Hogg (Migration) - [2022] AATA 187

Hogg (Migration) [2022] AATA 187 (18 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Stephanie Mae Hogg
CASE NUMBER:  2107814
HOME AFFAIRS REFERENCE(S):          BCC2020/2243191
MEMBER:Jane Marquard
DATE:18 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 18 January 2022 at 3:10pm
CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) – Subclass 417 (Working Holiday) – incorrect answers given in extension application – 3 months of specified work in regional area while holding first visa – verification checks – discretion to cancel visa – attempts to find specified work – COVID-19 restrictions, unavailability of work and workplace discrimination – stress and confusion – paid agent to complete and lodge application – no approach to department – claim that fraudulent conduct by agent vitiated application – claim that department failed to investigate claimed work information at the time – delay in issuing notice of intention to consider cancellation – partner’s continuing work in industry of demand – hardship and consequences for future applications if visa cancelled – joint hearing with partner’s on same grounds – awareness and indifference or complicity in provision of answers – extension visa would have expired in any case – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 54, 57, 97, 98, 100, 101(b), 107, 109(1), 111
Migration Regulations 1994 (Cth), r 2.41
CASES
Gill v MIBP [2016] FCAFC 142; (2016) 248 FCR 398
Kaur v MIBP [2019] FCA 53
Maharjan v MIBP [2017] FCAFC 213

MIAC v Khadgi (2010) 190 FCR 248
NAWZ v MIMIA [2004] FCAFC 199
Singh v MIBP [2016] FCAFC 141; (2016) 247 FCR 554
SZFDE v MIAC [2007] HCA 35; (2007) 232 CLR 189
SZJM v MIAC [2010] FMCA 465
SZHVJ v MIAC [2009] FMCA 320
STATEMENT OF DECISION AND REASONS
BACKGROUND TO THIS REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2021 to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (Cth) (the Act). The applicant is a 27-year old woman who is a British citizen.
The applicant arrived in Australia on 5 September 2019 with her partner Mr Gibson. She was granted her first Working Holiday Visa (subclass 417) on 4 July 2019 which expired on 10 July 2020. She was granted a Working Holiday (Extension) (subclass 417) visa on 10 July 2020, which expired on 15 June 2021. This was the visa which was cancelled.
The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act as she gave or provided incorrect answers in her application. The delegate considered the circumstances relevant to the discretion whether to cancel the visa and after consideration concluded that the visa should be cancelled.
The issue in the present case is whether that ground for cancellation is made out,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 187
Decision Date: 18 January 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the decision to cancel the visa of Ms. Hogg, who had applied for a Working Holiday (Extension) (subclass 417) visa. The dispute arose from the applicant's assertion that she had completed three months of specified work in a regional area while holding her first visa, an assertion later contradicted by the employer. Ms. Hogg claimed that the incorrect information provided in her visa application was due to fraudulent conduct by a migration agent, compounded by the stress and confusion caused by COVID-19 restrictions, unavailability of work, and workplace discrimination.

The Tribunal was required to determine whether Ms. Hogg had failed to comply with the requirements of the *Migration Act 1958* (Cth), specifically section 101, which mandates that visa applicants provide correct answers in their applications. A further issue was the validity of the notice of intention to consider cancellation issued by the Department under section 107 of the Act. The Tribunal also had to consider whether the alleged fraudulent conduct by the migration agent vitiated the application and whether the Department had adequately investigated the claimed work information.

The Tribunal reasoned that the notice of intention to consider cancellation was valid and complied with statutory requirements. It found that Ms. Hogg had provided incorrect answers in her visa application, specifically stating she had completed three months of specified work when the employer later confirmed she had not. While acknowledging the applicant's submissions regarding the impact of COVID-19, reliance on a migration agent, and potential fraud, the Tribunal concluded that these circumstances did not negate the fact that incorrect information was provided. The Tribunal applied the principle that a visa holder is responsible for the accuracy of information provided in their application, even if completed by an agent, unless specific conditions are met to vitiate the process due to fraud. The Tribunal found no evidence to support the claim that the agent's conduct "stultified" the statutory decision-making processes in a way that would invalidate the cancellation.

The Tribunal affirmed the decision to cancel Ms. Hogg's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss. 101, 102, 103, 104, 105 or 107(2) of the Act. Extracts of the Act relevant to this case are attached to this decision. 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.Validity of the notice The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s. 107 of the Act (the Notice of Intention to Consider Cancellation (s. 107 Notice)), providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s. 107 on 3 May 2021 complied with the statutory requirements.The first issue for the Tribunal: – was there non-compliance as described in the s.107 notice? The first 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. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 of the Act. Section 101 provides that a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided.The non-compliance as described in the s.107 Notice 3 May 2021 In the s.107 Notice, the Department provided the following particulars of grounds for cancellation:On 10 July 2020 you lodged an application for a Working Holiday (Extension) (subclass 417) visa using the Department’s online lodgement facility, providing the following answers on the electronic visa form:In response to the question ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’ you answered ‘Yes’.Under the heading ‘Details of specified work undertaken’, you provided the following answers (in part):Legal registered name: EKCTrading name: EKCAustralian Business Number (ABN): 52607542503Postcode: 2540Industry type: ConstructionIndustry type sub-group: ConstructionDate from: 14 October 2019Date to: 23 February 2020Total days worked: 90Under the heading ‘Working holiday declarations’, in response to the question ‘Are applyingfor their second Working Holiday visa (subclass 417) and have completed 3 months ofspecified work as the holder of a first working holiday visa’, you answered ‘Yes’.Based on the above information, as well as meeting other relevant criteria, you were grantedyour Working Holiday (Extension) visa on 10 July 2020.Subsequent information received by the DepartmentThe Department initiated employment verification checks with EKC CONSTRUCTIONPTY LTD, the business registered under ABN 52607542503, to verify your employmentclaims. On 31 August 2020, EKC CONSTRUCTION PTY LTD contacted the Department and advised that you never worked at their business.

Decision

Reasons for decision

The representative argued that section 101(b) was not enlivened as the applicant did not witness or consent in the answers given and section 98 did not apply as it was ‘disabled through an act of fraud and deception’ by a third party. It was submitted that:Case Law also identifies in Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 (3 April 2019). Indeed, as in Kaur, there is no evidence capable of supporting some kind of deliberate strategy, or conscious choice by Ms Hogg, to provide false information in the visa application that might nonetheless be relied on by the delegate to grant her a visa. She supplied what she was told to in the belief that information would be used lawfully. She did what she did, because time, border closures, a global pandemic, employment knockbacks, discrimination and an urgency to regularize her visa status conspired to cause reliance on their ‘expat’ support network and Lee Hansol’s dubious representation. As reference for the Delegate and to put beyond contention any claim my client exercised ‘RECKLESS indifference’ in their actions (or lack thereof to question); a definition pertaining ‘Dependence’ and complicity in fraud can also be found in Kaur, where the court found in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35: ‘Dependence or reliance is also not the same as reckless indifference. As the Full Court noted in Gill at [50]:Further, The Full Court in Singh v the Minister at [52] makes clear…having regard to authorities such as SZFDE and Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [33] [that] it will be necessary to find that the agent’s conduct is not only a fraud on the visa applicant but must also stultify one or more aspects of the relevant statutory decision-making processes under the Migration Act.In Sum and to rule out any misunderstanding of our interpretation of the above case law in regard section 98 of the Act which ‘provides that a visa applicant who does not fill in his or her own application form will be taken to have done so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf’; we draw deliberate reference to Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554, Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398, and SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189. Where The presence or absence of the SZFDE preconditions of whether there is a fraud on the visa applicant, and whether the administrative power or process is disabled is enlivened. Accordingly, section 98’s power, contrary to what was highlighted in Ms Hogg’s NOICC, has on application of the above, been disabled and should not be applied to hold my client to account in the fraud that has taken place both to them and the Department. Again, in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 2 August 2007 S118/2007 the High Court states Any application of a principle that "fraud unravels everything", requires consideration first of that which is to be "unravelled", and secondly of what amounts to "fraud" in the particular context.’ In our case, a purported Migration Agent had acted fraudulently for personal gain, to extract monies under false pretences and dissuade visa applicants through fraudulent behaviour from remedying any falsities. In my client’s case Ms Hogg had indeed been DISSUADED from reviewing, signing, following up or rectifying their application, NOR were they provided their IMMI number, TRN or account details through which the application was made, remaining (until notification) unable to detect any fraud or misrepresentation which had been made.Decision of the Department to cancel the visa

Ratio Decidendi

Legal Principle Established

It was submitted that:As specified in Ms Hogg’s statutory declaration and the background above; the impact of the Covid-19 pandemic, national border closures, miss-information regarding the working holiday visa program, vulnerability as a result of discrimination and general welfare related stress on an individual’s psychological state cannot be underestimated. Accordingly, in evaluating the circumstances that lead to non-compliance the Department is reminded that the assumptions or decisions made by Ms Hogg on July 8th/9th 2020 were undertaken in the context of an apocalyptic pandemic lock down atmosphere (March – July 2020) As such, her ability to scrutinise complex migration agent interaction, visa application processes or migration law was significantly diminished compared to her need to focus on maintaining gainful employment, and basic welfare.Further we submit that Ms Hogg’s susceptibility to fraud and criminality was at this time increased due to her vulnerability and lack of support, particularly as national and state borders closed around her. By consequence, into this frame Lee Hansol exploited Ms Hogg’s vulnerability through an elaborate and industrial scale fraud that promised to facilitate a second 417 visa for her. She was in no position to question the processes, was unaware that false information would be submitted in her name and at no stage did she witness the application that was made. The circumstances that lead to the noncompliance in this instance were subversive, orchestrated by a third party (Lee Hansol) and beyond Ms Hoggs control. Ms Hogg is by consequence of the circumstances a victim. As specified in Ms Hogg’s statutory declaration and the background above every work application in Queensland was met with a rejection with some employers citing Queensland Public Health Orders as the reason for refusal, to this end Ms Hogg has supplied several items to support this claim. It was Ms Hogg’s belief, a belief that helped frame her reliance and dependence on the advise of Lee Hansol that any search for ‘specified work’ would be met with discrimination on the basis of her national extraction and temporary residency status. In the Delegate’s consideration of the methodology and duplication used by Lee Hansol, we ask if consideration was made at any stage as to if the application or references used by Lee Hansol were escalated to the Forensic Document Examiners Unit at the DHA or if at any stage there existed irregularities of concern? It would seem given the industrial level of replication of the fraud that the Department was not aware or made public endeavours sooner to stop individuals like Ms Hogg from becoming victim to the fraud. For Clarity, Ms Hogg did not collude in the fraud, nor was reckless or indifferent to the fraud, she was oblivious to it; and when reaching out to Lee Hansol, was of the legitimate understanding was engaging an Agent to get a ‘covid exemption’ given Jade the hairdressers reference: “this agent sorted my covid visa and can help you get your second 417 visa.”It is at this point that Lee Hansol’s understanding of Departmental processes, (i.e. Automated grants, non-consideration of evidence pertinent to the application, IMMI account creation, 417 checks and balances and VAC payment) was maliciously leveraged and manipulated for financial gain. Lee Hansol’s fraud entrapped its victim, it was a fraud in which the mechanisms used to dupe victims had been pre-determined and tested, one in which the fraud’s mechanics were initiated and personal details surrendered, victims were powerless to either identify or address to what extent a fraud had even taken place. Further, Lee Hansol’s deception was so successful that it became the means and point of difference for Lee Hansol’s marketing operation, through social media and Expat word of Mouth networks to give the effect that this ‘Agent’ was the agent to use to get a covid exemption to qualify for a second 417 visa in light of the Covid outbreak. Indeed, there is a legitimate question to be asked as to how and when the DHA became aware of the spectre of Lee Hansol’s Scheme, how many individuals have been duped by the fraud, the level of exact replication of each fraud and where in the timeline of deceptions by Lee Hansol where my client’s sit, beginning, middle or end? With respect, it is the industrial scale and mechanics of the fraud undertaken by Lee Hansol, to which we now draw the Delegates attention; specifically, as the level of fraud undertaken clearly vitiates Ms Hogg’s visa application under s98 of the Act, and her capacity to have ‘Taken to have made an application,’. Again, contrary to The Migration Agents Act 1998, there was no client agreement supplied, no supply of the application for review and no instruction that Ms Hogg would be required to provide false or misleading information. Conversely, should the Delegate decide the very act of Ms Hogg engaging Lee Hansol by email within the context of the Covid-19 panic and border closures, albeit in a manipulative and fraudulent way provides the validity required to enliven s98 and ability for Lee Hansol to act on Ms Hoggs behalf; it needs to be highlighted that at the heart of section 98 is its focus on ‘validity’ and the visa application process, a validity requirement that was disabled by reason of the HCA determination in SZFDE where there is:‘A need in the context of public law for a fraud …to vitiate those processes, and be capable of “unravelling” decisions or conduct.’ Finds exemplar, as Ms Hogg entered into their relationship with Lee Hansol on the pretext Lee Hansol could represent her and make a valid application. Further, Lee Hansol’s reluctance to provide an agency agreement, form 956, a consumer guide, access to the Code of Conduct, a MARN number or any of the other identifiers required under the Migration Agents Act 1998, typifies the extent to which Lee Hansol sought to disassociate themselves from the actual application and representation.Put simply, section 98 was leveraged by Lee Hansol to entice applicants as a means to make valid representation, defraud clients and then (it would seem) extricate themselves after the fact from the fraud, given the meaning of section 98 lays blame for any false claim at the feet of the applicant and in this case equal victim to the Department of the fraud.