Illidge (Migration)

[2021] AATA 4544

Illidge (Migration) [2021] AATA 4544 (19 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Illidge

CASE NUMBER:  2109322

HOME AFFAIRS REFERENCE(S):          BCC2020/2382770

MEMBER:Bridget Cullen

DATE:19 November 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 19 November 2021 at 1.37pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) – Subclass 417 (Working Holiday) – incorrect information in second extension application – specified work in regional area for 6 months while holding first extension – verification checks showed applicant never did claimed work – discretion to cancel visa – non-compliance conceded and claim of fraud by agent – COVID-19 restrictions – no approach to department – work skills and history, and family circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act by providing incorrect information in his visa application, and the delegate, after weighing up relevant factors, decided that it was appropriate to cancel the applicant’s 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.

3. The applicant appeared before the Tribunal on 16 November 2021 by Microsoft Teams video link 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 Tribunal, in making its decision, has the following evidence and material provided to it:

   ·The Department’s file, which contains the material before the delegate when they made the decision to cancel the applicant’s visa;

   ·Skills assessment letter from the Australian Institute of Quantity Surveyors dated 12 September 2019; and

   ·Four character reference letters.

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

9. 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(b). The non-compliance is described as follows, extracted from the Delegate’s decision record:

   On 4 September 2020 the visa holder 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 application form:

   In response to the question ‘They have carried out at least six months of specified work’ the visa holder answered ‘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’.

   Under the heading ‘Details of specified work undertaken’, the visa holder provided the following answers:

Employer Details
Legalregisteredname:	Corrib Form PTY Ltd
Tradingname:		Corrib Form PTY Ltd
AustralianBusinessNumber(ABN):		37608924312

Employer business address

Address:

2-10

Court

Suburb/Town:

Belconnen

State/Territory

New South Wales

Postcode:

2617

Work address

Businessnameatthislocation:

Corribs Yard

Address:

3146

Barton Highway

Suburb/Town:

Murumbateman

State/Territory:

New South Wales

Postcode

2582

Work conditions

Employmenttype:

Direct employment

Industrytype:

Construction

Industrytypesub-group:

Construction

Descriptionofduties

Building Sheds Leveling Land Erecting Fencing Painting Fencing Stock Taking

Preparing Martial

Datefrom:

09 Mar 2020

Dateto:

30 Aug 2020

Total daysworked:

190

Under the heading ‘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’, the visa holder answered ‘Yes’.

Based on the above information, as well as meeting other relevant criteria, the visa holder was granted a Working Holiday (Extension) visa on 4 September 2020.

Subsequent information received by the Department

The Department initiated employment verification checks with CORRIB FORM PTY. LTD., the business registered under ABN 37608924312, to verify the visa holder’s employment claims. On 24 September 2020, CORRIB FORM PTY. LTD. contacted the Department and advised that the visa holder had never worked at the business.

1. The applicant agrees that he did not work for Corrib Form Pty Ltd at any stage. He says that he made a mistake, due in part to the pressure that he was under to try and remain in Australia during the challenges of the COVID-19 pandemic. Through a friend, he engaged a migration agent who represented that they could assist him in obtaining a further Working Holiday (Extension) visa.

2. The applicant says that the agent provided the incorrect information independently, and that he is a victim of “fraud”. The applicant did not report the “fraud” to any authorities, such as the police or Office of the Migration Agents Registration Authority. He says that he was focussed on dealing with his own issues and preparing for this hearing.

3. The applicant concedes that, in addition to never working for Corrib Form Pty Ltd, he also did not carry out “at least six months of specified work” as required to be eligible for the Subclass 417 visa.

4. It is clear that the information provided to the Department, in relation to the applicant’s claimed work for Corrib Form Pty Ltd, was not correct.

5. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

6. 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).

7. 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.

8. 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.

9. While the Tribunal is prepared to accept that it is possible that the applicant’s previous migration agent could have been complicit in the provision of the incorrect information to the Department, the Tribunal does not accept that it occurred with no awareness on the applicant’s part.

10. The applicant knew that he had not completed the required work to be eligible for the visa. He may not have been aware of the specifics of which business was being claimed to have been his employer, but he was very clearly aware that he was not eligible for the Working Holiday (Extension) visa given he had not done the work.

11. While the Tribunal understands that the COVID-19 period has been, and continues to be, stressful, for foreign nationals residing in Australia on temporary visas, the applicant could have done the proper and honest course of engaging with the Department to see what his options were given travel constraints at that point in time. Yet, he did not. He sought to obtain an advantage through administrative deception, and he has in fact obtained an advantage.

12. The applicant’s last visa, which is the subject of this cancellation decision, was granted on 4 September 2020. On the applicant’s own evidence, he did not meet the criteria of having performed the work required to be eligible for the visa. Consequentially, the Tribunal takes the view that the applicant has now obtained an additional 14-month stay in Australia to which he was not entitled.

13. It is essential that the integrity of the Australian migration system is protected from conduct that incentivises applicants to obtain visas that they do not meet the criteria for by providing information that is false. It creates a drain on Australian resources for the Department to be in a position where it must expend resources investigating instances such as this.

14. The Tribunal also considers that the applicant has sought to distance himself from the conduct, by deflecting blame to his agent, where it is obvious that he was aware at the time of application he did not meet the criteria. The applicant’s conduct is quite recent – as the non-compliance occurred when the visa application was lodged in 2020.

15. The Tribunal considers the circumstances in which the applicant’s non-compliance occurred, to be a factor that very strongly weighs in favour of cancellation.

16. The applicant did respond the Notice of Intention to Consider Cancellation issued by the Department, and there is no evidence before the Tribunal of any other non-compliance on his part. Although the Tribunal considers that applicants should always be honest, the Tribunal gives the applicant’s behaviour after cancellation, and the absence of any other non-compliance, a small amount of weight in favour of not cancelling the visa.

17. The Tribunal appreciates that this is a hard lesson for a relatively young man that, setting aside this very serious issue, otherwise would have much to offer Australia. He is skilled in Quantity Surveying, and the Tribunal considers these skills would be of benefit to Australian employers. The Tribunal has taken note of the references that the applicant has provided from former work colleagues, that express a view that he is a talented employee.

18. The applicant did not provide a letter from his current employer, as he has not shared with his current employer the circumstances surrounding his cancellation. The letter from the Australian Institute of Quantity Surveyors has assessed his qualifications and work experience as “suitable”. The Tribunal weighs the applicant’s employment skills as a factor that is in his favour, against cancellation.

19. Similarly, the Tribunal accepts that cancellation will cause the applicant distress. He has been in a relationship with another United Kingdom citizen, who is resident in Australia. The relationship has recently become more serious, but the applicant’s girlfriend wishes to remain in Australia.

20. The applicant says that he has limited support in the United Kingdom – he is not particularly close with his mother, and his brother is married with children so he cannot readily move in with him if he returns.

21. The Tribunal gives some weight to the distress that the applicant will face if the visa is cancelled, but also considers that he has strong prospects of obtaining employment in the United Kingdom given his age (29) and skill level, which includes a Bachelor of Science (Honours) from Nottingham Trent University. Although the Tribunal appreciates that the applicant does not want to return to the United Kingdom, the information before the Tribunal suggests that he will be able to readily adapt to life in his home country.

22. The character references submitted by the applicant are favourable. The applicant has engaged in the normal, everyday community processes that are expected of citizens. The applicant has participated in the Turbo Runners Running Club and become vegan. The Tribunal does not consider this to be remarkable but weighs the applicant’s positive relationships in the community as a factor that slightly weighs in favour of not cancelling the visa.

23. The applicant is a single man with no children, and there are consequential cancellations under s.140. The applicant has not applied for protection or claimed that returning to the United Kingdom would result in him suffering significant fear or harm. As such, the Tribunal does not give any weight to these factors either for or against cancellation.

24. The Tribunal has considered that the applicant would be an unlawful non-citizen if his substantive visa is cancelled and may be detained under s.189 of the Act; and removed from Australia under s.198 of the Act. The Tribunal has also considered the applicant becoming subject to s.48 of the Act, which will prevent the applicant from applying for certain visa types while remaining in Australia, and their affectation by PIC 4013, limiting the grant of temporary visas for a specified period.

25. The Tribunal gives the behaviour outlined above, whereby the applicant provided the Department with incorrect information about his employment, significant weight in favour of cancellation. The behaviour indicates an intentional willingness to circumvent the requirements of the Australian Migration Act and Regulations.

26. The applicant provided incorrect information on his visa applications, resulting in his obtaining a visa that he knew was not entitled to.

27. 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

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

    Bridget Cullen
    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.