Conroy (Migration)

[2021] AATA 4618

Conroy (Migration) [2021] AATA 4618 (9 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oisin Conroy

CASE NUMBER:  2107329

HOME AFFAIRS REFERENCE(S):          BCC2020/2272852

MEMBER:Meena Sripathy

DATE:9 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 09 November 2021 at 11:53am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers in visa extension application – specified work in regional area for 3 months – verification checks showed claimed work not undertaken – discretion to cancel visa – application lodged by third party – work history in another regional area provided in response to department’s notice – checks showed that claimed 3 months’ duration was really 2 months – COVID-19 restrictions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASE
MIAC v Khadgi (2010) 190 FCR 248 

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 (the Act).

2. The delegate cancelled the visa on the basis that the visa holder (the applicant) provided incorrect answers in his Working Holiday (Extension) visa application thereby not complying with s101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa be cancelled.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal by video hearing on 8 November 2021 to give evidence and present arguments. The applicant’s representative was not present at the hearing.   

5. The Tribunal exercised its discretion to hold the hearing by video hearing given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the 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 remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. 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

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

8. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

   Notice of intention to consider cancellation under s.107

9. A notice of intention to consider cancellation (NOICC) was sent to the applicant on 3 May 2021.  The notice indicated that the delegate reached a state of mind that the applicant has not complied with the Act by giving incorrect information about the details of specified work undertaken while the holder of a first Working Holiday visa (subclass 417) in the application for a Working Holiday (Extension) (subclass 417) visa lodged and granted on 11 August 2020.

10. The notice provided particulars of the allegedly incorrect information given by the applicant being the reference to employment with Pearl Recruitment Group in Newman Western Australia (postcode 6753) in the period 2 March to 5 July 2020 for 90 days; and his declaration that he had completed 3 months of specified work as the holder of a first working holiday visa.

11. The NOICC advised that subsequently the Department initiated employment verification checks with Pearl Recruitment Group, the business registered under ABN 75145084046, to verify the employment claims. On 03 September 2020, Pearl Recruitment Group contacted the Department and advised that the applicant never worked at their business, from 02 March 2020 to 05 July 2020.

12. The delegate considered on the basis of this information that the applicant had provided incorrect answers in support of his Working Holiday (Extension) visa application and did not comply with s101(b).

13. 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?

14. 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 s101 (b) as follows: that the applicant provided incorrect information in the application for a Working Holiday (Extension) visa when he

    ·    answered ‘Yes’ to the question ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’;

    ·    provided details of claimed employment with Pearl Recruitment Group, at the section of the application form titled ‘Details of Specified Work Undertaken’; and

    ·    answered ‘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’.

15. On 15 May 2021 the applicant provided a response to the NOICC attaching supporting documents.  The response explained that immediately upon receiving the NOICC he attempted to contact the person whom he used to lodge the application, named Lee Hansol ([email protected]).  He stated that he did complete 3 months specified work in regional Australia, but in Queensland.  He has never been to Western Australia and has no knowledge of the employer referred to in the application. He attached 3 documents to support his claim of having working in Queensland, including an online booking form for Ayr Backpackers and Client Account Statement, and payslips from Cr& C Kiehne Pty Ltd for periods between 27 April to 28 June 2020, together with statements from various individuals to corroborate his claimed employment in Queensland in this period.  He explained he was given the email address of Lee Hansol for assistance to lodge his second Working Holiday visa application and claims he provided all the correct details as requested.  Copy of the request email from Lee Hansol is attached.  He claims he was shocked by the information contained in the NOICC and does not know how the incorrect information was provided. He acknowledges it was his responsibility to ensure the information in the application was correct but maintains the information is certainly not the information he gave to Lee Hansol. He requests consideration be given to not cancelling his visa as he was not aware of the incorrect information lodged on his behalf and he apologised for his stupidity in trusting this individual. Also submitted was a resume for the applicant, indicating he is a soldier in the Irish Defence Forces since 2013.  He is currently employed at TOMRA in maintenance of Return & Earn vending machines. 

16. The Department sought verification of the applicant’s claim to have worked in Queensland and received a response that he was employed as claimed in the period 27 April to 23 June 2020. 

17. On 1 June 2021 the delegate of the Minister made a decision to cancel the visa, having considered the applicants’ response to the NOICC and the matters relevant to exercising the discretion whether or not to cancel the visa.  

18. The applicant appealed the decisions to cancel his visa to the Tribunal.

    Evidence before the Tribunal

19. The applicant provided copies of the same documents he provided in his response to the NOICC.

20. At the hearing the applicant provided evidence about his current circumstances, background and the circumstances that gave rise to the non compliance.  He lives in Mascot with his partner, who is also Irish.  They met in Australia.  He is presently working, with TOMRA Return and earn Vending Machines since February 2021.  He has no family in Australia.  In Ireland he has parents and siblings, all of whom live in Galway.  Prior to coming to Australia he lived in Galway and was employed as a soldier in the Irish Army.  He took leave of service from this position until March 2022.

21. The applicant arrived in Australia on 11 January 2020.  His plan was to find work, and travel and stay a second year before returning to Ireland to take up his position in the Irish Army.  He has to return to his position even if he wants to resign from it as this is a requirement of the contract for leave he signed. Upon arrival, he obtained work in construction in Silverwater, NSW.  This lasted about one and a half months until March 2020. In March he travelled to Ayr,  Queensland where he had arranged accommodation at a backpackers and they promised to place him in farm work.  When he arrived on 21 March 2020 they had no work and it took some 6-7 weeks to place him in farm work.  He started working on 27 April 2020 until 23 June 2020.  There were difficulties to find farm work at this time due to the COVID 19  situation and the farms were not keen to use backpackers. In June he made a decision to return to Sydney because there was no work in Queensland. He came back to Sydney and worked at Spatial, an interior styling company.  He worked there until January 2021 and since then he has been at his current employment with TOMRA. During this period he was told by some people on the farm of this person called Lee Hansol who could help him get a second Working Holiday visa and he emailed him.

22. The Tribunal noted that in his response to the NOICC he indicated that he worked at the farm in Queensland from 21 March 2020 to 24 June 2020, but on verifying this with the employer the Department was told he worked from 27 April to 23 June.  It asked why he sought to state a longer period in his initial response.  He said that must have been a mistake on his part. The Tribunal put to him that it may find he was again providing incorrect information to the Department in his response to the NOICC and this would weigh against him in its consideration of the discretion. The applicant made no further response.

23. The Tribunal noted, also in his response he referred to having given Lee Hansol the correct information about his work in Queensland and asked if he has a copy of the email he sent to Lee Hansol with this information as he only provided Lee Hansol’s emails addressed to him. The applicant said he does not have this.  The Tribunal put to him that given the inaccuracy of his response to the Department about the work in Queensland and failure to provide evidence of this correspondence it may not accept his claim that he provided correct information to Lee Hansol. The applicant made no further comment.

24. The Tribunal asked why he approached Lee Hansol to submit his application.  He said it was utter desperation on his part because of the difficulties he was having getting regional work at that time.  He stressed he went to Queensland to do the regional work but could not get sufficient days.  He needed money and so he had no choice but to return to Sydney to take up a job he had been offered. The Tribunal asked why he applied then when he still had some months on his visa.  He said he was desperate and thought he needed the visa to remain here. The Tribunal asked if he approached the Department for advice.  He said he contacted them but was told that Irish passport holders still had to meet the regional work requirement.

25. The applicant confirmed that he received the NOICC and provided a response.  He confirmed he acknowledges that the information in the application was incorrect and that, while he had done some regional work in Queensland, it was not for the required period. 

26. The Tribunal discussed the prescribed matters in r.2.41 relating to the discretion to cancel with the applicant. Details of relevant evidence he gave is included in the discussion below.

    Was there non-compliance as described in the s.107 notice?

27. 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 s101 of the Act as set out above.

28. The applicant acknowledged in his response to the NOICC and evidence to the Tribunal that incorrect information about undertaking specified work was provided in his Working Holiday extension application.  On the basis of the evidence of the verification undertaken by the Department with Pearl Recruitment Group and the applicant’s acknowledgement of the incorrect information 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?

29. 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).

30. 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).

31. The Tribunal below discusses the prescribed circumstances set out in r.2.41 of the Regulations, taking into consideration the submissions and evidence put forward on behalf of the applicants.

    ·     the correct information

32. The applicant conceded that he was not employed by Pearl Recruitment Group as stated in the application, that he has never travelled to Western Australia and he has not undertaken three months of specified work as indicated in the application.

33. The Tribunal finds that this weighs in favour of cancellation in this matter.

    ·     the content of the genuine document (if any)

34. There is no allegation relating to a genuine document. Therefore, this factor is not relevant 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

35. The visa applicant was required to meet the criterion relating to specified work in regional Australia for a period of three months.  The visa applicant confirmed at hearing that he did not undertake specified work in Western Australia during his first Working Holiday visa as stated. While he has submitted that he did undertake relevant specified work in Queensland, the evidence indicates that he did this work from 27 April 2020 to 23 June 2020 and not from 21 March to 24 June 2020 as he claimed in his response to the NOICC. When questioned about the discrepancy in these dates at the hearing he explained that this was a mistake on his part, as this was the date he travelled to Queensland but it took some weeks for them to place him in relevant work. The Tribunal put to him that it may have a concern that he again provided incorrect information to the Department about the specified work he had done in his response to the NOICC, which was only discovered following verification with the employer. He made no further comment.

36. The Tribunal finds the incorrect information was relied on by the delegate to grant him the visa. It finds that if the correct information was provided, he would not have met this criteria and the visa would have been refused.  The Tribunal considers this is a significant matter and weighs in favour of cancelling the visa.

    ·     the circumstances in which the non-compliance occurred

37. The applicant explained that he travelled to Queensland to do the required specified work in regional Australia, and completed some 42 days.  He was willing and able to do more but due to the circumstances of COVID 19 at the time, he encountered difficulties obtaining the work.  Because of his need for employment he returned to Sydney.  He was desperate and uncertain about the future and so he engaged the services of Lee Hansol at the recommendation of friends.

38. The Tribunal accepts the applicant did undertake some specified work in regional Australia and is prepared to accept his claim that he encountered difficulties getting the work at that time due to COVID 19 issues. However, it also takes into consideration that he decided to proceed through the contact given to him with pursuing an extension in August when he still had over 5 months validity on his visa, knowing that he did not meet the specified work requirement. 

39. The Tribunal gives the circumstances in which the non compliance occurred, and particularly that he did travel to Queensland to do specified work and was willing to do more if offered, some weight against cancellation of the visa, although his willingness to pursue the extension application through Lee Hansol despite having substantial time left on his visa, detracts from the weight it is prepared to give to this factor.

    ·     the present circumstances of the visa holder

40. The applicant is working full time and has been working continuously since February 2021. He holds a position as a soldier in the Irish Army to which he must return in March 2022.  If he was to return early to Ireland he cannot return to his position because of the nature of the contract he signed.

41. The Tribunal accepts that the applicant is gainfully employed here now and may face difficulties accessing his position if he returns early to Ireland and gives some weight to this factor against 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

42. In his response to the NOICC the applicant stated that he undertook regional work in Queensland from 21 March to 23 June 2020 for a period of 92 days.  This information was incorrect as he had only worked from 27 April to 2 June, when verified with the employer. When this was put to him for comment at the hearing he offered no explanation other than that it was a mistake on his part.  The Tribunal does not accept that it was a mistake.  Additionally he stated in his response that he was shocked to hear about this incorrect information because he claimed he provided the correct information to Lee Hansol, yet no evidence of him providing this was submitted.  The Tribunal does not accept the applicant has been entirely truthful about these matters.  It finds that, upon being informed of the non compliance in the NOICC he sought to provide further incorrect information about the period of specified work undertaken, which was only discovered by the verification by the Department.

43. The Tribunal places adverse weight on the applicant’s subsequent behaviour concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act and this weighs in favour of cancelling the visa. 

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

1. The applicant told the Tribunal no other allegations of non compliance have been made and there is no adverse information before the Tribunal to indicate  other known instances of non compliance. 

2. This factor weighs against cancellation of the visa.

   ·     the time that has elapsed since the non-compliance

3. The Tribunal observes the visa was cancelled on 1 June 2021, having been granted on 11 August 2020 and therefore not a significant amount of time has elapsed since the non compliance. 

4. The Tribunal finds this factor does not weigh in favour or against cancellation, and considers it neutrally.

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

5. When asked at hearing if there had been any breaches of the law since the non compliance, the applicant told the Tribunal he was involved in an altercation outside a nighclub that lead to charges against him.  He pleaded guilty and the matter was resolved by way of fine.  This occurred in or around August 2020.  The Tribunal has no evidence of the details of this matter, but on the applicant’s oral evidence it accepts what he has stated. 

6. On the basis that it appears to have been a relatively minor matter, the Tribunal gives it a minimal weight in favour of cancellation,

   ·     any contribution made by the holder to the community.

7. The applicant has maintained his employment in Australia and submits this as his contribution.  No other submission was made.

8. The Tribunal gives the applicant’s continuing employment some weight against cancellation of the visa.  

   Other matters

9. 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.

10. The Tribunal has considered the legal consequences of cancelling the visa, which will lead the applicant to become an unlawful non citizen and potentially 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 they will also be affected by PIC 4013 which may prevent them from being granted certain kinds of visas for three years since the date of cancellation.

11. The Tribunal considers the consequences of the cancellation are significant and weigh against cancelling the visa. 

12. The Tribunal asked the applicant at hearing if there are any other relevant matters, including hardship to him or any family members that he wanted it to consider.  The applicant repeated that he cannot return to his job in Ireland until March 2022 whereas he is gainfully employed here now. 

13. Having carefully considered all of the above, the Tribunal concludes the factors in support of cancelling the visa in this case on balance outweigh the factors that weigh against cancelation.  In its assessment, the Tribunal places significant weight on the fact that the visa would not have been granted had the correct information been provided, and the applicant’s knowledge of this when he engaged the agent to lodge his visa application.  Additionally the applicant’s further non compliance in his response to the NOICC also weighs in favour of cancellation in this matter.  The Tribunal took into consideration the fact that the applicant undertook some specified regional work and was willing to do more but was unable to secure further work possibly due to the circumstances of COVID 19, and weighed this against cancelling the visa, together with his ongoing employment as a contribution to the community.  However the original non compliance and subsequent non compliance, together with the minor other breach of the law add up to outweigh those considerations. Ultimately, 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.

14. 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

15. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Meena Sripathy
    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.