Conlon (Migration)

[2022] AATA 123

Conlon (Migration) [2022] AATA 123 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ciaran James Conlon

REPRESENTATIVE:  Mr Adeel Khan

CASE NUMBER:  2110474

HOME AFFAIRS REFERENCE:               BCC2020/2429980

MEMBER:Rosa Gagliardi

DATE:17 January 2022

PLACE OF DECISION:  Australian Capital Territory

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 17 January 2022 at 5:13pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in second extension application – 6 months of specified work in regional area while holding first extension – verification checks – discretion to cancel visa – non-compliance conceded – COVID-19 restrictions – application completed and lodged by agent – mental health and treatment – depressive symptoms in severe range – hardship if visa cancelled – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 101(b), 107, 109(1), (3)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(6)

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 had contravened s.101(b) by providing incorrect information to the Department in order to gain a third Working Holiday visa (Working Holiday (Extension) visa, subclass 417). 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 applicant appeared before the Tribunal on 1 December 2021 to give evidence and present arguments.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. 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

6. 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.

7. 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.

8. 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?

9. 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 section 101(b) in the following respects.

10. On 15 September 2020 the applicant applied for his third Working Holiday visa via the Departmental online application facility.  Asked on the electronic application form whether he had carried out at least 6 months of specified work he responded, “yes”.

11. Asked whether ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’ the applicant answered “Yes”.

12. Further, the applicant gave specific details about having worked for Quenby Viticultural Services (ABN 49457432242), in a regional postcode, being 6285, in Margaret River, Western Australia, from 9 March 2020 to 30 August 2020 for a total of 190 days as required by cl.417.211(6).

    cl.417.211(6)

    (6)  If the applicant has held 2 Subclass 417 visas in Australia, the Minister is satisfied that:

    (a)  the applicant has carried out a period or periods of specified Subclass 417 work; and

    (b)  the total period of that work is at least 6 months; and

    (c)  all of that work was carried out while the applicant held:

    (i)  the second Subclass 417 visa; or

    (ii)  a bridging visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa); and

    (d)  all of that work was carried out on or after 1 July 2019; and

    (e)  the applicant has been remunerated for that work in accordance with relevant Australian legislation and awards; and

    (f)  that work was not carried out for an excluded employer.

13. As it appeared that the applicant met the requirements of cl.417.211(6), the applicant was granted a Working Holiday (Extension) visa on 15 September 2020.

14. The Department contacted Quenby Viticultural Services, being, The Trustee for VITICULTURAL SERVICES UNIT TRUST, the business registered under ABN 9457432242, to confirm the veracity of the applicant’s employment claims. On 30 September 2020, The Trustee for VITICULTURAL SERVICES UNIT TRUST contacted the Department to advise that the applicant had never worked at their business.

15. The information provided to the Department about the applicant’s second Working Holiday visa was therefore incorrect and the Tribunal places significant weight on the claimed employer’s evidence to the Department that the applicant had never worked for The Trustee for VITICULTURAL SERVICES UNIT TRUST, the business registered under ABN 9457432242.  The applicant had not fulfilled the requirements of cl.417.211(6) as he had not worked for his second Working Holiday visa in specified work in a regional area for at least 6 months.  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?

16. 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).

17. 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.

18. 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 correct information

19. To satisfy the criteria for the grant of the Working Holiday (Extension) visa, the applicant was required to meet the criterion relating to specified work in regional Australia as defined in the legislative instrument in effect at the time for a period of six months.

20. In response to the Notice of Intention to Consider Cancellation (NOICC), the applicant admitted he did not complete six months of regional work, as he had found it difficult to secure work in regional areas due to the COVID-19 pandemic. When faced with the possibility of needing to return to Ireland, he developed significant mental health issues and instead of departing Australia decided to engage an agent to assist him obtain a visa so that he could remain in Australia.  He stated that he had provided his Immi account details to an agent who obtained the visa on his behalf, and he was not aware of the details or information provided to the Department to obtain his third Working Holiday visa, the Working Holiday (Extension) visa, subclass 417.

21. The correct information is that the applicant did not undertake specified work in regional Australia as defined in the legislative instrument in effect at the time for a period of six months; and he did not work for Quenby Viticultural Services (ABN 9457432242) between 09 March 2020 and 30 August 2020, for a total of 190 days.  Therefore, the applicant did not meet the requirements of cl.417.211(6).

22. Had the applicant provided the correct information that he did not meet cl.417.211(6), the third Working Holiday visa would not have been granted.

23. The Tribunal places significant weight on the extent and deliberateness of the provision of incorrect information to the Department.

    The content of the genuine document (if any)

24. This matter is not relevant for the purposes of the review as there is no suggestion that non-genuine documents have been submitted.

    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

25. The information provided by the applicant persuaded the Department that he met the requirements of cl.417.211(6), being that he had undertaken specified work for at least 6 months in a regional area.  On this basis the visa was granted and therefore it can be said that the grant was based wholly or partly, on incorrect information provided.  As such, the applicant obtained a benefit to which he was not entitled.  The Tribunal places some adverse weight on this matter against the applicant.

    The circumstances in which the non-compliance occurred

26. At the time the applicant put forward his response to the NOICC he had not provided evidence of the mental health challenges he claimed to have been dealing with at the time of non-compliance.  At the time of review the applicant has now provided probative medical evidence demonstrating that at the time of non-compliance he was dealing with sustained difficulties for which he sought assistance from a clinical psychologist over a period in 2020, due “ interfering anxiety and Major Depressive Disorder”.  Given the number of times the applicant sought assistance from the clinical psychologist, the Tribunal is satisfied that the report was not obtained for the purposes of obtaining a retrospective diagnosis to enhance the applicant’s claims that the visa ought not be cancelled.

27. The psychologist’s report also notes that the applicant “reported an approximately four- month intensification of a longer standing tendency to mood disorder, which had been exacerbated by multiple life stressors.  Over that time, he reported feeling frequently overwhelmed, difficulty with decision-making and decisiveness, not enjoying usually enjoyable activities” and experienced excessive worry that was hard to control over multiple life areas. 

28. The Tribunal finds the psychologist’s report probative evidence as the diagnosis was made via a Depression and Anxiety Stress test (Scale 21), DASS 21.  This test reflected the applicant reported depressive symptoms in the severe range, with general anxiety symptoms in the severe range also, and stress symptoms in the severe range.  The psychologist concluded that the symptoms experienced by the applicant could have affected his decision-making ability.

29. The Tribunal is satisfied that the applicant’s mental health to some extent informed his seriously flawed decision to put in an application for which he was not entitled to.  The Tribunal accepts the applicant’s written submission in which he states that as his time to find regional work approached the end, he had a breakdown on 16 June 2020.

30. The Tribunal does not diminish the seriousness of the provision of incorrect information to the Department and the way it was done at arms-length, through an agent.  Nonetheless, the Tribunal places overwhelming weight on the applicant’s serious mental health challenges at the time which meant he did not act in his best interests but did so in a manner that was out of character.

    The present circumstances of the visa holder

31. The applicant claims to be an electrician by trade in Australia and the Tribunal accepts this is the case.  The applicant in his statement to the Tribunal argues that if his visa remains cancelled, and he is requested to leave Australia, this will cause undeniable hardship as he is employed in Australia and he has actively been setting up his life here, having been in Australia for several years.

32. The applicant has also argued that in Ireland he would be forced to be a burden on his family till he is able to become stable and secure full-time employment. He wrote that he did not think his family could support him and given the Covid pandemic and unemployment in Ireland, he believes returning to his home country would impose severe hardship on him.  The applicant also claimed he would not be eligible for any COVID-19 Pandemic Unemployment Payments, as he was not a resident of Ireland over the past year.

33. The Tribunal accepts that these factors may cause some short to medium term hardship for the applicant, including economic, social and other hardships.  Nonetheless, of themselves, the Tribunal is not persuaded that they ought to be reasons not to cancel the visa.  These are direct consequences of the non-compliance with condition 101(b).

34. The Tribunal does accept, however, that disruption to the applicant’s hopes to be sponsored by his employer in Australia, including his current circumstances where he has been able to afford to obtain medical assistance for his mental health conditions, could jeopardise the applicant’s well-being to a significant degree.  The Tribunal places significant weight on the adverse effect that a cancellation will have on the health of the applicant, in favour of 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

35. The applicant in the NOICC confirmed the answers he provided in relation to his claimed regional work were incorrect and he has been forthcoming with providing information to the Department and the Tribunal.  The applicant struck the Tribunal as sincere in terms of his remorse for his actions.  There is no information before the Tribunal to indicate that subsequent to the NOICC being issued, the visa holder has not complied with any of his other obligations under subdivision C of the Act.  This together with the other matters in which the Tribunal has found in favour of the applicant, adds weight to the Tribunal’s considerations that the visa ought not be cancelled, albeit only in a minor way.

    Any other instances of non-compliance by the visa holder known to the Minister

36. At the time the Department made its decision it was not aware of any other instances of non-compliance by the applicant and the Tribunal is similarly unaware of such instances.

    The time that has elapsed since the non-compliance

37. It has not been a significant period since the non-compliance occurred, nonetheless, the Tribunal has taken into account that the applicant has been in Australia for several years and that he has been able to deal with his medical problems in a proactive manner by seeking psychological assistance.  The Tribunal also places weight in the applicant’s favour on the fact that he has suffered a breakdown during his presence here and that while his time in Australia may have been short, it has been a particularly difficult time for him.  As such, the Tribunal considers that the matter of the applicant’s length of stay in Australia is not relevant.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

38. There is no information before the Tribunal to indicate the applicant has breached any laws since the non-compliance.  The Department was also of this view at the time of primary decision.

39. This is something on which the Tribunal places some weight in favour of the applicant and against cancellation of the visa.

    Any contribution made by the holder to the community

40. The Tribunal has taken into account that the applicant claims he has worked in Australia, including as an Electrician and Fire Alarm Technician to ensure the safety of others.  Nonetheless, the Tribunal is conscious that any such contribution was made on a remunerative basis and therefore for the benefit of the applicant.  As such, the Tribunal places minimal weight on the applicant’s work experience in Australia in his favour.

41. The Tribunal also notes that the applicant has made some contributions to the community in Sydney via assisting to organise community events and participation.  This is something on which the Tribunal does place some positive weight in the applicant’s favour, albeit by no means in a determinative manner.

    Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under section 140 of the Act

42. There is no information before the Tribunal that this is the case.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

43. There is little information before the Tribunal that the applicant has made any claims he is owed protection in Australia.  While the Tribunal accepts that if the applicant is required to return to Ireland, he will experience some significant hardships, the Tribunal is not satisfied that his return to his home country would result in relevant international agreements being breached.

44. The matter, therefore, does not play a significant part in the Tribunal’s decision regarding whether the visa ought to be cancelled.

    Conclusion

45. 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

46. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Rosa Gagliardi
    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.