Macleod (Migration)

[2019] AATA 2811

Macleod (Migration) [2019] AATA 2811 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Declan Macleod

CASE NUMBER:  1827519

DIBP REFERENCE(S):  BCC2018/3839403

MEMBER:Adrienne Millbank

DATE:5 April 2019

PLACE OF DECISION:  Brisbane

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 05 April 2019 at 1:08pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) – Subclass 417 (Working Holiday) – incorrect information – criminal convictions not declared – minor nature of the convictions – applicant’s young age – neurological condition of Asperger’s – significant hardship to employer – Australian citizen girlfriend – mother in Scotland – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 109(1), 101(b), 107, 375A
Migration Regulations 1994

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 Immigration to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a 21 year old national of the United Kingdom who first arrived in Australia on 31 May 2018. He has worked continuously since his arrival as a Drainer (pipe layer) for construction companies, Fortmay Excavations (Australia) and Clonard Civils, around the Sydney area.

3. The Delegate cancelled the visa under section 109 of the Act on the basis that the applicant provided incorrect information on his application form, and had thereby failed to comply with section 101(b).  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 by video from Sydney on 28 March 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent, who attended the Tribunal by phone.

6. The Tribunal advised the applicant at hearing of the existence of a s.375A certificate protecting information on the Departmental file for the public interest reason that it was provided by third parties for intelligence purposes only. The Tribunal advised the applicant that the certificate was not relevant because it would not impact on the decision. The information covered by the certificate was superseded by the United Kingdom (UK) Police Certificate that the applicant provided to the Tribunal, and the applicant’s related written statement.

7. 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

8. 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.

9. 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.

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 section 101(b) in the following respects: the applicant answered ‘No’ to the declaration on page 5 of his application form ‘Has the applicant ever been convicted of an offence in any country (including any conviction which is not removed from official records)? On page 6 of his application form the applicant answered ‘Yes’ to the declaration ‘The information provided in this form is complete, correct and up-to-date’. On page 6 of his application the applicant answered ‘Yes’ to the declaration ‘I understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled’.

12. On the basis of information received by the Department that the visa holder had been convicted of a number of offences in Scotland between 2014 and 2018, the Delegate considered this information incorrect. The Delegate noted in the decision record that the applicant had accepted, in his response of 10 August 2018 to the Notice of Intention to Consider Cancellation (NOICC) issued on 9 August 2018, that he answered the question incorrectly.

13. The Delegate acknowledged the applicant’s statement that he did not intend to mislead the Department. The applicant had stated he simply made a mistake. He believed the requirement was to report a substantial criminal record, leading to a prison sentence, which he did not have. The Delegate noted in the decision record that while a visa applicant can fail the character test if they have a substantial criminal record, any information regarding convictions that is provided in a visa application is relevant to the visa application, and all convictions, spent or not, must be declared.

14. The applicant provided to the Tribunal a copy of his UK Police Certificate, which sets out the details of his six convictions ranging from ‘behave in a threatening or abusive manner’ at the age of 16 years to driving offences at the age of 20. At hearing the applicant explained the circumstances of each of these convictions, and the fines, admonition, driving licence suspension and community service orders he received. The applicant stated that he was never detained or sentenced to prison, and remained unsure whether his police matters amounted to a criminal record. His representative pointed out that none of the ‘Disposals’ in the applicant’s UK Police Certificate listed under the title ‘Summary of convictions and reprimands/warnings/cautions/impending prosecutions/under investigations held on UK police databases’, amounted to more than a fine, licence disqualification or community service order. She argued that they were not described as and therefore arguably did not amount to criminal convictions.

15. The applicant presented at hearing as an open, articulate and credible witness. The Tribunal accepted his testimony. The Tribunal accepts that the applicant was confused, when filling out his visa application, as to whether he had a reportable criminal record. The Tribunal accepts that the applicant did not intend to mislead the Department; that he did not knowingly provide incorrect information. The Tribunal finds however, based on his UK Police Certificate, that the applicant was convicted of offences, albeit minor offences, and that he therefore provided incorrect information on pages 5 and 6 of his application form.

16. The Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    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: 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.

19. The correct information is that the applicant has convictions for six minor offences for which he received fines, an admonition, community service orders, and an endorsement and temporary disqualification of his drivers licence. The Tribunal considers that the decision to grant a visa was based in part on incorrect information provided by the applicant in his application form. The Tribunal notes however that the non-compliance occurred in the circumstance of the applicant’s confusion regarding his convictions and the nature of the information required. The Tribunal further notes the minor nature of the convictions and the extenuating circumstances of the applicant’s young age, neurological condition of Asperger’s, and the supportive statement from his mother, which the Delegate acknowledged.

20. The applicant has, as noted, remained working for his employer since the visa cancellation. At hearing he advised that he has not missed a day of work, often works on weekends, loves his work which he finds absorbing and challenging (involving for example constructing drainage pipes in situ at depths up to 14 metres); has obtained a heavy vehicle driving licence; loves living in Australia; and has a girlfriend with whom he shares his rented house. He confirmed that he has finished paying all his UK fines.

21. The Tribunal notes that the applicant engaged with the Department and attempted to resolve the problem with his visa, responding to his NOICC via emails dated 10 August 2018,  

    13 August 2018, 21 August 2018 and 22 August 2018. There is no information before the Tribunal to indicate breaches of any visa conditions subsequent to the applicant’s provision of incorrect information in his application form on 3 May 2018, eleven months ago. The applicant testified at hearing that he has committed no breach of Australian law including migration law since the non-compliance, apart from one speeding offence, which the Tribunal does not consider a serious offence.

22. Regarding the applicant’s contribution to the community, the Tribunal notes, as submitted by the applicant’s representative, that the applicant’s occupation is on the Medium to Long Term Strategic Skills List. That persons with such skills are valued in Australia is confirmed in letter of reference provided to the Tribunal by the applicant’s employer, Clonard Civils, signed on 27 March 2019 by the company’s Operations Director. This describes the applicant as a skilled and experienced Drainer ‘with sound understanding of the complexities of working on civil construction job sites’. It advises that the applicant is particularly valued for passing on his skills, describing him as ‘a role model for less experienced workers who he manages to teach, instruct, guide and generally assist without making them feel diminished or incapable’. The letter concludes:

    (The applicant) has long since proved his value to us, and we have no doubt that, if allowed, he will be with us for many years to come. We cannot emphasise strongly enough he value of this young man, the contribution that he has made, and the potential that he shows. He is the very kind of person this country desperately needs. He is one of our greatest assets and it would cause a considerable disruption, not just to us as a company but to our clients, to our employees and to every Australian who benefits from the services we deliver, if he were forced to leave.

23. The applicant advised at hearing that his employer wants to sponsor him to remain in Australia as a skilled worker. In terms of broader community contribution, the applicant advised that after he gained his HC drivers licence, between a gap in project stages, with his boss he drove to country regions, including Orange and Grafton, delivering hay for sheep on drought-affected farms on a voluntary, unpaid basis. The applicant advised that he enjoyed this trip immensely, as it enabled him to explore rural and regional areas of NSW and meet people while serving a useful purpose. He described how he is motivated by and enjoys work that is purposeful, engaging and challenging. He stated that he is not driven by remuneration levels. The Tribunal considers the applicant has contributed significantly to the community, and not only through his work skills.

24. While the factors above 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. The applicant is on a Bridging Visa E and there is no information before the Tribunal to indicate that should his visa be cancelled he would not be granted another Bridging Visa E to enable him to stay out of detention while organising his departure. Should the applicant’s visa be cancelled he would be subject to a period of exclusion from applying for certain visas. While this is the policy intention, the Tribunal considers this harsh in the circumstances of the applicant. The Tribunal notes that the applicant would not necessarily be subject to an exclusion period if he applied, for example, for a Subclass 309 (Partner (Provisional)) visa. The Tribunal also notes that the applicant and the applicant’s mother stated that the applicant would suffer significant disappointment if he had to leave his work and return to the UK in the situation of having his visa cancelled.

26. The applicant is good at his job, enjoys what he does, and is highly valued by his employer. In written statements and at hearing the applicant described how he loves working and living in Australia. The applicant’s mother in written statements described how her son was diagnosed with Asperger’s at a young age; was bullied at school; and struggled to fit in. She stated that she has observed her son to be happy and relaxed and to have grown in confidence in Australia. She stated that it would ‘break her heart’ if he has to return to the UK having had his visa cancelled. The applicant advised at hearing that he is close to his mother, who intends, with his maternal grandmother, to visit him in Australia if his visa is restored.

27. Evidence was provided from the applicant’s health providers at the Royal Aberdeen Children’s Hospital, confirming his diagnosis as a child with autism spectrum disorder, namely Asperger’s; describing him as intelligent and intellectually capable; and describing his therapeutic programs and treatment. The Tribunal notes that behaviour issues associated with Asperger’s diagnosed in childhood are known to improve with age.

28. A written statement was provided to the Tribunal by the applicant’s girlfriend, who moved into the applicant’s rented house to live with him in December 2018. She describes the support they have given each other, for example when the applicant was bereaved following the deaths of his father and grandfather in 2018, and when she spent time in hospital early in 2019. At hearing the applicant advised that his girlfriend suffered an ectopic pregnancy. He advised that their relationship has reached the stage where they are talking about purchasing a property together, in a rural area.

29. The Tribunal considers that cancellation of the visa would cause significant hardship not only to the applicant but to his employer, his Australian citizen girlfriend, and his mother in Scotland. Having considered the applicant’s circumstances, the arguments and the evidence, the Tribunal considers that the reasons not to cancel the applicant’s visa outweigh reasons to cancel the visa.

30. 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

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

    Adrienne Millbank
    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.