2108045 (Migration)

[2021] AATA 4977

2108045 (Migration) [2021] AATA 4977 (23 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2108045

MEMBER:Rosa Gagliardi

DATE:23 December 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 23 December 2021 at 3:16pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information in extension application – 3 months of specified work in regional area while holding first visa – verification checks showed claimed work not undertaken – discretion to cancel visa – application submitted by third party with applicant’s complicity – COVID-19 restrictions limited work opportunities – no approach to department – mental health – severe psychological trauma – exposure to extreme violence and abduction by paramilitary group in home country – credible witness and plausible evidence – supportive relationship and network, and counselling – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(5)


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 (Extension)) visa under s. 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had contravened s.101(b) of the Act which requires that no incorrect answers are given or provided – in this case in respect of a Working Holiday visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 November 2021 to give evidence and present arguments.  

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

   Did the notice comply with the requirements in s.107?

7. 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?

8. 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 section 101(b) of the Act.

9. The applicant applied for her Working Holiday (Extension) visa on 10 August 2020 using the Department’s online lodgement facility, declaring:

   -    She had undertaken 3 months of specified work as the holder of a first Working Holiday visa.

10. She also provided the details of the specified work she had worked for the employer: [Employer], with [ABN].  She claimed she had undertaken the specified work in South Perth, a regional area of Western Australia, with postcode 6151.  She described the industry she worked in directly as [Industry] undertaking duties in [Duties], from 2 March 2020 to 5 July 2020, for a period of 90 days. 

11. She was also asked in her application whether she was applying her for second Working Holiday visa and had completed 3 months of specified work as the holder of a first working holiday visa, and the applicant again declared that she had.

12. It is to be noted that section 100 of the Act provides that 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.

13. The above information was submitted to the Department as evidence that the applicant met the relevant criteria for her additional Working Holiday visa as set out under Regulation 417.211(5):

    Regulation 417.211
    (5) If the applicant has held only one Subclass 417 visa in Australia, the Minister is satisfied that:
    (a) the applicant has carried out a period or periods of specified Subclass 417 work as the holder of the visa; and
    (b) the total period of the work carried out is at least 3 months; and
    (c) the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

14. Based on the information provided by the applicant above, the applicant was granted a Working Holiday (Extension) visa on 10 August 2020. 

15. The Department then initiated employment verification checks with [Employer], the business registered under [ABN], to verify the visa holder’s employment claims.  On 3 September 2020, [Employer] contacted the Department and advised that the applicant had never worked at the business.

16. The Tribunal finds that the information provided in the applicant’s application for her second Working Holiday visa, which details she had worked at [Employer], in specified work as required by the relevant instrument, from 2 March 2020 to 5 July 2020, for a period of 90 days, is incorrect information as defined by section 101(b) of the Act.

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

    Should the visa be cancelled?

18. 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).

19. 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 reg 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.

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

    The correct information

21. At hearing the applicant did not resile from having provided incorrect information.  In hindsight she saw the enormity of what she had done by relying on a third party to submit an application on her behalf containing factually untrue declarations. 

22. On the basis of the evidence before it, the Tribunal finds that the correct information is that the applicant had never worked for [Employer] from 2 March 2020 to

    
    

    5 July 2020, for a period of 90 days in [Industry].  The correct information is that the applicant had not worked as required by cl.417.211(5), which would have led to the Department refusing the applicant’s second Working Holiday visa.

23. The Tribunal places weight on the applicant’s complicity in providing the incorrect information to remain in Australia when other options had narrowed. 

    The content of the genuine document (if any)

24. This matter is not applicable as the issue is not about the content of any genuine (or otherwise) document.

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

25. The decision to grant the second Working Holiday visa was based partly, at least, on the incorrect information provided by the applicant concerning claimed work with [Employer] from 2 March 2020 to 5 July 2020, for a period of 90 days.  This led to the Department finding that the applicant met the requirements of cl.417.211(5).  The applicant was required to provide correct information about her past work experience while holding her first Working Holiday visa as set out in the relevant instrument at the time of application.  This reliance by the Department on the applicant’s provision of the incorrect information, led to her being granted a visa for which she did not meet the regulatory requirements.  The Tribunal places considerable weight on this adverse matter.

    The circumstances in which the non-compliance occurred

26. In her written statement to the Tribunal the applicant has argued that she had every intention of completing regional work, but that the Covid-19 pandemic prevented her from obtaining specified work.  She claims she had emailed numerous farms and called dozens but had no luck in securing a job. The responses she received were that due to Covid-19 they were not taking anyone on anywhere to try and stop the virus’s spread. 

27. The applicant explained that she panicked as many she knew in Ireland had become very ill with the virus and her uncle had consequently passed away. If she had been aware of the existence of a Covid visa she, in all likelihood, would have applied for it.  The applicant wrote that someone informed her about what people in her situation were doing.  She knew it was wrong and expressed serious regret. 

28. The Tribunal understands that Covid-19 would have caused fear and confusion among persons in the applicant’s situation.  Nonetheless, it was always open to the applicant to liaise directly with the Department to advise of her circumstances, that she was unable to attain specified work as was required under Regulation 417.211(5).

29. The Tribunal does not consider that the matter of Covid-19, of itself, is a strong factor in deciding against cancellation of the visa.

30. Having had regard to the applicant’s personal circumstances, however, the Tribunal is overwhelmingly convinced that the applicant would find it extremely difficult to return to Ireland, in a situation in which a bar might apply to her lodging any further applications in Australia.  The Tribunal found that the applicant’s situation was particularly compelling in that the applicant has experienced severe psychological trauma due to the civil situation in Ireland, and the related historical events which exposed the applicant to extreme violence.  The Tribunal considers that in the interests of the applicant’s safety it will not refer to specific details about her past in Ireland and will instead focus on general matters.

31. As the applicant has written in her statement to the Tribunal:

    Life itself has not always been easy for me in my home country which is a huge reason I came to Australia.  From a young age I was involved in a life of violence and hardship….At the age of [Age] I was abducted by [a Paramilitary group] for 48 hours; this had a massive effect on me growing up and I have started to see a councillor (sic) at [Counselling service provider] which has helped me a lot and I am so grateful.  Going through things like this my whole life I was constantly scared and fearing for my own life for something that had nothing to do with me.  I knew that this country was not a safe place for myself given my family’s involvement in the troubles.  I left home at a young age in fear to start a new life for myself, one that did not have any ties to what I can only describe as a horrific environment.  Being in Australia this short while has helped me massively mentally, being able to walk out of your home and not feel in fear every day.  I finally feel like I can have a normal life and be the best person I can be…The thought of going back to such an environment in (sic) chilling and fills me with fear. 

32. From the hearing it was evident that the applicant was a credible witness and that she had endured living in a violent environment and had herself experienced significant trauma.  The Tribunal also accepts that the applicant’s judgement may have been impaired by her overwhelming fear of returning to Ireland for the reasons she expressed at hearing and in her statement.  This in turn meant she used desperate measures to avoid departure.

33. Having accepted the applicant as credible and her account of events in Ireland as plausible, the Tribunal finds that the applicant found herself in extenuating circumstances and that these outweigh the gravity of her having provided incorrect information to the Department.

    The present circumstances of the visa holder

34. The applicant has met a partner in Australia who has been supportive of the applicant’s struggles with her past.  She has also started studying online with [Institution] to finish her [degree] in the hope of embarking on a [career] to help people. 

35. The Tribunal accepts the applicant feels safe in Australia and is seeing a counsellor to assist her deal with the events she has undergone in her home country.

36. The Tribunal places considerable weight on the applicant’s current circumstances which have afforded her stability and relief mentally and emotionally.

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

37. The applicant confirmed at hearing that she had not attempted to remedy the incorrect information provided to obtain a second Working Holiday visa by contacting the Department – a matter that would have been in the applicant’s favour. 

    Any other instances on non-compliance by the visa holder known to the Minister

38. There are no other known instances of non-compliance and the Tribunal places weight in the applicant’s favour in relation to this matter.

    The time that has elapsed since the non-compliance

39. The incorrect information was provided on 10 August 2020 upon application of the second Working Holiday visa, granted on the same day.  The Tribunal does not consider a great deal of time has elapsed since the non-compliance however, the Tribunal acknowledges that the applicant is now in a supportive relationship and has a network of support people to assist her.  As such, the time that has elapsed is somewhat irrelevant in the Tribunal’s considerations given the applicant has spent that time dealing with her difficulties.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

40. The Tribunal is not aware of any breaches by the applicant of the law since the non-compliance.  At the time the Department made its decision, none were highlighted, and the Tribunal is prepared to accept that this is also the case at the time of review, as advised by the applicant.  The Tribunal also affords weight in this matter in the applicant’s favour. 

    Any contribution made by the holder to the community

41. The applicant has provided a raft of support letters from within the community attesting to the integrity of the applicant as well as her work ethic.  The Tribunal places some weight on these statements but does not consider that this support is a reason for reinstating the visa.  The fact the applicant has worked as a [Occupation] means she has been remunerated.  The Tribunal accepts that the applicant may have been involved in charity events in Australia but finds there is little in her activities that would compel the Tribunal to consider that the visa ought not be cancelled on the basis of her charity works.

    Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under section 140 of the Act

42. The applicant has not argued that this is the case.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

43. The applicant has not applied for a Protection visa but at hearing stated that had she been aware of the visa class she might have done so given her circumstances.  In terms of breaching Australia’s relevant international agreements, the Tribunal is not convinced, that if the applicant is removed from Australia it would represent a breach of international agreements as it is always open to her to live somewhere else in the United Kingdom or in another English-speaking country.

    Conclusion

44. 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, on the evidence, the visa should not be cancelled.

    DECISION

45. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Rosa Gagliardi
    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.