Johnston (Migration)

[2022] AATA 3143

Johnston (Migration) [2022] AATA 3143 (3 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gearoid Johnston

CASE NUMBER:  2119360

HOME AFFAIRS REFERENCE(S):          BCC2020/2748747

MEMBER:Mark Bishop

DATE:3 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 03 August 2022 at 10:05am

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – employer reported no record of applicant – impact of the COVID19 pandemic – partner’s health issues – employment in skilled occupation – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198, 359
Migration Regulations 1994, Schedule 2 cl 417.221; Schedule 4, Public Interest Criterion 4013; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133    

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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information in the Working Holiday (Extension) visa application as he did not work at the named employer. 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 3 August 2022 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 set aside.

   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.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with the following section of the Act:

   Section 101 Visa applications to be correct:

   ·A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.

   ·The applicant provided employer detail, employer business and address, work conditions and period of employment.

9. The department initiated employment verification checks with Pearl Recruitment Group (WA) Pty Ltd, the business registered under ABN 75145084046 Lincara Pty Ltd the business registered under ABN 2110309178. See paragraph 10 hereunder.

10. The Department initiated employment verification checks with Pearl Recruitment Group (WA) Pty Ltd, the business registered under ABN 75145084046, to verify the visa holder’s employment claims. On 19 November 2020, Pearl Recruitment Group (WA) Pty Ltd contacted the Department and advised the visa holder had never worked at the business.

11. For these reasons, the Tribunal finds that there was non-compliance with s 101 of the Act by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

12. 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).

13. 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.

14. The applicant did not provide a response to the NOICC (Doc ID number 9260161).

15. The Tribunal has reviewed the departmental file. The Tribunal is satisfied the visa holder was required to meet the criterion relating to specified work in regional Australia for a period of six months within the agriculture, construction or mining industries, bushfire recovery, or critical COVID-19 work in the healthcare and medical sectors. The visa holder did not respond to the NOICC. The Tribunal can therefore only consider the information provided by the business in response to the Department’s queries regarding the visa holder’s claimed employment against the information provided by the visa holder in the application.

16. The correct information is the visa holder did not undertake specified work in regional Australia for a period of six months; he did not work in the agriculture, construction or mining industry, bushfire recovery, or critical COVID-19 work in the healthcare and medical sectors; and he did not work for Pearl Recruitment Group (WA) Pty Ltd (ABN 75145084046) between 9 March 2020 and 30 August 2020. The correct information is significantly different from the information provided by the visa holder. The Tribunal did not provide a response to the hearing invitation from the Tribunal. There is no additional information before the Tribunal was not before the delegate.

17. 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.

18. The Tribunal is also required to consider both the prescribed matters, where relevant or indicate where not relevant; any matters raised by the applicant in response to the s 107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:

    ·whether there would be consequential cancellations under s 140.

    ·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

    ·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

    ·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

19. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

20. On 27 July 2022 the applicant provided written information to the Tribunal as follows:

    ·Statement as summarised below:

    oHe did not respond to the NOICC and his visa was cancelled on 16 December 2021.

    oHe did not comply with s 101(b) of the Migration Act in order to gain a 3^rd Working Holiday Visa (Extension). He followed ‘bad advice’. He understands that he made a mistake and  accepts full responsibility for his actions. He was   in an unhealthy relationship, experiencing anxiety and not thinking properly about his future.

    oHe outlined detail of prior working experience (see paragraph under heading ‘Previous Regional Work’) in written submission.

    oHe currently works as a qualified electrical engineer. This position is listed on the skilled occupation list and the Priority Migration Skilled Occupation List (PMSOL)

    oHe outlined detail of previous and current project work.

    oHe has resided in Melbourne for the last two years and adhered to all COVID regulations.

    oHe would like the Member to take into consideration the psychological and financial hardship I endured living through 2020 and 2021 in Victoria. He would also like the department to take into consideration that during this time period, he complied with three strict 14 day quarantine periods at home after being exposed to COVID-19 at several events.

    oIn November 2020 he met my current partner Gemma. They have been together ever since and have relied heavily on each other throughout all of the lockdown restrictions here in Melbourne. Gemma was not aware of his previous non-compliance and originally added him as her partner on her recent 482 TSS application visa. The department kindly advised Gemma that due to my previous non-compliance keeping me on her visa could ultimately affect hers. We made the decision to remove me and she was granted her visa on the 7th of December 2021.

    oWe signed a lease in November 2021 for a townhouse in Brunswick and have really enjoyed living together. Additionally, Gemma was recently diagnosed with Idiopathic Subglottic Stenosis. This is a rare airway disease that is life threatening when not treated in a timely manner.

    ·The applicant provided appropriate supporting documentation.

21. In oral evidence to the Tribunal the applicant advised as follows:

    ·He is a graduate at Bachelor level in engineering and electronics from the National University of Galway, Ireland and has 5 years post university working in his chosen field.

    ·His current solicitor advised him in writing prior advice from =his then solicitor was incorrect. The Tribunal explained to the applicant the inevitable consequences of not responding to a NOICC.

    ·He was living in the NT at the time of his application for a 3^rd Working Holiday (Extension) visa and was swayed by members of the backpacker community to provide non-genuine information to the department in support of his application. He ws given the name of  Mr Lee Hansel, sent him an email, provided the sum of $2,000, completed a questionnaire and Mr Hansel lodged his application. Approximately 11 months later the department granted his visa application. The applicant acknowledged to the Tribunal he was responsible for his own poor behaviour. It is now a well-known fact (see a list of 6 decisions issued by the Tribunal as presently constituted in the last 3 weeks) where the same scam was the subject of organised fraud involving at least 24 persons.

    ·He works in a position of demand and as late as 2 months ago checked the departmental website and confirmed his position of qualified electrical engineer as qualified electrical engineer is listed on the skilled occupation list and the Priority Migration Skilled Occupation List (PMSOL).

    ·He is not married, is in a de facto relationship does not have any dependent children in Australia or Ireland and does not have any financial dependants in Ireland.

    ·His partner’s medical condition is a scar re-growth that requires constant monitoring and laser treatment when the re-growth is too large.

22. The Tribunal now turns to  consider the above as follows:

    (a) the correct information

23. To satisfy the criteria for the grant of the Working Holiday (Extension) visa, the visa holder was required to meet the criterion relating to specified work in regional Australia for a period of six months within the agriculture, construction or mining industries, bushfire recovery, or critical COVID-19 work in the healthcare and medical sectors.

24. The visa holder did not respond to the NOICC.

25. The correct information is the visa holder did not undertake specified work in regional Australia for a period of six months; he did not work in the agriculture, construction or mining industry, bushfire recovery, or critical COVID-19 work in the healthcare and medical sectors; and he did not work for Pearl Recruitment Group (WA) Pty Ltd (ABN 75145084046) between 9 March 2020 and 30 August 2020. The correct information is significantly different from the information provided by the visa holder.

26. The Tribunal gives this consideration weight in favour of cancelling the visa.

    (b) the content of the genuine document (if any)

27. No genuine document is being considered.

    (c) 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

28. The visa holder’s employment details related to his regional work experience were central to the grant of his Working Holiday (Extension) visa. The visa holder did not meet the requirements of Regulations 417.221(2) and 417.221(6).

29. The Tribunal considers the delegate made the decision to grant the visa based, in part, on this incorrect information, and the visa holder may have received an immigration benefit to which he may not have been entitled.

    (d) the circumstances in which the non-compliance occurred

30. The circumstances of non-compliance are set out above in paragraph 19 and supporting documentation which is copies of legal advice about responding to a NOICC from his then solicitor. This advice was provided to the department after cancellation of the visa. In part this legal advice stated “because I had been added as a secondary applicant on my partner's TSS 482 visa before I received the NOICC, this application on was separate to the cancellation and would supersede it.” The legal advice went onto say “As a result, there was no need to respond.” The applicant acted upon advice that was clearly not relevant to his Application for a Working Holiday (Extension) Visa. They were separate and unrelated matters.

31. The onus is on an applicant at all times to provide correct advice to the department.

32. The Tribunal gives this aspect neutral weight in favour of the cancelling the visa.

    (e) the present circumstances of the visa holder

33. The applicant is now in a de factor relationship, supportive of his partner (as would be expected) in health and/or medical emergencies, engaged in valuable, skilled and necessary employment in this country and acquiring the usual obligations of persons who enter into a committed long term relationship (lease). The Tribunal pays particular heed to the fact that the applicant is “currently works as a qualified electrical engineer. This position is listed on the skilled occupation list and the Priority Migration Skilled Occupation List (PMSOL)”

34. The Tribunal gives these aspects significant weight in favour of not cancelling the visa.

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

35. There is information before the Tribunal to indicate the visa holder attempted to contact the Department to inform them of the incorrect information. There is information before the Tribunal to indicate the visa holder was in contact with he department when he became aware he had been provided with incorrect advice by his then solicitor.

36. The Tribunal gives these aspects weight in favour of not cancelling the visa.

    (g) any other instances of non-compliance by the visa holder known to the Minister

37. There are no other known instances of non-compliance by the visa holder.

38. Temporary visa holders are expected to comply with visa conditions at all times.

39. The Tribunal give this aspect neutral weight concerning possible cancellation of the visa.

    (h) the time that has elapsed since the non-compliance

40. As outlined above the visa holder has maintained well-paid employment until the current time. A little less than 2 years from application lodgement date has elapsed since the non-compliance which the Tribunal does not consider to be a significant amount of time. The Tribunal considers the period of time he has spent in Australia and the ties he may have do  mitigate the non-compliance which is substantial.

41. In a written submission to the Tribunal supplemented by oral evidence the visa holder outlined his employment history in Australia and personal and employment detail post October 2020 in Victoria inclusive of the lengthy period of severe lockdown in Melbourne.

42. In that period of time from late 2020 until time of decision the applicant has been exposed to some harrowing experiences. The applicant has shown fortitude, discipline and demonstrated a willingness to act upon sensible advice to seek and retain professional assistance.

43. The Tribunal gives this aspect significant weight against cancelling the visa.

    (Note: there is no consideration (i) in the current legislation)

    (j) any breaches of the law since the non-compliance and the seriousness of those breaches

44. There is no information before the Tribunal to indicate the visa holder has breached any laws since the non-compliance. Temporary visa holders are expected to conform to the law at all times.

45. The Tribunal gives this aspect no weight against cancelling the visa.

    (k) any contribution made by the holder to the community

46. The applicant is in a long term de facto relationship. He receives considerable assistance from his partner and has provided not insignificant emergency assistance to his partner in times if health stress.. This assistance has been given in the most difficult of circumstances and has been considered, practical and helpful. This contribution is significant.

47. The applicant is an adult man in a long standing de factor relationship. He has responsible employment. He is valued by his employer. He has been promoted in her employment. He makes a critical contribution in an area of need to his employer.

48. Employment is a critical part of community. He currently works as a qualified electrical engineer. This position is listed on the skilled occupation list and the Priority Migration Skilled Occupation List (PMSOL).

1. The Tribunal gives these aspects significant weight against cancelling the visa

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

2. The Tribunal is not aware of any person’s visa who would, or may, be consequentially cancelled under section 140 of the Act.

3. As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration

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

4. The visa holder has not applied for protection nor made any claims that returning to his home country would result in him suffering significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations if the visa were to be cancelled and the visa holder had to return to his home country. The applicant advised the Tribunal he does not have any children.

5. Furthermore, there is no information before the Tribunal to suggest the visa holder has any children in Australia who may be affected by a decision to cancel the visa. The Tribunal is  satisfied that should the visa be cancelled, this would not breach Australia’s obligations in respect to the International Convention on the Rights of the Child.

6. As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration.

   Whether there are mandatory legal consequences to a cancellation decision.

7. If the visa is cancelled, the visa holder will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia, as he would no longer hold a valid visa.

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

9. The Tribunal gives this consideration neutral weight

   Any other relevant matters.

10. The Tribunal has given considerable weight to the matters set out in paragraph 20 above. The Tribunal gives significant weight to the following matters:

    ·He outlined detail of prior working experience (see paragraph under heading ‘Previous Regional Work’) in written submission.

    ·He currently works as a qualified electrical engineer. This position is listed on the skilled occupation list and the Priority Migration Skilled Occupation List (PMSOL)

    ·He outlined detail of previous and current project work.

11. The Tribunal has given considerable weight to the detailed oral evidence (in particular the fact that the applicant sought legal advice from a solicitor and was provided with incorrect legal advice in writing) that corroborated and verified the written documentation provided by the applicant.

12. The provision of this evidence has persuaded the Tribunal to make a finding not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

13. There are no other relevant matters for the Tribunal to consider.

    CONCLUDING PARAGRAPHS

14. 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 not be cancelled.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa

    Mark Bishop

    Senior 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.