Glynn (Migration)

[2022] AATA 1820

Glynn (Migration) [2022] AATA 1820 (30 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aoife Jane Glynn

REPRESENTATIVE:  Mr Adeel Khan

CASE NUMBER:  2111063

HOME AFFAIRS REFERENCE(S):          BCC2020/2706171

MEMBER:Catherine Carney-Orsborn

DATE:30 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 30 March 2022 at 10:10am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – there was non-compliance in the way described in the notice –– applicant had provided false information – applicant did not undertake specified regional work in Australia – medical evidence of her mental health concerns – impact on her spouse’s career – hardship to her sister who is a permanent resident – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers on her visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 22 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse and sister.   

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

   Was there non-compliance as described in the s 107 notice?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 in the following respects:

10. Under the heading ‘Working holiday declarations’, in response to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) the visa holder answered ‘Yes’.

11. Based on the above information, as well as meeting other relevant criteria, the visa holder was granted a Working Holiday (Extension) visa on 07 October 2020.

12. The Department initiated employment verification checks with the claimed employers to verify the visa holder’s employment claims. On 12 November 2020, the employer contacted the Department and advised that the visa holder had never worked at their business, from 9 March 2020 to 30 August 2020.

13. In a request for an extension of time to respond to the s 107 notice the applicant’s agent submitted submissions which included that the applicant had no idea what was lodged on her behalf and the agent she used had been sanctioned and found to have acted fraudulently.

14. The Tribunal considers that pursuant to s 99 and s100 the incorrect information provided was provided on her behalf.

15. For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

16. 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).

17. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

18. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

19. The applicant appeared before the Tribunal and provided oral evidence.  The Tribunal also took evidence from the applicant’s sister and de facto partner.

20. The applicant provided documentary evidence of previous work taken in rural areas, work for charities, copies of medication, doctor’s report, discharge summary, statements from family and friends and a tenancy agreement for her and her partner.

21. The applicant at hearing conceded she made a mistake.  She stated that she was suffering because of her mental health deteriorating during the COVID outbreak and lockdowns.

22. She found it difficult to find work and could not return to her home country.  She claimed she was told by her acquaintances that she should contact a representative who could help her.

23. She claims she sent off money and her details and did not see what was put in the application.

24. The applicant claims she did not think to contact the Department as due to her mental health issues and stress she was not able to think straight.

25. The applicant provided evidence from her doctor of her mental health condition and medications she is presently prescribed.

26. Evidence was further provided of an ankle injury sustained in November 2021 while at work in Australia and for which she is still receiving treatment and is on workers compensation.

27. Evidence was provided that her long-term partner is working as a carpenter in Australia.  His employer provided evidence of their intention to sponsor him for a working visa in Australia.  The applicant’s partner gave evidence that he will leave Australia with the applicant if she must return to their home country.

28. Evidence was provided from the applicant’s sister who is a permanent resident.  The applicant’s sister gave evidence that she has no other relatives in Australia and she and her husband are planning to start a family and it would devastate her if her sister (the applicant) was not in Australia to provide her with support.

29. The applicant provided evidence of work she undertook for a charity providing care for abandoned pets.

30. The Tribunal has considered all the evidence and information available to it.

31. There are no other consequential cancellations however evidence was provided that the applicant’s long-term partner would leave Australia with her.

32. There are no children whose interests are affected.  The applicant’s sister who is her only relative in Australia and a permanent resident gave evidence of the adverse effect it would have on her.

33. If the visa is cancelled the applicant would be unable to make another application to return to Australia for three years.

34. Evidence has been provided of hardship to the applicant and her family in Australia.

35. The Tribunal considers that the applicant misled the Department and put at risk the integrity of the Migration System.  The Tribunal considers this is a serious breach.

36. The Tribunal has weighed this up against the applicant’s remorse, admission of fault and the hardship that would fall on her close family being her sister who is a Permanent Resident.  Her spouse who is in the process of being sponsored for a working visa as a skilled carpenter and is employed.

37. The Tribunal further considered the medical evidence of her mental health concerns and that she has suffered a work injury in Australia from which she is still recovering.

38. If she was returned to her home country, she may not be able to continue to receive the treatment and workers compensation she is currently receiving in Australia while she recovers from her injury.

39. The applicant gave evidence that she would not be able to find work in her home country however the Tribunal considers that she worked there before coming to Australia.  She claims her single mother in her home country will not be able to support her and due to her injury, she will not be able to work.

40. The applicant has been in Australia since 2018 and has a spouse in Australia.  Given the impact on her spouse’s career if she was returned, her injuries in Australia, the loss of her spouse’s skills to the Australian employer and the hardship to her sister who is a permanent resident. The Tribunal has exercised its discretion not to cancel her visa.  

41. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Catherine Carney-Orsborn
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.