Delannoy (Migration) - [2021] AATA 4583

Delannoy (Migration) [2021] AATA 4583 (17 November 2021)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Simon Raphael Daniel Delannoy
CASE NUMBER:  2101543
HOME AFFAIRS REFERENCE(S):          BCC2020/2685385
MEMBER:Linda Symons
DATE OF DECISION:  17 November 2021
DATE CORRIGENDUM
SIGNED:23 November 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

Date of birth on page 2 paragraph 2 of the decision record to be corrected from 2 February 1988 to 18 March 1994.
Linda Symons
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Simon Raphael Daniel Delannoy
CASE NUMBER:  2101543
HOME AFFAIRS REFERENCE:               BCC2020/2685385
MEMBER:L. Symons
DATE:17 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 17 November 2021 at 4:09pm
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 COVID-19 pandemic – reluctance to return to home country during pandemic – possible employer sponsorship – employment opportunities in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 48, 97-105, 107-109, 110, 111, 140, 189, 198
Migration Regulations 1994, r 2.41
CASES
MIAC v Brar (2012) 201 FCR 240
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).
The applicant is a national of France and was born on 2 February 1988. He was initially granted a Subclass 417 (Working Holiday) visa on 9 October 2019. He arrived in Australia on 15 November 2019 and his visa was valid until 15 November 2020. On 24 September 2020, he made an application to the Department of Immigration (the Department) for a 12 month extension of his Subclass 417 (Working Holiday) visa. One of the requirements for a 12 month extension of that visa is that he must have completed 3 months of specified work in regional Australia. In his visa application, he claimed that he had completed 3 months of specified work in regional Australia. On 24 September 2020, he was granted a 12 month extension of his Subclass 417 (Working Holiday) (Extension) visa.
On 9 February 2021, the delegate cancelled the Subclass 417 (Working Holiday) (Extension) visa under s.109(1) of the Act on the basis that on 24 September 2020 the applicant provided incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa. On 10 February 2021, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 21 September 2021 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Delannoy (Migration)

Details

AGLC: Delannoy (Migration) [2021] AATA 4583
Case: [2021] AATA 4583
Decision Date: 17 November 2021

CaseChat Overview and Summary

This matter concerned an appeal by the applicant against the cancellation of his Subclass 417 (Working Holiday) (Extension) visa. The dispute arose from the applicant's visa application, where he stated he had undertaken three months of specified work in regional Australia. The Department of Home Affairs subsequently received information from the employer listed, Atlantic (Aust) Enterprise Pty Ltd trading as Adenco, indicating no record of the applicant's employment. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the visa cancellation was justified.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 (Cth), which requires a non-citizen to complete their visa application without providing incorrect answers. This non-compliance was particularised in a Notice of Intention to Consider Cancellation (NOITCC) issued under section 107 of the Act. The Tribunal also had to consider whether the decision to grant the visa was based on this incorrect information and, if so, whether the grounds for cancellation outweighed any reasons not to cancel.

The Tribunal found that the applicant had indeed provided incorrect information in his visa application regarding his specified work experience. Specifically, the applicant stated he had worked for Adenco for three months in a specified role in regional Australia and was remunerated at an hourly rate of $28 AUD. The Tribunal was satisfied that the delegate had issued a valid notice under section 107 and that the applicant's visa was granted based on these incorrect answers, which were a crucial criterion for the visa. While the applicant provided reasons for the non-compliance, including the impact of the COVID-19 pandemic and difficulties in finding work, the Tribunal weighed these circumstances against the fact that the visa was obtained through false information.

Ultimately, the Tribunal concluded that the grounds for cancelling the applicant's visa outweighed the grounds for not cancelling it. Therefore, the Tribunal affirmed the decision to cancel the applicant's Subclass 417 (Working Holiday) (Extension) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 AND FINDINGS 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.Was there non-compliance as described in the s.107 notice? 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) in the following respects: On 10 December 2020, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of his Subclass 417 (Working Holiday) (Extension) visa as he considered that there had been non-compliance with s.101(b) of the Act. The NOITCC stated that s.101(b) of the Act provided that a non-citizen must fill in or complete his or her application in such a way that no incorrect answers are given or provided. The NOITCC stated that the applicant lodged an application for a Subclass 417 (Working Holiday) (Extension) visa on 24 September 2020 via the Department’s online facility. The NOITCC stated that 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?” he answered “Yes”. The NOITCC stated that under the heading “Details of specified work undertaken” the applicant provided the following answers:Legal registered name: Atlantic (Aust) Enterprise Pty Ltd trading as AdencoTrading name: Adenco Water Management and Civil EngineeringABN 47601690662Is the employer a labour hire company? No The NOITCC stated that under the heading “Work conditions” the applicant provided the following answers:Description of duties: Installation and removal of pits and services for NBN project in Lithgow region. Stared (sic) as telecommunications labourer.Date from: 02 March 2020Date to: 05 July 2020Total hours worked: 760Total days worked: 90Was the applicant under a piece rate agreement? NoHourly rate of pay: 28AUD

Decision

Reasons for decision

Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Subclass 417 (Working Holiday) (Extension) visa outweigh the grounds for not cancelling his visa. Therefore, the Tribunal concludes that the Subclass 417 (Working Holiday) (Extension) visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.L. SymonsMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa. 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 applicant was granted a Subclass 417 (Working Holiday) (Extension) visa on 24 September 2020 on the basis that he satisfied the criteria for the visa. One of the criterion is cl.417.211(5) which requires the Minister to be satisfied that, if the applicant held only one Subclass 417 visa in Australia, he has carried out a period or periods of specified work in regional Australia as the holder of the visa and the total period of work carried out is at least 3 months and he has been remunerated for the work in accordance with relevant Australian legislation and Awards. The applicant relied on incorrect answers that he worked at Adenco Water Management and Civil Engineering, in a specified job, in regional Australia, was remunerated 28 AUD per hour and undertook this work for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa to satisfy the criterion in cl.417.211(5). The delegate relied on these incorrect answers to grant him the Subclass 417 (Working Holiday) (Extension) visa. The Tribunal is of the view that the decision to grant him the visa was primarily based on these incorrect answers. The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa. The circumstances in which the non-compliance occurred The circumstances in which the non-compliance occurred were that the applicant applied for a Subclass 417 (Working Holiday) (Extension) visa on 24 September 2020 and provided incorrect answers in his visa application. The applicant did not respond to the NOITCC to the Department. The applicant sent the Tribunal a letter dated 21 February 2021 in which he stated that he contacted different farms but did not receive positive responses. He could not find any jobs during the lockdown as a result of the Covid pandemic. He has worked hard during the time he has been in Australia. He has a partner and they have been together for a year. They were planning to move to northern Australia and obtain work there. If his visa is cancelled, he will not be able to see his partner again. The situation in France is bad and is getting worse. He is aware of his mistake but did not have many choices. During the hearing, the applicant gave evidence that he was working in the hospitality industry in Sydney in 2020. The first lockdown in Sydney, as a result of the Covid-19 pandemic, was for 3 months. During that period, he looked for jobs in regional Australia. He applied for jobs on farms in the Northern Territory but did not receive any responses. He could not return to France and was receiving money from France to pay for his living expenses. After the lockdown, he did not have much money and was not able to go to a farm. He started working in Bondi and his employer discussed sponsoring him for a visa. It was an opportunity for him to stay in Australia, keep working and then apply for permanent residence after a few years. He kept working and several months passed. The situation in France was disastrous.