Kennedy (Migration)

[2022] AATA 2672

Kennedy (Migration) [2022] AATA 2672 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Danielle Lauren Kennedy

REPRESENTATIVE:  Mr Adeel Khan

CASE NUMBER:  2111114

HOME AFFAIRS REFERENCE(S):          BCC2020/2401577

MEMBER:Catherine Carney-Orsborn

DATE:8 February 2022

PLACE OF DECISION:  Sydney

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 08 February 2022 at 2:36pm

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 – lockdown travel restrictions – impact of the COVID19 pandemic – employer’s offer of sponsorship – decision under review set aside 

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994, Schedule 2 cl 417.211; Schedule 4, Public Interest Criterion 4013; r 2.41

CASES

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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers on her visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 1 February 2022 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

5. 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

6. 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.

7. 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.

8. 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?

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 in the following respects:

10. Under the heading ‘Working holiday declarations’, in response 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’.

11. Based on the above information, as well as meeting other relevant criteria, the visa holder was granted a Working Holiday (Extension) visa on 04 September 2020.

12. The Department initiated employment verification checks with Banana Exchange Pty Ltd, the business registered under ABN 86052441139, to verify the visa holder’s employment claims. On 25 September 2020, Banana Exchange Pty Ltd contacted the Department and advised that the visa holder had never worked at their business, from 13 January 2020 to 02 August 2020.

13. In response to the s107 notice the applicant admitted she had not done the above work.  She agreed that she did not complete her 6 months of regional work.

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

    Should the visa be cancelled?

15. 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).

16. 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.

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 applicant appeared before the Tribunal and gave oral evidence.  Prior to the hearing the applicant provided submissions, evidence of education, police checks, references from work colleagues, friends, and her employer.  The Tribunal also has the Department file.

19. The Tribunal has considered all the information before it.  The applicant has agreed that she provided incorrect information and she regrets doing so. 

20. The applicant was born in April 1995.  She first arrived in Australia in October 2018 on a Working Holiday Visa. 

21. The applicant had been granted her first working visa and had complied with the conditions.  She had undertaken a period of work in Northern Queensland.  She found further employment which ended in April 2020. 

22. After that period, she struggled to find further work.  She claims that the COVID 19 outbreak restrictions on travel within Australia, her relatives being sick and her stress at that time including a breakup with her long-term partner meant she was under enormous stress.  She claims that at time she was referred to an agent whom she was told would assist her.

23. Her evidence is that the agent completed the forms and she dealt with them on-line.  She was told they could fix everything up and there was nothing she should do. 

24. The applicant concedes that this was a mistake and understands the consequences.

25. One of the consequences is that her present employer was in the process of lodging an application to sponsor her for a working visa in Australia and this process has to be suspended.

26. The applicant has provided to the Tribunal a reference from that employer in which it is stated that she is a valued employee, and the organisation wishes to sponsor her to continue to work for them in Australia.

27. The applicant provided evidence that she had contributed to Australia through her work with charities.

28. The Tribunal put to the applicant its concerns that she did not contact the Department to find out what her options were however she was able to engage an agent.

29. She responded that she was panicked about the COVID situation, unable to get work and her relationship breakup. 

30. The applicant is presently employed, and her employer wishes to sponsor her.  There is nothing before the Tribunal to indicate that there have been any other breaches of the law or non-compliance with her visa conditions.  No other persons are affected by the cancellation of her visa.  The references from work colleagues and others she knows in Australia attested to her good character.

31. The Tribunal has weighed up all the factors.  The Tribunal gives weight to the fact that the Department was misled and the integrity of the immigration processes.  It also gives weight to the fact that the applicant did not contact the Department to discuss her options but chose an option presented to her by an acquaintance. 

32. On the other hand, the applicant has provided evidence of her being of otherwise good character, being stressed by a break-up and the illness and death of close family members in her home country. 

33. The Tribunal considers that the above are the normal vicissitudes of life and unfortunately people have to deal with these issues. 

34. However, the Tribunal gives substantial weight to the fact of a COVID 19 outbreak, lockdowns, and border closures.  The Tribunal accepts that it would be difficult for the applicant in her situation to move around to get the regional and rural work required at that time. 

35. The Tribunal further gives significant weight to the evidence from her Australian employer that they wish to sponsor the applicant, that she is an asset to the company, and they would suffer without her.

36. The Tribunal, after the hearing, confirmed the evidence from the employer that they will sponsor her and consider her to be an integral part of the organisation.  

37. 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

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

    Catherine Carney-Orsborn
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.