Kearney (Migration)

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 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.
In his statutory declaration made 16 December 2020, the applicant explains the circumstances that led to him contacting Lee Hansol on 8 October 2020 to seek assistance with his visa application, his interactions with Lee Hansol, and what he did when he found out that his application was being investigated by the Department.
In the Form 1023, the applicant declares that the information in his visa application that stated he had completed six months of specified work was not correct and the work history specified was wrong.
The complaint to Border Watch includes the applicant’s email correspondence with Lee Hansol. This correspondence commences on Thursday 8 October when the applicant first makes contact with Lee Hansol and asks for his assistance, and concludes on 4 December 2020 with the applicant asking Lee Hansol what is being investigated and why he recommends withdrawing the visa application. The email correspondence includes the information provided by Lee Hansol to the applicant and the information provided by the applicant to Lee Hansol in connection with his visa application.
The delegate’s decision
On 24 June 2021, the delegate made their decision. In their decision, the delegate refers to the applicant’s declaration that he undertook specified subclass 417 work with Quenby Viticultural Services but that Department checks indicate the employer confirmed that the applicant had not completed specified work with them. The delegate refers to the Department’s letter dated 23 November 2020 inviting the applicant to comment on information that the Department had reason to believe he had provided which was false or misleading. The delegate notes the content of the applicant’s response letter dated 22 December 2020 and his statutory declaration which refer to the applicant engaging the services of Lee Hansol, and the other documents he submitted. The delegate notes that based on the information provided by the applicant with his response letter of 22 December 2020 about his actual work history, the applicant would only have completed 28 days of specified work in the relevant period at the time he made contact with Lee Hansol.
The delegate goes on to explain that they are satisfied the applicant knew the requirements for the grant of the Third Working Holiday visa and that Lee Hansol had lodged the application on the applicant’s behalf. The delegate explains the concept of ‘given or caused to be given’ in the context of PIC 4020 and finds that based on the evidence before them, they are satisfied that the evidence of specified work submitted to the Department in the applicant’s application is false or misleading in a material particular as defined in PIC 4020(5) and therefore the applicant does not satisfy PIC 4020(1). The delegate noted the applicant had not raised any compassionate or compelling circumstances and so the requirements of PIC 4020(1) have not been waived. The delegate found that as the applicant does not satisfy PIC 4020(1), he does not satisfy PIC 4020 generally, and he therefore does not meet the requirements of cl 417.221. Therefore, the criterial for the grant of the visa are not met by the applicant.
Evidence before the Tribunal
The applicant lodged his application for review of the delegate’s decision on 28 June 2021. He included a copy of the delegate’s decision with his application for review.
The applicant did not provide any additional written evidence to the Tribunal in support of his application for review.
consideration of claims and evidence
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 417.221 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The Tribunal confirmed with the applicant that, as he stated in his letter of 22 December 2020, he admitted that the person who lodged his visa application on his behalf had provided fraudulent information and he was aware that he did not meet the criteria for a Third Working Holiday visa, but he would like the PIC 4020 element of his application to be waived. The applicant confirmed this was correct.
In the Tribunal hearing, the Tribunal discussed with the applicant that his Third Working Holiday visa application form stated he had worked doing horticulture at Quenby Viticultural Services, Jindawarra Vineyard, Margaret River, Western Australia, postcode 6285, and that he had worked a total of 1500 hours, over 90 days at an hourly rate of pay of $23.66. The applicant confirmed this was not true. The Tribunal accepts this.
The applicant confirmed that he was aware of the specified work requirements for his Third Working Holiday visa but the problem was he got locked down in Melbourne because of the Covid-19 pandemic and it took him time to get away to North Queensland. The applicant gave evidence that during the relevant time, in North Queensland he had done some painting, some farming and some plumbing. He agreed that if declared, that work would not have been sufficient to qualify him for the visa and he knew at the time he had not done enough specified work. The applicant confirmed that he completed the specified work component for his Second Working Holiday visa.
The applicant gave evidence that he found out about Lee Hansol from some other workers who recommended him and said they had no issues getting their visas. The applicant contacted Lee Hansol who said he could assist the applicant for $2000. The applicant needed Lee Hansol’s help because he knew he was not going to meet the six-month specified work requirement for his visa and needed someone to help sort that out for him. Later, he realised he had been scammed.
The Tribunal explained to the applicant that it had read and considered all the material he had provided to the Department and the Tribunal about his interactions with Lee Hansol, including his response letter of 22 December 2020, his statutory declarations and the email correspondence between him and Lee Hansol. The Tribunal put to the applicant that there were matters in the materials that it might find indicate he was complicit in providing false information or that he was indifferent to Lee Hansol acting unlawfully or dishonestly.
First, the Tribunal explained that in his email to the applicant on 8 October 2020, Lee Hansol states that he would organise for a contracted farm to put the applicant on their records to show the applicant had been working for them. The Tribunal put to the applicant that this suggested what Lee Hansol was proposing was fraudulent because the applicant had not been working on a farm. The applicant responded that he paid attention to the opening paragraph in Lee Hansol’s email when he said he had been doing this work for years and from what people had told the applicant, it seemed ok. The applicant said he did not go into the ‘fine print’. He knew he had to pay Lee Hansol and went forward. It was close to the time that his visa was going to expire and he was stressed. The Tribunal asked the applicant whether he made any other inquiries about the basis on which he might be able to qualify for a Third Working Holiday visa, such as calling the Department of Home Affairs. The applicant said he didn’t contact the Department and he just asked other backpackers.
Secondly, the Tribunal put to the applicant its concern that he had allowed Lee Hansol to assume his identity in order to make his visa application by giving Lee Hansol the log-in details for his Department of Immigration account (ImmiAccount), creating a new personal email address for the purpose of the application and giving Lee Hansol the password. The applicant responded that he thought he would be able to view the application, but then he found he had no access and panicked.
The Tribunal asked the applicant whether he had anything else to say about whether he gave, or caused to be given, false or misleading information in relation to his application for a Third Working Holiday visa. The applicant said he apologised and had learned from his mistake.
In the context of PIC 4020, PIC 4020(5) states that:
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.
It is not in dispute that the applicant did not work in horticulture at Quenby Viticultural Services, Jindawarra Vineyard, Margaret River, Western Australia, 6285 as stated in his visa application form. In these circumstances, the Tribunal finds that the information contained in the visa application form for the Third Working Holiday visa, which stated the applicant was employed by Quenby Viticultural Services for a total of 1500 hours, 90 days at an hourly rate of pay of $23.66 from 2 March 2020 to 23 August 2020 was false or misleading at the time it was given.
The Tribunal is satisfied that the false or misleading information was given by Lee Hansol, rather than by the applicant himself as the applicant never suggested to Lee Hansol that he worked for Quenby Viticultural Services. It is clear from the email correspondence between Lee Hansol and the applicant that this false information was created by Lee Hansol for the purpose of making it appear that the applicant had met the specified work requirements for the visa.
The Tribunal is also satisfied that the information provided is false or misleading in a material particular because it was relevant to determining whether the applicant met a criterion for the visa, namely, whether the applicant met the specified work criterion. The applicant’s evidence to the Tribunal, which it accepts, is that he was aware of the specified work criterion for the Third Working Holiday visa and he was aware at the time he contacted Lee Hansol that he had not completed sufficient specified work to meet the criterion.
The applicant gave evidence to the Tribunal that he did not know Lee Hansol was going to provide false information on his behalf. He gave evidence that Lee Hansol had been recommended to him by other people who had successfully got their visas, he thought it was ‘legit’ and he had given correct information to Lee Hansol. He only found out later it was a scam. This is broadly consistent with what is submitted in the applicant’s letter dated 22 December 2020, which is that Lee Hansol represented himself as being qualified to provide migration advice, the applicant did not have the opportunity to review the draft application before it was submitted and the applicant was not aware that false information had been submitted on his behalf. In essence, the applicant is suggesting that he is an innocent victim of fraud perpetrated by a third party.[1]
[1] Singh v MIBP [2018] FCAFC 52 at [144]
As discussed with the applicant in the hearing, the law does not require a visa applicant to be knowingly complicit for the purposes of PIC 4020(1) and (2).[2] The requirements in PIC 4020 apply whether or not the false or misleading information, or bogus document, is provided knowingly or unwittingly. The visa applicant is ultimately responsible for purposely untrue material provided with a visa application. If the visa applicant was complicit in the fraudulent conduct or ‘indifferent’ to whether the migration agent or third party engaged in the fraudulent conduct, it can be said that the applicant caused the false or misleading information or bogus document to be given.[3]
[2] Trivedi v MIBP [2014] FCAFC 42
[3] Trivedi v MIBP [2014] FCAFC 42; Singh v MIBP [2018] FCAFC 52
In this case, the Tribunal is satisfied that the applicant was complicit in or indifferent to the provision of the false or misleading information by Lee Hansol for the reasons explained below.
As referred to above, in his email to the applicant on 8 October 2020, Lee Hansol states that he can help the applicant to get the Third Working Holiday visa. He asks the applicant to complete a checklist or questionnaire and explains what he will do, which is that he will organise for a contracted farm to put the applicant on its records to show the applicant had been working for them. The email states:
“[O]nce you fill out all questionnaire I will forward to contracted farm straight away so they start to organise apply your 3^rd working holiday visa. [W]hat they do is that they are making your paperwork in order to lodge your visa. [Y]ou were supposed to work in specific area for 6 months so they put you on their profile as you have been working for them during certain time… [W]hen we lodged your application, immigration contact farm owner and check your detail after that, most case would be approved but sometimes immigration request further information, we will respond upon their request so there is nothing to worry about from your end.”
The Tribunal has considered the applicant’s evidence that he was stressed and he did not go into the ‘fine print’, however the Tribunal does not accept this response. The applicant’s evidence is that he knew he did not meet the specified work criterion for his Third Working Holiday visa and that this is why, on the recommendation of others, he contacted Lee Hansol for help. The applicant’s evidence is also that he did not make other inquiries, such as to the Department, about whether there were other ways in which he might be able to qualify for the visa. In the Tribunal’s view, Lee Hansol’s email makes it clear what information he requires from the applicant and that he intended to use that information to create false information about the applicant’s employment on a farm in order to qualify for the visa. The Tribunal does not accept that the applicant’s claimed failure to have taken notice of this detail, combined with the fact that the applicant knew he did not meet the specified work criterion, means he was not complicit in or indifferent to the provision of the false and misleading information on his behalf. It does not excuse him from responsibility.

Also as referred to above, the applicant engaged Lee Hansol to make his visa application on his behalf. At Lee Hansol’s request, he provided Lee Hansol with the log-in details for his ImmiAccount and created a new email address for the purpose of the application and gave Lee Hansol the password. In the Tribunal’s view, the applicant effectively allowed Lee Hansol to assume his identity for the purposes of making his visa application. According to the emails between the applicant and Lee Hansol, the applicant contacted Lee Hansol several times for an update and when he did not receive a response, he did not contact the Department directly despite the fact he states in his emails to Lee Hansol that he was worried his visa was about to expire and he had realised he could not access his ImmiAccount. In the Tribunal’s view, the applicant’s conduct indicates that by engaging and relying on Lee Hansol in this way, he was complicit in or indifferent to the conduct of Lee Hansol.
As discussed above, the Tribunal accepts that the applicant was not aware of the information provided by Lee Hansol in his visa application. However, the Tribunal is satisfied that the information provided was false or misleading in a material particular and finds that the applicant was complicit in or indifferent to the provision of this information and therefore, the Tribunal finds that the applicant caused the false or misleading information to be given.
Therefore, the Tribunal finds that the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
PIC 4020(4) provides:
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.
The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
In his letter dated 22 December 2020, the applicant did not raise any compassionate or compelling circumstances that should lead to the waiver of PIC 4020(1) or (2). Despite this, the Tribunal gave the applicant the opportunity to address these matters in the Tribunal hearing.
Compelling circumstances that affect the interests of Australia
In the Tribunal hearing, the applicant was asked whether he wished to say anything about compelling circumstances in his case that affect the interests of Australia.
The applicant responded that he works as a plumber, he worked for 4 years through the Covid-19 pandemic, he is a good member of society and he has family members in Australia with whom he has set up a life. The Tribunal has considered the applicant’s evidence, but does not consider any of the matters he mentioned amount to compelling circumstances that affect the interests of Australia.
Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen
In the Tribunal hearing, the applicant was asked whether he wished to say anything about compassionate or compelling circumstances in his case that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The applicant stated that his previous employers would be disappointed if he didn’t get the visa because they would be expecting him back and he is a good worker. He also explained that he has relatives in Australia and he is the only person from his father’s side of the family here so that relationship is important to them all. The Tribunal has considered the applicant’s evidence, but does not consider that the matters he mentioned rise to the level of compassionate or compelling circumstances that would justify the grant of the visa.
Accordingly, for the reasons given above, the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived.
Conclusion
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 Costa
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(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 1958
s 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.
…

[2022] AATA 3539

29 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction