to return to Ireland. The applicant was hopeful of getting permanent residency and wants to remain in Australia.

    Should the visa be cancelled?

21. 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).

22. 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.

23. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

24. The Tribunal notes that the applicant failed to respond to the NOICC issued by the delegate when invited to comment on the possible non-compliance. The applicant said that he panicked and did not know what to do so he didn’t respond to the notice.

25. 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 provided in his visa application.

26. The Tribunal has considered relevant Departmental Policy Guidelines in PAM 3 and made the following findings:

    ·There would not be any consequential cancellations under s.140 of the Act.

    ·There are no children whose interests would be affected by the cancellation.

    ·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations in this case there is no evidence of this before the Tribunal.

    ·There is a possibility that the cancellation would lead to the applicant’s removal but would not be in breach of Australia’s non-refoulment or family unity obligations.

    ·The Tribunal has given weight to the fact that the applicant has expressed remorse for his decision. The Tribunal is aware that the applicant will not be able to work once his visa is cancelled and therefore, he may find he is financially unstable.

27. The Tribunal asked the applicant if he had been involved in the community. He stated he played [Sport 1] in Perth. The Tribunal does not consider his playing [sport] to be a significant contribution to the community.

28. The Tribunal has considered the time that has elapsed since the non-compliance. The Tribunal is aware that during the initial time of non-compliance in July 2020 the country was in the first wave of COVID 19. The Tribunal has considered this as part of its decision. Even given that the applicant could not find work, he had the option of contacting the Department and seeking assistance. He chose not to do that. Later when he received his NOICC he still did not seek assistance from the Department or respond to the Department. Whilst the Tribunal understands that finding work during the first outbreak of COVID 19 was difficult the applicant chose to put down incorrect information in his application.

29. There is no evidence before the Tribunal to indicate that he has breached the law since the non-compliance.

30. The applicant told the Tribunal that he would find it hard to return to Ireland as there are limited opportunities there. He had really hoped to stay in Australia. His parents live and work in [Country 1] so he would not have his parents in Ireland upon return. The Tribunal has considered this. However, the applicant has been able to come to Australia and live when he did not know anyone and has been able to find work and friends. There is no reason before the Tribunal indicating that he would have issues upon return to Ireland.

31. The applicant paid someone that he claims he did not know to put in his application with false information in order to gain his second-year visa. Ultimately the applicant himself is responsible for the information provided to the Department.

32. 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 other outstanding factors to indicate that the visa should not be cancelled.

33. 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

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

    Nora Lamont
    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.