Gormley (Migration)

[2021] AATA 4341

Gormley (Migration) [2021] AATA 4341 (27 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cian Michael Gormley

CASE NUMBER:  2112968

HOME AFFAIRS REFERENCE(S):          BCC2020/2685495

MEMBER:Luke Hardy

DATE:27 October 2021

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 27 October 2021 at 4:27pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect answer in application – specified work in regional Australia – applicant has never worked for the specified employer – applicant’s difficulties arranging specified work – impact of the COVID-19 pandemic – cost of employer arranged quarantine period – high risk skilled construction work – character references – decision under review set aside      

LEGISLATION

Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 2.41

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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant gave incorrect information in the form of a false statement, or bogus document, in the course of applying for a second working holiday visa in 2020. 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. 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

4. 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.

5. 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.

6. 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?

7. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101(b) of the Act. On 02 July 2021 the applicant lodged an application for a Working Holiday (Extension) (subclass 417) visa using the Department’s online lodgement facility. 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)?’ the applicant answered ‘Yes’. The applicant then proceeded to state that he had worked for GMR ENTERPRISES PTY. LTD., Australian Business Number (ABN) 87605528238, at Lithgow NSW, postcode 2790, as a construction worker, from 20 January 2020 to 31 May 2020 (in excess of 90 days) starting out as “a telecommunications labourer [who] moved onto a pit technician position.”

8. The applicant was granted a Working Holiday (Extension) visa on 02 July 2020. However, subsequent information received by the Department from GMR ENTERPRISES PTY. LTD., registered under ABN 87605528238, to verify the visa holder’s employment claims, dislosed on 5 November 2020, that the applicant has never worked at GMR ENTERPRISES PTY. LTD.

9. The delegate duly brought this information to the applicant’s attention under s.107 of the Act.

10. The applicant acknowledged that he had provided incorrect information and that he had essentially not complied with section 101(b) of the Act.

11. On this evidence, the Tribunal finds that there was non-compliance with s.101 of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

12. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

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

    ·     the correct information

    ·     the content of the genuine document (if any)

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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

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

15. In this matter, the applicant’s adviser wrote to the delegate to argue compelling circumstances. The following is extracted from the delegate’s decision:

    ·The visa holder’s decision to use the services provided by [the provider of the false letter] were the visa holder’s only option at the time and his last resort.

    ·When the visa holder had five months left on his first Working Holiday visa the visa holder had been attempting to reach out to farms looking for farm work to fulfil the Working Holiday (Extension) visa requirements but unfortunately those employers never got back to the visa holder after phone interviews.

    ·Prior to coming to Australia the visa holder had worked as a Scaffolder for five years. Due to the visa holder’s inexperience in farm work he struggled to find any employer willing to hire him so that he could complete his 88 days of regional work to extend his Working Holiday (Extension) visa.

    ·The COVID-19 pandemic and associated lockdowns which commenced in 2020 exacerbated the visa holder’s difficulty in finding farm work even though he always fully intended on completing his regional work requirements.

    ·As the visa holder was unable to obtain any farm work in New South Wales he contacted farms in Queensland which requested the visa holder to stay in a hostel of their choosing for the two week quarantine period which would cost him $1,400.00. They also informed the visa holder that they could not offer full time hours or weeks for his regional work.

    ·The visa holder felt that he did not have enough time to complete his 88 day work requirements and that his financial situation at the time would not have allowed him to meet the costs of flights and quarantine without having the certainty of being able to complete his 88 days of regional farm work.

    ·The visa holder was convinced that he would not find any regional work that would let him complete the visa requirements in time before his first Working Holiday visa expired.

    ·The visa holder acknowledges his wrongs and displays contrition for his uncharacteristic actions committed in a state of emotional and psychological distress as he was adversely affected by the prolonged lockdown and the prospect of not being able to secure farm work that would allow him to fulfil his visa requirements.

    ·There has been a period of over twelve months since the visa holder’s non -compliance and there is no other instances of non-compliance that has occurred…

    ·The migration agent has advised that while the visa holder held his Working Holiday (Extension) visa he has been working as a scaffolder with Kenny Constructions. The visa holder has also obtained a certificate from Safe Work NSW to perform high risk work on 9 March 2021.

    ·The visa holder is contributing to the Australian community by using his new qualification to carry out scaffolding work where it is hard to engage Australians. The visa holder utilises his high risk work licence by adhering to the safety measures when raising and dismantling scaffolding and dismantling scaffolding which keep the Australian community safe.

    ·There have been no breaches in the law committed by the visa holder since the noncompliance of July 2020.

    Attached to his response the migration agent provided the following documents, which have been taken into consideration when making this decision:

    ·Evidence of Employment documents for visa holder

    ·Passport for visa holder

    ·Submission from migration on behalf of visa holder

    ·Character reference from Robyn Doyle for visa holder

    ·Character reference from Isabelle Ashcroft for visa holder

    ·Character reference from James McDonald for visa holder

    ·Character reference from Niall Harty for visa holder

    ·Character reference from Francesca Blackham for visa holder

    ·Character reference from Daniel Hughes for visa holder

16. The delegate acknowledged that the applicant might have found it difficult to secure regional work as described in the response to cancellation notice. The delegate also acknowledged that the onset of the COVID-19 pandemic might have also affected his decision regarding his options including what information to provide the Minister in support of his visa extension application. However, the delegate ultimately gave these factors little weight. Without supporting evidence, the delegate did not accept the applicant’s account of unsuccessful efforts to secure farm work in NSW and Queensland. The delegate also gave little weight to the amount of time that had passed since the s.101(b) breach had occurred, but gave some small weight to the applicant evidently not having breached visa conditions at any other time, though finding this was not enough to weigh in the applicant’s overall favour.

17. After due consideration, The Tribunal has no difficulty accepting that the applicant tried unsuccessfully to secure specified work on a number of farms NSW and Queensland during the onset of the Covid-19 pandemic, and that he was rebuffed without explanation. The Tribunal gives this factor some weight. With all due respect, The Tribunal gives more weight than I think the delegate gave to pressure the onset of the Covid-19 pandemic and associated lockdown, travel and quarantine protocols, and their costs, had on the applicant at the time he proceeded to breach s.101(b). This was a period, if not of visible chaos, then of widespread uncertainty, changing information and some public argument. The Tribunal gives some weight to the applicant, who may not have known about the introduction of temporary “Covid-19” visas, having panicked about the cost of travelling out of Australia. The Tribunal gives weight to the applicant evidently not having breached any visa conditions on other occasions. The Tribunal gives some weight to the work the applicant has been doing during a period, particularly in the construction sector, when Australian businesses have suffered greatly from skills shortages and reduced demand. Finally, The Tribunal accepts on the basis of the reference letters submitted that the applicant’s s.101(b) breach was highly uncharacteristic. 

18. To sum up, 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

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

    Luke Hardy
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    105Particulars of incorrect answers to be given

    (1)If a non‑citizen becomes aware that:

    (a)     an answer given or provided in his or her application form; or

    (b)     an answer given in his or her passenger card; or

    (c)      information given by him or her under section 104 about the form or card; or

    (d)     a response given by him or her under section 107;

    was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

    (2)Subsection (1) applies despite the grant of any visa.

    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.