Durkin (Migration)

[2022] AATA 1104

Durkin (Migration) [2022] AATA 1104 (1 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aoibheann Durkin

CASE NUMBER:  2110479

HOME AFFAIRS REFERENCE:               BCC2020/2424797

MEMBER:Rosa Gagliardi

DATE:1 February 2022

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 1 February 2022 at 2:12pm

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 – applicant did not undertake specified regional work in Australia – mental health conditions – compelling and credible case– decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 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

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 Working Holiday (Extension)(Onshore) 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.

3. The applicant appeared before the Tribunal on 1 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Robert Black, who is the applicant's partner.  

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.

7. 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?

8. 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. 

9. The applicant applied for her Working Holiday (Extension) visa subclass 417 (her second Working Holiday visa) on 22 June 2020 using the Department’s online lodgement facility.  In response to the question as to whether she had undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417), the applicant responded, “Yes”. 

10. In relation to the detail required about the specified work undertaken, the applicant wrote that she had worked for an employer called Tradeconnex PTY LTD, at Yarrenlea Solar Farm, Yarrenlea, Queensland, in the rural postcode of 4356.  She also set out that she had worked in the construction industry for this employer, undertaking panel scanning, quality control and labouring, from 6 January 2020 to 24 May 2020, for a total of 90 days.  This information was submitted to the Department to illustrate that the applicant had undertaken for at least 3 months specified work in regional Australia, as defined in the legislative instrument in effect at the time of visa application while she held her first Working Holiday visa. 

11. Based on this information the applicant was granted a Working Holiday (Extension) visa subclass 417.  In essence, the applicant was arguing that she met the requirements of cl.417.211(5).

    (5)  If the applicant is, or has previously been, in Australia as the holder of a Subclass 417 visa, the Minister is satisfied that:

    (a)  the applicant has carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa; and

    (b)  the total period of the work carried out is, or is equivalent to, at least 3 months full-time work; and

    (c)  the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

12. Since the applicant was granted this second Working Holiday (Extension) visa, the Department undertook verification checks with Tradeconnex PTY LTD, the business registered under ABN 48615055288, to verify the applicant’s employment claims.  However, Tradeconnex PTY LTD advised the Department that the applicant had never worked at the business.

13. The Tribunal finds that the information provided in the applicant’s application for her Working Holiday (Extension) visa, which details that she worked for Tradeconnex PTY LTD, for a total of at least 3 months, undertaking work in the construction industry, in regional Australia, from 6 January 2020 to 24 May 2020, is incorrect information as defined by section 101(b) of the Act. 

14. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

15. 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).

16. 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.

17. 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

18. The applicant was honest at hearing stating that she had never worked for Tradeconnex PTY LTD as detailed in her application to meet the requirements of cl.417.211(5). 

19. 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 3 months; and did not work for Tradeconnex from 6 January 2020 to 24 May 2020, as claimed.  The correct information that the applicant had not worked for Tradeconnex as required under cl.417.211(5), would have led the Department to refusing the applicant’s second Working Holiday visa, (Working Holiday (Extension) visa). 

20. 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. 

    The content of the genuine document (if any)

21. This matter is not applicable as the Tribunal is not assessing the content of a 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

22. 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 Tradeconnex PTY LTD (ABN:48615055288) from 6 January 2020 to 2020.  The reliance by the Department on the information provided by the applicant led to the grant of a visa to which the applicant was not entitled, and by virtue of the review, has had additional time in Australia she might not otherwise have been entitled to.  The Tribunal considers that these matters are serious and weigh against the applicant.

    The circumstances in which the non-compliance occurred

23. The applicant has been transparent about having been referred by a friend to an unauthorised agent but denies knowing what was in the application.  The Tribunal finds it somewhat incredulous that the applicant would not have been aware that something was amiss with the application.  She would have known what the requirements for the grant of a Working Holiday visa generally are, so it seems implausible that she did not know that she did not meet the requirements of cl.417.211(5).  The Tribunal considers that the applicant would have known that she had not undertaken specified work in regional Australia as required. 

24. Having said this, the Tribunal is sympathetic to the applicant’s submissions that the COVID-19 pandemic had been quite tough for her as she watched her friends and family back in Ireland struggle.  In particular, she was adversely affected when she heard that her family’s business Durkin’s Bar was forced to permanently close as a result of the pandemic after being in operation for almost 5 decades.  The applicant has provided to the Tribunal a newspaper article to corroborate her claims.  A letter from the accountant also supports the applicant’s claims.  The loss of the business which had been in the family for a lengthy period, and importantly, had been the main source of income for the family had closed and this took a heavy toll on the family.

25. The applicant has written in her statutory declaration to the Tribunal dated 29 November 2021, that with time running out on her visa she was very worried that she would have to return to Ireland, and she would be a burden on her family as they would not be able to support her.  She would also not be eligible for any social security in Ireland as she had been out of the country for more than a year.

26. The applicant has explained that the thought of returning to Ireland caused her mental health to deteriorate further and she began to experience frequent panic attacks, feeling constantly depressed and hopeless.  Her time to find regional work was running out and due to the pandemic was proving difficult to find.  The applicant states, “I was suffering from stress and anxiety from visa concerns, my family’s situation and the ongoing effects of the pandemic.  I felt extremely lonely and as though I was a significant burden on everyone.  Unfortunately, the situation got the better of me as I struggled to cope psychologically.  I have since sought treatment and returned to taking anti-depressant medication”.

27. The Tribunal has had regard to the report by the general practitioner which states that the applicant has been treated for chronic anxiety and depression and is currently on medications due to aggravation of symptoms, as a result of a number of stressors caused by COVID-19 restrictions, isolation, personal and family issues.  The applicant has also provided evidence that she is taking Sertraline, used to treat depression, anxiety, post- traumatic stress disorder, and panic attacks, among other things.[1]  From the evidence it would appear that the applicant had an underlying mental health issue or a vulnerability to it, which was aggravated by her personal circumstances. 

    [1] accessed on 1 February 2022.

28. The Tribunal accepts that at the time she lodged her second application for a Working Holiday visa, the applicant was, as she put it in her statutory declaration, at the lowest point of her entire life.  The Tribunal accepts that the applicant did not act rationally and acted out of character as she was desperate to find a way out of her predicament.

29. Not to diminish the seriousness of the applicant’s actions in undermining Australia’s immigration processes, the Tribunal considers that the applicant’s mental health conditions, together with the circumstances in which her family found themselves, outweigh other considerations in making this decision.  The case put forward by the applicant has been compelling and credible.

30. The Tribunal notes that the applicant has also stated and provided evidence that she is working as a Financial Crime Analyst within the Commonwealth Bank of Australia since July 2020, arguing she considers she is making a difference in terms of assisting to detect and prevent fraud within the financial sector.  The Tribunal places some weight on this matter in the applicant’s favour, but does take into account that the applicant has only been able to benefit financially from this position because she has been able to remain in Australia after her visa was cancelled, even though, in theory, she had no right to be in Australia.

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

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

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

32. 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

33. The applicant provided the incorrect information when she applied for her Working Holiday (Extension) visa subclass 417, on 22 June 2020 and was granted the visa on the same day.  It has now been over a year since the grant and the Tribunal appreciates that the applicant has developed a network of support in Australia, including that of her partner, who has played a role in assisting the applicant manage her mental health difficulties.

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

34. 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 that the applicant has not contravened any other Australian laws.

    Any contribution made by the holder to the community

35. The applicant has not advanced arguments to indicate that she has made a significant contribution to the community, other than through her work.  Little weight is placed on this matter in the applicant’s favour.

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

36. 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

37. There is little information before the Tribunal to suggest the applicant has claims she is owed protection in Australia.  While her life in Ireland would be financially difficult if she were to return, the Tribunal does not consider that this would result in Australia breaching its relevant international agreements.

38. The applicant has also not declared any children who might be affected by this decision and the Tribunal is satisfied that the Tribunal does not need to take into account the Convention on the Rights of the Child.

39. These matters, therefore, do not play a significant part in the Tribunal’s decision regarding whether the visa ought to be cancelled.

    Conclusion

40. 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.

    DECISION

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