Chardronnet (Migration)

Chardronnet (Migration) [2021] AATA 1335 (12 March 2021)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Killian Ladis Chardronnet
CASE NUMBER:  2017201
DIBP REFERENCE(S):  BCC2020/2003890
MEMBER:Tania Flood
DATE OF DECISION:  12 March 2021
DATE CORRIGENDUM
SIGNED:12 May 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The words on the front page of the Decision record where it says “DATE OF DECISION: 12 March 2020” should be replaced with “DATE OF DECISION: 12 March 2021".
Tania Flood
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Killian Ladis Chardronnet
CASE NUMBER:  2017201
HOME AFFAIRS REFERENCE(S):          BCC2020/2003890
MEMBER:Tania Flood
DATE:12 March 2020
PLACE OF DECISION:  Sydney
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 12 March 2021 at 1:52pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – impact of bushfires and drought – limited fruit picking work available – COVID-19 pandemic travel restrictions – relationship with an Australian citizen partner – support for partner’s family – impact on employer’s business – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 97-101, 107-109, 140
Migration Regulations 1994, Schedule 2 cl 417.211; 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) visa under s.109(1) of the Migration Act 1958 (the Act).
On 23 May 2020 the applicant applied for a Working Holiday (Extension) (subclass 417) visa which was subsequently granted. On 15 October 2020 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of the visa. On 29 and 30 October and 2 and 9 November 2020 the applicant responded to the NOICC admitting that he had indeed provided incorrect information about the work he claimed to have undertaken in regional Australia.
On 23 November 2020 the delegate cancelled the visa on the basis that the applicant provided incorrect information in his Working Holiday (Extension) (subclass 417) 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.
The applicant appeared before the Tribunal on 12 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner and his employer.
The applicant was represented in relation to the review by his registered migration agent.
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
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 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.
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 Migration Act in the following respects:
On page 1 of the application, in response to the question “Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa subclass 417” the applicant answered “Yes”.
On page 5 under the heading “Details of specified work undertaken” the applicant answered that he worked for Peter West, trading as Westcastle Partnership (ABN: 50017949584) which is not a labour hire company.
On page 6 of the application form, under the heading “Work conditions” the applicant answered that his duties were fruit picking (apple) from 20 February 2020 to 22 May 2020; total hours worked 720; total days worked 93; under a piece rate agreement.
On page 9 of the application form under the heading “Working holiday declarations” in response to the question “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” the applicant answered “Yes”.
The notice states that based on the above information, the applicant was granted a Working Holiday (Extension) (subclass 417) visa on 23 May 2020.
The notice states that a Departmental officer contacted the employer referred to in the visa applicant’s application who confirmed that whilst he did work for the business, the dates he worked were from 9 March 2020 to 12 March 2020 – a total of 4 days.
The notice states that the grant of the visa was based on the fact that the applicant satisfied certain criteria, one of these being subclause 417.211(5) which requires the total period of specified work carried out in regional Australia to be or equivalent to at least 3 months of full-time work. The delegate stated that had the decision maker been aware that the applicant did not complete 3 months of specified work in regional Australia, his Working Holiday (Extension) (subclass 417) visa would not have been granted.
The notice states that the delegate considered the applicants answers to be incorrect and that he therefore did not comply with subsection 101(b) of the Migration Act which required him to fill in his application form in such a way that no incorrect answers are given or provided. The delegate concluded that the applicant’s Working Holiday (Extension)(subclass 417) visa was liable for cancellation under Section 109 of the Act.
Applicant’s responses to the NOICC
The applicant agreed that he provided “misleading” information relating to work undertaken in a regional area. In particular, the applicant acknowledged he provided incorrect information about the dates, days and hours he worked for Peter West. The applicant stated that he takes full responsibility for the incorrect information which was provided and he expressed remorse for his actions. The applicant considered he answered correctly the remaining questions on the visa application form and requested that this be considered when deciding whether to cancel the visa. Submissions were also made in respect of mitigating and compelling circumstances to be considered when deciding whether to cancel the visa.
Submissions to the Tribunal
On 11 March 2021 the Tribunal received written submissions from the applicant which included the following:
-    A written submission and arguments from the applicant’s representative.
-    Copy of a Residential Tenancy Agreement.
-    Copy of an employment Contract between the applicant and L’Heritage Restaurant.
-    Statutory Declarations made by the applicant, his partner, his partner’s mother and his employer.
-    Various reference letters.
-    Copy of a French criminal record check.
-    A submission made by the Australian Hotels Association into an inquiry into Australia’s Skilled Migration Program.
-    ABS Labour Force Statistics.
-    Numerous photographs of the applicant and his partner.
-    Copies of text messages sent between the applicant and Peter West regarding the commencement of his employment.
-    Photographs of the applicant at the farm.
Was there non-compliance as described in the s.107 notice?
Section 101 of the Migration Act provides:
A non-citizen must fill in or complete his or her application in such a way that:
(a)All questions on it are answered; and
(b)No incorrect answers are given or provided.
The applicant indicated in his application for a Working Holiday (Extension) (subclass 417) visa that he was employed by Peter West, trading as Westcastle Partnership, from 20 February 2020 to 22 May 2020. He indicated that he worked a total of 720 hours over the course of 93 days. It was later established by the Department that the applicant only worked a total of 4 days for that employer between 9 and 12 March 2020. In his response to the NOICC and in his written and oral submissions to the Tribunal the applicant acknowledged that he had provided incorrect information in respect of the number of days and hours he worked for Peter West when he applied for the Working Holiday (Extension) (subclass 417) visa.
The Tribunal finds on the available evidence that the applicant worked a total of 4 days for Peter West and not the 93 days which was claimed when he made the application for the visa. The Tribunal is satisfied the applicant provided incorrect answers in the application form to questions asked on pages 1, 6 and 9 (as outlined above) when he applied for a Working Holiday (Extension) (subclass 417) visa. The Tribunal therefore finds that the applicant did not comply with s.101(b) of the Migration Act.
For these reasons the Tribunal finds there was non-compliance with s.101(b) of the Migration Act in the manner described in the s.107 notice.
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: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
The Correct Information
The applicant was required to undertake specified work in a regional area for three months as the holder of a Working Holiday visa prior to his application for the Working Holiday (Extension) (subclass 417) visa.
The correct and undisputed information is that the applicant worked a total of 4 days for Peter West and not 93 days as claimed in his application for a Working Holiday (Extension) (subclass) visa.
Although it is acknowledged the applicant has expressed genuine remorse for providing incorrect information the Tribunal gives this consideration significant weight in favour of cancelling the visa.
The content of the genuine document (if any)
This consideration is not applicable in this case.
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 is satisfied that the applicant was granted the visa subsequent to the delegate determining that he met the relevant visa criteria, including the requirement to have previously carried out three months specified work in regional Australia as the holder of a subclass 417 visa. The Tribunal considers the applicant would not have been found to meet the relevant visa criteria for the grant of the visa if the correct information was known, namely that he had only carried out 4 days of specified work in regional Australia while previously holding a Working Holiday (subclass 417) visa.
The applicant’s employment details relating to the length of time he carried out specified work in regional Australia was a fundamental consideration in the decision to grant the visa. The Tribunal has given this consideration significant weight in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
During the hearing the applicant explained that he genuinely intended to complete 3 months of farm work and the Tribunal accepts this based on the fact he resigned from his former employment in order to do so and even purchased a van to enable him to live and work on a farm for that period of time. He said however that his employer repeatedly delayed his commencement date and when he was able to eventually commence work the circumstances were very hard in that the fruit was very small and sparse. He said that other farmers he met advised him that due to the impact of bushfires and drought there was not enough fruit to be picked to complete 3 months’ work at the farm. He said this was eventually confirmed to him by his employer. The applicant said he was alone and confused and didn’t know what to do. He said he did not feel confident to drive to Queensland alone to search for other work and so he made the decision to return to Sydney where he had the support of his partner. He said that he was afraid to return to France due to the high incidence of coronavirus and there were no flights and/or affordable tickets. In any event, he said he was in love with his partner and did not want to leave him.
The Tribunal finds it plausible that the applicant encountered the difficulties he claimed on arrival at the farm of Peter West. The Tribunal also acknowledges that the difficulties the applicant encountered in fulfilling the required amount of specified work in regional Australia in the limited time he had available to him coincided with the onset of the COVID-19 pandemic. The Tribunal accepts that he combination of these unprecedented events was an obstacle to the applicant fulfilling the requirements for the visa.
That said the applicant returned to Sydney and despite an increasing awareness that he would not be able to fulfil the requirements for the grant of a second working holiday visa he made no attempts to approach the Department to review his options in light of the difficulties of travelling during the pandemic. Instead, he proceeded to make an application for a Working Holiday (Extension) (subclass 417) visa which was knowingly based on incorrect information.
The Tribunal has considered the applicants submissions and has some sympathy for him in the circumstances. However, the Tribunal considers the provision of incorrect information in an application for a visa to be a very serious matter and has given this consideration significant weight in favour of cancelling the visa.
The present circumstances of the visa holder
During the hearing the applicant testified that he met his partner one and a half years ago and he said they have been living together since 9 March 2020. He said the relationship is serious and they have discussed making an application for a partner visa. He said he is acquainted with his partner’s elderly mother and assists with her daily care when his partner is unavailable to do so. He said he has formed a close-knit relationship with his partner’s mother and has been welcomed into the family which has been a great comfort to him seeing as how he is separated from his own family.
The applicant’s testimony is supported by statutory declarations made by the applicant’s partner and his mother. The applicant’s partner and mother also attended the hearing and gave evidence which closely aligns with the applicant’s testimony. The applicant’s partner confirmed that it is his intention to sponsor the applicant in a partner visa application and that before the notice was received they had already started putting together evidence to prove their relationship is genuine. He said he would be devastated if the applicant is required to go offshore to make the application. He said that he could not move to France because he speaks little French and would find it difficult to practice as a lawyer in France. Also, he said he would be unable to leave his elderly mother who relies on him for daily support and assistance. The applicant’s partner also said that the applicant’s presence in his mother’s life adds another dimension to her mental stimulus as his young, pleasant disposition brightens her mood.
The applicant stated that he has been employed on a full-time contract since 9 December 2020 as the Manager of L’Heritage which is a French bistro located in Mosman. His employer came to the hearing and testified that he is an honest, reliable and hardworking member of their team. She said that she and her husband have other businesses and they rely heavily on the applicant to ensure the smooth running of the bistro which is growing in popularity by the day. She explained the difficulties they have faced during the pandemic in recruiting reliable and efficient staff and said that if the applicant were forced to leave Australia their business would suffer. She said they think so highly of the applicant that they would not hesitate to sponsor him to remain in Australia if the circumstances permit because they believe he will be instrumental in them continuing to grow their business. She also testified that she has witnessed the interactions of the applicant and his partner over several months and that she believes their relationship is genuine.
Based on the available evidence, the Tribunal accepts that the applicant is in an ongoing relationship with his Australian citizen partner. The Tribunal accepts that it is their intention to apply for a partner visa and that if the applicant is required to depart Australia it could result in a lengthy separation from his partner. The Tribunal accepts it would be unlikely that his partner could join him in France given the limited employment options open to him and his need to remain close to his elderly mother. Furthermore, the Tribunal accepts the applicant is closely connected to his partner’s mother, who is 90 years old and suffering from mild dementia and who relies heavily on her son and the applicant for emotional and practical support. Based on the available evidence, the Tribunal also accepts that the applicant is highly regarded by his current employer and that his contribution to the success of that business is not insignificant.
The Tribunal gives these considerations significant weight in favour of the visa not being cancelled.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has been honest and forthcoming to the Department and the Tribunal about the non-compliance and he has expressed genuine remorse and takes full responsibility for his actions.
The Tribunal gives this weight in favour of the visa not being cancelled.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence of other instances of non-compliance and the Tribunal gives this weight in favour of the visa not being cancelled.
The time that has elapsed since the non-compliance
The time that has elapsed since the non-compliance occurred is relatively short but as noted above, the evidence supports that the applicant has established strong ties in the Australian community including with his partner, his partner’s mother and his employer.
The Tribunal gives this consideration weight in favour of the visa not being cancelled.
Any breaches of the law since the non-compliance and the seriousness of those breaches

There is no information before the Tribunal to indicate that the applicant has breached any other Australia laws. The Tribunal gives this weight in favour of the visa not being cancelled.
Any contribution made by the holder to the community.
Apart from the contribution to his employer and his partner’s mother there is no other evidence before the Tribunal of any contribution made by the applicant to the community. This Tribunal gives this consideration neutral weight.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has also considered the following additional matters:
Whether there would be consequential cancellations under s.140.
Based on the available evidence the Tribunal is satisfied that there would be no consequential cancellations under s.140 if the visa is cancelled.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The applicant informed the Tribunal that neither he nor his partner have any children. There is no suggestion that a decision to cancel his visa would be in breach of Australia’s obligations in respect of the Convention on the Rights of the Child.
The applicant informed the Tribunal that he is a citizen of France. He confirmed that he has no reason to fear persecution or significant harm in France although he said he feared he would face difficulties finding work as a result of the pandemic.
The Tribunal is satisfied that a decision to cancel the applicant’s visa and remove him from Australia to France would not result in a breach of Australia’s non-refoulement obligations.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
The Tribunal accepts that if the applicant’s visa is cancelled he could be liable to detention and subsequent removal from Australia. However, there is no information before the Tribunal to indicate the applicant would be unable or unwilling to voluntarily depart Australia.
As discussed with the applicant during the hearing he may not be prevented from making an application for a partner visa onshore. During the hearing the applicant’s representative submitted and the Tribunal accepts that the couple may face challenges in respect of their ability to meet Schedule 3 criteria.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
The Tribunal appreciates that the cancellation of the applicant’s visa may cause financial, psychological and emotional hardship to the applicant and his Australian citizen partner and his elderly mother. In addition, the Tribunal accepts the applicant’s testimony that his removal from Australia is likely to place an additional burden on his mother in France who is currently out of work due to the pandemic and struggling to support his younger sister.
The Tribunal affords this consideration some weight in favour of the visa not being cancelled.
CONCLUSION
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. Non-compliance involving the provision of incorrect information is in the Tribunal’s view a serious matter. While not condoning the applicant’s behaviour, having carefully considered all the information before it, the Tribunal is satisfied on balance, that the evidence weighs more heavily in favour of the visa not being cancelled.
For all the above reasons, the Tribunal concludes that the visa should not be cancelled.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Tania Flood
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.

[2021] AATA 1335

12 March 2021

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