Auxenfants (Migration)

Auxenfants (Migration) [2022] AATA 2309 (9 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Charlotte Auxenfants
CASE NUMBER:  2117821
HOME AFFAIRS REFERENCE(S):          BCC/2021/369710
MEMBER:Nicole Burns
DATE:9 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 09 June 2022 at 4:24pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 Working Holiday (Extension) visa – ground for cancellation – incorrect information in visa application – completion of specified work – consideration of discretion – grant of visa based on incorrect information – COVID-19 related restrictions – lack of farm work – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The delegate cancelled the visa because they were satisfied the applicant had provided incorrect answers in her Working Holiday (Extension) visa application for her second working holiday visa in certain respects in breach of s 101(b) of the Act. Further, the delegate was not satisfied that the factors in the applicant’s case against cancelling the visa outweighed the factors for cancelling the 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.
The applicant appeared before the Tribunal via video conference on 7 June 2022 where she gave evidence and presented arguments about the issues in her case.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by way of a video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. There were no apparent communication difficulties, and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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
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.
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.
In this case, the Department sent the applicant a notice of intention to consider cancellation (NOICC) of her second Working Holiday (Extension) visa (granted on 28 September 2020) on 4 November 2021 which set out the alleged non-compliance with s 101(b) of the Act. She was invited to provide a response and did so on 17 November 2021 and 22 November 2021.
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?
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) as follows.
The notice records that when filling out her visa application form, the applicant responded ‘yes’ to the question about whether she had undertaken at least three months’ specified work as the holder of a Working Holiday visa (Subclass 417) from 24 February 2020 to 28 June 2020, totalling 90 days. She also provided the details of her purported employer as follows: Clanmont Pty Ltd Employee Collective Agreement, Trading as Eden Farms, ABN 32199177883, 324 Dahls Road, Bundaberg, Queensland 4670.
Additionally, the NOICC records that the applicant answered, ‘Yes’ under the heading ‘Working holiday declarations’, in response to the declaration ‘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’.
Based on this and other information, the applicant’s second working holiday visa was granted on 28 September 2020 (the same day it was lodged). However, subsequently, the Department initiated employment verification checks with The Trustee for Youngberry Family Trust trading as Eden Farms, the business registered under ABN 32199177883. On 18 January 2021, a staff member from Eden Farms contacted the Department and advised that the applicant had never worked at their business.
In a typed statement provided in response to the NOICC which set out this information (sent via email), the applicant acknowledged she had provided incorrect information as set out in the notice but explained this was due to the following circumstances:
·She arrived in Australia on 9 January 2020 during the time of the bushfires. Not even a month later COVID-19 started to appear on the news but did not seem too serious. She decided to go to Tasmania, the lockdown occurred, and she could not leave.
·In Tasmania she worked on a farm picking applies. After the season ended she moved to Queensland. However, due to COVID-19 cases and lockdowns, she was unable to get much farm work, despite trying.
·Around this time someone on social media told her a person called Lee Hanson could help, who she contacted by email. She paid him $1,000 and he took care of the paperwork.
·The applicant stayed for over four months on the farm (in Tasmania), but because of rainy days, some weeks were not counted.
·She made the decision to engage Lee Hanson when she was stressed and not in her normal state of mind.
·She found a job in June at a restaurant in Brisbane where she worked for six months, and her skills were appreciated. Since arriving in Sydney, she has been working in hospitality.
·She was anxious, made a stupid decision and is sorry.
The applicant provided to the Department copies of payslips from her work on a farm in Tasmania (from 9 March 2020 to 18 May 2020); several photographs of her work on the farm in Tasmania; a letter of recommendation (undated) from Rodney Hogan, Legana Orchard Manager, Tasmania; a copy of a payslip from work picking strawberries in Queensland (from 8 to 14 June 2020); and an email which appears to be from the person who helped lodged her application, advising that her ‘2^nd Visa’ had been approved.
On this basis, the delegate was satisfied that grounds existed for cancellation. They then considered whether the visa should be cancelled, including considering the applicant’s response to the NOICC. The delegate recorded that, having weighed all the relevant factors, they were satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.
On review, the applicant submitted to the Tribunal several documents already provided to the Department in response to the NOICC, including her typed statement. She also provided the following documents:
·A letter of support from Nicholas Bowden, owner and manager of Ezra restaurant in Sydney, dated 15 December 2021. In it he confirms that the applicant is employed as head waitress working full-time. He lists her duties, hourly pay, and notes she has proved to be invaluable to their restaurant.
·Copies of payslips for work at Ezra restaurant, from 7 June 2021 to 20 February 2022.
·Copies of payslips for work at Harasty’s, from 8 March 2021 to 11 April 2021.
·Copies of payslips for work at Madam Wu, Brisbane, from 6 July 2020 to 28 February 2021.
·Copies of payslips for work at Matteo, from 15 March 2021 to 4 April 2021.
·Copies of payslips for work at Callas Kitchen, from 12 April 2021 to 16 May 2021.
·Copies of payslips for work at Tequila Daisy, from 25 October 2021 to 28 November 2021.
·A copy of a payslip from Bon Ap Petit Bistro, Melbourne, from 14 February to 20 February 2022.
The applicant also submitted a typed statement (undated), explaining her situation that led to the non-compliance along similar lines as what she had set out in her statement provided to the Department in response to the NOICC. In it she emphasised how rough (and unexpected) the COVID-19 situation was for many people and it was in this context of fear and uncertainty that she made the decision to obtain her visa. She states that she was fearful about the future, returning home and having nothing, and mentally she was drained and stressed for a long time. Additionally, the applicant states that she worked in hospitality for two years in Australia which is a critical sector, evidenced by various payslips provided. She refers to letters from her employers provided that describe who she really is: a hard worker, genuine and full of passion for what she does.
In her statement, the applicant also notes a newspaper article about the person who completed her visa application (and others) and provided a copy.[1] She describes people making money off backpackers at this time to be ‘very mean’ and ‘unfair’.
[1] Cait Kelly, The Guardian, 19 December 2021, ‘Backpackers being deported for faking employment details say lack of farm work forced their hand’
At hearing, the applicant agreed there was non-compliance in the manner set out in the NOICC. She confirmed that she did not undertake specified work in Australia as indicated in her second Subclass 417 visa application. She said she had undertaken farm work in Tasmania over a four-month period but had not accrued enough workdays in total given there was a lot of rain. She heard from others about Lee Hanson who helped lodged her visa application with incorrect information about the alleged specified work.
Based on the evidence before it, including the applicant’s response to the NOICC and her oral evidence at hearing acknowledging she did not undertake specified work, the Tribunal is satisfied the applicant provided incorrect information in the application for a Working Holiday (Extension) visa as set out in the NOICC by:
·Answering ‘Yes’ to the question about whether she had carried out at least three months of specified work as the holder of a first Working Holiday visa (Subclass 417);
·Providing details of claimed employment with Clanmont Pty Ltd Employee Collective Agreement, Trading as Eden Farms, ABN 32199177883, 324 Dahls Road, Bundaberg, Queensland 4670, in the period from 24 February 2020 to 28 June 2020 (totalling 90 days worked); and
·Answering ‘Yes’ to the declaration: ‘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’.
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 and is satisfied that the grounds for cancelling the visa have been made out.
Should the visa be cancelled?
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).
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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth), as follows.
The correct information: The applicant was not employed by Eden Farms for 90 days from 24 February 2020 to 28 June 2020 as set out in her visa application form and she did not undertake three months’ specified work as the holder of her first Subclass 417 visa. The Tribunal gives this considerable weight towards cancelling the visa.
The content of the genuine document (if any): This prescribed circumstance is not relevant in this case because the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents).
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 Tribunal finds the decision to grant the applicant a second Subclass 417 (extension) visa on 28 September 2020 was based in part on her statement that she had undertaken specified work for at least three months. The applicant has confirmed that she did not undertake such work. If the correct information had been provided, the applicant would not have been granted the visa as she would not have satisfied this key requirement. The Tribunal gives this considerable weight towards cancelling the visa.
The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in her Subclass 417 (extension) visa application dated 28 September 2020. At hearing, she said she had undertaken farm work in Tasmania where she was stuck during lockdowns, but due to inclement weather she did not work for at least three months as required. The Tribunal accepts her claims in this regard, noting evidence has been provided in the form of payslips and a letter from her employer. When she could, she moved from Tasmania to Queensland in the middle of 2020 and tried to find farm work but was unsuccessful given the COVID-19 related restrictions. The Tribunal also accepts the challenge in finding and maintaining specified work, such as farm work, in Australia during the COVID‑19 pandemic and related restrictions in various parts of the country. It accepts she came to Australia intending to do farm work and did, but it was not enough, and due to the COVID‑19 pandemic she had difficulty finding enough specified work prior to the expiry of her first working holiday visa. It accepts this would have been a stressful situation. Nonetheless, it does not accept the applicant was ignorant about the visa criterion that she had to have worked at least three months in specified work as the holder of her first working holiday visa, particularly given this was her second working holiday visa. She was then willing to engage a third party to obtain a favourable migration outcome.
As such, the Tribunal gives this factor some, albeit limited, weight toward not cancelling the visa.
The present circumstances of the visa holder: At hearing, the applicant said she came to Australia from France in early 2020 and has worked for several employers in farm work and more recently in hospitality (as a waitress primarily) in Tasmania, Queensland, NSW and in Melbourne, Victoria. She currently works full-time at a French restaurant in Prahran and is staying at a hostel. She indicated that her current employer is willing to sponsor her to stay in Australia although she was awaiting the outcome of the cancellation case. She has several friends in Australia. She was upset at the prospect of having to leave Australia after two and a half years here. The Tribunal accepts her evidence in this regard and gives these factors some, albeit limited, weight toward not cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: In response to the NOICC, the applicant acknowledged she had provided incorrect information in her visa application. The Tribunal gives this factor some weight toward not cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister: There are no other instances of non-compliance known to the Tribunal.
The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant applied for the second Subclass 417 visa on 28 September 2020, which is almost two years ago. This is not a significant amount of time and the Tribunal gives no weight to this factor when considering cancellation.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non‑compliance.
Any contribution made by visa holder to the community: The applicant has not made any claims or submissions in this regard.
Other matters:-
While these factors must be considered, they do not represent an exhaustive account 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.
In this case, there are no persons whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa under s 140 of the Act.
Further, the applicant does not have any children whose best interests would be affected by the cancellation.
The applicant has not made any claims to fear persecution or other forms of harm on return to France which may enliven Australia’s non-refoulement obligations. There is nothing to suggest that Australia’s international obligations would be breached because of the cancellation. There is nothing in the applicant’s circumstances or profile to suggest she would be particularly vulnerable.
The Tribunal has considered the legal consequences of cancelling the visa. If the visa is cancelled, she is likely to become an unlawful non-citizen and potentially be subject to detention and removal unless granted a bridging visa. The operation of s 48 of the Act would limit the kind of visas the applicant can apply for in Australia, and she will also be affected by public interest criterion 4013 which may prevent her from being granted certain kinds of visas for three years since the date of cancellation. The Tribunal accepts that her plans – including to continue to work at the Melbourne restaurant that wishes to sponsor her – would therefore be interrupted and gives this factor some, albeit limited, weight towards not cancelling the visa.
In terms of hardships the applicant or family members may face if the visa is cancelled, at hearing, the applicant said she has no family in Australia, only several friends, which the Tribunal accepts. It accepts she does not want to leave and would be disappointed if she has to. It gives this consideration some limited weight toward not cancelling the visa.
EXERCISE OF DISCRETION

Having carefully considered all the above, the Tribunal concludes the factors in support of cancelling the visa in this case on balance outweigh the factors that weigh against cancellation. The Tribunal considers the provision of incorrect information in this case to be significant given the decision to grant the visa was based partly on that information and the applicant engaged a third party to help her provide incorrect information. She was able to obtain a positive migration outcome as a result. Her strong work ethic and the respect of several employers in Australia as evident in the references provided weigh towards not cancelling the visa, as was the fact that this took place during a pandemic and the related restrictions in Australia. Ultimately, however, and for the reasons above, the Tribunal considers the factors in favour of cancelling in this case are greater than those against it and the Tribunal concludes the visa should be cancelled.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Nicole Burns
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.

[2022] AATA 2309

9 June 2022

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