Mahon (Migration)

[2022] AATA 927

Mahon (Migration) [2022] AATA 927 (19 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aoife Isabella Mahon

CASE NUMBER:  2108866

HOME AFFAIRS REFERENCE(S):          BCC2020/2294433

MEMBER:Bridget Cullen

DATE:19 January 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 19 January 2022 at 5.03pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – applicant had provided incorrect answers in visa application – there was non-compliance in the way described in the notice – false information –mental health –applicant 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

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 did not comply with s.101(b) of the Act by providing incorrect information in her visa application, and the delegate, after weighing up relevant factors, decided that it was appropriate to cancel the applicant’s 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. The applicant appeared before the Tribunal on 22 November 2021 to give evidence and present arguments.

4. 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

5. 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.

6. 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.

7. 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.

8. The Tribunal, in making its decision, has the following evidence and material provided to it:

   ·The Department’s file, which contains the material before the delegate when they made the decision to cancel the applicant’s visa;

   ·A copy of the applicant’s passport;

   ·A copy of the Departmental ‘Notice of Intention to Consider Cancellation’ letter dated 11 May 2021;

   ·A copy of the applicant’s response to the above letter, written by their authorised representative, dated 1 June 2021;

   ·Two reference letters;

   ·An account invoice from NSW Ambulance;

   ·An image of the applicant’s prescription medication dated 26 April 2021; and

   ·The applicant’s statutory declaration dated 31 May 2021.

   Was there non-compliance as described in the s.107 notice?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b). The non-compliance is described as follows, extracted from the Delegate’s decision record:

   On 03 August 2020 the visa holder lodged an application for a Working Holiday (Extension)

   (subclass 417) visa using the Department’s online lodgement facility, providing the following
   answers on the electronic visa application form:

   In response to the question ‘Has the applicant undertaken 3 months of specified work
   as the holder of a first Working Holiday visa (subclass 417)?’ the visa holder answered
   ‘Yes’.

   Under the heading ‘Details of specified work undertaken’, the visa holder provided the
   following answers:

   Employer Details
   Legal registered name:   AAG Labour Services PTY LTD
   Trading name:   AAG Labour Services PTY LTD
   Australian Business Number (ABN):     21126217294

   Employer business address
   Address:   Lot 1, Fouracres Road
   Suburb / Town:   Scotts River East
   State / Territory:   Western Australia
   Postcode:   6275

   Work address
   Business name at this location:           AAG Labour Services PTY LTD
   Address:   Lot 1, Fouracres Road
   Suburb / Town:   Scotts River East
   State / Territory:   Western Australia
   Postcode   6275

   Work conditions
   Employment type:   Direct employment
   Industry type:   Agriculture, forestry and fishing
   Industry type sub-group:                    Plant and animal cultivation

   Description of duties:  I was a dairy farm hand. I assisted in milking 1400 cows twice a day. I also fed cattle, mustered cattle and reared calves while on the farm.

   Date from:   02 Mar 2020
   Date to:   05 Jul 2020
   Total days worked:   90 days

   Under the heading ‘Working holiday declarations’, to the question ‘Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified
   work as the holder of a first working holiday visa’, the visa holder answered ‘Yes’.

   Based on the above information, as well as meeting other relevant criteria, the visa holder
   was granted a Working Holiday (Extension) visa on 03 August 2020.

   Subsequent information received by the Department

   The Department initiated employment verification checks with AAG Labour Services
   PTY LTD, the business registered under ABN 21126217294, to verify the visa holder’s
   employment claims. On 08 September 2020, AAG Labour Services PTY LTD contacted the
   Department and advised that the visa holder had never worked at the business, AAG Labour

   Services PTY LTD.

10. The applicant agrees that she never worked for AAG Labour Services Pty Ltd. The applicant also concedes that she “didn’t complete the work anywhere else” and therefore did not meet the criteria to undertake 3 months of specified work necessary to obtain the Working Holiday (Extension) (subclass 417) visa.

11. She said she suffered from panic attacks, depression, and anxiety and “got stuck in Sydney” and she could not face going somewhere else “in the middle of a pandemic” and that is why she didn’t relocate to complete the work required for the visa extension.

12. The Tribunal asked the applicant why she didn’t check with the Department what her options were. She said that she didn’t really see any options. She blamed this lack of situational awareness on her panic attacks. To her credit, she concedes that she made the wrong choice in providing incorrect information, and she regrets doing so.

13. The information was false, and the Tribunal finds that the applicant was aware it was false as she knew she did not meet the visa criteria.

14. 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.

    Should the visa be cancelled?

15. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

16. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in 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.

17. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

18. The correct information, had it been given, would have resulted in the applicant’s visa application being refused as she had not completed the required work. The applicant has benefitted from the provision of the false information, in that the visa was granted in circumstances where it ought not to have been approved.

19. Had the Department not cancelled the visa, it would have expired on 7 September 2021.  The Tribunal takes the view that the applicant has now stayed in Australia for more than 16-months on a visa that she was not entitled to in the first place. The applicant was in Australia on a temporary visa, with no entitlement to say in the country indefinitely. The Tribunal weighs this, as well as the recency of the applicant’s conduct (2020), as factors that weigh strongly in favour of cancellation.

20. The applicant’s present circumstances are that she is working as an executive assistant. She says her employer would be willing to sponsor her if the cancellation were set aside. There is no supporting evidence from the applicant’s employer outlining its preparedness to go to the expense of sponsoring her.

21. The applicant describes herself as having panic attacks so significant that NSW Ambulance had to be called at one point. The applicant, again to her credit, worked to pay off the debt to NSW Ambulance. However, the applicant’s mental health care needs may be better met in her home country, where she would have access to health care and social benefits that may not be available to her as someone in Australia on a temporary visa. This is particularly so where the applicant says that her mental health prevented her from being able to comply with a condition of her visa. The Tribunal weighs the applicant’s current circumstances in favour of cancellation.

22. The applicant has engaged with Departmental and Tribunal processes and acted courteously before the Tribunal. She expresses genuine remorse, willingly offered, for her mistakes in relation to this visa. The Tribunal weights this in the applicant’s favour, as a factor against cancellation. The applicant has engaged positively with the Australian community during her stay, and her character references paint her as a positive person with a work ethic. There is no evidence before the Tribunal of any outstanding or significant contributions by the applicant, beyond positive engagement that is expected of all upstanding community members. The Tribunal weighs this as a factor slightly in the applicant’s favour as a factor against cancellation.

23. The applicant said that although she had Irish heritage, her home was the United Kingdom, and she wasn’t allowed to go back to the United Kingdom due to rules surrounding the COVID-19 pandemic. She thinks she might be able to return to the United Kingdom now but is not sure. She is not in contact with her family in Ireland. Her legal guardian was her grandfather in Ireland, who passed away recently, and so she has nowhere to go.

24. The applicant is a single woman with no children, and there are no consequential cancellations under s.140. The applicant has not applied for protection or claimed that returning to Ireland would result in her suffering significant fear or harm. As such, the Tribunal does not give any weight to these factors either for or against cancellation.

25. The Tribunal has considered that the applicant would be an unlawful non-citizen if her substantive visa is cancelled and may be detained under s.189 of the Act; and removed from Australia under s.198 of the Act. The Tribunal has also considered the applicant becoming subject to s.48 of the Act, which will prevent the applicant from applying for certain visa types while remaining in Australia, and their affectation by PIC 4013, limiting the grant of temporary visas for a specified period.

26. The Tribunal gives the behaviour outlined above, whereby the applicant provided the Department with incorrect information about her employment, significant weight in favour of cancellation. The behaviour indicates an intentional willingness to circumvent the requirements of the Australian Migration Act and Regulations.

27. The applicant provided incorrect information on her visa applications, resulting in her obtaining a visa that she knew was not entitled to, having not completed the required work.

28. 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

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

    Bridget Cullen
    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.