Hickey (Migration)

Hickey (Migration) [2021] AATA 4533 (22 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Shauna Marie Hickey
CASE NUMBER:  2107615
HOME AFFAIRS REFERENCE:               BCC2020/2294447
MEMBER:Rosa Gagliardi
DATE:22 November 2021
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 22 November 2021 at 12:20pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers in second extension application – specified work in regional area for six months while holding first extension – verification checks showed applicant never did claimed work – discretion to cancel visa – no responses to department or tribunal or appearance at hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 362
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(6)
CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT 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 to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had contravened s.101(b) of the Act which requires that no incorrect answers are given or provided – in this case in respect of an application for a third Working Holiday visa, subclass 417 – a Working Holiday (Extension) subclass 417 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 4 November 2021 the Tribunal wrote to the applicant to invite her to a hearing to have been held on 19 November 2021, at 1.30pm. In the invitation the Tribunal highlighted that it had considered all the material before it but was not able to make a favourable decision on the basis of the information alone. The Tribunal notes that the representative who had been handling this matter was no longer doing so, and consequently, the Tribunal ensured the applicant was sent the invitation to her email address. The Tribunal has sighted evidence in its records of having provided the applicant with a copy of the hearing invite at her own email address on 12 November 2021.
The invitation letter highlighted that if the applicant was unable to attend the hearing, she should advise the Tribunal as soon as possible and that the date of the hearing would only be changed if the Tribunal were satisfied that the applicant had a very good reason for being granted an adjournment. The invitation also advised that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before it.
The applicant provided her new contact details but did not respond to the hearing invitation and did not attend the hearing on the scheduled date and time. Nor did she provide any updated material on the matters she wished to advance in terms of why she considered that her visa ought not be cancelled.
The hearing invitation sent to the applicant advised that the hearing would be held by telephone and that the Tribunal would contact the applicant on her phone at the specified date and time, given the COVID pandemic. When the Tribunal attempted to reach the applicant, however, on several occasions, the phone went through to voicemail.
The Tribunal acknowledges that that the ability to proceed to decision is only a discretionary one, and that thought should be given to the use of such discretion fairly. The Tribunal considers, however, that it is not for the Tribunal to make the applicant’s case for her. The fact that the applicant was also reminded by SMS on two separate occasions about the impending hearing persuades the Tribunal that all reasonable steps were taken to enable the applicant to appear before the Tribunal.
Furthermore, the Tribunal cannot consider a request for postponement if no such request, either on medical or other grounds, was ever received. On this occasion any request for a postponement for good reasons would have been considered. Indeed, the Tribunal had already granted the applicant an adjournment.
In these circumstances, and pursuant to s.362 of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
The applicant has provided the Tribunal with a copy of the Departmental decision for the purposes of the review.
For the following reasons, the Tribunal has concluded that the decision under review 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.
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.
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.
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.
The applicant applied for a Working Holiday (Extension) subclass 417 visa on 1 August 2020 and provided the following answers on the electronic visa application form:
The applicant was asked whether she had “carried out at least six months of specified work” and the applicant responded “Yes”.
In response 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 Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)”, the visa holder answered “Yes” she had done so.
The applicant also provided, in the main, the following “details of specified work undertaken”:

Employer Details
Legal registered name: AAG Labour Services PTY LTD
Trading name: AAG Labour Services PTY LTD
Australian Business Number (ABN): 21126217294
Employer business address
Address: Lot 1, Fouracres Road
Suburb / Town: Scotts River East
State / Territory: Western Australia
Postcode: 6275

Work conditions
Employment type: Direct employment
Industry type: Agriculture, forestry and fishing
Industry type sub-group: Plant and animal cultivation
Description of duties: I was a dairy farm hand. I assisted in milking 1400 cows twice a day. I also fed cattle, mustered cattle and reared calves while on the farm.
Date from: 06 Jan 2020
Date to: 26 Jul 2020
Total days worked: 190
Under “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); 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”, the visa holder answered “Yes” she had done so.
It is to be noted that section 100 of the Act provides that 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.
Was there non-compliance as described in the s.107 notice?
The above information was submitted to the Department as evidence that the applicant met the relevant criteria for her third Working Holiday visa, namely that she undertook specific work for a period of at least six months as per the requirements specified in Regulation 417.211(6) of the Migration Regulations 1994:

Regulation 417.211
(6) If the applicant has held 2 Subclass 417 visas in Australia, the Minister is satisfied that:
(a) the applicant has carried out a period or periods of specified work in regional Australia; and
(b) the total period of that work is at least 6 months; and
(c) all of that work was carried out while the applicant held:
     (i) the second Subclass 417 visa; or
     (ii) a bridging visa that was in effect and was granted on the basis of the application
           for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa); and
(d) all of that work was carried out on or after 1 July 2019; and
(e) the applicant has been remunerated for that work in accordance with relevant
Australian legislation and awards.
Based on the information above indicating that the applicant had completed 6 months’ work with AAG Labour Services PTY LTD in Scotts River East, Western Australia, regional Australia, the applicant was granted her Working Holiday (Extension) visa on 1 August 2020.
Since the applicant was granted the Working Holiday (Extension) subclass 417 visa, the Department engaged with AAG Labour Services PTY LTD, being the business registered under ABN: 21126217294, to verify the visa holder’s employment claims. AAG Labour Services PTY LTD, however, contacted the Department on 8 September 2020 to advise that the applicant had never worked at their business.
Possible non-compliance with section 101(b).
-    The applicant stated “yes” that she had carried out at least six months of specified
    work;
-The applicant was asked whether “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 (subclass 417). The applicant again responded “Yes” unequivocally;
-She provided specific details of claimed employment with AAG Labour Services PTY LTD, under the section of the application form titled ‘Details of Specified Work Undertaken’, and
-    The applicant answered “Yes” to the declaration ‘Working holiday declarations’,
declaring she had 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; AND all of that work was carried out after 1 July 2019.
The Tribunal finds that the above information is incorrect as verification checks undertaken with AAG Labour Services PTY LTD revealed the applicant had never worked at that business and the Tribunal cannot be satisfied that the applicant had undertaken six months specified work in regional Australia as required by cl.417.211(6).
The visa holder was required to undertake specified work in regional Australia as defined in the relevant legislative instrument in effect at the time of application for a period of six months while she held her second Working Holiday visa, as part of the eligibility criteria for the grant of the third Working Holiday (Extension) visa.
In the third Working Holiday (Extension) visa application the visa holder stated that she worked at AAG Labour Services PTY LTD from 6 January 2020 to 26 July 2020, for a period of 190 days. On 8 September 2020 the Department received written confirmation that the visa holder had never worked at the business.
The visa holder’s statement in the Working Holiday (Extension) visa application, that she had worked for AAG Labour Services PTY LTD for a period of six months, therefore meets the definition of an incorrect answer as described by section 101(b).
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).
The applicant has not provided to the Department or the Tribunal reasons the visa should not be cancelled.
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.
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
To satisfy the regulatory requirements for the grant of the Working Holiday (Extension) subclass 417 visa, the applicant was required to meet the criterion relating to specified work in regional Australia as defined in the legislative instrument in effect at the time of the visa application for a period of six months.
The applicant did not respond to the Notice of Intention to Consider Cancellation (NOICC) and the applicant did not attend the hearing. The evidence before the Tribunal is that AAG Labour Services PTY LTD contradicted the applicant’s claims that she had undertaken specified work in regional Australia for at least six months.
On the basis of the evidence before it, the Tribunal finds that the correct information is that the applicant did not undertake specified work in regional Australia as defined in the legislative instrument in effect at the time for a period of six months; and she did not work for AAG Labour Services PTY LTD (ABN21126217294) from 6 January 2020 to 26 July 2020. The Tribunal has little information in rebuttal that would persuade it that the applicant had provided correct information. The correct information would have led to the Department refusing the third Working Holiday visa.
The Tribunal places significant adverse weight on the extent and specificity of the incorrect information provided. In the absence of any explanation by the applicant that the incorrect information had not been provided, it is also more likely than not, that the incorrect information was provided in a premeditated way.
The content of the genuine document (if any)
This is not applicable as the issue is not about genuine (or not) documents that have been provided.
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 decision to grant the applicant the third Working Holiday visa was based partly, at least, on the incorrect information provided by the applicant. The applicant was required to provide correct answers about her past work experience for the grant of the third Working Holiday visa as set out in the relevant legislative instrument at the time of application. This reliance by the Department on the applicant’s provision of the incorrect information, led her to be granted a visa for which she was not entitled. The Tribunal places significant adverse weight on this matter.
The circumstances in which the non-compliance occurred
The applicant did not participate in a hearing in which the Tribunal would have granted the applicant an opportunity to set out the circumstances in which the non-compliance occurred. The Tribunal presumes that the applicant being from the Republic of Ireland, speaks and reads English and would have known on providing the incorrect information that she was deliberately attempting to circumvent Australia’s immigration laws. On the information before it, the Tribunal is not satisfied that the applicant did not provide the incorrect information to attain a visa in circumstances in which she was not entitled. The Tribunal similarly places significant adverse weight on this matter.
The present circumstances of the visa holder
The applicant did not respond to the NOICC to provide information regarding her present circumstances. These are matters that the Tribunal would have liked to explore with the applicant at a hearing to determine whether there were any extenuating circumstances which led to the non-compliance. The Tribunal has also not received any submissions from the applicant to assist it make an assessment about whether the applicant’s present circumstances are relevant to the consideration of the non-compliance with section 101(b).
The Tribunal is unable, therefore, to place favourable weight on this matter on the limited information before it.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
At a hearing the Tribunal would have explored with the applicant whether she had considered contacting the Department to advise that to gain her third Working Holiday visa, she had provided incorrect information and had never worked for AAG Labour Services PTY LTD as required under cl.417.211(6). The applicant has not engaged with the Tribunal about the incorrect information by putting forward submissions either verbal or written. As such, the Tribunal is unnable it to take into account any conduct by the applicant demonstrating she wanted to act in good faith with the immigration authorities subsequent to the non-compliance.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal and the Department before it, are not aware of any other known instances of non-compliance by the applicant. This matter weighs in the applicant’s favour to some extent.
The time that has elapsed since the non-compliance
The applicant provided the incorrect information when she lodged her application for her third Working Holiday visa on 1 August 2020. It has now been over 12 months since the non-compliance occurred. According to the Departmental notation in its decision, it would appear that the applicant had been in Australia since November 2018. As such, at a hearing the Tribunal would have liked to query the applicant about any extensive ties she may have developed in Australia either socially or economically. The Tribunal would have also inquired of the applicant as to whether she considered that she would suffer any significant hardship as a result of the severance of such ties.

On the evidence before it the Tribunal, it is only able to place limited weight on this matter against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is not aware of any breaches by the applicant of the law since the non-compliance. At the time the Department made its decision on 3 June 2021, none were highlighted, and the Tribunal is prepared to accept that this is also the case at the time of review. The Tribunal affords some weight on this matter in favour of the applicant.
Any contribution made by the holder to the community
Had the applicant attended the hearing the Tribunal would have liked to ask her about what, if any, contribution she has made to the community. This is not a matter that the applicant has addressed in the context of a response to the NOICC either. The Tribunal accepts that the applicant having been in Australia for three years now, may have contributed to society in some way, but finds that any such contribution is heavily outweighed by the gravity of the conduct in providing incorrect information.
Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under section 140 of the Act
There is no information before the Tribunal to indicate that this is the case.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
There is little information before the Tribunal to indicate that the applicant has applied for Protection and the Tribunal has not sighted evidence that in returning to her home country now or in the reasonably foreseeable future, the applicant would suffer serious harm. The applicant has not argued that, and the Tribunal has little information to indicate that, Australia would be in breach of its international non-refoulement obligations if the visa were cancelled and the applicant was required to return to her home country.
This matter, therefore, does not play a significant part in the Tribunal’s decision regarding whether the visa ought to be cancelled.
Whether there are mandatory legal consequences to a cancellation decision
If the visa is cancelled and the applicant does not depart Australia as required within the time period permitted, she may be liable to detention under s.189 of the Act, as well as removal under s.198 of the Act when she no longer holds a valid visa.
Other consequences include, the imposition of a section 48 bar, limiting the applicant’s options to apply for further visas from within Australia. Additionally, she would be affected by Public Interest Criterion 4013, in which case she may be prevented from being granted certain types of visas for a period of three years from the date of cancellation.
The Tribunal would have explained this to the applicant at hearing and asked her about subsequent hardship to flow on from the legal consequences to a cancellation decision. This is even though the consequences to a cancellation decision are a direct consequence of the non-compliance and they cannot be varied by the Tribunal.
Any other relevant matters
Attendance at a hearing would have enabled the applicant to put forward any matter she considered was pertinent to the Tribunal’s assessment of whether her visa ought to be cancelled. For example, there is limited information that there are children associated with the applicant who might fall under Australia’s obligations to take into account the best interests of the child, under the Convention of the Rights of the Child.
On the information before it, there is little persuasive evidence of other relevant matters the Tribunal can take into account.
Conclusion
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, individually and cumulatively as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Rosa Gagliardi
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.

[2021] AATA 4533

22 November 2021

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Immigration

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