2116967 (Migration)

[2022] AATA 2608

2116967 (Migration) [2022] AATA 2608 (26 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2116967

MEMBER:Margie Bourke

DATE:26 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 26 May 2022 at 3:11pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – applicant had provided incorrect answers in visa application – there was non-compliance in the way described in the notice –applicant did not undertake specified work in regional Australia – had not undertaken six months specified work in regional Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2, cl 417.211

CASES
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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information in the application for the visa, and did not comply with s.101(b) of the Act. 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 Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the applicant, and the nature of the review. The review did not involve a large amount of paperwork to be put to the applicant by the Tribunal during the course of the hearing. The availability of in-person hearings remained restricted due to the ongoing pandemic. The Tribunal was of the view that the conduct of the hearing by video would allow the applicant the opportunity to give evidence and present arguments, and will allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The Tribunal considered that unnecessary delay should be avoided. For all these reasons, the Tribunal decided that this was an appropriate matter for the hearing to be conducted by way of video.

4. The applicant appeared before the Tribunal on 25 May 2022 by video to give evidence and present arguments.  

5. The applicant had previously been represented in relation to the review, but the representative did not attend the hearing. The applicant had advised the Tribunal prior to the hearing that the representative was not attending the hearing. The applicant advised the Tribunal in the hearing she wished to proceed and was comfortable to proceed without a representative in the 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.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?

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(b) of the Act in the following respects: in the application for the visa, the applicant had recorded answers and provided details that she had undertaken specified work in a regional area for the required period of at least six months from 9 March 2020 to 30 August 2020 in the field of construction for [an employment agency] at [a town] in Western Australia. The [employment agency] had subsequently advised the Department that the applicant had never worked for the business.

11. In the written submissions and information provided prior to the hearing, and in her oral evidence, at the hearing, the applicant stated that the information provided in the application and particularised in the s.107 notice was incorrect.

12. The Tribunal is satisfied that the applicant had not worked for [the employment agency] from 9 March 2020 to 30 August 2020, and had not undertaken specified work in a regional area for the required period of at least six months as recorded in her application for the visa. The Tribunal is satisfied that the applicant provided incorrect information with her application, and therefore did not comply with s.101(b) of the Act.

13. 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?

14. 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).

15. 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.

16. 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.

17. The correct information: – the correct information is that the applicant did not undertake any specified work in a regional area as the holder of her second Working Holiday visa. I give this weight in favour of cancellation of the visa.

18. The content of the genuine document (if any): – there is no genuine or non-genuine document relevant to the cancellation of the visa, and this consideration does not apply. I give this consideration no weight either in favour of cancellation or favour against cancellation of the visa.

19. Whether the decision to grant the visa was based wholly or partly on the incorrect information: – it is a criteria of  cl.417.211 for the applicant for the visa to have carried out a period or periods of specified work in a regional area, for a period of at least six months, while the applicant was either the holder of a second Subclass 417 visa or the holder of a bridging visa in effect on the basis of an application for the second subclass 417 visa, and the work was carried out on or after 1 July 2019 and the applicant had been remunerated for that work in accordance with Australian legislation and awards. The correct information is that the applicant did not meet this criteria because she had not carried out specified work in a regional area for a period of at least six months.  Therefore, the decision to grant the visa was based on the incorrect information that the applicant had carried out specified work in a regional area for a period of at least six months. I am satisfied that the decision to grant the visa was based wholly or partly on the incorrect information provided by the applicant. I give this weight in favour of cancellation of the visa.

20. The circumstances in which the non-compliance occurred: – the applicant has provided written and oral evidence in relation to the circumstances in which the non-compliance occurred. I accept that the applicant commenced her second Working Holiday Subclass 417 visa in January 2020, and that the covid-19 pandemic impacted Australia from March 2020. I accept the applicant’s evidence that she was residing in a state that went into lockdown from March 2020 until May 2020. I accept that interstate borders remained closed after the lockdown ceased in May 2020. I accept the applicant’s evidence that in her previous Working Holiday visa she had completed her three months of regional work over a period of six months. I accept that when the lockdown ceased in May 2020 the applicant had eight months remaining of her second Working Holiday visa, and had yet to undertake any of her required regional work if she wished to apply for a third Working Holiday visa.

21. I am satisfied based on the applicant’s written and oral evidence that she was concerned about returning to the United Kingdom because of the number of covid-19 cases being recorded there daily, and the risk of contracting covid-19 during international travel or upon her return home. I accept that the applicant felt safer remaining in Australia.

22. I am satisfied that the applicant had accommodation and employment in Sydney, and was concerned that she would have difficulty obtaining employment in the United Kingdom. The applicant stated she was concerned without employment she might run out of money. The applicant stated that her parents had sold their home, and have since purchased another property but at the time of application for the visa her parents were not homeowners. In the written submissions, the applicant advised that she would not be able to reside with her parents at their temporary accommodation. There is no statement or evidence from the applicant’s parents that they would not allow or could not have the applicant reside with them if she had returned to the United Kingdom in 2020.  I accept that the applicant had not made definitive arrangements for her accommodation in 2020 at the time of application for the visa if she had returned to the United Kingdom. The applicant stated she had employment and accommodation in Sydney and did not want to risk losing the security of either her accommodation or her employment. I accept the applicant’s evidence that she did not wish to lose the security of her employment and accommodation in Sydney at the time she provided the incorrect information to the Department.

23. The written and oral evidence of the applicant is that her fear of contracting the virus, and losing the stability of her home and employment impacted her psychological health. There is no psychological or medical report before the Tribunal.  I accept the applicant was worried and did not wish to leave and return to the United Kingdom at the time of the application for the visa.

24. The applicant told the Tribunal that she did not make any enquiries in relation to possible regional work. She stated she did not make any enquiries of farms for possible farm work. The applicant stated she did not contact or make enquiries in relation to any options or possibilities for work in the regional area of her state to attempt to complete the required specified work in a regional area prior to applying for third Working Holiday Subclass 417 visa. The applicant stated she did not contact the Department for advice as to options if she had been unable to complete her regional work.

25. I have considered the applicant’s evidence in relation to her concern about returning to the United Kingdom at the time of the pandemic outbreak in Australia, and the time of application for the visa. I accept that the applicant was worried about her health and her future, and the loss of her employment and security. While I have considered her personal concerns in relation to her circumstances at the time of non-compliance, I have also considered her evidence that at the time of the non-compliance she had not made any enquiries or attempts to obtain the specified work in a regional area, and had not made any attempt to obtain any advice in relation to her situation. I am satisfied based on her evidence that the applicant continued to work in her employment in Sydney and made no attempt to undertake the requirements for specified work in a regional area prior to making the application for the visa. After considering all the circumstances in which the non-compliance occurred, I give this consideration weight in favour of cancellation of the visa.

26. The present circumstances of the applicant: – I am satisfied that the applicant is currently living in an apartment in [Sydney] and is working for [Company 1] as a personal assistant. I accept the applicant has had this position for nearly 12 months and has been offered a permanent position. I satisfied that two months after the applicant was granted the third Working Holiday visa on 7 November 2020, the applicant moved to [a town] and worked there in the hospitality industry for five months. After the applicant returned to Sydney in June 2021 she moved to a new apartment and obtained her current position in [Company 1].

27. I am satisfied that the applicant is in contact with her parents who live in England, who own their own home and are both employed. I accept the applicant also has an older sibling, a brother, who resides in the United Kingdom.

28. I am satisfied that the applicant has a network of friends in Sydney, some of whom are international travellers. I accept the applicant attends a gym, meets people for nature walks and sunrise groups, and has initiated an online [community]. I give the present circumstances of the applicant weight in favour against cancellation of the visa.

29. Subsequent behaviour of the applicant concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act: – I am satisfied that after receiving the s.107 Notice from the Department the applicant acknowledged she had provided incorrect information with the application for the visa. I give this weight in favour against cancellation of the visa.

30. Other instances of non-compliance: – there is no evidence before the Tribunal of other instances of non-compliance by the applicant. I give this weight in favour against cancellation of the visa.

31. The time that has elapsed since the non-compliance: – the non-compliance occurred at the time of application, namely 7 November 2020, approximately 18 months previously. I accept the applicant has established a community of friends and has been in three positions of employment since that time. I give this weight in favour against cancellation of the visa.

32. Any breaches of the law: – there is no evidence before the Tribunal that the applicant has committed any breaches of the law. I give this weight in favour against cancellation of the visa.

33. Any contribution by the applicant to the community: – I am satisfied that the applicant has been employed, in administrative and hospitality roles whilst in Australia while the holder of  the third working holiday visa. I am satisfied that the applicant has established an online community group which offers social support and a place for discussion to a group of approximately 30 members. I give these considerations weight in favour against cancellation of the visa.

34. Consequential cancellations: – there is no person whose visa would be cancelled as a consequence of the cancellation of the applicant’s visa, pursuant to s.140 of the Act. I give this consideration no weight either in favour for cancellation or against cancellation of the visa.

35. Australia’s obligations under relevant international agreements that would be breached as a result: – there is no evidence before the Tribunal that the cancellation of the applicant’s visa would impact or breach Australia’s commitments under its international treaty obligations. I give this consideration no weight either in favour for cancellation or against cancellation of the visa.

36. Mandatory legal consequences: – I am satisfied that there are mandatory legal consequences for the applicant if her visa is cancelled, including the possibility of detention or deportation, and the exclusion periods and prohibition to apply for certain visas which apply under PIC 4013 and s.48 of the Act. I am satisfied that the cancellation of the applicant’s visa would impact her ability to potentially apply for a visa sponsored by her employer. I give these considerations weight in favour against cancellation of the visa.

37. Any other relevant matters: – there are no immediate family members who would experience hardship if the applicant’s visa is cancelled, although there may be some financial impact on her parents. I accept her parents have purchased another property, and are now both working and are able to support the applicant if she returned to the United Kingdom. I accept the applicant has an offer of permanent employment in Sydney, and does not have any current employment arrangements in the United Kingdom. I accept the applicant may be financially dependent upon her family if her visa was cancelled and she was required to leave Australia, until such time as she obtained employment. I am satisfied that the applicant may experience some financial hardship, particularly in the short term, if her visa is cancelled. I give these considerations weight in favour against cancellation of the visa.

38. I have carefully weighed all the above considerations, and assessed and balanced all the written and oral evidence before me. In this review, I give the most weight to the considerations including the correct information, the decision to grant the visa was based wholly or partly on the incorrect information provided, and the circumstances in which the non-compliance occurred. For these reasons I have concluded, that the applicant’s visa should be cancelled.

39. 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

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

    Margie Bourke
    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.