Delasalle (Migration)

[2022] AATA 3585

Delasalle (Migration) [2022] AATA 3585 (31 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quentin Andre Delasalle

REPRESENTATIVE:  Mrs Helena Smith-O'Connell (MARN: 1067998)

CASE NUMBER:  2016675

HOME AFFAIRS REFERENCE(S):          BCC2020/1699261

MEMBER:Mark Bishop

DATE:31 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 31 August 2022 at 9:57am

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – applicant provided false and misleading information– Public Interest Criterion 4020 (PIC 4020) – applicant didn’t undertake specified work – circumstances are neither compassionate nor compelling – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65, 362, 379

Migration Regulations 1994, Schedule 2, cl 417.221

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Kaur v MIBP [2017] FCAFC 184

Trivedi v MIBP [2014] FCAFC 42

Plaintiff M64/2015 v MIBP [2015] HCA 50

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 on 30 October 2020 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 June 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of r.417.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant provided to the Department information considered to be false and misleading.

3. The applicant appeared before the Tribunal on 31 August 2022 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   consideration of claims and evidence

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl r.417.221 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

7. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

8. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

9. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

10. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

11. The delegate made a finding that as part of his application for a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa the applicant declared he undertook specified work in the Agriculture industry with employer Muhan Pty Ltd (ABN: 34604108821) from 14/10/2019 to 01/05/2020 in the 4720 regional postcode area. For the purpose of this application, specified work is defined as plant and animal cultivation, fishing and pearling, tree farming and felling, mining and construction in Legislative Instrument LIN 20/103: Subclass 417 (Working Holiday). The applicant provided supporting evidence  relating to his passport bio-data page, bank balance as to funds and payslips.

12. The delegate made a finding that Department checks indicated that the specified work declared by the applicant in relation to Muhan Pty Ltd may be information that is false or misleading in a material particular, as this employer has verified that they did not employ the applicant on the claimed dates. In evidence the applicant advised the Tribunal the detail as outlined in paragraphs11 and 12 was correct.

13. In response to a request to comment on information that the Department believed was false and misleading the applicant advised as follows:

    ·“I’ve met someone who told me that because of the covid 19 situation and the difficulties in finding flights out of Australia it was possible for some farmers as local business to give me the documents I needed to get my third 417 Working Holiday visa. I paid 750 dollars to this person as I believed it was part of the process and I thought, naively this was above board and legal and at no time I was deliberately trying to mislead or lie to the Department. I have since learned that this has been done to many others 417 Visa holders like mine and I feel I am being made the scapegoat for bad practices by these people.”

14. The delegate was made a finding that notwithstanding applicant Covid concerns the applicant knowingly provided false and misleading information in order to obtain a 3^rd working holiday visa.

15. The delegate made the following finding:

    ·Based on the evidence and information before the Department and the response provided by the applicant, I am satisfied that the information submitted to the department is false and misleading in a material particular, as defined in PIC4020(5). Therefore the applicant does not satisfy PIC4020 (1).

16. The applicant did not raise any compassionate or compelling circumstances before the Department.

17. The Tribunal asked the applicant to explain how it came about that false and misleading information was provided to the Department. The applicant advised as follows:

    ·The applicant met a fellow French citizen in his hostel and explained that his then current Working Holiday Visa was about to expire and he didn’t know what to do. This unnamed person said he could help for a small fee of $750 as he had helped about 20 other people in the same situation. The applicant provided him with his identity details, access detail to his IMMI account, paid the fee and authorised the stranger to access the account and lodge the relevant application.

    ·The applicant advised the Tribunal he knew it was a mistake and was aware it was fraudulent activity.

18. The applicant is responsible for providing information that is truthful and accurate. This task cannot be delegate to another person. It is the responsibility of the applicant to ensure that at all times false or misleading information is not provided to the Department.  At all times it is the responsibility of the applicant. The applicant has had significant exposure to Australian immigration processes and at all material times was well aware the Department maintained detailed records. The false information provided by the applicant was designed to get a particular outcome.

19. The Tribunal is of the view the applicant deliberately attempted to mislead the Department. The applicant has failed to provide a satisfactory explanation as to how he came to make a mistake he now summarises as “…I thought, naively this was above board and legal and at no time I was deliberately trying to mislead or lie to the Department. I have since learned that this has been done to many others 417 Visa holders like mine and I feel I am being made the scapegoat for bad practices by these people.”  The Tribunal does not accept the applicant was naïve, did not attempt to mislead the Department or is being made a scapegoat for bad practices by these people. The Tribunal is of the view the applicant engineered the process and the stranger in the hostel was simply acting as agent for the applicant.

20. The applicant paid a fee to a stranger and failed to ensure correct information was provided to the Department. The Tribunal views this as a deliberate act freely entered into by the applicant designed to achieve a favourable visa outcome.

21. Therefore, the applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

22. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

23. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

24. On 15 August 2022 the Tribunal wrote to the applicant and invited him to attend a hearing on 31 August 2022. The Tribunal asked the applicant to” please provide all documents you intend to rely on to support your case by 24 August 2022” In response the applicant advised he would not provide any documents to the Tribunal prior to the hearing.

25. The applicant did not provide a written submission that addressed the requirements of PIC 4020 or waiver as set out in paragraphs 22 and 23 above.

26. The Tribunal asked the applicant to address waiver in terms of ‘compelling circumstances’ and ‘compassionate or compelling circumstances’.  The applicant advised the Tribunal he had lived in Australia for a lengthy period, was comfortable in Australia, had a girlfriend in Darwin, wished to return to farm work and if possible apply for a student visa to study cooking in the future.

27. The Tribunal is of the view the applicant has outlined a set of features (girlfriend, work, possible future study and a desire to remain in Australia) that are a normal part of life. Whilst important these circumstances are neither compassionate nor compelling. The matters outlined by the applicant do not satisfy the requirements set out in paragraphs 22 and 23 above.

28. For the above reasons, the Tribunal is not satisfied that the requirements should be waived.

    Exclusion period may now apply

29. This application has been refused following an assessment that the requirements of the PIC4020 criterion were not met.

30. Consequently each person (the applicant) refused as a result of not satisfying PIC4020 is now subject to a provision which may prevent them from being granted another visa for Australia for a period of three years.

31. This is because PIC4020 includes the following subclause:

    (2) The Minister is satisfied that during the period:

    (a) starting 3 years before the application was made; and

    (b) ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of a family unit of the applicant has not been refused a visa

    because of a failure to satisfy the criteria in subclause (1).

    This means that for 3 years from the date that your 417 visa was refused, the applicant may

    be prevented from being granted any other visa subject to PIC4020.

    Concluding paragraphs

32. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of r.417.221.

    decision

33. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Mark Bishop
    Senior Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s 5      Interpretation

    (1) In this Act, unless 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.

    …