Hopfner (Migration)

Hopfner (Migration) [2022] AATA 3985 (11 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Nina Hopfner
CASE NUMBER:  2120117
HOME AFFAIRS REFERENCE(S):          BCC2021/611360
MEMBER:Catherine Carney-Orsborn
DATE:11 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 11 November 2022 at 11:36am
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information provided in extension application – did not undertake specified work while holding first visa – discretion to cancel visa – COVID restrictions began within weeks after applicant’s arrival – no approach or response to department or departure after COVID restrictions lifted – reliance on person at hostel – partner with similar visa issue – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41
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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information on her visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 8 November 2022 to give evidence and present arguments.
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. 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. Extracts of the Act relevant to this case are attached to this decision.
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 notice was sent to the applicant via her last email address which was provided by the applicant for the purpose of receiving documents.
At hearing the applicant provided oral evidence. A summary of the oral evidence is as follows.
At hearing the Tribunal discussed the Department’s decision. The Tribunal discussed with the applicant that there was a non-disclosure certificate on the Department file. The Tribunal explained that the relevant information was already disclosed to the applicant in the Department’s decision and therefore finds that the non-disclosure certificate was not valid. The Tribunal explained that the only information not disclosed was the names of other persons the Department was investigating, and the Tribunal finds that it would not be in the public interest to disclose those names of third parties. The applicant indicated she understood this and had no comment.
The applicant gave evidence to the effect that she did not undertake the required work. She agreed that the information she provided was incorrect. She stated that a few weeks after she entered Australia in February 2019 the borders were closed. She said there were lock downs and she could not return. The Tribunal asked if she had considered returning home as had been advised very publicly at the time. She responded with words to the effect that the last plane leaving required her to apply one month before and she was not sure whether she wanted to stay or go. She responded she had moved to a Hostel, and someone there had offered to assist her with the application so she could get an extension of her visa. She claims she paid that person an amount of money and they completed the visa application for her.
The applicant’s evidence is that she wanted to stay longer in Australia as she is now in a serious relationship. She claims she has been living with her partner for nearly three years.
She said words to the effect that her partner is a carpenter and wants to continue to work in Australia. She stated words to the effect that he has the same visa issues as her. She stated she is currently financed by her parents and does some work in a café.
The applicant confirmed she is still living at Bondi. She claims that at first, she did not want to stay however her partner wants to stay.
The Tribunal noted that it appeared that she did not respond to the Department’s notice of intention to cancel and explained that the hearing was her opportunity to discuss any issues around her non-compliance.
The applicant at first intimated that she may not have received the notice. She then stated that she ignored it as she was not sure how to respond and had previously relied on her parents to do things for her.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 in the following respects:
The applicant provided incorrect details in response to the question whether she had undertaken specified work as the holder of a working holiday visa. The applicant provided details of the specified work which was incorrect.
At hearing the applicant agreed that the information she had provided was incorrect.
For these reasons, the Tribunal finds that there was non-compliance with s101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
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 is that the applicant did not undertake the specified work and provided incorrect information that she had done such work. The applicant was granted the second visa on the incorrect information provided. The applicant benefited from the incorrect information supplied in that she was granted a further temporary visa.
In relation to the circumstances of the non-compliance. She stated at hearing that due to covid and lock downs she was uncertain whether she wanted to stay or return home. She stated that she did not respond to the Department’s correspondence as she was on her own and previously her parents had done things for her.
The applicant’s evidence which accords with the evidence held on the Department file is that she did not contact the Department or provide any information to them. In response to the Tribunal’s concerns that she should have contacted the Department and discussed her options she responded that she was on her own and when she was staying at the Hostel, she did what the others were doing. She took their advice that this person would help her. Later she stated that she was not used to having to do things on her own.
The Tribunal does not accept the above as adequate explanations for misleading the Department and providing incorrect information and dealing with persons who were clearly not doing the correct thing. The applicant was an adult at the time and was able to navigate the documents and processes to secure her first working holiday visa and should have been able to continue to do that.
The Tribunal has no information before it to indicate that the applicant has not complied with other requirements in her dealings with the Department and the visa processes.
No information is before the Tribunal to indicate the applicant has been involved in any breaches of the law.
The applicant lodged the visa application on 30 December 2020. It is now over a year and half since the visa was granted. The Tribunal does consider this to be a significant amount of time as the applicant has continued to live in Australia with her partner and work.
The Tribunal discussed with the applicant whether there were any contributions made by her to the community that she would like to discuss. She indicated that there were none.
On the information before it the Tribunal finds there are no persons in Australia whose visas would or may be cancelled consequentially.
There are no children whose interests would be affected by a cancellation. The applicant provided no evidence that returning to her home country would result in any breach of Australian’s non-refoulement or family unity obligations. Her evidence is that her partner is in the same situation as her and will have to return to his home country.
The Tribunal finds that because of her non-compliance the visa holder will become unlawful and be required to leave Australia. She could be detained if she does not leave and be the subject of a bar which will limit her options to apply for further visas within Australia. She may also be prevented from being granted certain types of visas for a period of time.
The applicant did not provide any evidence of hardship which may be caused to her or her partner other than to say they had wanted to stay in Australia and her partner wanted to start his own business.
Her evidence is that her partner is doing several jobs but is not with an employer who would sponsor him.
The Tribunal has considered all the above information provided. The Tribunal found the applicant to be truthful at the hearing however it must weigh up against that, that she participated in a fraud on the Department which undermines the integrity of the migration system.
Her reason that “everyone” at the hostel was doing the same is not of itself enough to find that the visa should not be cancelled. Any hardship involved in the cancellation of her visa is a future her partner has considered however this future is mere speculation.
The Tribunal accepts that the outbreak of covid and the lockdowns were unprecedented and stressful periods of time however the applicant is still in the country and has not sought to return to her home country now that all restrictions have been lifted. The applicant did not at any time contact or respond to the Department. She did not seek to rectify the incorrect information or assist the Department in dealing with the issues. After considering all of the above the Tribunal is not satisfied that the applicant has provided any strong or convincing reasons that there are any circumstances or evidence which would warrant not cancelling the visa.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Catherine Carney-Orsborn
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 3985

11 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction