Davies (Migration)

[2021] AATA 4924

Davies (Migration) [2021] AATA 4924 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Tania Louise Davies

CASE NUMBER:  2108431

HOME AFFAIRS REFERENCE(S):           BCC2020/2272889

MEMBER:Catherine Carney-Orsborn

DATE:15 December 2021

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 15 December 2021 at 5:05pm

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 – employer reported no record of applicant – impact of the COVID19 pandemic – volunteer work – family bereavement – decision under review set aside       

LEGISLATION

Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 140, 359
Migration Regulations 1994, r 2.41

CASES

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 applicant provided incorrect answers in her application for a Subclass 417 (Working Holiday) (extension) visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. 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

4. 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.

5. 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.

6. 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?

7. 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 Act in the following respects: the applicant declared having completed at least three months of specified work in a designated area in Australia whilst she held either a Working Holiday visa or a bridging visa that was in effect and granted on the basis of the application for the Working Holiday extension visa.

8. On 7 August 2020, the applicant lodged an application for a Working Holiday extension visa online. In that application, the applicant provided the Department with answers in relation to her claimed employment as being in Land Development and Site Preparation Services for Pearl Recruitment Group (WA) Pty Ltd. The applicant was granted an extended Working Holiday visa based on the information provided and claimed employment.

9. On 3 September 2020, as part of the Department’s integrity employment checks, the Department received confirmation from the claimed employer that the applicant in fact never worked for them.

10. On 13 May 2021, the Department wrote to the applicant in the form of a s 107 notice outlining the reasons for an intention to cancel her Working Holiday visa, being the provision of incorrect answers when completing the application form. The applicant was given the opportunity to respond within 14 days addressing the incorrect information.

11. The applicant did not respond to the Department within 14 days.

12. On 16 June 2021, the Department notified the applicant that her Working Holiday visa had been cancelled. On 29 June 2021, the applicant lodged a review of that cancellation with the Tribunal.

13. Departmental records indicate that the applicant held previous Working Holiday visas since June 2019.

14. On 8 October 2021, the Tribunal wrote to the applicant inviting her to comment and provide information on adverse information as follows:

Departmental records indicate that you did not comply with s 101(b) of the Act regarding the provision of correct answers in your visa application on 7 August 2020. Section 101(b) of the Act states:

A non-citizen must fill in or complete his or her application form in such a way that:

(b) no incorrect answers are given or provided.

On 7 August 2020, you indicated in your Subclass 417 (Working Holiday) visa application that you had completed work in Land Development & Site Preparation Services for Pearl Recruitment Group (WA) Pty Ltd. Based on the above information, as well as meeting other relevant criteria, you were granted your Working Holiday (Extension) visa on 7 August 2020.

Departmental records indicate that you did not complete at least three (03) months of specified work whilst holding your first Working Holiday (subclass 417) visa. Based on the above information, as well as meeting other relevant criteria, you were granted your Working Holiday (Extension) visa on 7 August 2020.

The Department in conducting employment verification checks received confirmation from your claimed employer that you in fact never worked for Pearl Recruitment in WA with the business registered under ABN 75145084046.

On 13 May 2021, the Department wrote to you notifying you of the intention of cancelling your Working Holiday (Extension) (subclass 417) visa. You were given 14 days to respond to the letter with reasons why your visa should not be cancelled. You did not respond on time.

1. On 18 October 2021 the applicant responded to the 359A letter.

2. The applicant provided detailed submissions.  Included in that submission she stated that she had outsourced her problem to someone who told her they could help her.  She now sees it was a mistake and is remorseful.

3. The Tribunal is satisfied on the evidence before it that the applicant provided incorrect answers in her visa application.

4. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

5. 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).

6. 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 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.

7. 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.

8. The applicant provided oral evidence to the Tribunal.  She also provided written evidence.

9. She stated that she had struggled to the outbreak of COVID19, and she was unable to find appropriate work due to the lockdowns which followed.  She provided evidence of her attempts at finding work in regional areas.

10. She found work in Sydney as a dental nurse.  She worked there as allowed by her visa.

11. The applicant further provided evidence that her grandfather who is the only family she has in the UK became very unwell and has since passed away.

12. Her evidence is that she has formed bonds and associations with people in Australia who have supported her, and she wishes to be able to return to finish her working visa.

13. The applicant provided information and evidence including references that she had volunteered at wildlife centres during that time.

14. The Tribunal queried why she did not contact the Department to ascertain what she could do. 

15. Her evidence is that she regrets relying on someone who stated they would be able to help her.  Her evidence is that she was stressed by the unexpected COVID19 events, she could not secure employment and her grandfather became critically ill.  She was running out of money and panicked.

16. The Tribunal has considered the above.

17. The correct information is that she had not completed the regional work required of her.  This resulted in her being granted a visa.  Nearly two years have elapsed since the non-compliance and the applicant left Australia.

18. The non-compliance happened in an extraordinary period being the COVID19 outbreak and lockdowns.  The applicant also faced the critical ill health of her grandfather who is the only family she has in the UK.

19. The applicant is presently in the UK and is working.  Her grandfather has passed away and due to a family breakdown, she has no other family in the UK.  Her evidence is that she has maintained substantial ties with persons in Australia who supported her and were like her family.

20. There are no other instances of non-compliance that the Tribunal is aware of.  A relatively short time has elapsed since the non-compliance.

21. The Tribunal has nothing before it to indicate that the applicant has breached any Australian law.

22. The applicant provided references from volunteer groups which indicate that while she was unable to work, she spent time as a volunteer and was well thought of.

23. The Tribunal has carefully considered all the above.  The Tribunal is concerned that the applicant participated in a fraud on the Migration system. It is further concerned that she did not take the best route of contacting the Department to ascertain the best way to deal with the lockdowns and being unable to travel to regional areas.

24. The applicant presented as a credible witness.  She was remorseful at her being involved in what seemed like a way to solve her problems quickly.

25. She provided evidence of her attempts at finding regional work.  She further provided references from the volunteer work she undertook and provided evidence of her work as a dental nurse.

26. The Tribunal has considered the responses she received from regional areas and employers advising her that due to COVID 19 they could not provide her with work.

27. The Tribunal accepts that she tried to comply with the conditions of her visa.  The Tribunal further accepts that she was under stress in relation to finding a place to live, that her grandfather, who was her only family was critically ill, and that she has made a connection to Australia.

28. The Tribunal accepts that she contributed to the community and still has connections.

29. The applicant would not be able to return.  She has departed Australia.  There is nothing to indicate there are other consequential cancellations.  The Tribunal has considered that the applicant would be impacted given that she has no familial connections in the UK. 

30. She has skills that are useful and needed in Australia.  She provided independent evidence showing that she has used those skills in Australia and her employer benefited.

31. The Tribunal has taken into account all of the above and weighed the evidence.

32. 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

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

    Catherine Carney-Orsborn
    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.