Maguire (Migration)

[2021] AATA 5000

Maguire (Migration) [2021] AATA 5000 (8 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Darragh Andrew Maguire

CASE NUMBER:  2109823

HOME AFFAIRS REFERENCE(S):          BCC2020/2361622

MEMBER:David Crawshay

DATE:8 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 08 December 2021 at 2:34pm

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 – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198, 360
Migration Regulations 1994, Schedule 2 cl 417.211; Schedule 4, Public Interest Criterion 4013; rr 2.12, 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 delegate cancelled the visa on the basis that the applicant had provided incorrect information in order to facilitate the grant of his Working Holiday (Extension) visa. 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. On the day of the hearing, the applicant emailed the Tribunal in the following terms: “Hello I am writing to to [sic] let you know I will not be able to attend my appeal On December 6th and you can therefore make a decision on my behalf”.

4. The Tribunal is satisfied that the above email was sent from an address identified as the applicant’s in the application for review form dated 2 August 2021. It is satisfied that the applicant has genuinely consented to the Tribunal proceeding to a decision on his matter without a hearing. As such, and pursuant to s.360(2)(b), the Tribunal has done so.

5. 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

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.

   Did the notice comply with the requirements in s.107?

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 (or the Notice of Intention to Consider Cancellation or NOICC), being the manner particularised in the notice, and if so, whether the visa should be cancelled.

   Background and proceedings at the Department stage

10. On 18 August 2020, the applicant lodged an application for the visa the subject of the cancellation, a Working Holiday visa (TZ-417). This visa was granted on the same day. In the application form, under the heading of “Application Type”, the applicant relevantly answered as follows (in bold text):

    The applicant declares that:

    They have carried out at least six months of specified work.

    Yes

    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).

    Yes

11. Elsewhere in that application, the applicant relevantly provided as follows under the heading of “Details of specific work undertaken”:

Employer details
Legal registered name:	Core traffic control pty Ltd
Trading name:	Core traffic control pty Ltd
Australian Business Number  (ABN)	84155689508
Work conditions
Employment type:	Direct employment
Industry type:	Construction
Industry type sub-group:	Construction
Description of duties:	Managing traffic for active construction sites and enforcing traffic management plans
Date from:	13 Jan 2020
Date to:	02 Aug 2020
Total hours worked:	1500
Total days worked:	190

1. Finally, under a section of the application form headed “Working holiday declarations”, the applicant relevantly provided as follows (in bold text):

   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.

   Yes

2. On 17 September 2020, the Department sent an email to the person identified as the employer of the business the applicant purported to work for to verify the applicant’s claim to have carried out work with the business. By email of the same date, this person confirmed that the applicant had not worked at the business.

3. This information was particularised in a NOICC dated 30 June 2021. The NOICC listed the possible non-compliance as follows:

   I consider that you provided incorrect information in your application for a Working Holiday (Extension) visa when you:

   ● answered ‘Yes’ to the question ‘They have carried out at least six months of specified work’;

   ● answered ‘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)’;

   ● provided details of claimed employment with Core Traffic Control Pty Ltd, at the section of the application form titled ‘Details of Specified Work Undertaken’; and

   ● answered ‘Yes’ to the declaration ‘Working holiday declarations’, 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’.

   I consider the above information is incorrect, as verification checks undertaken by the Department have concluded that you never worked at the business, Core Traffic Control Pty Ltd. Therefore you have not undertaken six months specified work in regional Australia.

   Based on the above information, it appears you provided incorrect answers in support of your Working Holiday (Extension) visa application. I consider therefore, that you have not complied with sections 101(b), and accordingly your Working Holiday (Extension) visa may be liable for cancellation under section 109 of the Act.

4. The non-compliance identified and particularised in the NOICC was therefore non-compliance with s.101(b) of the Act in that the applicant gave incorrect answers in his application form and specifically gave incorrect information that he had carried out specified work in a particular business in a particular region for a period of time when he had not.

5. The NOICC was sent to the applicant by the Department via registered mail but was sent back to the Department as “return to sender”.

6. On 28 July 2021, the applicant’s visa was cancelled by the Department. In the decision, the delegate found that the applicant did not comply with s.101(b) of the Act as he provided incorrect answers in support of his application, and decided that there was non-compliance by the applicant in the way described in the NOICC: s.108. The delegate then proceeded to assess whether to cancel the visa after having regard to any prescribed circumstances under r.2.41: s.109(1)(c). The delegate was not required to consider any response to the NOICC because none was given. After having given consideration to the circumstances under r.2.41 and other circumstances, the delegate found that the visa should be cancelled.

   Proceedings at the Tribunal stage

7. The evidence in front of the Tribunal about the purported incorrect information comes from the application form dated 18 August 2021 and an email from Mr Douglas Core from Core Traffic Control Pty Ltd dated 17 September 2020 in response to an email from the Department of the same date.

8. The relevant information in the application form is as set out above in paragraphs 10, 11 and 12. It states that the applicant worked in a construction job for Core Traffic Control Pty Ltd for a period of over six-and-a-half months from January to August 2020 at a location in Darwin. In two separate places on the application form, the applicant declared that he had carried out at least six months of specified work.

9. The relevant information from Mr Core’s email of 17 September 2020 includes what is set out in the body of that email, where Mr Core directed the Department to “[p]lease see the below responses …[o]nly three on the list have actually worked for Core Traffic Control”. This is in response to the Department’s email, which relevantly stated as follows:

   Further to our conversation this morning, I have identified other applicants who may have made non-genuine claims in carrying out work with Core Traffic Control Pty Ltd.

   The Working Holiday Maker (WHM) Integrity team undertakes employment verification checks for Working Holiday visa applicants.

   The Department of Home Affairs has received working holiday visa applications from the people listed below who have claimed to have worked for Core Traffic Control Pty Ltd - ABN 84155689508

   The Department seeks your assistance to please check your records and confirm who has or has not worked for you and return the list by reply email.

10. The “list” to which Mr Core refers is a list that was provided in the Department’s email. It features the given names, family names, dates of birth, genders, citizenship details and passport numbers of 27 people, one of whom is the applicant. Under a column marked “Worked? Y or N”, an “N” has been placed in the row corresponding with “Maguire, Darragh Andrew”. The Tribunal notes that three people on the list have a “Y” placed against their names and these people have further notes placed against their names under the column “If Y, please provide period”. No notes have been placed against the name of “Maguire, Darragh Andrew”.

11. The Tribunal has considered the above evidence. It accepts from the contents of Mr Core’s email and specifically from his direction to the Department to “[p]lease see the below responses” that he has completed the list which originally appeared in the Department’s email to include details of whether the 27 persons mentioned worked at his business, being Core Traffic Control Pty Ltd. In doing so, it accepts that he has indicated that the applicant had not worked at his business as at 17 September 2020.

12. Based on the above evidence and findings, the Tribunal accepts that the applicant had not worked at Core Traffic Control Pty Ltd at the time he applied for the visa the subject of the cancellation despite having claimed to have done so in his application form. In this way, the Tribunal finds that he has provided incorrect information about carrying out specified work when he had not.

13. The applicant has therefore not filled in his application form in such a way that no incorrect answers are given or provided. The Tribunal therefore 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?

14. 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).

15. 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 under s.109(1)(c) are set out in r.2.41 of the Regulations and are used as subheadings below. Consistent with Department policy, the Tribunal will not weigh these matters in favour of cancelling the visa as the grounds for cancellation have already been made out. As such, the evidence will either be weighed against cancellation or will be given no weight.

16. 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.

    The correct information

17. The correct information is that the applicant did not carry out specified work in regional Australia as defined in legislative instrument LIN 20/103 (as it was at the time of application) for at least six months. This is significantly different from his claim that he worked in construction for Core Traffic Control Pty Ltd in Darwin from January to August 2020.

18. The Tribunal accords weight in favour of cancelling the applicant’s visa based on the correct information.

    The content of the genuine document (if any)

19. There is no genuine document. No weight is attached to this matter.

    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

20. Among the visa criteria that are required to be satisfied by the applicant at the time of application are either cl.417.211(5) or cl.417.211(6) depending on the number of Subclass 417 visas the applicant has previously held. As the applicant has held two Subclass 417 visas, he is required to satisfy cl.417.211(6), which provides as follows:

    If the applicant has held 2 Subclass 417 visas in Australia, the Minister is satisfied that:

    (a)the applicant has carried out a period or periods of specified work in regional Australia; and

    (b)the total period of that work is at least 6 months; and

    (c)all of that work was carried out while the applicant held:

    (i)the second Subclass 417 visa; or

    (ii)a bridging visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa); and

    (d)all of that work was carried out on or after 1 July 2019; and

    (e)the applicant has been remunerated for that work in accordance with relevant Australian legislation and awards.

21. As can be seen, two of the cumulative requirements under cl.417.211(6) are that an applicant carry out a period or periods of specified work in regional Australia and that the total period of this work be at least six months. In the present case, the applicant gave information in relation to the nature of the work, the period of the work and the region in which the work was carried out that meant that he satisfied the requirements of cl.417.211(6), and if the correct information was given by him instead of the incorrect information, he would not have been able to satisfy these requirements. Based on this information, it is clear that the delegate relied on the incorrect information in coming to a decision to grant the applicant’s visa.

22. This matter is given significant weight in favour of cancelling the visa.

    The circumstances in which the non-compliance occurred

23. The applicant has not provided any information concerning the circumstances in which the non-compliance occurred, including any mitigating circumstances, and the Tribunal does not accord any weight against cancellation.

    The present circumstances of the visa holder

24. The applicant has provided very little information concerning his present circumstances. In response to the hearing invitation, the applicant indicated to the Tribunal on 3 November 2021 that there had been a death in his girlfriend’s family. By email of the same date, the applicant stated as follows: “I have had a close death and am not in the right frame of mind”.

25. The Tribunal has considered this information. At hearing, it would have questioned the applicant about the death of this person and about the relationship he had with the deceased. It would have enquired about his mental state in light of his comment about not being “in the right frame of mind”. More fundamentally, it would have asked him about his relationship with his claimed girlfriend in order to ascertain, for example, the seriousness of this relationship as well as the identity of his girlfriend and her migration status in Australia.

26. However, and in the absence of these details, the most that can be said based on an acceptance of the claims made by the applicant is that he has a girlfriend, that this girlfriend has experienced a death in her family and that he has been affected by this death in some way.

27. In relation to his current migration circumstances including conditions of his current visa, the Tribunal has considered based on movement records that he is the holder of a Bridging E visa (WE-050) with a “no study or training” condition imposed along with other conditions related to notification of changes of address and reporting to the Department. It accepts that the “no study or training” condition may have limited his options to study or train. It does not consider the remaining conditions to be particularly onerous.

28. The Tribunal has considered that the applicant may previously have expected to experience some difficulties in being able to return to Ireland due to restrictions on travel. However, these restrictions appear to have been eased and the Tribunal considers that it is now logistically and financially feasible to travel from Australia to Ireland.

29. Having considered the above evidence relating to the present circumstances of the applicant, the Tribunal gives some weight against cancelling the visa.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

30. There has been no information provided to show the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act. He did not respond to the NOICC and has not provided any substantive response to the Tribunal.

1. The Tribunal does not accord any weight against cancelling the visa.

   Any other instances of non-compliance by the visa holder known to the Minister

2. There is no evidence to show that there have been any other instances of non-compliance by the applicant, although the Tribunal notes that it was not able to question him as to whether there may have been any such non-compliance.

3. Be that as it may, the Tribunal accepts based on the evidence that there have been no other instances of non-compliance and this matter is given some weight against cancellation.

   The time that has elapsed since the non-compliance

4. The Tribunal notes that the non-compliance occurred on 18 August 2020 when the visa was applied for and granted. It further notes that the visa was cancelled on 28 July 2021, or more-than-11 months later. It has lastly considered that, subsequent to his visa being cancelled, the applicant has been on a bridging visa for around four-and-a-half months and Department records show that no condition has been imposed limiting his ability to work although other conditions have been imposed. The Tribunal has therefore considered that around 15-and-a-half months has elapsed since the non-compliance, but that during the vast majority of this time he remained on a substantive visa to which he should not have been entitled and has had work and some other rights which may have been denied him if he had not held a Subclass 417 visa.

5. The Tribunal accords this matter little weight against cancelling the visa.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

6. There is no evidence to show that the applicant has committed any breaches of the law since the non-compliance, although the Tribunal notes that it was not able to question him as to whether there may have been any such breaches.

7. The Tribunal accepts based on the evidence that there have been no breaches of the law since the non-compliance and this matter is given some weight against cancellation.

   Any contribution made by the holder to the community

8. The Tribunal has seen no evidence to show that the applicant has made any contribution to the community. At hearing, it would have asked the applicant to outline any community work he had undertaken. However, in the absence of such evidence, the Tribunal does not accord any weight against cancelling the visa.

   Additional considerations

9. The Tribunal has considered if there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act. However, there is no evidence to show that anyone’s visa would be cancelled in this way, and this factor does not weigh against cancellation.

10. The Tribunal has considered whether there are mandatory legal consequences to a cancellation decision. It has considered that by his visa being cancelled, the applicant will become an unlawful non-citizen and will be liable to be detained under s.189 and removed under s.198 of the Act if he does not voluntarily depart, although there is no information to show that he would be indefinitely detained due to Australia’s non-refoulement obligations. It has also considered that he will be unable to apply for all but a certain number of visas set out in r.2.12 of the Regulations by virtue of the operation of the s.48 statute bar. Lastly, if the applicant chooses to apply for another visa he may face a three-year exclusion period under Public Interest Criterion 4013 (depending on the visa he subsequently applies for). This matter is given weight against cancellation.

11. The Tribunal has considered whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation. There is no evidence that the applicant has custody or otherwise of a child in Australia whose interests could be affected by the cancellation or by a consequential cancellation. There is also no evidence that the applicant’s removal would breach Australia’s non-refoulement obligations. These matters are given no weight against cancellation.

12. There are no other relevant matters that reveal themselves on the evidence.

    CONCLUSION

13. 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 above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    David Crawshay
    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.