2117245 (Migration)

[2022] AATA 2771

2117245 (Migration) [2022] AATA 2771 (5 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Adeel Khan

CASE NUMBER:  2117245

MEMBER:Margie Bourke

DATE:5 July 2022

PLACE OF DECISION:  Melbourne

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 05 July 2022 at 1:58pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – there was non-compliance in the way described in the notice –– applicant had provided false information – applicant did not undertake specified regional work in Australia – diagnosed with a psychiatric condition –contribution to Australian community – voluntary work – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 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 support of his Working Holiday (Extension) visa application.  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 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 would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The hearing did not involve a large amount of paperwork to be put to the applicant by the Tribunal member. The hearing was conducted at a time when the availability of in-person hearings were restricted due to the ongoing pandemic. For all these reasons the Tribunal considered it was appropriate that the hearing in this matter be conducted by video.

4. The applicant appeared before the Tribunal on 26 May 2022 to give evidence and present arguments. The applicant was the granted time to provide information to the Tribunal after the hearing.

5. The applicant was represented in relation to the review. 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 set aside.

   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) in the following respects: the applicant provided information that he had carried out the required six months of specified work, including providing the employer’s name, trading name, Australian business number, employer’s address, the employment type, the industry type the industry type subgroup, description of duties, the dates that he worked, and the total days worked. The applicant declared he had carried out six months of specified work for [a] Farm in [location], Western Australia from 23 March 2020 to 13 September 2020, that all the work was carried out after 1 July 2019, and all the work was carried out while the applicant was the holder of a second Working Holiday visa (subclass 417 visa). Verification checks undertaken by the Department concluded that the applicant had never worked at this business and had not undertaken the six months specified work in a regional area as required.

11. The applicant provided a written response to the Department in which he stated that he provided false information with his application for the visa in order to obtain a visa for a further year. The applicant stated in the hearing that he provided the incorrect information as set out in the s.107 notice.

12. Based on the written and oral evidence of the applicant, the Tribunal is satisfied that the applicant had provided incorrect information in support of his application for a third Working Holiday subclass 417 visa. The Tribunal is satisfied that there was incorrect information provided by the applicant to the Department as described in the s.107 notice.

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. The correct information: – the correct information is that the applicant did not undertake any regional work for [the] Farm, and did not complete six months of specified work. The Tribunal gives this consideration weight in favour of cancellation of the visa.

17. The content of the genuine document (if any: – this consideration does not apply, and the Tribunal does not give this consideration weight in favour for or against cancellation of the visa.

18. Whether the decision to grant the visa to the applicant was based, wholly or partly, on the incorrect information: – the application for the third Working Holiday subclass 417 visa would not have been granted to the applicant if he did not met the criteria for the visa, which included the requirements of cl.417.211, that the applicant must have carried out a period of specified work of at least six months whilst being the holder of a second Working Holiday subclass 417 visa (or a bridging visa granted on the basis of an application for a second Subclass 417 visa). The applicant provided the incorrect information that he met these requirements, and the decision to grant the visa to the applicant was based wholly or partly on the incorrect information provided by the applicant. The Tribunal gives this consideration weight in favour of cancellation of the visa.

19. The circumstances in which the non-compliance occurred: – the Tribunal is satisfied, based on the evidence before it, that the non-compliance occurred after the outbreak of the pandemic in Australia. The Tribunal is satisfied that the applicant had made arrangements to commence six weeks of regional work in Western Australia, and had travelled to commence that work in [a town], Western Australia but was advised by his employer to return to New South Wales, when the covid-19 pandemic hit Australia. The applicant states that his personal relationship with his partner was breaking down at the time the non-compliance occurred, which also influenced his decision to return to Sydney.

20. The applicant told the Tribunal that he did not believe he had knowingly provided the false information, as he only gave his personal details to the agent and did not know what information the agent provided in the application. The Tribunal does not accept this explanation provided by the applicant. The Tribunal does not accept the written submission from the applicant’s representative that the applicant was naïve. The Tribunal finds that the applicant knowingly engaged an agent who would provide incorrect information with the application for the visa. The Tribunal is satisfied that the applicant knew he had not completed the required six months specified work, and the applicant had engaged an agent who would provide an application for a third Working Holiday subclass 417 visa that would dishonestly provide incorrect information that the applicant met the requirement that the applicant had completed the required six months specified work.  The Tribunal is satisfied that the applicant provided incorrect information through a selected agent with the intention of being granted the visa, knowing he did not meet the requirements, and knowing he wanted to be granted the visa at that time.

21. The applicant gave evidence that his mental health was deteriorating. After the hearing the applicant provided the Tribunal with a psychiatric certificate confirming the applicant has been diagnosed with bipolar disorder type 2, anxiety disorder and obsessive-compulsive disorder. The applicant stated he was struggling with his psychiatric condition and his gambling addiction and his deteriorating partner relationship at the time the non-compliance occurred. Although the Tribunal does not accept the applicant’s evidence in relation to whether he had knowingly provided incorrect information, the Tribunal gives the consideration of the circumstances in which the non-compliance occurred weight in favour against cancellation of the visa.

22. The present circumstances of the applicant: – the Tribunal is satisfied that the applicant is currently in a new and positive relationship with a supportive partner. The Tribunal is satisfied that the applicant is employed as a [occupation], on a part-time casual basis, and he has provided references from the [manager] and other colleagues from the [workplace] where he works. The Tribunal is satisfied that the applicant has sought assistance for his mental health issues through a life coach, and after the hearing from a psychiatrist. The Tribunal accepts that the applicant was embarrassed by his decision to provide incorrect information, and has provided references from a variety of people in relation to his character. The Tribunal is satisfied the applicant is involved in [a range of voluntary community activities]. The Tribunal gives the present circumstances of the applicant weight in favour against cancellation of the visa.

23. The subsequent behaviour of the visa holder concerning the obligations under Subdivision C of Division 3 of Part 2 of the Migration Act: – the applicant admitted in his response to the s.107 notice that he had provided incorrect information and there is no other evidence that the applicant has not complied with his obligations under Subdivision C. The Tribunal gives this consideration weight in favour against cancellation of the visa.

24. Any other instances of non-compliance by the applicant: – the Department decision record dated 19 November 2021, a copy of which was provided to the Tribunal by the applicant, recorded that the applicant has not complied with condition 8547 which sets a limit of six months as the maximum period of time for which the applicant can work for one employer, whilst the holder of the Working Holiday (Extension) visa. This fact was not discussed with the applicant in the hearing.  The delegate relied on the applicant reporting this fact to the Department. The Tribunal notes that the applicant is still employed by the same [employer]. The Tribunal gives this consideration weight in favour of cancellation of the visa.

25. The time that has elapsed since the non-compliance: – the applicant provided the incorrect information on his application for the visa which was received by the Department on 1 December 2020. The Tribunal is satisfied that a period of 18 months has elapsed since the non-compliance by the applicant. The Tribunal gives this consideration weight in favour against cancellation of the visa.

26. Any breaches of law since the non-compliance by the applicant: – there is no evidence before the Tribunal to indicate the applicant has committed any breach of any law since the non-compliance. The Tribunal gives this consideration weight in favour against cancellation of the visa.

27. Any contribution made by the applicant to the community: – the Tribunal is satisfied that the applicant makes contribution to the community through his employment at the [workplace], volunteering at [a community group], music lessons, musical performances and fundraising through musical activities. The Tribunal gives the contributions made by the applicant to the community weight in favour against cancellation of the visa.

28. 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.

29. Consequential cancellations: – there is no evidence before the Tribunal that there would be any consequential cancellations pursuant to s.140 of the Act. The Tribunal does not give this consideration weight either in favour for or against cancellation of the visa.

30. Whether Australia’s obligations under international agreements would be breached or impacted: – there is no information before the Tribunal that the cancellation of the applicant’s visa would impact or breach any international convention, treaty or agreement to which Australia is a signatory. The Tribunal does not give this consideration weight either in favour for or against cancellation of the visa.

31. Mandatory legal consequences: – if the applicant’s visa is cancelled there would be mandatory legal consequences, including that the applicant may become liable to detention or deportation, and would be subject to the restrictions that flow from s.48 of the Act and PIC 4013. I give this consideration weight in favour against cancellation of the visa.

32. Any other relevant matters: – the applicant claimed that there would be hardship to his partner and her immediate family if his visa was cancelled as he would lose contact with his partner and his partner’s immediate family members. The Tribunal accepts that the relationships the applicant has established with his partner and her family members would be impacted if the visa was cancelled. The Tribunal accepts that if the applicant and his partner separated as a consequence of the visa being cancelled, that there would be emotional hardship as a consequence of that separation. The applicant claimed that there would be hardship to his parents who had struggled financially during the pandemic and his brother had previously returned home to reside with his parents. The Tribunal does not accept there would necessarily be financial hardship to the applicant’s family if the applicant returned home to reside with his parents, as if the applicant obtained employment he could provide them with financial support, rather than being a financial drain on the family. The applicant stated his grandparents would be at risk if the visa is cancelled and he was required to return home. The pandemic is a global pandemic, and the Tribunal is not satisfied that the applicant’s grandparents would be at greater risk of contracting the virus if the applicant was required to leave Australia and return to Ireland. The Tribunal has considered all the relevant matters in relation to potential hardship if the visa is cancelled, and gives this consideration weight in favour against cancellation of the visa.

33. The Tribunal has considered all the circumstances as discussed above, and gives particular weight to the current circumstances of the applicant, including that he has been diagnosed with a psychiatric condition, his contributions to the community, and that he had initially made arrangements to commence his required specified work, before the pandemic outbreak in Australia.

34. 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 not be cancelled.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not 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.