Kearney (Migration) - [2022] AATA 3539

Kearney (Migration) [2022] AATA 3539 (29 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Graham Kearney
CASE NUMBER:  2108361
HOME AFFAIRS REFERENCE(S):          BCC2020/2495220
MEMBER:Rachel Da Costa
DATE:29 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 29 September 2022 at 12:32pm
CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – false or misleading information in the visa application – specified work in regional Australia – employment checks – waiver request – impact of the COVID-19 pandemic – fraud allegations – compassionate or compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 417.221; Schedule 4, Public Interest Criterion 4020
CASES
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIBP [2018] FCAFC 52
Trivedi v MIBP [2014] FCAFC 42
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 on 24 June 2021 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) Working Holiday (Third) (subclass 417) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 19 October 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 417.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant had given, or caused to be given, false or misleading information in a material particular in relation to his application.
The applicant appeared before the Tribunal on 28 September 2022 to give evidence and present arguments. The hearing was conducted by video using the Microsoft Teams videoconference platform as the applicant is currently outside Australia. He holds a Bridging B visa which enables him to return to Australia.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Evidence before the Department
Working holiday visa application form
The applicant applied for a Working Holiday (Third) (subclass 417) visa (‘Third Working Holiday visa’) on 19 October 2020. In his application form, the applicant declared that he had undertaken at least six months of specified work on or after 1 July 2019. The form states that the applicant undertook this work with Quenby Viticultural Services, Jindawarra Vineyard, Margaret River, Western Australia, postcode 6285. The form states that he was doing horticulture in the vineyard, pruning vines to prepare for the next growth season. He worked from 2 March 2020 to 23 August 2020, working a total of 1500 hours, 90 days at an hourly rate of pay of $23.66.
Letter from the Department – invitation to comment
On 23 November 2020, the Department wrote to the applicant inviting him to comment on information in…

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.

Continue reading Kearney (Migration)

Details

AGLC: Kearney (Migration) [2022] AATA 3539
Case: [2022] AATA 3539
Decision Date: 29 September 2022

CaseChat Overview and Summary

This matter concerned an application for a Working Holiday (Temporary) (Class TZ) visa, subclass 417, made by the applicant on 19 October 2020. The applicant declared in his application that he had completed at least six months of specified work in regional Australia with Quenby Viticultural Services between March and August 2020. However, the Department of Home Affairs conducted checks which indicated that the applicant's employer had verified that the applicant had not completed the declared work, suggesting the information provided was false or misleading. The applicant was subsequently invited to comment on this discrepancy, which could lead to a refusal of his visa application under Public Interest Criterion (PIC) 4020(1).

The legal issues before the Tribunal were whether the applicant had provided false or misleading information in his visa application, thereby failing to satisfy PIC 4020(1), and if so, whether there were compassionate or compelling circumstances that justified a waiver of this requirement. The applicant, through his legal representative, contended that he had engaged a third party, 'Lee Hansol', to assist with his visa application due to uncertainty about COVID-19 pandemic concessions. He claimed that this third party, without his knowledge or approval, submitted an application containing false information regarding his work experience. The applicant acknowledged he did not meet the criteria for the visa but requested a waiver of PIC 4020 and the imposition of a non-grant period.

The Tribunal found that the applicant had failed to satisfy PIC 4020(1) as the evidence indicated he had provided, or caused to be provided, false or misleading information in relation to his visa application. The Tribunal noted that the applicant's explanation that a third party prepared the application without his review did not absolve him of responsibility for the false information submitted. The Tribunal concluded that the applicant had not demonstrated that compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen justified granting the visa. Consequently, the Tribunal affirmed the decision not to grant the applicant the Working Holiday visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CLAIMS AND EVIDENCEEvidence before the DepartmentWorking holiday visa application form The applicant applied for a Working Holiday (Third) (subclass 417) visa (‘Third Working Holiday visa’) on 19 October 2020. In his application form, the applicant declared that he had undertaken at least six months of specified work on or after 1 July 2019. The form states that the applicant undertook this work with Quenby Viticultural Services, Jindawarra Vineyard, Margaret River, Western Australia, postcode 6285. The form states that he was doing horticulture in the vineyard, pruning vines to prepare for the next growth season. He worked from 2 March 2020 to 23 August 2020, working a total of 1500 hours, 90 days at an hourly rate of pay of $23.66.Letter from the Department – invitation to comment On 23 November 2020, the Department wrote to the applicant inviting him to comment on information in relation to his visa application. The letter explained that Department checks indicate that the specified work declared by the applicant at Quenby Viticultural Services may be false or misleading in a material particular, as the employer had verified the applicant had not completed specified work with them. The applicant was invited to comment on evidence which suggested he had provided, or caused to be provided, a bogus document or false and misleading information in relation to his visa application and that he may therefore fail to satisfy PIC 4020(1) with the result that the visa application may be refused. The applicant’s response The applicant engaged a lawyer and responded to the Department’s letter in writing on 22 December 2020. Attached to the response letter were the following documents:· Statutory declaration of the applicant;· Form 1023 notification of incorrect answers;· Copy of a complaint made to Border Watch;· Document setting out the applicant’s work history since arriving in Australia. In the letter, it is explained that the applicant engaged a person called ‘Lee Hansol’ to assist with his application. The letter states that the applicant was referred to this person by other backpackers as the applicant wanted to obtain assistance with his application because he was unsure whether there were concessions to the six-month specified work requirement due to the Covid-19 pandemic. The letter states that the visa application prepared and submitted by Lee Hansol contained false information about the applicant’s work experience and his statement that he had completed the specified work. The letter goes on to state that the applicant is aware he does not satisfy the criteria to be granted a Third Working Holiday visa but he requests that the PIC 4020 element of his application be waived and a ‘non-grant’ period not be imposed. The letter states that the applicant did not have the opportunity to review or approve the draft application form prior to it being submitted by Lee Hansol and he did not know that Lee Hansol had not completed the application truthfully.

Decision

Reasons for decision

On the basis of the above, the Tribunal finds that applicant does not satisfy PIC 4020 for the purposes of cl 417.221(2).decision The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.Rachel Da CostaMemberATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.…Migration Act 1958s 5 Interpretation(1) In this Act, unless 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.…

Ratio Decidendi

Legal Principle Established

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