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
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – employer reported no record of applicant – lockdown travel restrictions – impact of the COVID19 pandemic – allegations of fraud against previous migration agent – automated grants – taken to have made an application – applicant familiar with the second working holiday criteria – delay of cancellation notice – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 54, 57, 97-105, 107-109, 111, 140, 198
Migration Regulations 1994, Schedule 1; Schedule 4, Public Interest Criterion 4013; r 2.41CASES
Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398
Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53
Maharjan v MIBP [2017] FCAFC 213
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142
NAWZ v MIMIA [2004] FCAFC 199
Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZHVJ v MIAC [2009] FMCA 320
SZJM v MIAC [2010] FMCA 465
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs 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 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: EKC
Trading name: EKC
Australian Business Number (ABN): 52607542503
Postcode: 2540
Industry type: Construction
Industry type sub-group: Construction
Date from: 14 October 2019
Date to: 23 February 2020
Total days worked: 90
Under 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
In the response to the s 107 notice from the applicant to the Department dated 17 May 2021, the applicant stated that he arrived in Australia on 30 October 2019 and lived with his partner, Ms Hogg. He worked in Building and Construction in October 2019 with manager Arran Thompson. He planned on undertaking regional work to qualify for a second TZ 417 visa and purchased airline tickets to depart in March 2020. Coronavirus then hit the world in early 2020. On 16 March 2020 the applicant’s partner made contact with Farmgate in Childers but was told that there were no positions available. They flew to the Gold Coast on 23 March 2020. On 25 March 2020 they heard from two employers, Poggioli Farming and HR Rhodes Free Range Eggs, that there were no positions available. They could not find accommodation or work so returned to Sydney. Farmgate advised them on 31 March 2020 that they had no places available. In April 2020 there were border closures and health orders and the applicant and Ms Hogg had no recourse to employment or accommodation. They were living with Paige Williams who met a hairdresser called Jade, who referred Paige to Lee Hansol. The applicant met with Jade who said that Lee Hansol was a great agent and helped with her ‘covid visa’.
According to the applicant on 8 July 2020 at 7:53 pm Mr Gibson and Ms Hogg received correspondence from Lee Hansol:
Hi Step, Yes!! You got the right person.
The following line items were requested:
Passport, Name, DOB, Country of Birth
1st 417 visa grant notice and TRN
Point of entry
Onshore work record
Qualifications and career focus
Contact details
Direction to create a 2nd email and password
Question pertaining if passport had been supplied to a government agency, client answered no
Question pertaining work for ‘massage company’, (possible reference to human trafficking)
Credit card details
Direction that details will be sent to a regional employer (farm) and a $500 penalty will be required if process cancelled
Notable exclusions included, an agency agreement, MARN number, Consumer guide, form 956 agent appointment or request for Mr Gibson to authorize the agent to act on their behalf.
Lee Hansol specifies that Mr Gibson’s details will be sent to a potential employer (farm owner), insinuates that this 3rd party will “organise…paperwork in order to lodge” the application, and provides an assurance if “anything happen we will act on behalf of you such as providing proof of evidence.”
The correspondence is clear that Lee Hansol WILL ACT on Mr Gibson’s behalf
The correspondence is clear in its terms for payment and representation
The correspondence is ambiguous as to how a covid exemption would be achieved
July 9th 2020
Further to Mr Gibson’s response to the correspondence Mr Gibson his partner chases up Lee Hansol
Lee Hansol responds 9th July and requests the information again.
NO form 1150 internet supplied, NO application provided for review
July 10th 2020
VAC is garnished directly from Mr Gibson’s credit card
11:37 Application for a working holiday visa is made by [email protected]
Notable differences to client’s questionnaire; occupation listed as Shopfitter, employer listed as EKC Nowra NSW and duties as form work and construction
DHA automatically issues visa grant # 2009532043669 10/07/20
July 15th 2020
Agency fee of $2,000 for both Mr Gibson and Mr Gibson transferred to Jae Lee 7:52 pm
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 1.6
Further 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.
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 [email protected] 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
The Department was satisfied that the applicant provided incorrect information as detailed in the s 107 notice in order to facilitate the grant of the visa in contravention of s 101 of the Act. The Department was satisfied that the applicant stated in his application that he worked at EKC Construction from 14 October 2019 to 23 February 2020, a period of 90 days. On the basis of correspondence from EKC Construction on 31 August 2020 stating that the applicant had never worked at the business, the Department was satisfied that he provided incorrect answers in his application.
The Department was also satisfied that the visa should be cancelled, taking into consideration the applicant’s response to the s 107 notice, and the prescribed circumstances as set out in the Migration Regulations 1994 (Cth) (the Regulations).
Evidence to the Tribunal
At the hearing, the Tribunal outlined the relevant law to Mr Gibson and Ms Hogg and provided an overview of the Tribunal review process. The Tribunal noted that they had requested a joint hearing and they confirmed that they consented to all the evidence in their cases being considered jointly.
Ms Hogg said that she is from Blackborough in England. She has a bachelor’s degree with honours. She worked in a biscuits factory as a planner prior to coming to Australia. Mr Gibson is from the same region. He studied Business A levels in college and also carpentry.
Ms Hogg and Mr Gibson were granted their first Working Holiday visas (Subclass 417) on 4 July 2019 which expired on 10 July 2020. They were granted Working Holiday (Extension) (Subclass 417) visas on 10 July 2020, which expired on 15 June 2021. These were the visas which were cancelled.
Ms Hogg said that she came to Australia to travel. She had three friends who had told her about working holiday visas in Australia. They told her that there was a second working holiday visa available if she wanted it, if she worked in a regional area for three months.
Mr Gibson said that after speaking to her friends, Ms Hogg told him about working holiday visas, and they looked into it. Ms Hogg said that she went on to the website of the Department to find out what the criteria were for the visas. They set up Immi accounts and filled in all the relevant forms. After being granted the visas, they travelled to Australia together.
Mr Gibson said that they were aware before they arrived that to apply for the extension to the visa, they would need to work for three months in a regional area. They also met others on working holiday visas in Australia and discussed it with them. He and Ms Hogg wanted to travel in their first year but could not do it so they decided to apply for the second year extension. Their plan was to start the regional work at the end of March 2020.
Mr Gibson said that they spoke to other travellers about availability of work. They thought they would go to Innisfail. They then spoke to 20 to 30 employers or organisations about getting work. They sent emails in January and February 2020. They said that they had ‘a lot of options’. They did not tie anything up as employers would not reserve spots until the travellers were actually in the region. Other people told them that if they travelled to the regional area, they would definitely get work.
They said that coronavirus was starting to emerge from December 2019 but at that stage they still knew people doing farm work. It was only when they flew to the Gold Coast as a holiday prior to starting work, and had 24 hours to get out, that they did not know what to do about finding work. The borders shut and they realised that they would not be accepted. Mr Gibson said that the day they landed in the Gold Coast, they realised that the borders had shut. They were ringing farms, but ‘everyone said no’, and some were not answering their telephones. Because they could not get work, they asked their previous employers in Sydney if they could return to their jobs.
Ms Hogg was asked if she thought about contacting the Department to let them know that it was difficult to find farm work and see if there were any options available to them. She said that she looked on the Department website to see if there was anything they could do. She said it was stressful and they were confined to their apartment, looking for work. She said that she did not contact the Department.
Ms Hogg was asked if they looked for work in regional areas after they returned to Sydney. She said that they did not, as they did not think that they would get in. They were asked why they did not try and find work after the initial refusals in March 2020 and they returned to Sydney. Mr Gibson said that they did make phone calls but they had no luck, and further, friends said that they would not be able to find work.
Ms Hogg said that in July 2020 a hairdresser called Jade told her that there was an agent who could assist them with a second visa. Ms Hogg thought that he would be a good contact and could help them out.
The Tribunal asked Ms Hogg and Mr Gibson if they considered going home to the United Kingdom. She said that they did as they could not find farm work. However, then they were granted the second working holiday visa. She was asked if they questioned Jade how she was granted the visa without doing the specified work in the regional area. She said that they did not. The Tribunal questioned them as to whether they were not interested to know how they would be granted a second visa without doing the specified work. Mr Gibson said they were a ‘bit sceptical but it was either go home or ask this person’. At the time they knew of people getting ‘COVID visas’. They did not go into detail with Jade as to how she got the visa without having done farm work.
Ms Hogg said she emailed Lee Hansol on 8 July 2020 and he helped her with a visa. She did not ask him if she still had to do the regional farm work. She just provided the information and thought that that was how he ‘put things through’.
Asked if emails after May 2020 with Lee Hansol could be provided including the notification of the visa, Ms Hogg said that there was no further communication until he sent through the visa.
Ms Hogg and Mr Gibson were asked if they queried Lee Hansol about how they would get around the requirement that they must do specified work for three months in a regional area. They said that they did not think about it. They did not think that he had arranged for a farmer to say that they had worked for three months in a regional area. Ms Hogg said again that they ‘did not think about it’ and they ‘just filled in the questionnaire’.
Ms Hogg and Mr Gibson agreed that by briefing and paying an agent to act for them, they provided him with authority to act for them. They said they did not make checks on him to make sure he was lawful, as other people they knew had used him. The Tribunal asked them if they asked the other travellers who had used Lee Hansol to get the visa, how they were granted the visa without farm work. Ms Hogg said that they did not ask much as they did not know Jade very well. Mr Gibson said that although he knew some people at work who also had used Lee Hansol successfully, he did not ask them how they were granted the visa without completing the requisite regional work.
The representative submitted in writing that s 101(b) was not enlivened as Ms Hogg and Mr Gibson did not witness or consent to the answers provided in the application. It was argued also that s 98 was disabled through an act of fraud and deception by a third party. It was argued that Lee Hansol took advantage of vulnerable working holiday makers. It was submitted that the Department did not contextualise the application by considering the COVID-19 pandemic, the fact that the applicants made best efforts to qualify for a second visa by seeking work or that the application irregularities were made without collusion or reckless indifference. It was also claimed that the incorrect answer was made 26 times in a systemic manner in relation to other applicants as well.
Mr Gibson and Ms Hogg disputed that they were complicit in the lodgement or understood that Lee Hansol intended to submit incorrect information. Mr Gibson said that Lee Hansol said that they would guarantee the second visa. They supplied information to him but no false information and did not instruct him to provide false information.
They also claim that they were not afforded natural justice in that they were not told of the false information prior to the s 107 notice being issued, referring to ss 57 and 97 of the Act. The representative said that the Department did not respond to s 54 which requires the Minister to have regard to all information in an application. In regard to s 57 of the Act, it was submitted that the Department did not raise the systemic fraud with the applicant in an appropriate time frame (information located 31 August 2020 and raised with applicant on 3 May 2021). It was argued that at this time it was too late to rectify the error.
Mr Gibson in a Statutory Declaration dated 16 May 2021 stated that he arrived in Australia on 3 September 2019 with the intention of travelling in Australia and supporting their stay by working in accordance with the working holiday visa requirements. He secured work and accommodation in Sydney. They travelled to the Gold Coast in March 2020 just after the COVID pandemic broke. It was very stressful as in the UK people were getting sick and dying and the Australian government had closed the borders. They had planned to do their regional work in Queensland in April 2020 but the borders closed, and they could not get work in NSW or Queensland. They returned to Sydney where all their friends on working holiday visas were experiencing the same thing. It was in this context that his girlfriend heard about an agent who helped people get their second year visa. They only had an email for him and no further details but on the basis of recommendations they trusted him and provided payment. They filled in questionnaires and sent them to him. He said ‘I now think we were blinded by the fact that we were so desperate to stay in the country and had no way of doing our farm work that when Lee asked for me and Steph to send him $492 for the application with an additional $1000 each for his service as he worked for the government we didn’t think to question it’. He said that they were unaware anything was wrong until they received their notices of intention to cancel the visas.
Ms Hogg in a Statutory Declaration stated:
·In December 2019 she and her partner booked flights and made arrangements to undertake specified work in regional Queensland for the purpose of applying for a second working holiday visa.
·When COVID-19 broke in March 2020 it was scary for them as the news from Europe was grim.
·After flying to the Gold Coast on 23 March 2020 the borders were shutting and they were rejected for work applications and accommodation. They returned to Sydney to live and work. They continued to look for farm work after 25 March but were refused as they came from Sydney which was seen as the epicentre. They were discriminated against with little idea what to do.
·She explained her concerns to a hairdresser, Jade and she said that she had a highly recommended agent who had helped her apply for her second year visa. She said that she then explained to him that she was struggling to find farm work because of the pandemic and needed help with the second year visa. She thought he was official as he asked her to fill in a questionnaire.
Findings of the Tribunal in regard to whether there was non-compliance as described in the s 107 notice
After consideration of evidence before the Department and Tribunal in the matters of Mr Gibson and Ms Hogg, the Tribunal is satisfied that the applicant provided incorrect answers as set out in the s 107 notice. He stated that he had worked for three months in specified work as the holder of a first Working Holiday visa (Subclass 417) and that he had worked for EKC Construction Pty Ltd.
The Departmental verification check by the Working Holiday Maker Integrity Team found on 31 August 2020 that the applicant had not worked for the company as claimed.
Ms Hogg and Mr Gibson submitted that they did not provide incorrect information as the incorrect information was provided by their agent, Mr Hansol and they provided correct information to him in the questionnaires submitted.
Section 98 of the Act provides as follows:
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.The Tribunal is satisfied from the evidence of Ms Hogg and Mr Gibson that they engaged Mr Hansol to apply for the visas on their behalf and paid him to do so, which is not disputed by them. At the Tribunal hearing they agreed that by briefing and paying an agent to act for them, they provided him with authority to act for them.
They are therefore taken to have filled in the form as they caused it to be filled in on their behalf.
Ms Hogg and Mr Gibson also submitted that they were unaware that the answers that Mr Hansol provided were incorrect.
Section 100 of the Act provides that:
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.
Section 111 of the Act provides that:
To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.
The failure of Ms Hogg and Mr Gibson to fill in or sign the form or to be aware of the precise contents does not impact s 98 of the Act, as the application was made with their knowledge and consent (s 100 of the Act; NAWZ v MIMIA [2004] FCAFC 199; SZHVJ v MIAC [2009] FMCA 320; SZJM v MIAC [2010] FMCA 465).
Ms Hogg and Mr Gibson have submitted that s 98 is vitiated by fraud perpetrated by Mr Hansol, in line with a number of decisions (Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554; Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398; Kaur v MIBP [2019] FCA 53; and SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189). It was submitted that Ms Hogg and Mr Gibson at no time witnessed or consented to the answers provided in the application and that they provided correct information to Mr Hansol. They claimed that they had no reason not to trust him as he had helped a hairdresser they knew named Jade and her friends, so they provided credit card and other details to him. They stated that within a few days they had their visa confirmation and were ‘over the moon’. They said that the only material they had supplied to Mr Hansol was in a questionnaire. They said that they were unaware anything was wrong until contacted by the Department. They claimed that they were deceived by representations made on social media and expat word of mouth that he would get them an exemption. They requested that Lee Hansol be investigated. Their representative submitted that the applicants filled out the questionnaire provided by Lee Hansol honestly, stating where they had worked, but that was disconnected to what Lee Hansol submitted to the Department. Their representative submitted that they did not see the final application and were only provided the visas at the end when they were surprised to see that they stated they had worked for a construction company.
The Tribunal is not satisfied that Ms Hogg and Mr Gibson were innocent victims of fraudulent conduct such that s 98 of the Act is vitiated. The Tribunal is satisfied that Ms Hogg and Mr Gibson were aware of the general nature of the fraud (claiming in the application that they had complied with the three-month regional work requirement) although they were not aware that Mr Hansol would say they worked for a specific construction company. The Tribunal is satisfied that they were aware and were indifferent as to whether Mr Hansol used unlawful or dishonest means to obtain the visa (see Gill[2]). Reasons for this are set out below.
[2] Gill v Minister for Immigration and Border Protection [2016] FCAFC 142
Firstly, Ms Hogg and Mr Gibson were familiar with the criteria for the second working holiday visa, including the criterion that they had to work for three months in a specified regional area. They told the Tribunal that they knew this prior to coming to Australia. They also told the Tribunal that they had explored the Department website prior to travelling to Australia and were familiar with it. This meant that they knew that they needed to work in a specified regional area for three months and they also knew at the time they asked Mr Hansol to act for them that they had not done the requisite regional work. They were also aware of this when granted the visa, but did not contact the Department to tell the Department that they had been granted visas based on incorrect information.
Secondly, they were introduced to the agent Mr Hansol through a person who had used Mr Hansol to successfully apply for a second working holiday visa, and they knew others who had also done so. They have mentioned that they were in contact with many other working holiday travellers. It is highly likely therefore that they knew how Mr Hansol obtained the second working holiday visas as this would have been a subject of discussion between Ms Hogg and Mr Gibson and the other travellers. Ms Hogg and Mr Gibson said that in early July 2020 their flatmate Paige met a hairdresser called Jade who went to their house. Jade told Ms Hogg that the agent Lee Hansol had helped her and others get their second working holiday visa, so they obtained his email address as they had had difficulty finding regional work in March/April 2020 due to restrictions imposed by the COVID-19 pandemic and reluctance of farms to hire workers from Sydney. The Tribunal does not accept the evidence of Mr Gibson or Ms Hogg that they did not discuss with Jade or others how these travellers were granted visas if they did not work in a regional area for three months, as this issue was integral to their situation. The Tribunal accepts that although they provided correct information to Mr Hansol in their questionnaires they were aware that he would apply for their visas on the basis of incorrect information.
Thirdly and importantly, Mr Hansol made it clear in correspondence to Ms Hogg and Mr Gibson that the application for the second working holiday visa would be based on false information that they had worked in a regional area for three months. In correspondence on 8 July 2020 between the applicants and Lee Hansol, it is stated ‘…what they do is that they are making your paperwork in order to lodge your visa. you were supposed to work specific area for 88 days so they put you on their profile as you have been working for them during certain time so you don't have to worry about your 2nd visa once we have lodged your visa it will take minimum 2 weeks from the date we lodge and maximum would be 4~8 weeks. if anything happen we will act on behalf of you such as providing proof of evidence…’ This indicates that the applicants were told by Mr Hansol that it would be incorrectly stated in their application that they had worked for a specific employer for 88 days even though they had not done so. This also makes it clear that incorrect answers would be given to the Department for the purpose of applying for a second working holiday visa, rather than applying for a ‘COVID-19 extension’ or ‘exemption’ as at times claimed by Ms Hogg and Mr Gibson. When asked about this at the Tribunal hearing, Ms Hogg said that she did not ‘really realise’ what Lee Hansol was saying. Mr Gibson said he did not think about it. He just thought that Lee Hansol was helping them out. He said that when he reads it back it sounds shady and he feels stupid but at the time no-one could get farm work and he did not think it was shady.
The Tribunal does not accept given their level of education and the fact that they speak English, as well as their contact with other travellers, that Ms Hogg and Mr Gibson would not have read the emails and understood that it was the intention of Mr Hansol to give or provide incorrect information on their behalf about working the 88 days. By supplying their details and making payment for this service, they were complicit in the lodgement of the Working Holiday (Extension) visa application, rather than being victims of fraud.
Fourthly, other aspects of the email correspondence with Lee Hansol demonstrate that Ms Hogg and Mr Gibson were put on notice of the illegality of the application. In particular, in the email received from Mr Hansol, it was stated ‘direction that details will be sent to a regional employer (farm)’. The Tribunal asked Ms Hogg and Mr Gibson what they believed the implications were from the fact that he told them that the details would be sent to a regional employer. They were asked if this did not make it clear that he was asking a regional employer to provide information about them which was not true. Ms Hogg said that she did not know at the time. She said that she did not read the email carefully enough. She said that when she reads it back, she feels stupid, but at the time she felt hopeless. Ms Hogg said that she did not take it in that he would be checking with a farm owner, she was just ‘relieved that he was sorting it out’ and getting them a ‘COVID visa’. She said that at the time she was not thinking clearly. She said that they had ‘been told left right and centre that people were using him and everything was fine’. She said that they were not cautious and should have been and now feel stupid. The Tribunal has taken into consideration the fact that they were not thinking clearly but nonetheless is satisfied that the email, particularly when considered with the other correspondence, made it clear that their details would be sent to a regional employer so that it could be suggested that they had worked for that employer.
Ms Hogg and Mr Gibson were also asked by Mr Hansol to create a second email and password. They were asked if this did not suggest to them that the agent was operating an underhand business. Mr Gibson said that he thought that Mr Hansol may be wanting them to use a personal email because of junk and spam. Ms Hogg said that she thought that was what you did to get an account. When considered with the other information in the email correspondence, the Tribunal is satisfied that the requirement to create a second email would have raised concerns for them about the illegality of Mr Hansol’s services.
At the Tribunal hearing, the Tribunal expressed concern to the applicants about their contention that they would not have known that their applications contained incorrect information given they knew of the requirement for work in a regional area, and they knew they had not done this work. Furthermore, they had spoken to others who had used Mr Hansol and he had provided details of the fraud in email correspondence to them. The Tribunal pointed out to them that these concerns were compounded by the fact that they speak English, are educated and would have been aware of the importance of providing truthful information to governments. Mr Gibson said that he understands ‘where the Tribunal is coming from’ in regard to these concerns, especially when the email correspondence from Lee Hansol is read back to him. He said that it makes him feel stupid and naïve. Mr Gibson said that under normal circumstances they would have gone home. However, it was a ‘horrendous time’ in England as the COVID-19 pandemic hit so badly, and they felt that they could not go back. He confirmed that they feel stupid reading the emails back, however their family situation was bad and they just ‘felt stuck’. Ms Hogg said that they were stressed about money, their families with COVID-19 and the unavailability of farm work. She said that they did not take into consideration the emails by reading them through carefully.
The Tribunal has considered carefully the submissions of Mr Gibson and Ms Hogg. The Tribunal does not accept that Ms Hogg and Mr Gibson would not have read the correspondence and understood its meaning, as they are educated and speak English. They had also spoken to others who had used Mr Hansol and it is extremely unlikely that these others would not have told them how they had been granted the second visa. The email correspondence referred to above establishes that the applicants were notified that the agent intended submitting incorrect information to the Department that they had worked for three months in a regional area. The Tribunal considers that the provision of incorrect information in this case was not the result of carelessness or inadvertence but was the result of a decision by Ms Hogg and Mr Gibson to permit incorrect information to be provided through an agent to overcome their ineligibility for the visa. Even though they did not physically fill in the forms, they caused them to be given with knowledge and indifference as to the contents[3] and as to whether the agent would act unlawfully or dishonestly.[4]
[3] Maharjan v MIBP [2017] FCAFC 213
[4] Gill v MIBP [2016] FCAFC 142
The Tribunal is not satisfied therefore that third party fraud vitiates s 98 of the Act in the way envisaged in the relevant cases.[5]
[5] Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554; Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398, Kaur v MIBP [2019] FCA 53 and SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189
The Tribunal is satisfied that the applicant and Ms Hogg gave or provided incorrect answers in their applications as s 98 of the Act provides that an answer is incorrect even though the person who gave or provided it did not know that it was incorrect and s 111 provides that s 109 applies even if non-compliance was inadvertent. The incorrect answers were that he had worked for three months in specified work as the holder of a first Working Holiday visa (Subclass 417) for EKC Construction Pty Ltd.
The Tribunal is satisfied therefore that there was non-compliance with s 101(b) of the Act by Ms Hogg and Mr Gibson in the way described in the s 107 notice.
The second issue for the Tribunal: should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response 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 visa-holder to the community.
Each of the factors are considered below.
The correct information
The applicant’s representative submitted that correct information was supplied in good faith by Ms Hogg and Mr Gibson at the time of lodgement that was then ‘subsequently corrupted by a 3rd party for financial gain’. The Tribunal is not satisfied that the applicant and Ms Hogg supplied information in good faith as they were aware of the fraud, as found earlier.
The correct information was that the applicant had not worked for the requisite three months as required by the visa and specifically did not work for EKC between 14 October 2019 and 23 February 2020 as claimed.
This is given significant weight in favour of cancelling the visa as it is a requirement of the visa that the applicant complete three months of specified work in a regional area.
The content of the genuine document (if any)
This factor is not relevant.
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 applicant and Ms Hogg were granted the second working holiday visas on the basis that they had completed the requisite work in a regional area as defined in the legislative instrument in effect at the time. This was a requirement of the granting of the visa. If the applicants had not completed the work, they would not have been granted the visas. Provision of incorrect information impacts on the integrity of the migration system as Department officials rely on information provided by them to assess claims made.
The applicant and Ms Hogg, therefore, were never legally entitled to the second working holiday visas which are the subject of cancellation and the Tribunal has attributed significant adverse weight to this factor in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
It was submitted by the representative that the following matters be taken into consideration in regard to the correct information: Discrimination in the workplace, Queensland Government’s public health orders issued at the outbreak of the Covid-19 pandemic and border closures, and systemic fraud and deception by a third party in the lodging of the visa applications. It was submitted by the applicants that their dependence on the third party, Mr Hansol, to regularise their immigration status, cannot and should not constitute complicity in the fraud which took place.
In a Statutory Declaration provided to the Department by Ms Hogg it was submitted that the decision to cancel is ‘anchored wholly on a singular piece of incorrect information with disregard to all attempts by the applicant to fulfil the regional work required’. It was submitted that she and Mr Gibson were under psychological stress due to the COVID-19 pandemic and were vulnerable with diminished capacity. She and her partner provided copies of correspondence to various employers to try and find work. Ms Hogg said that they flew to Queensland on 23 March 2020 where they planned to do farm work. They started off with a few days holiday in the Gold Coast. While there, they found out that two days later the Queensland/NSW border would be closed. They telephoned the farm where they planned to work and were told that the farm would not take workers from NSW. They rang other farms and got the same answer. They spoke to 30–40 farms. They then telephoned their previous employers in Sydney who said that they could have their jobs back. They then returned to NSW before the borders closed. They got their old apartment back as well. After their return they continued to look for farm work but were unsuccessful. They said that farms did not want workers from Sydney. They provided email correspondence with Farmgate Backpackers and Banana Barracks in March 2020. They said that they relied on Mr Hansol as they thought they would be discriminated against on the basis of their temporary residence status. Mr Jennison, the applicants’ representative noted that the applicants are ‘smart young people’ who were doing the ‘rite of passage to pick bananas in Australia’. He said what had surprised him in reviewing their case is the industrial system around backpackers. He said that backpackers’ accommodation organise the work. Ms Hogg went to the extent of booking the accommodation and then this ‘industrial system just closed down on them’. He submitted that Ms Hogg and Mr Gibson were taken advantage of by Lee Hansol who saw an opportunity and exploited it. He submitted that the email Mr Hansol sent to the applicants was generic and went out to multiple backpackers. The representative noted that he has a number of clients who received this same email. He said that his clients were vulnerable and young. They had no money, they had family back home where COVID-19 was rife. He said that in this situation ‘they were not going to look at details of the Migration Act or report the agent to OMARA’. He said that in Ms Hogg’s email to Lee Hansol she tells him that they cannot find farm work and asks him for help. He said that they could not work, and they could not go on holiday which are the two expected outcomes of this type of visa. He noted that from March to July in 2020 there were border closures so they could not travel to Queensland and even in NSW could not travel. He submitted that they did not want to bend the system and they wanted to do the right thing but in sum, unfortunately they were taken advantage of. He noted also that the Department has not been forthcoming about Lee Hansol.
The Tribunal has taken into consideration the fact that the outbreak of COVID-19 in 2020 was an extraordinary and unprecedented time and it would have been very trying and disturbing for Ms Hogg and Mr Gibson. The Tribunal accepts that the applicant and his partner flew to the Gold Coast in March 2020 with the aim of doing farm work after a holiday and did try and seek three months’ work in a regional area. The Tribunal accepts that their original intentions were to comply with the law and to work in the regional area as required. The Tribunal accepts that this holiday coincided with the outbreak of COVID-19 in Australia and it became difficult to find work due to border closures and the fact that farmers did not want young people from Sydney to bring COVID-19 to their sites. The Tribunal accepts that this would have caused them significant stress, compounded by concerns about their families back home and their financial situation. The Tribunal accepts that the applicants are relatively young, with little life experience and may have been naïve. The Tribunal accepts that under these circumstances, young people may not have acted as diligently or responsibly as they may have in normal circumstances. The Tribunal has taken all these factors into consideration in favour of not cancelling the visa.
However the Tribunal has not accepted the submissions of Ms Hogg and Mr Gibson that they were unaware of the general nature of the incorrect information provided as part of the application and that they were the victims of fraud. Reasons for this are set out earlier in the decision. The applicants were aware that they had not completed three months’ work in a regional area as they were required to do. The email exchange between the parties and Mr Hansol demonstrates collusion or at least acquiescence in the provision of incorrect information to the Department. The fact that the applicants have not been forthright about these matters but have continued to claim that they did not know that incorrect answers were provided on their behalf, is taken into consideration in favour of cancelling the visa. The Tribunal has also given some weight in favour of cancelling the visa to the fact that when COVID-19 disrupted their plans, they did not immediately contact the Department of Home Affairs to state that they had concerns that they would not be able to fulfil the requirements of the Working Holiday visa to undertake specified work as required by the Regulations, for reasons beyond their control, despite efforts to do so. They also did not contact the Department between March and July 2020. When asked about this, Ms Hogg said that she looked on the Department website but could not see any relevant information but did not contact the Department as she was stressed at the time and confined to the apartment. The Tribunal accepts that this was a stressful time, however this did not explain why they would permit an agent to provide incorrect information on their behalf, without seeking lawful assistance from the Department. The Tribunal gives this consideration some weight in favour of cancelling the visa.
The present circumstances of the visa holder
Mr Gibson said that if his visa was cancelled he would have to face enormous pressure from his family returning to his country with a cancelled visa. He said this would have a ‘bad impact’ on his mother who suffers from depression. Further he submitted that the construction industry in the UK has suffered a downturn which would make it difficult to find work. He said that there are parts of Australia they would like to see. He said that they have come all this way and have not been able to travel and now things are getting better and they do not want to go home. He said that he was just about to get sponsorship from his company when the cancellation happened.
Ms Hogg said that the impact of the cancellation would be that ‘they would have to go home’. She said that they do not have sufficient savings. She submitted that they have also not had the chance to experience Australia properly because of the COVID-19 pandemic.
The Tribunal has given the disappointment Mr Gibson, his mother and Ms Hogg would suffer some weight against cancelling the visa. The Tribunal has also given some weight against cancelling the visa to the fact that job opportunities may be more difficult to come by in the UK.
The Tribunal notes restrictions have been eased since June 2021 and returning to the applicant’s home country may well be feasible. Under the present Departmental advice, the Tribunal notes the following:
Temporary visa holders returning home
Temporary visa holders impacted by COVID-19 can make arrangements to return to their home country, if border restrictions in that country allow.
Temporary visa holders do not need an exemption to depart Australia. They can leave at any time, as long as border restrictions in their home country allow them to return.
Temporary visa holders should be aware that if they wish to return to Australia while COVID-19 restrictions are in place, they will generally need a travel exemption. For more information see Coming to Australia.
Remember the COVID-19 situation continues to change.
Check each week:
oborder restrictions
oavailability of flights.
Commercial flights are available from several major airports across Australia.
You may also wish to find out if there are any private or government repatriation flights to your home country. If you would like further assistance to return home, you can contact your embassy or consulate in Australia.
The Tribunal also notes that under the course of the second working holiday visa the applicants would have been returning to their country in late 2021. Although they have not been able to travel extensively due to restrictions imposed by COVID-19, they have been able to experience some Australian life during this time. This is given some consideration in favour of cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no information before the Tribunal to suggest that the applicants contacted the Department to inform the Department of the non-compliance as they were aware that they had not completed three months’ work in a regional area. When asked by the Tribunal why they did not tell the Department that they had not worked in construction when they found out that this was incorrect information on their applications, they said that the first time they heard that they supposedly worked for the construction company was when the notice of intention to cancel was received.
The Tribunal does not accept that they were unaware of the incorrect information, for reasons provided above. The fact that they have continued to claim that they were unaware that incorrect answers were given or provided is given some weight in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance by the applicant before the Tribunal.
This is considered favourably against cancelling the visa although given little weight as it is an expectation of all visa holders.
The time that has elapsed since the non-compliance
The applicant and Ms Hogg have been in Australia for 18 months since non-compliance. They may have established some connections and fondness for Australia, however this time is not long enough to establish deep ties in Australia.
This is considered as a neutral factor in weighing up whether to exercise the discretion to cancel the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no suggestion that the applicant has breached other laws. There is nothing to suggest that the applicant is not a good citizen and that this non-compliance was out of character.
This is given weight against cancelling the visa.
Any contribution made by the holder to the community
Mr Gibson submitted to the Department that he continued to be employed and was an upstanding member of the community. He claimed that he was working in an industry of demand (carpentry and building). At the Tribunal hearing he said that they would like to do something for the community. He said that he feels like he is giving back as he is doing construction work in schools.
Ms Hogg said that she has not had the chance to make any community contributions because of the COVID-19 pandemic, having only recently returned to the office. She said that she would like to do volunteer work.
Their representative Mr Jennison noted that they are vaccinated and therefore considerate of the community.
Although there is not significant community contribution by Mr Gibson and Ms Hogg, the fact that Mr Gibson is employed in an industry of demand, and that both applicants would like to do some volunteer work, is given a little weight in favour of not cancelling the visa.
Other factors
While the factors set out above 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 Procedures 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. This includes the following:
Whether there would be consequential cancellations under s 140
There do not appear to be any consequential cancellations in this case.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
There do not appear to be circumstances which enliven non-refoulement or family unity obligations.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
If the visa is cancelled then Ms Hogg and Mr Gibson will become unlawful and may be liable for detention under s 198 of the Act if they did not voluntarily depart. A bar under s 48 would be imposed, limiting their options to apply for further visas in Australia. They also may be prevented from applying for three years from the date of visa cancellation for certain types of visas (Public Interest Criterion 4013). However recent amendments to the Regulations[6] permit applicants whose visas have been cancelled to apply for three kinds of visas: Skilled Nominated visas, Skilled Employer Sponsored Regional visas and Skilled Work Regional visas.
[6] Home Affairs Legislation Amendment (2021 Measures No 2) Regulations 2021
These considerations are given weight in favour of not cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
Mr Jennison, the representative, referred to s 54 of the Act, which provides that the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. He submitted that, pursuant to s 54, the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application, but did not, and how this procedural oversight gave rise to exploitation by a nefarious third party, specifically the duplication of the ‘specified work’ reference EKC. He submitted that the level of fraud by Mr Hansol is ‘systemic’. He said that there were no counterfeit payslips and the Department did not check the payslips. He submitted that there was a lack of compliance from the Department, and this is why they are ‘pushing it in this direction’. The Tribunal cannot comment on the decision-making process of the Department as it has no knowledge of it. However the Tribunal notes that the Department may have relied on the answers provided by the applicant in her application that she had worked for the employer, without knowing at the time of the visa grant that there was fraud. The Tribunal, without any further knowledge of the Department’s processes, does not reach any conclusions on this or take this factor into consideration.
The representative submitted that Ms Hogg and Mr Gibson were not afforded natural justice in that they were not told of the false information prior to the s 107 notice being issued, referring to s 57 and s 97 of the Act. In regard to s 57, it was submitted that the Department did not raise the systemic fraud with the applicant in an appropriate time frame (information located 31 August 2020 and raised with applicant on 3 May 2021).
100. The Tribunal notes that s 57 of the Act refers to provision of information relevant to a visa refusal and is not relevant to cancellation. (Section 97 is a definition provision.)
101. The Tribunal has considered the representative’s argument in the sense that Ms Hogg and Mr Gibson were not afforded natural justice as they were not provided with information about the provision of incorrect information for 10 months after the Department knew about it. It was argued that at this time it was too late to rectify the error. It was submitted that the Department found out about the incorrect information in August 2020 but waited for 10 months before issuing the s 107 notice and inviting Ms Hogg and Mr Gibson to comment.
102. The Tribunal is unaware of why it took the Department so long to provide a s 107 notice to Ms Hogg and Mr Gibson and agrees that the Department should have been or should be investigating Mr Hansol’s unlawful behaviour. However, Ms Hogg and Mr Gibson could have rectified the error at any time after the grant as they were aware that they had not worked for three months in a regional area and that incorrect information was utilised in their applications. Furthermore, there was no denial of natural justice as they were provided with an opportunity to comment or respond to the s 107 notice.
103. The fact of the Department’s delay is not therefore considered in favour or against cancelling the visa.
Conclusions as to whether the visa should be cancelled
104. The Tribunal has considered all the above factors cumulatively.
105. Factors against cancellation include Ms Hogg and Mr Gibson’s otherwise good characters, their youth and naivety, the stress and confusion which the COVID-19 pandemic and lack of work opportunities created, the impact of this on their decision-making ability, and consequences on the eligibility for certain visas for the next three years.
106. However, overall these factors are outweighed by the factors which indicate that the visa should be cancelled. The Tribunal finds that Ms Hogg and Mr Gibson would not have been granted the second working holiday visas if the correct information had been provided in their applications. The Tribunal also finds that they were aware that Mr Hansol would provide incorrect information in their applications. While they are otherwise good citizens, the fact of their awareness of the non-compliance is given significant weight in favour of cancelling the visa, and outweighs the other factors such as distress that cancellation may cause them and restrictions on their eligibility for grant of visa for the years to follow. The integrity of the migration system depends on honesty. It is a serious matter to be complicit in the giving or providing of incorrect information to the Australian government. The Tribunal notes also that the second working holiday visas would have expired in late 2021 such that they would have been returning at this time. There is also no evidence that the applicants would suffer harm if they return to their country where most of their family lives.
CONCLUDING PARAGRAPH
107. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
108. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
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.
- AGLC
- Gibson (Migration) [2022] AATA 183
- Case
- [2022] AATA 183
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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.