Denham (Migration)

[2022] AATA 2580

Denham (Migration) [2022] AATA 2580 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harry Denham

CASE NUMBER:  2118228

HOME AFFAIRS REFERENCE(S):          BCC2020/2748757

MEMBER:Luke Hardy

DATE:8 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2022 at 3:33pm

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 – lockdown travel restrictions – impact of the COVID19 pandemic – proposed studies – contribution to the community – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133

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, Mr Harry Denham of the UK, had provided incorrect information to the Minister in breach of s 101(b) of the Act.

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. Mr Denham appeared before the Tribunal, constituted by me, on 8 February 2022 to give evidence and present arguments.  

5. For the following reasons, I have concluded that the decision to cancel Mr Denham’s visa should be affirmed.

   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, I am 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 me 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 of the Act:

   Section 101      Visa applications to be correct

   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

10. In this case, Mr Denham claimed in his application for a third working holiday visa that he worked 190 days between 9 March and 30 August 2020 in regional Australia for the Gumala Aboriginal Corporation through the Pearl Recruitment Group (WA). This was information subsequently contradicted by the Pearl Recruitment Group itself when, on 19 November 2020, it contacted the Department of Home Affairs to advise that he had never worked for that employer.

11. Mr Denham acknowledged the breach and argued what he claimed to be mitigating circumstances in a statement to the Department:

    With Covid19 happening and the border closures I did not have much of a chance to do my farm work here in New South Wales. I knew there were not as many farms about as places such as Queensland where I previously did my 3-month regional work on a small family run dairy farm, which I came to enjoy by the end. I debated going to the farm to complete my 6 months regional work, but was not in a financial position to leave my current job at the time working through labour hire companies. With Covid also getting worse at this point, I decided it was maybe time to go home and my parents booked and paid for a flight for me which was cancelled just days before we were due to depart.

    By the time I had eventually saved up some money to support myself, if I did not get any farm work for a few weeks after arrival I had left it too late as I needed a 6 month time period to be able to do the correct amount of weeks to secure the third year visa.

    I know what I have done is wrong in regards to my visa approval. I did not realise at the time just quite how serious offence it actually was. I accept full responsibility and ask you to please consider not cancel[l]ing my visa.

    I have recently been looking into and enrolling on to an electrical 2 year college course and obviously if my visa gets cancelled I will not be able to do this.  Now the thought of going home back to England scares me a little with the current increase in Covid cases even after everyone has been vaccinated there is still around 30,000 cases a day.      Also, the job and learning opportunities in my hometown in England are very limited unlike here in Australia.

    If I could go back to last year and change things I would and maybe would [have] gone back to college sooner. Apart from this one offence, I have followed all other rules and regulations put in place here in Australia.

12. Mr Denham confirmed to me that he provided false and incorrect information to the Minister. He said he was assisted in doing so by a Mr Lee Hansol, which may be a real name or an alias. Mr Lee has evidently been associated with a large number of similar breaches, charging his clients around A$1000 each, the overall takings form this enterprise potentially implicating him in quite large-scale immigration fraud.

13. On Mr Denham’s evidence, I find that there was non-compliance by Mr Denham with s 101 of the Act in the way described in the s 107 notice.

    Should the visa be cancelled?

14. 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).

15. 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.

16. 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.

17. Mr Denham addressed all these considerations either in his letter to the Department or in oral evidence at the Tribunal hearing. I shall comment on each of them below”

    (a) the correct information

18. The correct information is this case is that Mr Denham did not undertake specified work in regional Australia, as defined in the legislative instrument in effect at the time of visa application, for a period of six months; and he did not work for Pearl Recruitment Group (WA) Pty Ltd (ABN 75145084046) between 9 March 2020 and 30 August 2020. The correct information is significantly different from the information he provided about having worked 190 days for the Gumala Aboriginal Corporation through the Pearl Recruitment Group (WA).

19. I find that this weighs significantly against Mr Denham in this matter.

    (b) the content of the genuine document (if any)

20. There is no genuine document to consider in this matter, and hence this consideration is not relevant. is consideration.

    (c) 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.

21. The original delegate made the decision to grant the visa based, in part, on the incorrect information provided by Mr Denham, which means that Mr Denham may have received an immigration benefit to which he might not have been entitled.

22. I find that this weighs substantially against him I this matter.

    (d) the circumstances in which the non-compliance occurred

23. Mr Denham has explained that the circumstances in which the non-compliance occurred included his not being in a financial position to leave his job with Norfolk Blinds in Sydney NSW to attempt to find specified work in regional Australia. As his statement indicates, when he was at last able to  do he did not have enough time left on his visa to complete six months’ work. He has also claimed that he was unable to depart Australia at the beginning of the Covid-19 pandemic because his flight home to the UK was cancelled.

24. I put to Mr Denham that it was expected of him to be in a financial situation to undertake the required work if he wanted to obtain an extension on his visa, or else, say, make arrangements to leave Australia prior to the expiry of his visa. He said he realised this and was regretful of the choice he had made. I asked him if he had not been aware that the Australian government introduced a Covid-18 visa in April 2020, having foreshadowed it earlier, the Department’s website having provided clear information for visa holders affected by the COVID-19 pandemic; this would have been several months before he lodged the Working Holiday (Extension) visa application on 26 October 2020. In response and again expressing regret, Mr Denham said he relied on word of mouth at the time and did not consult the Department as a source of information on visa rights and obligations.

25. I understand that that the COVID-19 pandemic created widespread uncertainty in the community and may have left a lot of people improvising safety measures until health and other advice became more consistent and regularly updated, although these conditions came generally into play by April 2020. I also understand that the cancellation of flight would have been at least a temporary setback, but I note that there would likely have been other flights. (Mr Denham said his parents’ money was refunded.) I have given consideration to Mr Denham’s remorse at having engaged in fraudulent conduct, but the circumstances in which the non-compliance occurred were not entirely beyond his control.

26. Ultimately, I do not find the circumstances in which non-compliance occurred outweigh the ground for the visa cancellation, and I give this consideration some negative weight in this case.

    (e) the present circumstances of the visa holder

27. Mr Denham told me his circumstances have not changed significantly since the time of his response to the a 107 notice in 2020. He has worked and travelled in Australia since 4 February 2019. He is an Engineering Quality technician and works for Norfolk Blinds in Sydney NSW. He told me that that he had been considering enrolling in two-year course of electrician studies. He said he became ineligible to apply for a student visa once he was placed on the bringing visa that followed the cancellation of the working holiday visa. He said he has a girlfriend who would travel back to the UK with him if this cancellation is not set aside.

28. If the cancellation stands, Mr Denham will likely not be able to continue to work and will not be able to begin studying in Australia, and this may cause him hardship. He has indicated that he would have to look for work in the UK and has provided a letter from his mother saying she would not be able to support him as she has been unemployed. He has also provided a letter of support from his employer Norfolk Blinds, attesting to two years of exemplary performance with the company and indicating that if the visa cancellation stands, obliging him to depart Australia, the company may suffer some hardship. I have considered all these factors.

29. Mr Denham has also expressed concern about the COVID-19 pandemic in the UK, adding that education and employment opportunities in his hometown are limited. Notwithstanding this, he was prepared to return to the UK in 2020 up until the moment his flight there was cancelled.

30. Having weighed all these considerations, I accept that the visa cancellation may cause Mr Denham, his partner, and his family to experience some detriment or hardship, including financial, psychological, emotional or other hardship.  However, I give this only a little weight against affirming the decision to cancel the visa.

    (f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958

31. I give a little weight in Mr Denham’s favour to the fact that he has been responsive and co-operative with procedures since receiving the s 107 notice from the Department in November 2020, behaving in accordance with his obligations under Subdivision C of Division 3 of Part 2 of the Act.

    (g) any other instances of non-compliance by the visa holder known to the Minister

32. I know of no other known instances of non-compliance by Mr Denham. I give this consideration some weight in his favour.

    (h) the time that has elapsed since the non-compliance

33. The non-compliance occurred when Mr Denham provided incorrect information on his Working Holiday (Extension) visa application lodged 26 October 2020. The Department granted the visa on 26 October 2020. Approximately 15 months have passed since the non-compliance occurred. I invited Mr Denham to comment on the position that this15-month interim might be insufficient to be regarded as a significant amount of time in this matter. He did not rebut the observation. All things considered I do not conclude that a significant amount of time has elapsed since the breach. Accordingly I am unable to find that this consideration goes more than only slightly in Mr Denham’s favour.

    (j) any breaches of the law since the non-compliance and the seriousness of those breaches

34. I accept Mr Denham’s testimony to the effect that he has breached no laws since the visa breach. I give this some small weight in his favour.

    (k) any contribution made by the holder to the community

35. Norfolk Blinds attests to Mr Denham having engaged in some volunteer installation work for the charity PIF, which provides accommodation for homeless and otherwise vulnerable teenagers and youths. I asked Me Denham for more details about this work. He said that for about six weeks around September last year he and some other Norfolk employees volunteered time after hours and on weekend to fit out subsidised housing units in association with ABCO Builders. He said that several Norfolk workers volunteered in this endeavour. He said that Norfolk engages in this kind of activity from year to year. Although I note that six weeks of volunteer service is not to be dismissed, and should be acknowledged as going to Mr Denham’s character, it seems fair to say that Norfolk Blinds would not be unable to continue this to the community were Mr Denham to be unable to remain in its employ. In any event, I do give the information about Mr Denham’s voluntary service in 2021 some weight in his favour. 

36. I have also considered the Department’s PAM 3 guidelines, which cover such matters as:

    ·whether there would be consequential cancellations under s 140.

    ·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

    ·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

    ·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

37. On the evidence before me, the cancellation of the visa would not cause any consequential cancellations under s 140 of the Act; or negatively affect any children; or lead to Mr Denham's removal in breach of Australia's non-refoulement or family unity obligations.

38. I have taken into account that if the visa cancellation stands, there may be mandatory legal consequences, such as Mr Denham becoming unlawful and liable to detention and removal, in the event of not departing Australia voluntarily within 28 days. He may also be subject to a bar under section 48 of the Act, limiting his options to apply for further visas from within Australia, and to Public Interest Criterion 4013, which may prevent him from being granted certain types of visas for a period of three years from the date of visa cancellation. At the Tribunal hearing, Mr Denham said he was aware of all these issues. He said he would voluntarily depart Australia before there were any need for the Department to implement the power to detain him.

39. I have considered all of the evidence before me. I have 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 discussed above, and having weighed factors in Mr Denham’s favour against those that do not, I find that the factors weighing against him are more significant overall and accordingly conclude that the visa should be cancelled.

    DECISION

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

    Luke Hardy
    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.