Donohoe (Migration)

[2021] AATA 738

Donohoe (Migration) [2021] AATA 738 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Conor Donohoe

CASE NUMBER:  2013302

HOME AFFAIRS REFERENCE(S):          BCC2020/1025860 Not recorded

MEMBER:Luke Hardy

DATE:18 March 2021

PLACE OF DECISION:  Sydney

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 18 March 2021 at 2:18pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday – incorrect information and bogus documents in visa applications – specified work in rural Australia for three months – started first specified job, then experienced relationship and family difficulties – unable to complete three months’ work – paid a casual acquaintance for fake documents – verification checks – full admissions and genuine remorse – completed second three months’ specified work – study, community involvement and character references – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 103, 107, 109(1)

Migration Regulations 1994 (Cth), r 2.41

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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had submitted bogus documents as evidence of the required three to six months’ “specified work.” The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 March 2021 to give evidence and present arguments.  

4. 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

5. 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.

6. 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. Here, for convenience, are the relevant sections of the Act with interpretation:

   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

   Section 103    Bogus documents not to be given etc.

   A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.

   For the purposes of Subdivision C of the Act ‘bogus document’ is defined at section 5 of the Act as follows:

   Section 5 Interpretation

   (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.

7. The delegate found as follows:

   On 31 January 2019 the visa holder lodged an application for a Working Holiday (Extension) (subclass 417) visa using the Department’s online lodgement facility, providing the following answers on the electronic visa application form:

   ·In response to the question ‘Have you undertaken specified work in regional Australia for a total of 3 months?’ the visa holder answered ‘Yes’.

   ·In response to the question ‘If Yes, in which industry did this work mainly occur?’ the visa holder answered ‘Agriculture, Forestry and Fishing’.

   ·Under the heading ‘Details of specified work undertaken’, the visa holder provided the following answers:

   ABN: 25099315625
   Postcode: 2539
   Start Date: 03 September 2018
   End Date: 15 December 2018

   ·Under the heading ‘Declaration’, to the question ‘I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa’, the visa holder answered ‘Yes’.

   In support of the application, the visa holder uploaded copies of the following documents relating to his claimed employment:

   Payslips purporting to be for the periods:

   ·03/09/2018 to 08/09/2018

   ·10/09/2018 to 15/09/2018

   ·17/09/2018 to 22/09/2018

   ·24/09/2018 to 29/09/2018

   ·01/10/2018 to 06/10/2018

   ·08/10/2018 to 13/10/2018

   ·15/10/2018 to 20/10/2018

   ·22/10/2018 to 27/10/2018

   ·29/10/2018 to 03/11/2018

   ·05/11/2018 to 10/11/2018

   ·12/11/2018 to 17/11/2018

   ·19/11/2018 to 24/11/2018

   ·26/11/2018 to 01/12/2018

   ·03/12/2018 to 08/12/2018

   ·10/12/2018 to 15/12/2018

   Based on the above information, as well as meeting other relevant criteria, the visa holder was granted a Working Holiday (Extension) visa.

   Subsequent information received by the Department

   The Department initiated employment verification checks with Rosedale Farm (NSW) Pty Ltd, the business registered under ABN 25099315625, to verify the visa holder’s employment claims. On 03 March 2020, Rosedale Farm (NSW) Pty Ltd contacted the Department and advised that the visa holder had never worked at their business and that they do not employ visa holders.

   Possible non-compliance with section 101(b)

   I consider the visa holder provided incorrect information in the application for a Working Holiday (Extension) visa when he:

   ·answered ‘Yes’ to the question ‘Have you undertaken specified work in regional Australia for a total of 3 months?’;

   ·answered ‘Agriculture, Forestry and Fishing’ to the question ‘If Yes, in which industry did this work mainly occur?’;

   ·answered ‘Yes’ to the declaration ‘I am applying for a second Working Holiday visa and have done 3 months specified work on my first Working Holiday visa’; and

   ·provided details of claimed employment with Rosedale Farm (NSW) Pty Ltd, at the section of the application form titled ‘Details of Specified Work Undertaken’.

   I consider the above information is incorrect, as verification checks undertaken by the Department have concluded that the visa holder never worked at the business, Rosedale Farm (NSW) Pty Ltd. Therefore the visa holder has not undertaken three months specified work in regional Australia.

   Possible non-compliance with section 103

   I also consider that the visa holder has not complied with Section 103 of the Act because in support of his application for a Working Holiday (Extension) visa, it appears he submitted the following bogus document(s):

   Payslips the purporting to be for the periods:

   ·03/09/2018 to 08/09/2018

   ·10/09/2018 to 15/09/2018

   ·17/09/2018 to 22/09/2018

   ·24/09/2018 to 29/09/2018

   ·01/10/2018 to 06/10/2018

   ·08/10/2018 to 13/10/2018

   ·15/10/2018 to 20/10/2018

   ·22/10/2018 to 27/10/2018

   ·29/10/2018 to 03/11/2018

   ·05/11/2018 to 10/11/2018

   ·12/11/2018 to 17/11/2018

   ·19/11/2018 to 24/11/2018

   ·26/11/2018 to 01/12/2018

   ·03/12/2018 to 08/12/2018

   ·10/12/2018 to 15/12/2018

   It appears these are bogus document(s), within the meaning provided by paragraph (b) of section 5(1) of the Act which states:

   “is counterfeit or has been altered by a person who does not have authority to do so”

   Verification checks undertaken by the Department have concluded that the visa holder never worked at the business, Rosedale Farm (NSW) Pty Ltd, which he claimed on the visa application form. I consider that since the visa holder never worked at the business, Rosedale Farm (NSW) Pty Ltd, that the above listed document(s) appear to be counterfeit, or altered by a person who does not have authority to do so, as they were not genuinely issued in respect of his claimed employment.

   Based on the above information, it appears the visa holder provided incorrect answers and bogus documents in support of his Working Holiday (Extension) visa application. I consider therefore, that the visa holder has not complied with section(s) 101(b) and 103 and accordingly his Third Working Holiday visa (subclass 417) visa may be liable for cancellation under section 109 of the Act, relying upon the provisions of section 107A of the Act.

8. The applicant responded to the notice of intention to cancel his visa and his response was summarised by the delegate as follows:

   ·He did not complete his 88 days of regional work required for the visa. He has regretted this for the last two years in Australia and is sincerely sorry;

   ·He met ‘a guy’ in a pub, and explained his situation to him. This person then offered him his second year visa using a fake ABN and payslips, in return for $1000. Not long after this, his visa was approved.

   ·Prior to coming to Australia he suffered with anxiety and struggled with his confidence;

   ·He decided to leave Ireland with the plan to start a new life in Australia. When he arrived, he fell in love with Sydney, but struggled to find work;

   ·Four months into his visa, he was given an opportunity to do regional work in Port August, South Australia on a solar farm as an Electrical Trades Assistant. He took the offer, and on 27 August 2018 flew to South Australia to begin this work;

   ·During the first week of this employment, he received a phone call from his friend in Sydney who stated that his girlfriend of four years had cheated on him. This led to his anxiety flaring, and he was unable to eat or think straight, so he flew back to Sydney, intending to collect his belongings and return to Ireland;

   ·He states his return to Sydney was the lowest that he has been in his life. After a couple of weeks had passed, he decided to stay for the remainder of his visa, after his friends and family convinced him. By the time he had made his decision to stay, it was too late to complete his 88 days regional work.

   ·After this, he decided to ‘write his wrongs’ (sic) and legally complete his six months of regional work for his third year Working Holiday visa. On 10 July 2019, he set out to begin his regional work as an electrical trade assistant in Bathurst.

   ·During this time, he received ‘the hardest phone call of his life’ and was told that his father, Gerard Donohoe had had a heart attack and been rushed to hospital. He had decided to return home again, until he received a call from his father before he went into surgery, and who told him to stay and stick out the six months. He states that this was the toughest time of his life.

   ·He completed his six months, and was granted his third year Working Holiday visa.

9. 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?

10. 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 ss.101 and 103 in the following respects: the applicant gave incorrect information to the Department; and the applicant submitted bogus documents to the Department in support of the incorrect information.

11. Prior to the Tribunal hearing, the applicant submitted written material acknowledging the breach of the conditions of his visa through the provision of incorrect information and submission of bogus documents.

12. Taking the above facts into account, the Tribunal finds that there was non-compliance with ss.101 and 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

13. 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).

14. 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.

15. 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.

16. Much of the material submitted by the applicant to the Tribunal is in the form of reference letters, the authors of which acknowledging his actions and describing them as both uncharacteristic and having been committed in a discernible state of emotional and psychological distress. I have had some regard to this material.

17. The applicant also submitted material attesting to the fact that, whilst on his current bridging visa, he completed a personal fitness trainer certificate. Whilst this does not necessarily rise to being reasonably regarded as a “contribution made by the holder to the community” on its own, a number of the witnesses have illustrated how the applicant has used his new qualification to help to maintain and promote community health whilst adhering to recent Covid-19 infection minimisation protocols. The applicant submitted letters from witnesses attesting in particular to community and charity work that he has organised and undertaken including virtual fitness and football training conducted during the more restrictive periods of the current Covid-19 pandemic here in NSW. One letter describes the contribution he has made to the ethos of the Phoenix Football Club Sydney:

    An example of his leadership and dedication to the club was when restrictions were in place in early 2020 due to the pandemic and the season was on hold, [the applicant] arranged online training sessions and smaller training sessions outdoors when restrictions allowed to help keep the team fit and engaged in a period of isolation for many players. In addition, [the applicant] has supported with organising fundraising games to give back to the local community and for players who were injured and subsequently unable to work for a period.

18. At the Tribunal hearing, I found the applicant candid, self-critical and contrite. I accept that the non-compliance in this case occurred in the height of emotional and psychological stress and depression. I accept that that period has passed and I give some weight to the applicant’s remorse, which I consider to be genuine, and continuation to the community.

19. I note that it over two years have elapsed since the non-compliance in this case. I am not aware of any other instances of non-compliance with Australia’s migration regime.

20. I am satisfied on the evidence before me that there have been no breaches in the law committed by the applicant since the non-compliance of January 2019.

21. 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, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not 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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.