Gibson (Migration) - [2022] AATA 183

Gibson (Migration) [2022] AATA 183 (18 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Joel Gibson
CASE NUMBER:  2107810
HOME AFFAIRS REFERENCE(S):          BCC2020/2243198
MEMBER:Jane Marquard
DATE:18 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 18 January 2022 at 3:06pm

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2021 to cancel the applicant’s second Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is from Britain and was born in 1993. He first came to Australia on 5 September 2019 with his partner Ms Hogg on their first Subclass 417 (Working Holiday) visa. These visas expired on 10 July 2020.
On 10 July 2020 the applicant and his partner were granted Working Holiday (Extension) Subclass 417 visas.
The delegate cancelled the applicant’s visa on the basis that incorrect answers were given in the visa application in breach of s 101(b) of the Act. 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 6 December 2021 to give evidence and present arguments. The hearing was held jointly with the hearing for Ms Hogg, at the request of both parties. The applicant and Ms Hogg were represented in relation to the review by their registered migration agent from Sydney Migration Specialists who also attended the hearing. Written submissions were also provided. The Tribunal exercised its discretion to hold the hearing by way of MS Teams video, due to restrictions imposed by the COVID-19 pandemic. The Tribunal determined that it was reasonable to hold a hearing in this manner to prevent undue delay as it is an objective of the Tribunal to provide a mechanism of review that is fair, just, economical and quick. The applicant and Ms Hogg confirmed that they could see and hear well, and the Tribunal is satisfied that they were given a fair opportunity 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.
Extracts of the Act relevant to this case are attached to this decision.
Validity of the notice
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 183
Decision Date: 18 January 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Gibson, who sought to have the cancellation of his Working Holiday (Temporary) (Class TZ) visa, Subclass 417, affirmed. The dispute arose from allegations that Mr. Gibson provided incorrect information in his visa application concerning specified work undertaken in regional Australia, which was subsequently contradicted by the employer. The COVID-19 pandemic and associated travel restrictions, along with claims of fraud by a migration agent, were significant factors in the proceedings.

The primary legal issue before the Tribunal was whether Mr. Gibson had failed to comply with section 101 of the Migration Act 1958 (Cth), which requires non-citizens to provide correct information in their visa applications. This failure, if established, could render the visa liable for cancellation under section 109 of the Act. The Tribunal also had to determine the validity of the notice of intention to consider cancellation issued under section 107 of the Act and whether the visa holder had been an innocent victim of fraud perpetrated by a third party, thereby vitiating the application process.

The Tribunal reasoned that the notice of intention to consider cancellation was valid and that Mr. Gibson had indeed provided incorrect information regarding his specified work. While acknowledging the impact of the COVID-19 pandemic and the submissions that Mr. Gibson was a victim of fraud by his migration agent, Lee Hansol, the Tribunal applied the principles established in *SZFDE v Minister for Immigration and Citizenship* [2007] HCA 35. These principles require an applicant to prove they were an innocent victim, not complicit in or indifferent to the fraud. The Tribunal found that Mr. Gibson had not discharged this onus, as he had provided information that led to the incorrect statements in the application, and the circumstances did not sufficiently demonstrate he was entirely unaware of or unable to scrutinise the information provided.

Consequently, the Tribunal affirmed the decision to cancel Mr. Gibson's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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. Extracts of the Act relevant to this case are attached to this decision.Validity of the notice 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, the Notice of Intention to Consider Cancellation (s 107 notice), 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. 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 on 3 May 2021 complied with the statutory requirements.The first issue for the Tribunal: 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 s 101. Section 101 provides that a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided.The non-compliance as described in the s 107 notice 3 May 2021 The details of incorrect information particularised in the s 107 notice were as follows. The Department claimed that on 10 July 2020 the applicant 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 form:In response to the question ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’ he answered ‘Yes’.Under the heading ‘Details of specified work undertaken’, he provided the following answers (in part):Legal registered name: EKCTrading name: EKCAustralian Business Number (ABN): 52607542503Postcode: 2540Industry type: ConstructionIndustry type sub-group: ConstructionDate from: 14 October 2019Date to: 23 February 2020Total days worked: 90Under the heading ‘Working holiday declarations’, in response to the question ‘Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa’, he answered ‘Yes’.The Department stated in the Notice that subsequently by way of an employment verification checks with EKC CONSTRUCTION PTY LTD, the business registered under ABN 52607542503. On 31 August 2020, EKC CONSTRUCTION PTY LTD contacted the Department and advised that he never worked at their business.The Department confirmed the possible non-compliance with section 101(b) as follows: I consider that you provided incorrect information in your application for a Working Holiday (Extension) visa when you:● answered ‘Yes’ to the question ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’;● provided details of claimed employment with EKC, at the section of the application form titled ‘Details of Specified Work Undertaken’; and● answered ‘Yes’ to the declaration ‘Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa’.I consider the above information is incorrect, as verification checks undertaken by the Department have concluded that you never worked at the business, EKC. Therefore you have not undertaken three months specified work in regional Australia.Based on the above information, it appears you provided incorrect answers in support of your Working Holiday (Extension) visa application. I consider therefore, that you have not complied with section 101(b), and accordingly your Working Holiday (Extension) visa may be liable for cancellation under section 109 of the Act.Submissions to the Department in response to the s 107 notice

Decision

Reasons for decision

The representative submitted further that:The principles applicable to the determination of whether fraudulent conduct vitiates a visa application arise from the High Court’s decision in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 2 August 2007 S118/2007 these being:·First, the Act does not constitute an exhaustive statement as to when an application for a visa is valid; it “leaves ... room for relevant fraudulent conduct on the parties of a migration agent or third party to invalidate an application” (Singh at [45]). A purported visa application prepared with the assistance of an agent may be invalidated by fraud in accordance with the principles discussed by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 (Singh at [52]). ·Secondly, whether a visa application prepared by a migration agent which includes fraudulent information will be invalidated depends on the role of the applicant. “[I]t is critical to establish whether the visa applicant colluded in the fraud or was, as the Full Court put it in Gill, ‘indifferent as to whether the agent used unlawful or dishonest means to obtain a visa’” (Marharjan at [53], citing Gill at [50]). ·Thirdly, whether a purported visa application is valid is a “jurisdictional fact” that the Court must determine for itself (where the issues arises) (Marharjan at [35], [44], [122]). ·Fourthly, the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was “neither complicit in the fraud not ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh”. “That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden”. ·To this summary should be added.. There are important differences between fraud in public and private law, in particular the need in the context of public law for a fraud to have an effect on the processes of the exercise of public power in order for it to vitiate those processes, and be capable of “unravelling” decisions or conduct: see SZFDE at [14], [24]-[27], [29], [42] (by reference to the reasons of French J (in dissent, and as his Honour then was) in the Full Court: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; 154 FCR 365), [47]-[49]. One way of expressing this is to ask whether the repository of the public power was “disabled” from performing its statutory functions by reason of the fraud (at [51]).·For Clarity, Mr Gibson did not collude in the fraud, nor was reckless or indifferent to the fraud, he was oblivious to it; and when reaching out to Lee Hansol, was of the legitimate understanding he was engaging an Agent to get a ‘covid exemption’ given Jade the hairdressers reference: “this agent sorted my covid visa and can help you get your second 417 visa.”·It is at this point that Lee Hansol’s understanding of Departmental processes, (i.e. Automated grants, non-consideration of evidence pertinent to the application, IMMI account creation, 417 checks and balances and VAC payment) was maliciously leveraged and manipulated for financial gain. Lee Hansol’s fraud entrapped its victim, it was a fraud in which the mechanisms used to dupe victims had been pre-determined and tested, one in which the fraud’s mechanics were initiated and personal details surrendered, victims were powerless to either identify or address to what extent a fraud had even taken place. ·Further, Lee Hansol’s deception was so successful that it became the means and point of difference for Lee Hansol’s marketing operation, through social media and Expat word of Mouth networks to give the effect that this ‘Agent’ was the agent to use to get a covid exemption to qualify for a second 417 visa in light of the Covid outbreak. Indeed, there is a legitimate question to be asked as to how and when the DHA became aware of the spectre of Lee Hansol’s Scheme, how many individuals have been duped by the fraud, the level of exact replication of each fraud and where in the timeline of deceptions by Lee Hansol where my client’s sit, beginning, middle or end? ·With respect, it is the industrial scale and mechanics of the fraud undertaken by Lee Hansol, to which we now draw the Delegates attention; specifically, as the level of fraud undertaken clearly vitiates Mr Gibson’s visa application under s98 of the Act, and his capacity to have ‘Taken to have made an application,’. Again, contrary to The Migration Agents Act 1998, there was no client agreement supplied, no supply of the application for review and no instruction that Mr Gibson would be required to provide false or misleading information. ·Conversely, should the Delegate decide the very act of Mr Gibson engaging Lee Hansol by email within the context of the Covid-19 panic and border closures, albeit in a manipulative and fraudulent way, provides the validity required to enliven s98 and ability for Lee Hansol to act on Mr Gibson’s behalf; it needs to be highlighted that at the heart of section 98 is its focus on ‘validity’ and the visa application process, a validity requirement that was disabled by reason of the HCA determination in SZFDE where there is:·‘A need in the context of public law for a fraud …to vitiate those processes, and be capable of “unravelling” decisions or conduct.’ Finds exemplar, as Mr Gibson entered into their relationship with Lee Hansol on the pretext Lee Hansol could represent him and make a valid application. Further, Lee Hansol’s reluctance to provide an agency agreement, form 956, a consumer guide, access to the Code of Conduct, a MARN number or any of the other identifiers required under the Migration Agents Act 1998, typifies the extent to which Lee Hansol sought to disassociate themselves from the actual application and representation.·Put simply, section 98 was leveraged by Lee Hansol to entice applicants as a means to make valid representation, defraud clients and then (it would seem) extricate themselves after the fact from the fraud, given the meaning of section 98 lays blame for any false claim at the feet of the applicant and in this case equal victim to the Department of the fraud. ·Case Law also identifies in Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 (3 April 2019) the play book that Lee Hansol derives their deception, in Kaur:·‘The first appellant retained S & S Migration to act for her in her visa application and paid them $1,500.00 for their services. She accepted their advice about the kind of visa she should apply for. S & S Migration filed the work visa application for the first appellant. The first appellant did not complete the visa application form, or see it, or sign it, before it was submitted. It was submitted through an entirely “online” process. S & S Migration did not identify themselves on the application form as her migration agents: instead, they completed the form so as to represent it was filed by the first appellant personally, and indicated in the form that communications regarding the application should be with her personally, through an email address set out in the form which was, on the first appellant's uncontested evidence, incorrect….The visa application form contained a number of statements, purporting to have been made by the first appellant, which were false. ‘·In Mr Gibson’s case, further to an email and word of mouth, he retained the services of Lee Hansol, accepted their advice, supplied the requested information and documentation, then (finding duplication above) “did not complete the visa application form, or see it, or sign it, before it was submitted.” It was submitted through an entirely “online” process. ·Lee Hansol “did not identify themselves on the DHA application form as being a migration agent, instead, they completed the form so as to represent it was filed by Mr Gibson personally, and subsequently indicated in the form that communications regarding the application should… be through an email address set out in the application, specifically Rue2Pal@hotmail ·Indeed, as in Kaur, there is no evidence capable of supporting some kind of deliberate strategy, or conscious choice by Mr Gibson, to provide false information in the visa application that might nonetheless be relied on by the delegate to grant her a visa. Mr Gibson and his partner Stephanie Hogg supplied what they were was told to in the belief that information would be used lawfully. He did what He did, because time, border closures, a global pandemic, employment knockbacks, discrimination and an urgency to regularize his visa status conspired to cause reliance on his ‘expat’ support network and Lee Hansol’s dubious representation. The Delegate is reminded under section 54 of The Act, at (1) the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all the information in the application. Further under policy PAM states in assessing eligibility ‘in law, officers are required to assess each applicant… and take into consideration all information given in relation to the application.’ ·Sadly, given the automated nature under which the visa was granted, the fact the specified work reference included in the application (EKC Construction) was not checked until August 31st some 53 days after the visa was granted, later, (Stated in your NOICC under the heading ‘subsequent information received’) the account from which the application rue2pal@gmail.com was made being duplicated across multiple applications failing to raise a red flag, or checking the validity of personal identifiers within the application as set out in The Act and schedule 1 of the Migration Regulations 1994. We have concluded that the Department failed in its capacity to provide procedural fairness or comply with the section 54 of the Act by not considering the work reference at time of application.·It needs stating, had my client been made aware that fraud had been committed in their name, in September of 2020, they would have done everything in their power to correct the misinformation, yet the Department withheld information regarding EKC constructions until the present, some 8 months later, to what end is unclear. We raise such discrepancy now in order to address directly the process for deciding whether to cancel a visa with regard regulation 2.41 ‘the time that has elapsed’, in that, the time that has actually elapsed since my client became aware of the misinformation (May 3rd 2021) and rectification through this correspondence is less than 14 days. ·Indeed, there are several Department processes and policy choices that Lee Hansol has exploited in their fraud, such as the slow and non-centralized dissemination of information on covid-19 exemptions, the ability of the online application system to garnish the VAC with little more than credit card details, the ability for nefarious individuals to create IMMI accounts and simulate actual presence or agency by an applicant and the instantaneous nature of the visa grant itself. ·It is therefore our humble request that the Delegate consider in their determination if section 54 was complied with by the DHA pertaining the original application, or if due process has been ignored and essential ‘red flags’ missed.Decision of the Department to cancel the visa

Ratio Decidendi

Legal Principle Established

The representative submitted that:As specified in Mr Gibson’s statutory declaration[1] and the background above; the impact of the Covid-19 pandemic, national border closures, miss-information regarding the working holiday visa program, vulnerability as a result of discrimination and general welfare related stress on an individual’s psychological state cannot be underestimated. Accordingly, in evaluating the circumstances that lead to non-compliance the Department is reminded that the assumptions or decisions made by Mr Gibson on July 8th/9th 2020 were undertaken in the context of an apocalyptic pandemic lock down atmosphere (March – July 2020) As such, his ability to scrutinise complex migration agent interaction, visa application processes or migration law was significantly diminished compared to his need to focus on maintaining gainful employment, and basic welfare. [1] Annex 1.6Further we submit that Mr Gibson’s susceptibility to fraud and criminality was at this time increased due to his vulnerability and lack of support, particularly as national and state borders closed around him. By consequence, into this frame Lee Hansol exploited Mr Gibson’s vulnerability through an elaborate and industrial scale fraud that promised to facilitate a second 417 visa for him. He was in no position to question the processes, was unaware that false information would be submitted in his name and at no stage did he witness the application that was made. The circumstances that lead to the noncompliance in this instance were subversive, orchestrated by a third party (Lee Hansol) and beyond Mr Gibson’s control. Mr Gibson is by consequence of the circumstances a victim. As specified in Ms Hogg’s statutory declaration and the background above every work application in Queensland was met with a rejection with some employers citing Queensland Public Health Orders as the reason for refusal, to this end Ms Hogg has supplied several items to support this claim. It was Ms Hogg’s belief, a belief that helped frame her reliance and dependence on the advise of Lee Hansol that any search for ‘specified work’ would be met with discrimination on the basis of her national extraction and temporary residency status. In the Delegate’s consideration of the methodology and duplication used by Lee Hansol, we ask if consideration was made at any stage as to if the application or references used by Lee Hansol were escalated to the Forensic Document Examiners Unit at the DHA or if at any stage there existed irregularities of concern? It would seem given the industrial level of replication of the fraud that the Department was not aware or made public endeavours sooner to stop individuals like Ms Hogg from becoming victim to the fraud. For Clarity, Ms Hogg did not collude in the fraud, nor was reckless or indifferent to the fraud, she was oblivious to it; and when reaching out to Lee Hansol, was of the legitimate understanding was engaging an Agent to get a ‘covid exemption’ given Jade the hairdressers reference: “this agent sorted my covid visa and can help you get your second 417 visa.”It is at this point that Lee Hansol’s understanding of Departmental processes, (i.e. Automated grants, non-consideration of evidence pertinent to the application, IMMI account creation, 417 checks and balances and VAC payment) was maliciously leveraged and manipulated for financial gain. Lee Hansol’s fraud entrapped its victim, it was a fraud in which the mechanisms used to dupe victims had been pre-determined and tested, one in which the fraud’s mechanics were initiated and personal details surrendered, victims were powerless to either identify or address to what extent a fraud had even taken place. Further, Lee Hansol’s deception was so successful that it became the means and point of difference for Lee Hansol’s marketing operation, through social media and Expat word of Mouth networks to give the effect that this ‘Agent’ was the agent to use to get a covid exemption to qualify for a second 417 visa in light of the Covid outbreak. Indeed, there is a legitimate question to be asked as to how and when the DHA became aware of the spectre of Lee Hansol’s Scheme, how many individuals have been duped by the fraud, the level of exact replication of each fraud and where in the timeline of deceptions by Lee Hansol where my client’s sit, beginning, middle or end? With respect, it is the industrial scale and mechanics of the fraud undertaken by Lee Hansol, to which we now draw the Delegates attention; specifically, as the level of fraud undertaken clearly vitiates Ms Hogg’s visa application under s98 of the Act, and her capacity to have ‘Taken to have made an application,’. Again, contrary to The Migration Agents Act 1998, there was no client agreement supplied, no supply of the application for review and no instruction that Ms Hogg would be required to provide false or misleading information. Conversely, should the Delegate decide the very act of Ms Hogg engaging Lee Hansol by email within the context of the Covid-19 panic and border closures, albeit in a manipulative and fraudulent way provides the validity required to enliven s98 and ability for Lee Hansol to act on Ms Hoggs behalf; it needs to be highlighted that at the heart of section 98 is its focus on ‘validity’ and the visa application process, a validity requirement that was disabled by reason of the HCA determination in SZFDE where there is:‘A need in the context of public law for a fraud …to vitiate those processes, and be capable of “unravelling” decisions or conduct.’ Finds exemplar, as Ms Hogg entered into their relationship with Lee Hansol on the pretext Lee Hansol could represent her and make a valid application. Further, Lee Hansol’s reluctance to provide an agency agreement, form 956, a consumer guide, access to the Code of Conduct, a MARN number or any of the other identifiers required under the Migration Agents Act 1998, typifies the extent to which Lee Hansol sought to disassociate themselves from the actual application and representation.Put simply, section 98 was leveraged by Lee Hansol to entice applicants as a means to make valid representation, defraud clients and then (it would seem) extricate themselves after the fact from the fraud, given the meaning of section 98 lays blame for any false claim at the feet of the applicant and in this case equal victim to the Department of the fraud.