Khayyer (Migration)

[2021] AATA 1094

Khayyer (Migration) [2021] AATA 1094 (19 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yacine Khayyer

CASE NUMBER:  2015346

HOME AFFAIRS REFERENCE(S):          BCC2020/1603436

MEMBER:Luke Hardy

DATE:19 February 2021

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 19 February 2021 at 12:51pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – bogus documents – falsified payslips – specified work in regional Australia – applicant’s Australian partner expecting a child – COVID-19 pandemic travel restrictions – previous employer did not pay applicant – emotional and economic distress of separation – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 99, 101, 103, 107, 109
Migration Regulations 1994, 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 (the Act).

2. The applicant, Mr Khayyer, applied for a second working holiday visa on 8 October 2019. The visa was granted and was due to expire on 11 October 2020.

3. The delegate cancelled the visa on the basis of having found that Mr Khayyer had provided bogus documents, in the form of falsified payslips to show completion of “specified employment,” in a bid to extend his initial twelve-month working holiday visa for a further year. Mr Khayyer sought review of that decision.

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

5. The Tribunal hearing was held during the COVID-19 pandemic. Mr Khayyer appeared before the Tribunal by telephone on 18 February 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone, determining that it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of Mr Khayyer, who is residing with his pregnant partner, Ms Bianca Roach, who also gave evidence in this matter. 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 telephone. Mr Khayyer raised no objections about having a telephone hearing. The Tribunal is satisfied that Mr Khayyer 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 set aside.

   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. 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?

10. 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 sections 101(b) and 103 of Subdivision C of the Migration Act 1958.

11. In more detail, the sections of Subdivision C with which the delegate considered the Mr Khayyer not complied:

    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 …

    Section 103   Bogus documents not to be given etc.

    A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.

12. For the purposes of Subdivision C of the Act “bogus document” is defined at section 5 of the Act as follows:

    Section 5 Interpretation

    (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.

13. By operation of s99 of the Migration Act 1958, 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.

14. The delegate found that Mr Khayyer breached sections 101(b) and 103 in lodging what the Department found to be falsified payslips (“bogus documents”) and, in doing so, providing “incorrect information.”.

15. In a submission to the Tribunal, Mr Khayyer described experiences and mishaps in Australia, including his having not been paid by the original employer who offered him “specified employment” in the rural sector, that put him in such an anxious and distracted state of mind that he falsified evidence of completion of the requisite “specified employment,” in the hope of being able to reunite with his Australian girlfriend, now his partner and mother to his expected child.

16. At the Tribunal hearing, Mr Khayyer confirmed these facts. I then asked him to tell me what he hoped, in the circumstances, might be the outcome of this review process. In reply, he said he was hoping it would provide him more time with his partner as they were expecting their child in four months.

17. I put to Mr Khayyer that a positive decision, were it possible to make one, would not necessarily do more in principle than give him 28 days to leave Australia, his cancelled visa having been due to expire in October 2020. The temporary restriction on re-entry into Australia would also not apply, but, in any event, he would have to leave Australia within 28 days of the Tribunal’s decision either way. Mr Khayyer said he understood this, and essentially made a plea to be allowed to stay in Australia for the sake of his Australian partner and their child. He said it would be difficult to take them both to France at this time, particularly with the Covid-19 pandemic in play.

18. I put to Mr Khayyer that what he appeared to be requesting was intervention on humanitarian/public interest grounds. I considered whether, in the possible event of a negative decision, I would refer this matter to the Minister. I put to Mr Khayyer that I might not refer the matter, although this would not stop him requesting Ministerial intervention on his own. In response, Mr Khayyer indicated that he understood.

19. I suggested to Ms Roach, with Mr Khayyer listening, that they might do well to keep in touch with the Department with particular regard to any interim policies relating to temporary stay in Australia until regular international travel is restored. At this stage, it did not appear that anyone would be easily able to travel anywhere out of Australia in, say, the next four months; this situation appeared to affect voluntary travel and removal alike.

20. The breach, in this matter, of sections 101(b) and 103 of Subdivision C of the Act is not contested. The validity of the cancellation of the Subclass 417 (Working Holiday) visa under s.109(1) of the Act is also not subject to any question.

21. For these reasons, I find that there was non-compliance with sections 101(b) and 103 of Subdivision C of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

22. 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).

23. 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 r.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.

24. 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.

25. Mr Khayyer has acknowledged his misleading actions. He has plausibly described how short-sighted and out of character his actions were. He has shown what I consider to be genuine contrition. He has indicated that he would never contemplate ever doing anything like it again.

26. I find no evidence to suggest that, at any time before or since his submission of the bogus documents in this matter, Mr Khayyer has ever failed to comply with a visa.

27. There is no evidence to suggest that Mr Khayyer has ever breached the law in Australia or anywhere else, except in providing false documents in support of his second working holiday visa application.

28. Mr Khayyer has provided the Tribunal with plausible evidence of having been “scammed” by an employer prior to his breaching of ss.103 and 101(b).

29. Mr Khayyer has provided compelling evidence of having worked in bushfires areas during the 2019-2020 bushfire crisis, demonstrating an estimable contribution to the community.

30. Mr Khayyer has provided plausible evidence of having been officially recognised as a Water Restoration Technician, through his completing of an IICRC course. I accept the copied certification submitted to be a copy of a genuine document, notwithstanding the breach of ss.103 and 101(b) in October 2019.

31. Mr Khayyer has submitted evidence of the critical conditions in France caused by the Covid-19 pandemic and French government policies to protect the population there.

32. Mr Khayyer has provided ultrasound and other evidence of the gestation of his and Ms Roach’s child. He has also proved copies of messages, photographs, emails confirmations and telephone calls with his partner in the context of activities together, including their purchasing of furniture and other needs for their expected baby.

33. Mr Khayyer and Ms Roach have both provided compelling accounts of the emotional and economic harm that she and her child would suffer without the support of Mr Khayyer.

34. On the evidence before me, it would be in the interests of the soon-to-be born child of Ms Roach and Mr Khayyer for him not to be barred by the likely consequences of the visa cancellation being affirmed. I accept that there would be considerable hardship for Mr Khayyer’s partner and child. I accept that expecting them all to travel and settle with Mr Khayyer to France would impose hardship on Ms Roach and the child, born or gestating, particularly in the foreseeable future, given the vicissitudes of the Covid-19 crisis.

35. 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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Luke Hardy
    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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.