Doherty (Migration)

[2021] AATA 4910

Doherty (Migration) [2021] AATA 4910 (22 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Eimear Jane Doherty

CASE NUMBER:  2107706

HOME AFFAIRS REFERENCE:               BCC2020/2272816

MEMBER:Rosa Gagliardi

DATE:22 December 2021

PLACE OF DECISION:  Australian Capital Territory

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 22 December 2021 at 11:00am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information in second extension application – 6 months of specified work in regional Australia while holding first extension – verification checks showed claimed work not undertaken – discretion to cancel visa – COVID-19 restrictions limited work opportunities – application submitted by third party – mental health – family circumstances and limited support in home country – partner, treatment and support network in Australia – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(6)

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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had contravened s.101(b) of the Act which requires that no incorrect answers are given or provided – in this case in respect of a subclass Working Holiday visa subclass 417.

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 on 23 November 2021 to give evidence and present arguments.

5. 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

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.

   Did the notice comply with the requirements in s.107?

8. 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?

9. 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 section 101(b) of the Act.

10. The applicant applied for her Working Holiday (Extension) visa, subclass 417 (her third Working Holiday visa) on 22 August 2020, using the Department’s online lodgement facility, providing the following answers on the electronic visa application form:

    -    In response to the question ‘They have carried out at least six months of specified work’, the applicant answered ‘Yes’.

    -    In response to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)”, the visa holder answered “Yes” she had done so.
    
    

    -    The applicant also provided the following ‘details of specified work undertaken’:
    
     Employer Details

Legal registered name:	Pearl Recruitment Group
Trading name:	Pearl Recruitment Group (WA) Pty Ltd
Australian Business Number (ABN):	75145084046

Employer business address
Suburb / Town:	South Perth
State / Territory	Western Australia
Postcode:	6151

Work address
Business name at this location:	Gumala Aboriginal corporation
Suburb / Town:	Newman
State / Territory:	Western Australia
Postcode	6753

Work conditions
Industry type:	Construction
Industry type sub-group:	Construction
Date from:	13 Jan 2020
Date to:	02 Aug 2020
Total days  worked:	190

-    Under the heading ‘Working holiday declarations’, to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’, the applicant declared ‘Yes’.

1. It is to be noted that 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.

2. The above information was submitted to the Department as evidence that the applicant met the relevant criteria for her additional (third) Working Holiday (Extension) visa, namely that she had undertaken 6 months 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 while she held her second Working Holiday visa.

3. Based on the information above, the applicant was granted a Working Holiday (Extension) visa subclass 417.  The applicant was essentially arguing that she met the requirements of cl.417.211(6):

   Regulation 417.211
   (6) If the applicant has held 2 Subclass 417 visas in Australia, the Minister is satisfied
   that:
   (a) the applicant has carried out a period or periods of specified work in regional
   Australia; and
   (b) the total period of that work is at least 6 months; and
   (c) all of that work was carried out while the applicant held:
   (i) the second Subclass 417 visa; or
   (ii) a bridging visa that was in effect and was granted on the basis of the application
   for the second Subclass 417 visa (made at a time when the applicant held the
   first Subclass 417 visa); and
   (d) all of that work was carried out on or after 1 July 2019; and
   (e) the applicant has been remunerated for that work in accordance with relevant Australian legislation and awards.

4. Since the applicant was granted this third Working Holiday visa, the Department engaged with Pearl Recruitment Group (WA) Pty. Ltd, the business registered under ABN 75145084046, to verify the applicant’s employment claims.  On 3 September 2020, Pearl Recruitment Group advised the Department that the applicant had never worked at that business.  That is, she had not undertaken 6 months’ specified work in regional Australia as the holder of a second Working Holiday visa. 

5. The Tribunal finds that the information provided in the applicant’s application for her Working Holiday (Extension) visa, which details that she worked for Pearl Recruitment Group, for at least 6 months, undertaking work in construction, in regional Australia, from 30 January 2020 to 2 August 2020, is incorrect information as defined by section 101(b) of the Act.

6. For these reasons 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?

7. 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).

8. 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.

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.

   The correct information

10. At hearing the applicant was honest in admitting that she had provided incorrect information as she had never worked on her second Working Holiday visa in construction with Pearl Recruitment Group (WA), as set out in her application to meet the requirements of cl.417.211(6).

11. On the evidence before it, the applicant did not undertake specified work in regional Australia as defined in the legislative instrument in effect at the time for a period of at least 6 months; and did not work for Pearl Recruitment Group (WA) Pty Ltd (ABN 75145084046), from 13 January 2020 to 2 August 2020, as claimed.  The correct information that the applicant had not worked as required by cl.417.211(6), would have led the Department to refusing the applicant’s third Working Holiday visa (Working Holiday (Extension) visa) subclass 417 (subject of the cancellation).

12. The Tribunal places significant weight on the applicant providing information to the Department that was incorrect, false and misleading to obtain an ongoing presence in Australia.  As the applicant is from an English-speaking country, being Ireland, the Tribunal would find any arguments that she was not aware of the information being submitted by a third party on her behalf as being incorrect, non-persuasive.

    The content of the genuine document (if any)

13. This matter is not applicable as the issue is not about the content of any genuine (or otherwise) document.

    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

14. The decision to grant the third Working Holiday visa was based partly, at least, on the incorrect information provided by the applicant concerning claimed work with Pearl Recruitment Group (WA) Pty Ltd (ABN 75145084046), from 30 January 2020 to 2 August 2020, that led to the applicant meeting the requirements of cl.417.211(6).  The applicant was required to provide correct information about her past work experience to obtain the Working Holiday (Extension) visa.  The reliance by the Department on the information provided by the applicant led to the grant of a visa she was not entitled to, and by virtue of the review, has been granted additional time in Australia to work.  The Tribunal considers these matters are serious and places weight in favour of cancelling the visa as a result.

    The circumstances in which the non-compliance occurred

15. The applicant was honest in stating that she had paid a man by the name of “Golden Fish’ to lodge the visa for her.  She stated at hearing that it was in the middle of COVID-19 when she was on her second Working Holiday visa. The borders were closed and most of the farm work was located in Queensland.  She stated that she just panicked as she did not want to return to Ireland given the COVID-19 situation there was serious at the time.  She acknowledged she had made a mistake in taking the actions that she did.  She was not sure if she could have applied for a student visa and her experience in Ireland had been as a dental nurse, but this skill was not on the skills shortages list.  She felt she had no other options but to pursue a route she acknowledged had only placed her status in Australia in jeopardy.  Her brother had been living in Australia for 15 years and she had many friends in Australia who were her major source of support.  The applicant stated that she suffered from anxiety and that at times she could act impulsively.  This impacted her judgement in terms of contacting the Department to seek advice and admit that she had not worked in regional Australia as claimed.

16. The applicant has provided evidence that she has suffered from anxiety and was receiving treatment.  The applicant stated at hearing that she was overwhelmed by her circumstances.  At hearing the applicant was distressed and the Tribunal accepts that she has poor mental health.  The Tribunal accepts that as she claimed, she felt her condition was being treated in Australia in a way she could not afford to have treated in Ireland.  

17. The Tribunal places considerable weight on the applicant’s mental health difficulties in countering a decision to cancel the visa.

    The present circumstances of the visa holder

18. The visa applicant stated, and the Tribunal accepts, that in Ireland her support base was limited.  Her relationship with her father was variable and her mother had been in a care home for some time as she had suffered an aneurism.  She did not think she would have a home to return to if her visa were cancelled.

19. The Tribunal accepts that the applicant has a difficult family life in Ireland.  Her sister in Ireland has four children and was not in a position to provide her with any kind of assistance, financial or otherwise.  Essentially, she could not rely on anyone in Ireland to support her through her mental health struggles.

20. Further, the applicant stated that the cost of therapy in Ireland was prohibitive and that in Australia she had been able to embark on a regime of counselling which was assisting her to overcome her difficulties.  When she had broken up with a previous partner in Ireland, she had experienced serious illness but was only able to obtain limited medical assistance due to the cost.

21. She had also met her current partner in Australia, and he may have the opportunity to be sponsored through his work as he too was not a permanent resident.

22. The Tribunal noted that it could not assist the applicant achieve a long-term migration outcome, even though it was required to take into account hardship she would face in having the visa cancelled.  The Tribunal was required to take into account her circumstances and weigh these against the seriousness of her breach of Australia’s immigration laws.  Her future migration prospects were irrelevant to the Tribunal’s considerations.

23. The applicant has also supplied a letter from Sydney Civil indicating the applicant works as an essential worker for the City of Sydney Council, arguing she plays “a major role in traffic management across various sites in the city.  Eimear plays an essential part in the communication between clients, stakeholders, and Sydney Civil”.  The Tribunal has taken into account the applicant’s role as an essential worker but does not consider that her work situation moves the Tribunal to find that this is a factor it should take into account in not cancelling the visa.  The applicant benefitted financially from her work and there is no evidence the applicant has specialised skills Australia is particularly experiencing a deficit in.

24. Overall, the Tribunal places overwhelming weight on the applicant’s mental health conditions and how they affected her judgement, as well as her family circumstances in Ireland that are not conducive to her making a recovery.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

25. The applicant did not attempt to remedy the incorrect information provided to the Department used to obtain her third Working Holiday visa.  Given the applicant’s mental health conditions, the Tribunal places less significance on the applicant’s omission. 

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

26. There are no other known instances of non-compliance and the Tribunal places some weight in the applicant’s favour in relation to this matter against cancelling the visa. 

    The time that has elapsed since the non-compliance

27. The applicant provided the incorrect information when she applied for her third Working Holiday visa on 22 August 2020 and was granted the visa on the same day.  It has now been over a year since the infringement.  This is not a particularly lengthy period, but the Tribunal accepts that the applicant has a strong support network in Australia developed over this time.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

28. The Tribunal is not aware of any breaches by the applicant of the law since the non-compliance.  At the time the Department made its decision, none were highlighted, and the Tribunal accepts the applicant’s claims at hearing that there has been no other non-compliance of the law in Australia.  The Tribunal affords weight in this matter in the applicant’s favour.

    Any contribution made by the holder to the community

29. The applicant has not advanced any arguments to indicate that she has made a significant contribution to the community, other than through her work.  Given the applicant has been dealing with mental health issues, the Tribunal does not consider this matter to weigh heavily against her.

    Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under section 140 of the Act

30. There is no information before the Tribunal that this is the case.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

31. There is little information before the Tribunal that the applicant has any claims she is owed protection in Australia.  While her life in Ireland has been difficult the Tribunal is not satisfied that her return to her home country would result in relevant international agreements being breached.

32. The matter, therefore, does not play a significant part in the Tribunal’s decision regarding whether the visa ought to be cancelled.

    Conclusion

33. 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. 

34. The applicant should be aware that any future breaches of the Australia’s immigration laws, for whatever the reason, may lead to serious consequences.

    DECISION

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

   Rosa Gagliardi
   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.