Kerr (Migration)

[2022] AATA 611

Kerr (Migration) [2022] AATA 611 (4 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Bronagh Kerr

CASE NUMBER:  2110008

HOME AFFAIRS REFERENCE(S):          BCC2020/2429989

MEMBER:Nicole Burns

DATE:4 January 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 04 January 2022 at 11:02am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – there was non-compliance in the way described in the notice – applicant had provided false information –applicant didn’t did not undertake specified work in regional Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2

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) on 5 August 2021.

2. The delegate cancelled the visa because they were satisfied the applicant provided incorrect answers in her Working Holiday (Extension) visa application for her third working holiday visa in certain respects in breach of s 101(b) of the Act.  Further, the delegate was not satisfied that the factors in the applicant’s case against cancelling the visa outweighed the factors for cancelling the visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal via video link on 22 December 2021 where she gave evidence and presented arguments about the issues in her case.

5. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by way of a video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by video conference. There were no apparent communication difficulties and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. 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

7. 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.

8. 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.

9. The Department sent the applicant a notice of intention to consider cancellation (NOICC) of her third working holiday (extension) visa (lodged and granted on 15 September 2020) on 19 July 2021 which set out the alleged non-compliance with s 101(b) of the Act.  She was invited to provide a response however failed to do so.

10. 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?

11. 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) in the following respects. 

12. The notice records that in filling out her visa application form the applicant responded ‘yes’ to the question about whether she had undertaken at least six months’ specified work in regional Australia as the holder of a second working holiday visa (Subclass 417) from 9 March 2020 to 30 August 2020, totalling 190 days.  She also provided the details of her purported employer: Quenby Viticultural Services, ABN 49457432242, Jindawarra Vineyard, Margaret River (postcode 6285), Western Australia (WA).  However, subsequently, on 30 September 2020, a staff member at Quenby Viticultural Services contacted the Department (following the delegate initiating an employment verification check) and advised that the applicant had never worked at their business.

13. As noted, the applicant did not respond to the NOICC setting out this information. 

14. At hearing the applicant agreed there was non-compliance in the manner set out in the NOICC.  She confirmed that she did not undertake specified regional work in Australia as indicated in her third Subclass 417 visa application.  She said she was living and working (in childcare) in Sydney at the time of the visa application; it was during the middle of the pandemic that was rife in Ireland (her home country) and Sydney; and she heard via others in the expatriate community that a man called Lee Hansol could help her.  She contacted him, gave him money[1], and had the visa within a week.  The applicant said she was not sure what visa he had applied for, or the relevant visa criterion, but just wanted some more time.  She had never heard of Quenby Viticultural Services until she received the NOICC.  She did not reply to the NOICC, feeling petrified and lacking support in Perth, where she had moved from Sydney in March 2021. 

    [1] AUD2,500

15. Based on the evidence before it, including the applicant’s oral evidence at hearing acknowledging she did not undertake specified work in regional Australia, the Tribunal is satisfied she provided incorrect information in the application for a working holiday (extension) visa as set out in the NOICC by:

    ·Answering ‘Yes’ to the question about whether she had carried out at least six months of specified work;

    ·Answering ‘Yes’ 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)’;  

    ·Providing details of claimed employment with Quenby Viticultural Services (ABN 49457432242), including employer business address, work address, and work conditions, in the period from 9 March 2020 to 30 August 2020 (totalling 190 days worked); and

    ·Answering ‘Yes’ to the declaration: ‘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’.

16. 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 and is satisfied that the grounds for cancelling the visa have been made out.

    Should the visa be cancelled?

17. 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).

18. 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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth), as follows.

19. The correct information: was that the applicant was not employed by Quenby Viticultural Services for 190 days from 9 March 2020 to 30 August 2020 as set out in her visa application form and she did not undertake specified work in regional Australia.  The Tribunal gives this considerable weight towards cancelling the visa.

20. The content of the genuine document (if any): This prescribed circumstance is not relevant in this case because the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents). 

21. 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 Tribunal finds the decision to grant the applicant a third Subclass 417 (extension) visa on 15 September 2020 was based in part on her statement that she had undertaken specified work in regional Australia for at least six months.  The applicant has confirmed that she did not undertake such work.  If the correct information had been provided the applicant would not have been granted the visa as she would not have satisfied this key requirement.  The Tribunal gives this considerable weight towards cancelling the visa.

22. The circumstances in which the non-compliance occurred: the incorrect information was provided by the applicant in her Subclass 417 (extension) visa application dated 15 September 2020. At hearing she said at the time she initially thought she would return to Ireland but it was during the middle of the pandemic that was rife in Ireland and Sydney and she was scared to return home.  She was living in Sydney and working full time in childcare.  She did not intend to provide false information, but needed more time and had heard via others in the expatriate community that a man called Lee Hansol could help her.  She was ignorant about the visa criteria and did not necessarily intend to ‘dodge’ the system.   She only found out after receiving the NOICC that Lee Hansol had included information that she had worked with Quenby Viticultural Services.

23. The Tribunal accepts the challenge in finding and maintaining work in regional Australia during COVID-19 and related restrictions in various parts of the country.  It does not however, accept the applicant was ignorant about the visa criterion, particularly given this was her third working holiday visa.  Her willingness to engage Lee Hansol to buy more time is concerning.

24. As such the Tribunal gives this factor some, albeit limited, weight toward not cancelling the visa.

25. The present circumstances of the visa holder: At hearing the applicant said she came to Australia from Northern Ireland in October 2018 and worked on a farm in Harrismith, which is located around three hours south east from Perth from 14 June to 22 September 2019.  As noted, around the time of the third working holiday visa application she was living in Sydney, working full time in childcare which is the area she worked in in Ireland (and has relevant qualifications). 

26. The applicant said she moved from Sydney to WA in March 2021 initially helping out on the same farm in Harrismith, because the farmer had cancer and required treatment, for around six weeks.  She then helped repair schools that had been damaged by a cyclone in Kalbarri in around April this year for two weeks, employed by Thuroona Services.  Currently she lives in Perth with a friend and works as a fly in fly out worker on mine sites in regional WA, driving dump trucks, which she considers a critical work area.  The applicant provided reference letters from her current employer, Thuroona Services, and the family whose farm she worked on in the past in WA who described her as hardworking.  According to her current employer (O’Connor Contracting Pty Ltd) she has been critical to their workforce in operating heavy machinery, a vital asset to the construction/agriculture industries during these hard times of sourcing skilled workers.  In her letter, Mrs Gray from the farm in Harrismith said the applicant had a good work ethic, was always reliable and, more recently when they found it difficult to find staff and with a family member with health issues, she described as a ‘god send’.

27. The Tribunal accepts the applicant’s evidence about her current and past employment in Australia and accepts she works hard and is valued by her past and present employers.   It accepts her current employment helps her psychologically in terms of job security as claimed at hearing, including during the pandemic, which may be uncertain at least initially if she returns to Ireland.  Nonetheless she has qualifications and work experience in childcare in Ireland, and family support there.  As such the Tribunal gives this factor some, albeit limited, weight toward not cancelling the visa.

28. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: the applicant failed to respond to the NOICC.  At hearing she said this was because she was scared and lacked support.  The Tribunal places adverse weight on the applicant’s subsequent behaviour concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act, and this weighs in favour of cancelling the visa to some extent. 

29. Any other instances of non-compliance by the visa holder known to the Minister: there are no other instances of non-compliance known to the Tribunal.

30. The time that has elapsed since the non-compliance: the relevant non-compliance took place when the applicant applied for the third Subclass 417 visa on 15 September 2020, which is just over a year ago.  This is not a significant amount of time and the Tribunal gives no weight to this factor when considering cancellation.

31. Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance. 

32. Any contribution made by the holder to the community: as noted, the applicant gave evidence that she helped rebuild a WA community hit by a cyclone for a couple of weeks earlier this year.  She also said she works and pays taxes.  The Tribunal accepts that is the case and gives her past work and continuing employment some weight against cancellation of the visa. 

    Other matters

33. 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.

34. In this case there are no persons whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa under s 140 of the Act.  Further, the applicant does not have any children whose best interests would be affected by the cancellation. 

35. The applicant has not made any claims to fear persecution or other forms of harm on return to Ireland which may enliven Australia’s non-refoulement obligations.  There is nothing to suggest that Australia’s international obligations would be breached because of the cancellation.  She indicated at hearing that her parents and three brothers live in Ireland.  Also, that she is a qualified and experienced childcare worker there.  She worries about the pandemic, which the Tribunal accepts, however this is a problem faced by most countries’ populations in the world.  There is nothing in the applicant’s circumstances or profile to suggest she would be particularly vulnerable.

36. The Tribunal has considered the legal consequences of cancelling the visa.  If the visa is cancelled she is likely to become an unlawful non-citizen and potentially subject to detention and removal unless granted a bridging visa.  The operation of s 48 of the Act would limit the kind of visas the applicant can apply for in Australia and she will also be affected by public interest criterion 4013 which may prevent her from being granted certain kinds of visas for three years since the date of cancellation.  The Tribunal accepts her plans would therefore be interrupted and gives this factor some, albeit limited, weight towards not cancelling. 

37. In terms of hardships the applicant or family members may face if the visa is cancelled at hearing, the applicant said she does not have any relatives in Australia.  She has a partner, although noted they are very casual and he is from Ireland (she did not elaborate).  She indicated that she would miss Mrs Gray and her family from the farm in Harrismith, who consider her like a daughter.  The Tribunal accepts they would miss the applicant if she left to a certain extent and gives this some weight towards not cancelling the visa, although limited weight, noting they are not family members and/or relatives. 

    EXERCISE OF DISCRETION

38. Having carefully considered all the above, the Tribunal concludes the factors in support of cancelling the visa in this case on balance outweigh the factors that weigh against cancellation.  The Tribunal considers the provision of incorrect information in this case to be significant given the decision to grant the visa was based partly on that information and the applicant engaged a third party to help her provide incorrect information.  She was able to obtain a positive migration outcome as a result.  Her failure to respond to the NOICC also weighs in favour of cancelling the visa.  Her strong work ethic and the respect of several employers in Australia as evident in the references provided weigh towards not cancelling the visa, as was the fact this took place during a pandemic and related restrictions in Australia.  However, ultimately, and for the reasons above, the Tribunal considers the factors in favour of cancelling in this case are greater than those against it and the Tribunal concludes the visa should be cancelled.

39. 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

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

    Nicole Burns
    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.