Butler (Migration)

[2017] AATA 670

Butler (Migration) [2017] AATA 670 (8 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Graeme Butler

CASE NUMBER:  1621488

DIBP REFERENCE(S):  BCC2016/732464

MEMBER:Susan Trotter

DATE:8 May 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 08 May 2017 at 4:12pm

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Providing a bogus document or misleading information – Specified work in regional Australia – Food and Beverage attendant – Relationship with Australian citizen

LEGISLATION

Migration Act 1958, ss 5(1), 65, 359A

Migration Regulation 1994, Schedule 2 Part 17 cl 417.221(b), Schedule 4 Public Interest Criterion 4020

CASES

Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60

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 Immigration on 29 November 2016 to refuse to grant the applicant, Mr David Butler, a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Butler applied for the visa on 21 February 2016. At the time the visa application was lodged, Class TZ contained one subclass, Subclass 417 (Working Holiday). The criteria for a Subclass 417 visa are set out in Part 417 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that Mr Butler did not satisfy Public Interest Criterion 4020 (PIC 4020) as required by cl.417.221(b) of Schedule 2 to the Regulations as information provided to the Department was false and misleading in a material particular and no evidence had been raised as to waiver of that requirement.

4. Mr Butler lodged an application for review of the delegate’s decision with the Tribunal on 15 December 2016.

5. Mr Butler appeared before the Tribunal on 2 May 2017, by video conference from Melbourne, to give evidence and present arguments. The Tribunal also heard oral evidence from Mr Butler’s girlfriend, Ms Lara Debresteli.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUES

7. Amongst other things, an applicant for a Subclass 417 visa is required to meet PIC 4020 as set out in Schedule 4 to the Regulations (PIC 4020) (see cl.417.221(2)(b)).

8. Broadly speaking, this requires that:

   (a)  there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   (b)  the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting three years before the application was made and ending when the application is granted or refused: PIC 4020(2); and

   (c)  the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   (d)  neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting ten years before the application was made and ending when the application is granted or refused: PIC 4020(2B).

9. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act. In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement, has no requirement that it be relevant to a criterion for the grant of the visa: Batra v MIAC [2013] FCA 274.

10. The requirement in PIC 4020(1) not to provide a bogus document, or false and misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document was provided by the applicant knowingly or unwittingly. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42 (Trivedi).

11. The requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as defined in r.1.03, that justify the granting of the visa. However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B).

12. The terms ‘compassionate’ and 'compelling' are not defined in the legislation. The ordinary dictionary definitions of these words state that ‘compassionate’ means ‘circumstances that invoke sympathy or pity’. ‘Compelling’ means ‘to force or drive, especially to a course of action’ or to ‘bring about moral necessity’.

13. PIC 4020 is extracted in the attachment to this decision.

14. Relevantly, the issues for the Tribunal to determine in this case are:

    (a)  Has Mr Butler given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or an application for a visa that Mr Butler held in the 12 months before this visa application was made?; and, if so,

    (b)  Should the requirements of cl.4020(1) or (2) be waived?; and, if so,

    (c)  Has Mr Butler satisfied the identity requirements?; and

    (d)  Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. Mr Butler was granted a Subclass 417 visa on 11 July 2014 which was due to cease on 23 March 2016. He applied for a further Subclass 417 visa on 21 February 2016, which application is the subject of this application to the Tribunal.

16. The criteria for the grant of a further Subclass 417 visa include a requirement that the visa applicant has carried out specified work in regional Australia for a total period of at least three months as the holder of a Working Holiday visa (cl.417.211 of Schedule 2 to the Regulations).

17. In the online visa application completed by Mr Butler, the following information has been provided:

    Details of specified work undertaken

    …

    Postcode    4870

    Start date    2 June 2015

    End date     3 February 2016

    What is your usual occupation?      Construction

    What industry do you intend to seek employment in?           Construction 

18. On 22 March 2016, the Department requested further information from Mr Butler in support of his application.

19. Mr Butler then provided payslips, bank statements, a letter from employer and Form 1263 Working Holiday Visa Employment Verification.

20. The Form 1263 includes a certificate from Mr Craig Durham with employment details noted, including the following details:

    Type of work  Construction, painting and maintenance

    Start date  2 June 2015

    End date   28 October 2015

    Type of work  Construction, painting and maintenance

    Start date  11 December 2015

    End date   3 March 2016

21. The employer reference letter appeared to be on official letterhead but was not signed and did not state the author of the letter. The letter states as follows:

    This letter is to confirm that David Butler is currently working at Fitzroy Island in the maintenance department. David has varied roles including construction, painting and general maintenance.

    19 June 2016

22. The delegate’s decision, a copy of which was provided to the Tribunal by Mr Butler when making his application, notes that Mr Butler lodged a Form 1445 – Request permission to work with an employer beyond 6 months on a Working Holiday or Work and Holiday visa, with the Department on 18 January 2016. That form was accompanied by a letter of support from a Greg Long, Food and Beverage Manager, Fitzroy Island confirming that Mr Butler was then working at Fitzroy Island as a Food and Beverage attendant and had been since 2 June 2015. The delegate’s decision also notes that a representative of the Department contacted Mr Long, who confirmed that Mr Butler worked as a Food and Beverage attendant and was not employed by the maintenance department.

23. The delegate found that Mr Butler had given or caused to be given information that was false or misleading in a material particular.

24. At hearing Mr Butler told the Tribunal that he did not handle the application very well and he did not put it in correctly and he clearly made some mistakes along the way.

25. Mr Butler’s evidence was that he commenced working at Fitzroy Island on 2 June 2015 as a Food and Beverage Attendant in the Resort restaurant. Whilst working there, he talked with other colleagues and he realised that other type of work could be undertaken at Fitzroy Island which would go towards qualifying him for a second working holiday visa. He commenced doing construction work on Fitzroy Island towards the end of June 2015. He worked for the construction and maintenance section from 7.00 am to 12.00 pm or 1.00 pm each day from the end of June 2015 until 28 October 2015. This work included things like clearing out all the public areas, a refurbishment of staff accommodation (painting inside and out), cleaning up rubbish and replacing termite infested wooden structures under the buildings. There were maintenance staff employed already and his job, along with a few others, was to do things like heavy lifting, the removal of rubbish, painting and jobs like that. He would then work in the restaurant for a few hours each night. It was a quieter time of the year and because there were not as many guests as at other times of the year, there were not as many shifts available in the restaurant. He wanted to do as much work as possible to save money for his travels so was happy to do the extra work for the maintenance department.

26. Mr Butler told the Tribunal that he then travelled down the east coast of Australia. In his mind, he had done the required work to apply for another working holiday visa and he was free to travel. He then returned to Fitzroy Island for two further periods of employment, from 11 December 2015 to 3 March 2016 and from 28 April 2016 to 24 September 2016. For those two further periods of employment, he only worked as a Food and Beverage Attendant, although that work did also include duties such as cleaning paths and cleaning the toilets.

27. When queried, Mr Butler stated that his supervisor for the Food and Beverage Attendant role was Craig Durham and his supervisor for the maintenance work was Tony Cameron.

28. Mr Butler told the Tribunal that the thing that he has done wrong, and he knows he has done it wrong, is that he listed his entire employment at Fitzroy Island as a member of the maintenance department however he did not do maintenance the whole time he was there. When it came to the second year application, he thought that the Food and Beverage employment would have no real relevance. The Tribunal suggested to Mr Butler that he had done this because he knew that the Food and Beverage employment did not count for the second year working holiday visa application. Mr Butler stated that subconsciously that may have been the case but he thought that all immigration would want to know about was the maintenance work.

29. The Tribunal put to Mr Butler that in those circumstances he had clearly provided false or misleading information for his visa application. The Tribunal discussed with Mr Butler that, as referred to in the delegate’s decision which was provided to the Tribunal with his application, Mr Butler also, in January 2016 sought a 6 months extension of his working holiday visa and in that request, lodged on 18 January 2016, declared that he had been working as a Food and Beverage Attendant, Bartender, Waiter and Supervisor. Further, he provided a letter of support with that request from Greg Long, Food and Beverage Manager, which letter of support confirmed that Mr Butler had commenced employment at Fitzroy Island on 2 June 2015 and was (then) currently working as a Food and Beverage attendant. When queried, Mr Butler told the Tribunal that Mr Long was at Fitzroy Island throughout the duration of his stints on Fitzroy Island however he did not have that much to do with Mr Long and that he hardly interacted with him. He stated that he wished that he put Craig Durham down instead of Mr Long. It was Mr Long that notified him of the ability to apply for a 6 month extension. He had not previously been aware of that so Mr Long helped him in terms of getting that extension but apart from that, he did not have much to do with Mr Long. His understanding is that the Department contacted Mr Long and that he did not say anything about dates, they just said we have David (Mr Butler) listed as maintenance and Mr Long said “no, he works in Food and Beverage”. Mr Butler stated that it was his supervisors that he dealt with every day who knew what he did and the supervisors then dealt with the Managers. Mr Long was not aware that he put in the application for a second working holiday visa. He would like to think he (Mr Long) knew that he (Mr Butler) was working in the maintenance department and he (Mr Long) should have known. Mr Butler said that he does not understand why Mr Long would not have known that. The Tribunal read from the delegate’s decision as follows in relation to the Department’s discussion with Mr Long:

    “It was confirmed that (Mr Butler) had worked as a Food and Beverage attendant and was not employed by the maintenance department”.

30. Mr Butler responded that he was not employed by the maintenance department. He had been employed as a Food and Beverage attendant. He did do other types of work whilst he was there but he was never strictly employed as maintenance.

31. The Tribunal put to Mr Butler[1] that additionally, it had some information that it had to tell Mr Butler before it asked him some questions. The Tribunal stated it would give Mr Butler an opportunity to respond to or comment on that information. The Tribunal stated that it was going to put some information to Mr Butler that would, subject to Mr Butler’s comments or response, be the reason or part of the reason, for affirming the decision under review to refuse to grant the visa. The Tribunal indicated it would explain the information and its relevance and ask Mr Butler to respond to it or comment on the information. The Tribunal advised Mr Butler that he was entitled to seek additional time to respond to or comment on the information and if he wished to do so, he should let the Tribunal know.

    [1] Pursuant to s.359A of the Act

32. The Tribunal stated that additional to the information contained in the delegate’s decision, the Department’s file had a file note of the conversation between a delegate of the Department and Mr Long. That file note records as follows: “Contacted Greg Long, Food and Beverage Manager, who confirmed applicant worked as a Food and Beverage attendant. When I asked if applicant had worked in the maintenance department, i.e. construction, painting and general maintenance., Greg Long was surprised that I would think that and said that no he had only worked in the hospitality side of the resort”.

33. The Tribunal stated to Mr Butler that this information is relevant because it appears to suggest that Greg Long had no knowledge that Mr Butler had worked in the maintenance/construction side of the resort, contrary to what was required. The Tribunal asked Mr Butler if he understood the information set out and why the information was relevant. Mr Butler indicated that of course he understood why the information is relevant. Mr Butler indicated that he wished to comment on or respond to that information then and there. Mr Butler stated that he could not really comment on Mr Long and what he said in the phone call and why and that he hoped that the Department speaking to him (Mr Long) would not make or break him.

34. The Tribunal raised with Mr Butler that the difficulty is that work that can be taken into account as “specified work”, in applying for a second working holiday visa, includes construction work but not food and beverage work. Mr Butler confirmed that was his understanding and that was the only reason he did the (construction) work and that there were other people who were (and are) working on Fitzroy Island who have done exactly the same thing. The Tribunal indicated it could only consider Mr Butler’s application and the information he had provided for his application.

35. The Tribunal indicated that on Mr Butler’s own evidence the information in his visa application is not 100% correct and based on Mr Long’s conversation with the Department, the information is clearly incorrect and of concern given Mr Butler’s submission that Mr Long should have known he was also working in construction.

36. The Tribunal also queried Mr Butler as to how Mr Durham had incorrectly certified the dates of his employment in construction, in the Form 1263. Mr Butler responded that he is unaware of how that occurred and that he can only assume that Mr Durham just had reference to his employment dates overall at Fitzroy Island at that time.

    Issue 1 – Has Mr Butler given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or an application for a visa that Mr Butler held in the 12 months before this visa application was made?

37. As already noted, one of the requirements for grant of a further Subclass 417 visa is that, at the time of the visa application, the visa applicant had carried out specified work in regional Australia for a total period of at least three months as the holder of a Working Holiday visa. ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111. The applicable instrument is IMMI 08/048 Working holiday visa - definitions of 'specified work' and 'regional Australia' (item 1225(5)).

38. Relevantly to this case “specified work” includes construction work but not work in the food and beverage area. Mr Butler has clearly, in both his visa application form, and supporting documents provided at a later time, represented that he was employed in the construction area. The visa application form states from 2 June 2015 to 3 February 2016. The further supporting documents state from 2 June 2015 to 28 October 2015 and from 11 December 2015 to 3 March 2016. The information Mr Long provided to the Department suggests that Mr Butler was not employed in construction at all. The Tribunal accepts that Mr Long, as Food and Beverage Manager, may have been unaware of Mr Butler also doing construction work. However, even on Mr Butler’s own evidence at hearing, the information provided in his application form and in the supporting documents was not correct. The Tribunal acknowledges that Mr Butler may not have included information as to his Food and Beverage employment, thinking it was not relevant. However, the information that Mr Butler has provided goes beyond not providing all information. He has provided incorrect information.

39. As regards whether there was an element of fraud or deception (see Trivedi), the Tribunal put to Mr Butler at hearing that it might appear that the information provided in the visa application form and supporting documents, as to employment in construction only, was provided on purpose because it is only construction (and not food and beverage) work that counts (for the visa). Mr Butler responded that that is what he is kicking himself about and that he should have made it “black and white, clear as day, no questions asked”. When queried as to why he did not do that, Mr Butler responded that it was because the second year working holiday visa was only based on the required work (in construction) and he did not consider that the food and beverage work would have any relevance. The Tribunal also suggested to Mr Butler that it appears that he was trying to put in the information that he knew was required for the visa to be granted even though it was not correct. The Tribunal asked Mr Butler if he had any response to that suggestion. Mr Butler responded that he should have paid more attention and he should have done it properly. He asked people to send him the information and to type him up letters and that was what he was given. The Tribunal put to Mr Butler that it was he who completed the application form and provided the documents and that he had a responsibility to provide the correct information. Mr Butler responded that he accepted that and that he should definitely have paid more attention.

1. The Tribunal is of the view that, as suggested to Mr Butler at hearing, the information provided was purposely misleading, both in terms of the dates provided and the type of work carried out. Mr Butler was clearly cognisant of the differences between construction work and food and beverage work as regards obtaining a second working holiday visa and provided information he understood was required for the visa to be granted. It may well be that Mr Butler did undertake the required work for the required period, however having regard to all of these matters, the Tribunal finds that the information in both the visa application form and the supporting documents was at least misleading, if not also false, and that an element of deception was involved in providing the information. Further, the information was as regards a material particular in relation to the application for the visa, that is whether Mr Butler had carried out “specified work” as required. It follows that the Tribunal finds that Mr Butler does not meet cl.4020(1).

   Issue 2 - Should the requirements of cl.4020(1) or (2) be waived?

2. The requirements of cl.4020(1) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of  an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa.

3. As regards whether there are compassionate or compelling circumstances that affect a specified person that justify the granting of the visa, Mr Butler told the Tribunal that he has moved states to live with Ms Debresteli, that he is in love with her, he has phoned up immigration lawyers and asked about a spouse visa and they have enquired about registering a civil partnership and confirming their status as a couple. If he does not get this visa, Ms Debresteli is packing up everything and she is coming with him. That is not what he wants to do and he does not want to have Ms Debresteli leave with him. He has moved from Cairns to Melbourne. They have been together for nearly a year now. He wants to get ahead. He wants to do a course. He wants to improve himself. He is 31 years of age. One day, he is sure they will end up getting married and that has already been spoken about. He knows that some of the information with the dates might be wrong but he had the best intentions. He has tried his best. He has travelled around Australia. He has always worked. He has paid his own way and done everything he thought he should have done to stay here. He has fallen in love with the place and now he has fallen in love with a great girl. He wants a future in Australia with Ms Debresteli. Ms Debresteli is studying psychology and has a full-time job. He is working full-time. He has been looking for jobs where he might be sponsored. He has been trying to think of ways to improve himself and remain in Australia but he has been put on hold because of this visa. He forfeited a return ticket to go back to England to remain in Australia to await a decision in relation to this visa. He has a network of friends in Australia. He has made a genuine mistake and he deeply apologises about that. His intentions were never to mislead.

4. Ms Debresteli told the Tribunal that Mr Butler gets on well with all of her family and friends and is very loved by everybody, that they are building a life together, that if it (the visa application) does not go his way, she is definitely planning on going (leaving Australia) with him but it is her preference to stay in Australia and study.

5. Government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) provide the following policy guidance in relation to factors to consider in relation to a waiver of PIC 4020, including as follows:

   Factors for considering a waiver of any or all of PIC 4020(1) and/or (2), would include, but are not limited to, the following four: 

   ·a minor child who is an Australian citizen, permanent resident or eligible New Zealand citizen residing in Australia who would be adversely affected by a decision not to waive. Factors to consider would include:

   o    existing family networks already in Australia

   o    whether the applicant is part of the child’s immediate family.

   ·whether there are any significant health or welfare issues affecting an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Factors to consider:

   o    absence of other carers in Australia

   owhether the illness of the Australian citizen, permanent resident or New Zealand citizen is debilitating, permanent and requires ongoing care (that is, it is not a temporary illness, or an illness that does not require continuous care).

   ·if a decision not to waive would result in the continuing separation of immediate family members, because of an inability of the Australian citizen, permanent resident or eligible New Zealand citizen to reside in the applicant’s country of residence or a third country. Factors to consider include:

   othe applicant’s country of residence is a war zone or the sponsor has been found to be a person to whom Australia owes protection.

   ·the nature and extent of the fraud. Factors to consider include:

   othe extent of false or misleading information or documents (for example, multiple falsities or misleading information)

   o    a past history of attempting fraud against Australia’s migration program. 

   Note: The interests of the applicant are not relevant when considering whether a waiver should apply. A waiver must apply to compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.

6. Whilst the Tribunal is not bound by policy, in Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60, the Full Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case, the Tribunal is satisfied that the policy is consistent with the legislation and regulations and provides guidance as to the types of matters to be taken into account, albeit not an exhaustive list.

7. The Tribunal considers that the use of the words ‘compelling’ and ‘compassionate’ in the Regulations indicates a degree of gravity that is not demonstrated in the evidence before the Tribunal in order to justify the granting of the visa. The Tribunal accepts that Mr Butler would prefer not to leave Australia and would prefer to continue to build his life in Australia, including because of his relationship with Ms Debresteli and that Ms Debresteli would prefer to remain in Australia (studying and working) rather than leaving Australia with Mr Butler. However, the Tribunal is not satisfied that these circumstances reach an appropriate threshold as to amount to compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

8. Having considered all of the circumstances raised, both individually and cumulatively, the Tribunal is not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa such that cl.4020(1) should be waived.

   Issue 3 - Has Mr Butler satisfied the identity requirements?

   Issue 4 - Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?

9. In light of the findings above, it is not necessary for the Tribunal to consider the further identified issues.

   Conclusion

10. On the basis of the above, Mr Butler does not satisfy PIC 4020 for the purposes of cl.417.221(2)(b) and that requirement cannot be waived.

11. For the reasons above, Mr Butler does not meet the criteria for the grant of the visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Susan Trotter

    Member