Hare (Migration)

[2021] AATA 4999

Hare (Migration) [2021] AATA 4999 (14 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christopher Adam Hare

CASE NUMBER:  2110848

HOME AFFAIRS REFERENCE(S):          BCC2020/2430033

MEMBER:Anne Grant

DATE:14 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 14 December 2021 at 8:34am

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 – impact of the COVID19 pandemic – employer’s offer of sponsorship – contribution to the community – decision under review affirmed      

LEGISLATION

Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 189, 198
Migration Regulations 1994, Schedule 2 cl 417.211; Schedule 4, Public Interest Criterion 4013; 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 non-compliance was made out and the visa should be cancelled. The issue in the present case is therefore whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal by video conference using the Microsoft Teams application on 7 December 2021 to give evidence and present arguments.  

4. 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

5. 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.

6. 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.

7. 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.

8. 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 as follows:

   Possible non-compliance with section 101(b)
   I consider that you provided incorrect information in your application for a Working Holiday
   (Extension) visa when you:

   ● answered ‘Yes’ to the question ‘They have carried out at least six months of specified
   work’;

   ● answered ‘Yes’ to the question ‘All of that work was carried out while the applicant held
   the second Working Holiday visa (subclass 417); OR while the applicant held a bridging
   visa that was in effect and was granted on the basis of the application for a second
   [8760563] CLD202121579171 - BCC2020 2430033 - Notice of Int
   Case Number: 2110848
   Created on 29/10/2021 02:55:44
   Working Holiday visa (subclass 417) which was made at a time when the applicant held
   the first Working Holiday visa (subclass 417)’;

   ● provided details of claimed employment with Quenby Viticultural Services, at the section
   of the application form titled ‘Details of Specified Work Undertaken’; and

   ● answered ‘Yes’ to the declaration ‘Working holiday declarations’, 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); OR while the
   applicant held a bridging visa that was in effect and was granted on the basis of the
   application for a second Working Holiday visa (subclass 417) which was made at a time
   when the applicant held the first Working Holiday visa; AND all of that work was carried
   out after 1 July 2019’.

   I consider the above information is incorrect, as verification checks undertaken by the
   Department have concluded that you never worked at the business, Quenby Viticultural
   Services. Therefore you have not undertaken six 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 sections 101(b), and accordingly your Working Holiday (Extension) visa maybe liable for cancellation under section 109 of the Act.

9. The applicant was sent the Notice of Intention to Consider Cancellation (NOICC) on 2 August 2021.  He responded to the notice on 15 August 2021.  The content of his response was as follows: 

   To Whom it May Concern,
   Firstly, I would like to own up to falsifying information in order to obtain my third year WHV.
   This decision was not taken lightly on my end, and I did what I had to do, in a period of such
   uncertainty and worry, that was my only option to survive, stay safe and support my partner.
   Prior to this decision, I had began the 190 skilled visa application, completed my skills
   assessment, english test and submitted my EOI, but with Covid making everything standstill, I
   had no other option, than to falsely apply for my 3rd year WHV. Going back to my home
   country , would have been a dire risk considering the economic state they were in and still are.

   I have noticed that on the attached letter, this information was found out by the DHA on
   30.09.20. The concern of mine, is why was this information withheld from me for so long?
   During the time this information was held from me, I have invested a lot of money, and effort
   into making and securing a future here in Sydney. This is reflected in the skilled migration
   process, by undertaking OTSR and working on obtaining my provisional electrical licence. I
   have fully supported myself and my partner, as well as contributing to this economy during this crisis, by continually working throughout covid lockdowns and not applying for payments from the Government. I consider myself a hard working resident and it is my full intention to continue this.

   I hope to have a future here and continue to progress my career through a skilled visa or sponsorship path.

   Regards,
   Chris Hare

10. The applicant provided a number of documents in support of his application to the Tribunal.  Those documents have been considered.  They are:

    ·International Future Skills assessment letter, dated 6 January 2021.  This letter reports that the applicant is assessed as competent in the Australian Vocational Education and Training (VET) qualification Certificate III in Electrotechnology Electrician.

    ·Employer letter from Darren O’Connor, Director of the Luhan Group in support of applicant’s ‘stay in Australia.’  This letter is dated 13 August 2021.  It confirms that the applicant has been an employee with them since October 2018, and is a valued employee who is an excellent asset to the company. He is aware of the applicant having made a ‘panicked mistake in judgement’ and says that they have expressed high interest in sponsoring him.

    ·Second letter from Mr O’Connor, Director at Luhan Group who confirms the applicant is hard working, honest and reliable.  He noted he has supported the applicant to fulfil the activities needed to apply for a skilled 190 visa, and also offering him sponsorship. He notes that the applicant made the decision he made after taking into account his partner’s needs because she relies heavily on him and also their safety.  He suggests that the applicant is an exceptional member of the community and will contribute his electrical skills to the shortage that exists.

    ·New South Wales Relationship Certificate registered 19 July 2020. 

    ·IELTS test report form:  29 May 2020 with an overall band score of 8.

    ·Further statement from applicant which repeats the information in his NOICC response about him ‘doing what he had to do’ in a period of uncertainty and worry.  The applicant also observes that in the course of the past year he has invested a lot of personal resources and finances to pave a future in Australia.  He has undertaken construction course, OTSR and English assessments and has worked hard for his employers who have expressed an interest in sponsoring him.  He confirms that he was supporting himself and his partner throughout the pandemic.   The applicant states a hope that the decision can be reconsidered as he has fallen in love with Australia and wants to continue his life here. 

    ·11 August 2021 Australian Federal Police National Police Check showing no disclosable court outcomes for the applicant.

    ·Letter from NSW Government about Fair Trade Electrical Licence Tradesperson’s Certificate. 

    ·27 November 2021 character reference from Superintendent Cameron Garland at Resource Services Group X.   This letter confirms that Mr Garland has worked with the applicant on two major projects, the WestConnex M4M5 link tunnel at St Peters and the North Connex tunnel at Pennant Hills.  He notes that the applicant is a valuable member of the electrical team, is punctual, respectful, reliable and hard working.  He also confirms the company has offered the applicant a permanent employment position with the company. 

    ·Character reference from friend and dog charity owner Ms Donna White in which she confirms that the applicant and his partner have fostered a very unwell and elderly dog saved from an abusive home.  She confirms they have since become friends and she is aware that he has been dishonest with an Australian Government Department.    She confirms that he was under an immense amount of pressure and was the main income earner for the couple, and also his partner was relying on him heavily during a difficult period for her mental health. 

    ·Invitation from NSW Government to apply for a Skilled 190 visa dated 3 November 2021.

    ·Email attaching employment contract for permanent employment from current employer, dated 17 November 2021.

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

11. At hearing, (and in his response to the NOICC and the statement lodged with the Tribunal) the applicant conceded that he had provided incorrect information and that he did so by contacting an agent who he knew would complete false information in the application for the visa on his behalf.  I am satisfied that there was relevant non-compliance as described and identified in the s.107 notice.    

12. I therefore find 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?

13. As I have 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).

14. In exercising this power, I 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 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.

15. 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.

    The correct information

16. The correct information is that the applicant did not perform the required work in regional Australia but was employed on major projects in the Sydney urban region. Hence he was not qualified for the extension of his working holiday visa.  Consideration of this factor weighs towards cancelling the visa.

17. The content of the genuine document (if any)

18. There is no genuine document under consideration in this case.

19. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on the incorrect information.

20. As conceded by the applicant at hearing, the decision to grant the visa was wholly based on the incorrect information which was provided, claiming that the applicant had worked for 6 months at Quenby Viticultural Services in Margaret River between 9 March 2020 and 30 August 2020. The requirement to perform at least 6 months specified work in regional Australia is a prerequisite to the grant of the visa in regulation 417.211.  Without the incorrect information, the visa would not have been granted.  Consideration of this factor weighs heavily in favour of cancelling the visa.

    The circumstances in which the non-compliance occurred.

21. As noted above, in his response to the NOICC and in evidence before the Tribunal, the applicant explained that he believed that he had to make the application with the false information in order to keep himself safe and support his partner in a period of great uncertainty and worry (referring here to the global pandemic.)  He was at that time financially supporting his partner who was studying.  She has since finished her degree and found work as a project manager.  In this context, with his visa due to expire, the applicant contacted the person known as Lee Hansol at an email address commencing “goldenfish” (who friends had referred him to.)  He admits that he knew that the agent would apply using false information because he had not preformed the necessary regional specified work to qualify him for the visa. He paid the person $2,000 to do so.   The visa was approved within 10 days.

22. Consideration of the circumstances in which the non-compliance occurred weighs strongly in favour of cancelling the visa, even taking into account the added stress of the Covid19 pandemic, because the applicant was aware that false information was to be provided and that he was not qualified for the visa.     

    The present circumstances of the visa holder

23. I accept the applicant’s evidence that he has ongoing full time and permanent work and has applied for a nominated subclass 190 visa in November 2021.  He was concerned that if his visa is cancelled, he will be ineligible for the skilled nomination 190 visa and it was noted that there had recently been a change to the regulations which may mean that cancellation may not mean that he is prevented from applying for or proceeding with that application.[1]  It was recommended that he seek advice about that from a reputable migration agent. The applicant’s partner now has full time work in project management, having completed her studies.  If he has to return to Northern Ireland, he expects that she will go back with him, which will be disappointing for both of them given they want to stay and work in Australia. 

    [1] See Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021 which came into force on 13 November 2021.

24. I also accept that the applicant is working in a profession where there is a skills shortage and on major infrastructure projects in New South Wales, and that he has invested money and effort into making and securing a future in Sydney, hoping to obtain permanent residency.  However, the visa that the applicant was granted as a consequence of the non-compliance is a temporary visa and did not provide him with any entitlement (or right to expect) a permanent visa – and of course, it was actually a visa for which he was not qualified.  Due to the non-compliance, the applicant has had more than 12 months longer in Australia than he was otherwise qualified for.  Consideration of the present circumstances of the applicant weigh lightly towards cancelling the visa.

    The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958

25. The applicant has behaved in accordance with his obligations by responding to the NOICC and has acknowledged the circumstances of the non-compliance.  Consideration of this factor weight lightly against cancelling the visa. 

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

26. The information and evidence before the Tribunal does not suggest that there are any other instances of non-compliance by the applicant, and this will be given a little weight against cancelling the visa.

    The time that has elapsed since the non-compliance

27. As noted earlier, the applicant has stayed in Australia and worked full time, contributing to Australia’s infrastructure projects during a period of global uncertainty during the pandemic.  He has made friends and enjoyed developing close personal and employment relationships over the period since the non-compliance.  Consideration of the time that has elapsed since the non-compliance will be given some weight against cancelling the visa.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

28. There is no information or evidence before the Tribunal which suggests that the applicant has breached any law in Australia at any time.  This weighs against cancelling the visa.

    Any contribution made by the holder to the community

29. The applicant has worked consistently in Australia in a field which is on the skills shortage list and the skills priority list during the global pandemic, on major infrastructure projects and has fostered dogs (he told the Tribunal he had fostered 4 already).  I am satisfied that these contributions to the community should be given some weight against cancelling the visa.      

    Whether there are persons in Australia whose visas would or may be cancelled consequentially

30. There are no persons whose visa would or may be cancelled consequentially on the cancellation of the applicant’s visa.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

31. The information and evidence before the Tribunal does not suggest that there are any obligations under international agreements that would or may be breached as a result of the visa cancellation in this case. 

    Whether there are mandatory legal consequences to a cancellation decision

1. The applicant gave evidence that he has recently been invited to apply for a Skilled 190 Nominated Visa, but he is concerned that cannot proceed if his visa is cancelled.  It was noted that there had been some very recent changes in the legislation and that may no longer be the case (as noted above) and the applicant was referred for advice on this aspect to a migration agent. If the visa is cancelled, the visa holder will potentially therefore become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia, as he would no longer hold a valid visa.

2. A bar under section 48 of the Act will also be imposed, limiting the visa holder’s options to apply for further visas from within Australia. Furthermore, he will also be affected by Public Interest Criterion 4013, where he may be prevented from being granted certain types of visas for a period of three years from the date of visa cancellation. 

3. Consideration of this factor and the potential legal consequences of cancellation will be given a little weight against cancelling the visa.  

   Any other relevant matters

4. I acknowledge that the applicant has expressed genuine regret for providing the incorrect information here under consideration, and that he made the decision involving the non-compliance at a time when he felt he had no other alternative.  This will be given a little weight against cancelling the visa.

   Conclusion

5. I found the applicant to be a frank and credible witness and accept his genuine regret for the incorrect information being provided, and the circumstances in which it occurred.  Nonetheless, I find that I must give significant weight to various considerations which weigh towards cancelling the visa.  In particular, I give significant weight to the fact that the applicant knowingly lodged an application based on false information and gained a visa for which he was not qualified, that he gained the benefit of a longer period of working in Australia than he legitimately should, and the fact that the visa would not have been granted without the incorrect information (and that the applicant was aware of this).  Although I acknowledge the unpredictable and stressful situation of the pandemic provided a particularly difficult situation for temporary visa holders in Australia, there were measures taken by the government in this period to assist those whose visas were coming to an end in a period where global travel was not possible and unsafe; and instead of making investigations of the Department about extending his time in Australia legally, the applicant made a choice to take the path that he did.

6. I consider that the matters and considerations that weigh towards cancelling the visa significantly outweigh those that weigh against doing so.  Having taken all of the factors noted above and as required into consideration, the Tribunal considers that the visa should be cancelled.

7. 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

8. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

   Anne Grant
   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.