Dyne (Migration)

[2023] AATA 748

Dyne (Migration) [2023] AATA 748 (27 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Carla Dyne

CASE NUMBER:  2106972

HOME AFFAIRS REFERENCE(S):          BCC2020/2243200

MEMBER:Scott Clarey

DATE:27 March 2023

PLACE OF DECISION:  Melbourne

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 27 March 2023 at 2:46pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers provided in extension application – 3 months of specified work in regional area while holding first visa – verification check – never worked for claimed employer – discretion to cancel visa – non-compliance admitted – COVID restrictions, three days’ work and attempts to find further work – no approach to department – paid agent to complete application – current work for family-owned business in sector with serious worker shortage – community volunteering – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), Schedule 2, cl 417.211(5)

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 issued a Notice to Consider Cancellation (NOICC) pursuant to s 107 of the Act on 4 May 2021. The applicant responded to the NOICC with written submissions and supporting documents.

3. On 25 May 2021 the delegate cancelled the visa on the basis that the applicant provided incorrect answers in her Working Holiday (Extension) visa application. The delegate found the visa holder had not complied with s 101(b) of the Act. The delegate considered the circumstances relevant to the discretion as to whether to cancel the visa but after consideration concluded the visa should be cancelled. 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 2 March 2023 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.

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 s 101(b) in the following respects:

   The Department initiated employment verification checks with EKC Construction Pty Ltd, the business registered under ABN 52607542503, to verify your employment claims. On 31 August 2020, EKC Construction Pty Ltd contacted the Department and advised that you never worked at their business.

10. I note that the applicant and the company named as the applicant’s employer in her visa application form have both confirmed that she did not complete the specified work detailed in her visa application. Both have confirmed that the applicant never worked for the company in any capacity. I therefore accept that the applicant did not complete the specified work as described in her visa application form and that this information was incorrect.

11. 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?

12. 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).

13. 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.

14. 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. I have considered various matters relevant to these factors below.

15. The correct information is that the applicant never completed the specified work in regional Australia, while holding her first Working Holiday visa, at the time of her second Subclass 417 visa application.

16. The correct information was of critical relevance to the assessment of the visa application and should have been provided. I consider this a significant matter which weighs in favour of cancellation of the visa.

17. Clause 417.211(5) of Schedule 2 to the Regulations requires the applicant to have carried out (whether on a full-time, part-time or casual basis) a period or periods, equivalent to at least 3 months’ full-time work, of specified work in regional Australia if the applicant has held only one Subclass 417 visa.

18. This was a substantive criteria and a central requirement for the grant of the visa. If the requirement was not fulfilled the visa could not be granted.

19. I note that it is not in dispute that the grant of the second Subclass 417 visa to the applicant was based, in large part, on the incorrect information given in the visa application. I consider this to be a significant matter which weighs in favour of cancellation of the visa.

20. In both written and oral submissions to the Tribunal, the applicant has explained in depth the circumstances around which the non-compliance occurred. The applicant has candidly admitted that she did the wrong thing in agreeing to erroneous information to be supplied on her behalf in relation to completing specified work that she admits she never completed, in order to meet the requirements for the visa. In a personal statement submitted to the Tribunal on 24 February 2023, the applicant outlined the circumstances that led to the non‑compliance as follows (unedited):

    I had every intention to do my farm work, when COVID hit in March 2020 and it was announced the borders were closing at midnight, I got on the first flight to QLD where I knew was one of the most popular states to complete regional work. After being accepted at Ayr Backpackers in Ayr, I had to quarantine for 2 weeks, costing $1000.

    I was at Ayr Backpackers hostel for over two months before I finally got a job, after three days of employment, the owner of the farm let all members of staff go due to no more crops being available to pick. From there we were at the back of the queue for work again, there were more backpackers than there was work.

    After 3 months of no income and spending all my money on accommodation and food. The hostel advised all plantation was delayed until end of July 2020 and therefore there would be no more roles until August-September. I contacted multiple hostels in Ayr, Bundaberg, Innisfail, Tully and Bowen for work elsewhere, but all hostels advised there was at least a 2 month wait for work. I could not travel interstate due to the state borders being closed, therefore my options were limited. By this point I had run out of days to complete my 88 days regional work and fulfil my visa requirements.

    A backpacker at the Hostel advised me there was an agent called Lee Hansol, who ensures your 88 days are accounted for and approved. At this point my depression was at an all-time low, I was panicking and felt desperate.

    To say I regret making this decision without looking into it would be an understatement and I will forever feel remorse for what I did. If I was aware at the time that this was an illegal act, this would not have even been an option for me. Due to still being fairly new in the country, my knowledge on migration agents, home affairs and other visa options was also very limited at the time. I was naive and did not research nor question this agent or my alternative options which I take full credibility for.

21. At the hearing, the applicant told the Tribunal that she had arrived in Australia in September 2019. After a few weeks of initial travel, she settled in Sydney and lived there until March 2020. As the early stages of the Covid-19 pandemic started to hit Australia, and border closures were announced, she immediately made plans to fly to Cairns so she could commence the farm work that she knew she had to in order to satisfy the requirements of her visa. She completed a quarantine period at a named backpacker hostel and when released travelled to a farm where she commenced the farm work, but after a few days she was let go by the proprietor for pandemic related reasons. There were then several stop-start delays to her recommencing the farm work, as various issues related to the pandemic were playing out in regional Queensland. The applicant made various efforts to find alternative work that would satisfy the visa requirements, including contacting people in a number of regional Queensland farming communities, but could not secure appropriate work during this time.

22. Given the uncertainties related to the Covid-19 pandemic measures during this time, she decided to stay with an uncle in Brisbane until the end of July 2020, and then moved back to Sydney when the border between Queensland and New South Wales reopened. It was at this time that she heard of a service run by somebody named ‘Lee Hansol’ who claimed they could provide documentation that would satisfy the requirements of the visa that the applicant had been unable to in the preceding months. She said that she didn’t think too much about what she was told, that she filled in the forms and ‘didn’t question it’. The applicant expressed contrition to the Tribunal at the hearing, saying words to the effect that she should have asked more questions, and she should have informed the Department of her dilemma about not being able to complete the work for genuine, pandemic‑related reasons, rather than just going along with this alternative plan of providing false information that had been supplied to her for a fee.

23. In view of the above, I consider that the unprecedented circumstances that the applicant faced in mid-2020 (when the non-compliance occurred) in relation to her ability to find farm work that would enable her to comply with the requirements of the visa mitigate the seriousness of her non-compliance. I accept that the pandemic restrictions in place in Australia at the time the applicant held her first Working Holiday visa did adversely impact her ability to find suitable regional work. I accept that the applicant had made various attempts to meet the specified requirements, including travelling to Queensland and commencing work, but that these plans were frustrated by the evolving Covid‑19 restrictions at that time. I accept also that the applicant attempted to make alternative arrangements, including looking for other suitable work, however was unable to do so at this time for reasons that were beyond her control related to the pandemic.

24. I have also had regard to the present circumstances of the visa applicant. I note that a recent letter from her current employer to the Tribunal states that she is a valued employee in the family‑run business that is facing significant challenges in hiring appropriate staff. I accept oral evidence given to the Tribunal by the applicant at the hearing in which she stated that she has worked hard and paid taxes throughout the time she has been in Australia and has been continually working for an Australian employer in a sector currently suffering a serious worker shortage.

25. I also note that the visa applicant, according to her recent personal statement submitted to the Tribunal, is also volunteering in the community by visiting socially isolated seniors and providing companionship to them. I note that the applicant at the hearing told the Tribunal that she is interested in studying accounting and pursuing a career in this field, if she is able to pursue future study opportunities in Australia. I note that from references submitted to the Tribunal, the applicant has a strong social network in Australia.

26. I note that there is no evidence before the Tribunal of any other instances of non-compliance by the visa applicant, and there is no suggestion that the applicant has ever breached any laws in Australia or elsewhere. I note that there is no evidence before the Tribunal that there are any children whose interests would be affected if the applicant’s visa remained cancelled.

    Conclusion

27. After considering the totality of the applicant’s circumstances, I have come to the conclusion that the visa should not be cancelled. The provision of false information to obtain a migration outcome is a serious matter and no circumstances justify it. However, I accept that the applicant had intended to undertake specified work in a regional area and had taken all the necessary steps to complete that work, even to the point of commencing the work before she was involuntarily stood down by her employer in the early part of the pandemic. As noted above, the applicant’s circumstances were significantly impacted by the unprecedented measures that came into place in Australia in mid-2020 when the covid-19 pandemic first hit.

28. I accept that the applicant has not been involved in any breaches of the law and that she is held in high regard by her employer, colleagues and friends. She is working for a family‑owned business in an occupation where there is a shortage of labour. She has made a small but commendable contribution to the community through her voluntary work with socially isolated seniors in the community.

29. Having regard to all of these issues cumulatively, I consider that these factors, particularly the evidence of steps taken to obtain specified work in a regional area and the timing of these events in relation to the onset of severe and unprecedented pandemic‑related restrictions, outweigh other factors which might indicate the visa should be cancelled; that is, the provision of false information and the fact that the applicant would likely have been ineligible for the grant of the second Working Holiday visa if she had given accurate answers in her application form.

30. I accept that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, but after having regard to all the relevant circumstances, as discussed above, I find that the visa should not be cancelled.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Scott Clarey
    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.

    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.