Doherty (Migration)

Doherty (Migration) [2021] AATA 5442 (6 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Danny Doherty
CASE NUMBER:  2107711
HOME AFFAIRS REFERENCE:               BCC2020/2272818
MEMBER:Rosa Gagliardi
DATE:6 December 2021
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 6 December 2021 at 1:29pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – there was non-compliance in the way described in the notice – applicant had provided false information deliberately –applicant didn’t complete 3 months’ regional work – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2, cl 417.211
CASES
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 second Subclass 417 Working Holiday visa under s.109(1) of the Migration Act 1958 (the Act).
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.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 November 2021 to give evidence and present arguments.
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
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.
Did the notice comply with the requirements in s.107?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. In the present case the Tribunal is satisfied that 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 section 101(b) of the Act.
The applicant applied for a second Working Holiday visa subclass 417 visa on 21 August 2020 and provided the following answers on the electronic visa application form:
The applicant was asked “Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?” and the applicant responded, “Yes”.
Asked to provide “Details of specified work undertaken”, the applicant provided the following details:

Employer Details

Legal registered name: Pearl Recruitment Group

Trading name: Pearl Recruitment Group (WA) Pty Ltd

Australian Business Number (ABN): 75145084046

Employer business address

Address: Level 1 Melville Prade

Suburb / Town:

State / Territory

Postcode:

Work address

Business name at this location: Gumala Aboriginal corporation

Address: Yandicoogina

Suburb / Town: Newman

State / Territory: Western Australia

Postcode 6753

Work conditions

Employment type: Dct employment

Industry type: Construction

Industry type sub-group: Construction

Description of duties
Date from: Land Development and Site Preparation Services

Date to: 02 Mar 2020

Total days worked: 05 Jul 2020

90

South Perth
Western Australia
6151

Gumala Aboriginal Corporation

Yandicoogina
Newman
Western Australia
6753

Direct employment
Construction
Construction
Land Development and Site
Preparation Services
02 March 2020
05 July 2020
90

Under the heading “Working holiday declarations”, the applicant declared, in response to whether he was applying for his second Working Holiday visa (subclass 417) and had completed 3 months of specified work as the holder of a first working holiday visa’, “Yes”.
It is to be noted that section 100 of the Act provides 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.
The above information was submitted to the Department as evidence that the applicant met the relevant criteria for his additional Working Holiday visa namely that he undertook specific work for a period of at least 90 days as per the requirement specified in Regulation 417.211(5):
Regulation 417.211
(5) If the applicant has held only one Subclass 417 visa in Australia, the Minister is satisfied that:
(a) the applicant has carried out a period or periods of specified Subclass 417 work as the holder of the visa; and
(b) the total period of the work carried out is at least 3 months; and
(c) the applicant has been remunerated for the work in accordance
with relevant Australian legislation and awards; and
(d) the work was not carried out for an excluded employer.
Based on the information above indicating that the applicant had completed at least 3 months’ work with Pearl Recruitment Group (WA) PTY LTD., in Newman, Western Australia, the applicant was granted his second Working Holiday visa subclass 417 on

21 August 2020.
Since the applicant was granted his second Working Holiday visa (subject of review), the Department engaged with Pearl Recruitment Group (WA) PTY LTD, being the business registered under ABN: 75145084046 to conduct a verification check on the applicant’s claimed employment claims. Pearl Recruitment Group (WA) PTY LTD confirmed that the applicant had never worked at that business and had never undertaken the work as he claimed in his application for the second Working Holiday visa. That is, he had not undertaken at least 3 months’ specified work in regional Australia as the holder of a first Working Holiday visa.
The Tribunal finds that the information provided in the applicant’s application for his second Working Holiday visa, which details he had worked at Pearl Recruitment Group (WA) PTY LTD for at least 3 months, undertaking specified work, from 2 March 2020 to 5 July 2020, is incorrect information as defined by section 101(b) of the Act.
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?
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).
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.
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
At hearing the applicant was honest in stating that the information he had provided was incorrect as he had never worked on his first Working Holiday visa as set out in his application to meet the requirements of cl.417.211(5).
On the basis of the evidence before it, therefore, the Tribunal finds that the correct information is that 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 3 months; and he did not work for Pearl Recruitment Group (WA) Pty Ltd (ABN: 75145084046) from
2 March 2020 to 5 July 2020. The Tribunal has little information in rebuttal that would persuade it that the applicant had provided correct information about these matters in his application. The correct information that he had not worked as required by cl.417.211(5), would have led to the Department refusing his second Working Holiday visa.
The Tribunal places significant weight on the extent and specificity of the incorrect information provided. While the applicant did not himself invent the incorrect information, he claimed he used someone purporting to be an agent who would help him stay, even though the applicant was aware that his avenues for remaining in Australia at the time of application had narrowed. The applicant has conceded that he was complicit in the provision of the incorrect information provided to enable him to achieve a migration outcome he was not entitled to.
The content of the genuine document (if any)
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
The decision to grant the second 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 2 March 2020 to 5 July 2020, that led to the applicant prima facie meeting the requirements of cl.417.211(5). The applicant was required to provide correct information about his past work experience while holding his first Working Holiday visa as set out in the relevant instrument at the time of application. This reliance by the Department on the applicant’s provision of the incorrect information, led him to be granted a visa for which he did not meet the regulatory requirements. The Tribunal places significant adverse weight on this matter.
The circumstances in which the non-compliance occurred
The applicant admitted at hearing that he ceded responsibility for the application for his second Working Holiday visa to a third party who assisted him to obtain the visa. The details about this person at hearing were vague. The applicant stated that he did not ask too many questions. The Tribunal at hearing asked the applicant why he had been motivated to engage in such conduct to secure a second Working Holiday visa even though he was not entitled to one. The applicant responded that he had “fallen in love with the place” and wanted to stay. He was also concerned about the COVID-19 virus and returning to Ireland where it was having a severe effect.
Rather than turn to an agent who clearly was prepared to assist an applicant circumvent Australia’s immigration regulations, it is not as though the applicant did not have a choice in the alternative actions he could have taken. It was always open to him, if he had concerns about returning to Ireland to contact the Department and advise that he wanted to stay in Australia as the Working Holiday visa was not a suitable vehicle for doing so, because he had not been able to do undertake specified work in regional Australia due to the closure of state borders. The applicant stated that he had not entertained the option of liaising with the Department to deal with the situation he found himself in.
While the Tribunal appreciates that the conduct of the third party who assisted the applicant gain the second Working Holiday visa was particularly egregious, the Tribunal does not accept that the applicant did not have agency in the provision of the incorrect information. The applicant was prepared to do anything to stay in Australia at that time. As such, the Tribunal places considerable adverse weight on this matter.
The present circumstances of the visa holder
The applicant is not married and does not have children. He advised at hearing that he does have a partner in Australia who finds herself in his circumstances, that is, that her visa was cancelled for the provision of incorrect information. He stated that they had been together for a year and moved in together six weeks after first dating. The relationship had progressed quickly. He stated that he saw the relationship as long-term but had difficulty contemplating a long-distance relationship were his visa to be cancelled and she were to remain in Australia.
The Tribunal has given this matter careful consideration and appreciates that separation of the applicant and his partner would cause the applicant hardship. Even though the Tribunal stated that were his partner to remain in Australia (and this was uncertain) then it was open to his partner to visit him in Ireland. The applicant was reluctant, however, to entertain a relationship where they would be separated geographically.
The Tribunal places weight in favour against cancelling the visa as a potential separation from a significant other in such a way would cause the applicant hardship, although the Tribunal notes that the longevity of the relationship is not such that it a long-standing one.
The applicant has also submitted a copy of a letter from his current employer, Ferrycarrig Construction Pty Ltd, dated 10 November 2021, stating that the applicant was an “integral part of one of our crews currently working on some of our major projects, for example Parramatta Light Rail and our Sydney Water West Region sites. There is an unprecedented demand for skilled workers at the moment to support the delivery of our current projects. Currently, we have a huge shortage in our business and have extreme difficulties in sourcing local Australian candidates with the correct skillsets to deliver the complexity and volume of work that we have on our books. Therefore, losing capable workers such as Danny, would be a massive loss to our company. Danny has proven to be a great asset to the Ferrycarrig Team and we hope to continue to have him working with us in all of our upcoming projects”.
The Tribunal accepts that there are skills shortages created partly by the pandemic and other factors in the economy. The applicant at hearing stated that the company he worked for was prepared to sponsor him, even though on the evidence, there is limited information to indicate that the company has made any such effort. Nonetheless, the Tribunal acknowledges that the applicant has been a valuable worker in an industry that appreciates his skills and his contribution to the work force. Clearly, the applicant would like to continue to keep working with Ferrycarrig Construction and to continue living in Sydney.
The applicant’s expectation to be able to continue working in Australia is predicated on a misconception that a Working Holiday visa is a conduit for obtaining permanent residency, and the right to work in any geographical area, in an industry of the applicant’s choice. It is not. As explained to the applicant at hearing, he was only enabled to work and live in Sydney for as long as he has because of the time taken for this matter to come to review. In the meantime, he has gained work experience and residency in circumstances where he did not have the right to do so.
If it had been the plan for the applicant to be sponsored on a Skilled visa it had been open to him to return to Ireland and apply offshore, on expiry of his first Working Holiday visa without resorting to providing incorrect information. He could have explored his options with a reputable migration agent, and if he did not want to return to Ireland could have gone to a third country to await an outcome for any visa application made offshore.
Hence, the Tribunal appreciates that Ferrycarrig will suffer some hardship in losing the applicant and that the applicant has made a contribution to the workforce in Australia in a niche industry. Overall, however, the Tribunal considers that this matter does not outweigh the gravity of the provision of incorrect information in the way that it was.
The applicant has added to his work experience profile in Australia and given he has proven to be adaptable and flexible in finding work here, the Tribunal sees no reason the applicant would not be able to make a living in Ireland or the United Kingdom or some other country.
The applicant stated that he was an only child, and that he would initially need to live with his parents as a 30-year-old on return to Ireland, and that this was not his preference given he had been living independently. However, he was prepared to contemplate such a situation for a period.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant conceded at hearing that he had not attempted to remedy the incorrect information used to obtain his second Working Holiday visa by contacting the Department – a matter that would have been in the applicant’s favour.
Any other instances of non-compliance by the visa holder known to the Minister
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
The incorrect information was provided on 21 August 2020 and the applicant’s second Working Holiday visa was granted on that day. Around 15 months have elapsed since the non-compliance. While this is not a lengthy period, the Tribunal would not dismiss the applicant’s length of stay in Australia outright, particularly as he has a partner in Australia, has developed close friendships, has earned the esteem of his employers, and is enjoying the lifestyle here.
Having considered these factors, however, the Tribunal takes into account that the applicant’s presence in Australia for an additional 15 months or so has been due, in part, to the applicant’s non-compliance with s.101(b) and the fact that the review process has taken place. Had the applicant returned to Ireland on recognising that he was not eligible for a second Working Holiday visa because he had not met the requirements of cl.417.211(5), he would not have had the benefit of the additional time in Australia.

While the Tribunal appreciates the applicant has a personal partnership in Australia of one year’s duration, close friends and work, it places lesser weight in the applicant’s favour on these matters given the seriousness of the applicant’s conduct in providing incorrect information.
Any breaches of the law since the non-compliance and the seriousness of those breaches
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 is prepared to accept that this is also the case at the time of review, as advised by the applicant. The Tribunal affords weight in this matter in the applicant’s favour.
Any contribution made by the holder to the community
The applicant stated that he thought the work he had conducted represented a significant contribution to the community, albeit he recognised he was remunerated for that work and in that sense could not be considered charitable work. He had nonetheless, coached youngsters in football and had assisted the Irish community in Sydney. He had contributed personally to the football community in Sydney as a player and as a mentor.
The Tribunal notes that the applicant has contributed towards major work projects in Australia. But as the Tribunal pointed out to him at hearing had the applicant not provided the incorrect information it was reasonable to assume that he would not have been able to stay in Australia to work, without regularising his status. The Tribunal places some weight in favour of the applicant against cancelling, albeit minimal as the work undertaken was done so without a proper migration foundation.
The Tribunal also places weight on the applicant’s contribution to the football and Irish communities in Sydney, however, it was the provision of incorrect information that enabled this contribution, and as such, the Tribunal is not persuaded that this is a factor which outweighs the applicant’s conduct in the provision of incorrect information.
Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under section 140 of the Act
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
There is little information before the Tribunal that the applicant has applied for a Protection visa and at hearing the applicant stated that he had not. He also indicated that he did not fear returning to Ireland because he would suffer serious harm, even though the Tribunal acknowledges that the applicant stated it would take some time for him to start over and to re-establish himself independently in Ireland. Notwithstanding the difficulties the applicant may have in returning to Ireland the Tribunal is not convinced that such hardship would mean Australia would be in breach of international non-refoulement obligations if the visa were cancelled and the applicant was required to return to his home country.
This matter, therefore, does not play a significant part in the Tribunal’s decision regarding whether the visa ought to be cancelled.
Conclusion
The Tribunal recognises that the applicant was remorseful of his actions in ceding his responsibilities for his visa to a third party, rather than finding a lawful migration pathway, which was his ultimate aim. The Tribunal also acknowledges that the Covid-19 pandemic meant it was not an attractive option to return to Ireland when he had not been able to fulfil the requirements of his first Working Holiday visa. Weighing the relevant factors, however, the Tribunal considers that the migration system was undermined in a significant manner by the provision of incorrect information and the Tribunal has not been able to identify any persuasive evidence that there were extenuating circumstances for his complicity in providing incorrect information.
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 be cancelled.
DECISION
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.

[2021] AATA 5442

6 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice