Malonga (Migration)

[2022] AATA 1832

Malonga (Migration) [2022] AATA 1832 (16 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aimee Tracy Malonga

REPRESENTATIVE:  Ms Marjory Johnston (MARN: 0320038)

CASE NUMBER:  2115290

HOME AFFAIRS REFERENCE(S):          BCC2021/611375

MEMBER:Bridget Cullen

DATE:16 March 2022

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 16 March 2022 at 2.37pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – there was non-compliance in the way described in the notice –– applicant had provided false information – applicant did not undertake specified regional work in Australia – applicant did not intend to provide incorrect information – applicant did undertake the work required to be eligible for the extension – decision under review set aside

LEGISLATION
Migration Act 1958, ss 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in their visa application, forming a ground to exercise the cancellation power under s.109. 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 February 2022 to give evidence and present arguments.  

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. 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

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.

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.

   Evidence provided to Tribunal

9. The Tribunal has before it, the following evidence in relation to the application:

   ·The Department File, which contains all evidence before the delegate at the time they exercised their discretion in cancelling the visa;

   ·Submissions from the applicant’s (then) representatives, Bottoms English Lawyers, lodged with the application on 28 October 2021;

   ·Applicant statement, with payslips, completion certificate and account statement included; provided on 15 November 2021;

   ·Further payslips, a request to Summons a particular party and an exchange with the person who lodged the application on their behalf, Lee Hansol, provided on 30 November 2021;

   ·Submissions made by the applicant’s current representative, and supporting documents, provided 17 February 2022.

10. To summate, as the evidence was provided in a piecemeal fashion, it appears that the applicant has worked at the following locations on the following dates:

Location	Dates	Supporting Evidence
Rinaland Management	11 March 2020 – 2 April 2020	Payslips, Bank Statement
Macadamia Farm Management	17 June 2020 – 16 July 2020	Bank Statement
Borthwicks	28 July 2020 - 7 August 2020	Bank Statement
Rapos Shed	26 September 2020 - 1 October 2020	Bank Statement
Willing Workers	“Unable to recall exact dates”	Payslips, Bank Account
Pievitera Family Trust	12 October 2020 – 18 October 2020	Payslips, Bank Account
“Stephen Bingham”	12 October 2020 – 19 November 2020	None – Screenshots of Facebook messages in relation to attempts to get payslips

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

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s.101(b) in the following respects, extracted from the Notice of Intention to Consider Cancellation:

   Particulars of grounds for cancellation
   Information provided in your visa application

   On 23 December 2020 you 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 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) or another eligible visa?’ you answered ‘Yes’.

   Under the heading ‘Details of specified work undertaken’, you provided the following answers (in part):

   Employer Details
   Legal registered name: FarmPro Labour
   Trading name: FarmPro Labour
   Australian Business Number (ABN): 93065578663
   Employer business address
   Address: 20 Princess St
   Suburb / Town: Bundaberg
   State / Territory Queensland
   Postcode: 4670
   Work conditions
   Employment type: Direct Employment
   Industry type: Agriculture, forestry and fishing
   Industry type sub-group: Plant and animal cultivation
   Description of duties Planting sweet potatoes when necessary
   Vining the fields for new potatoes to grow
   Picking potatoes off the digging machine
   Date from: 09 Mar 2020
   Date to: 05 Jul 2020

   Total days worked: 90

   Under the heading ‘Working holiday declarations’, in response 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 or another eligible visa.’, you
   answered ‘Yes’.

   Based on the above information, as well as meeting other relevant criteria, you were granted
   your Working Holiday (Extension) visa on 23 December 2020.

   Subsequent information received by the Department
   The Department initiated employment verification checks with FarmPro Labour, the business
   registered under ABN 93065578663, to verify your employment claims. On 23 February
   2021, FarmPro Labour contacted the Department and advised that you never worked at their business. 

   Possible non-compliance with section 101(b)

   I consider that you provided incorrect information in your application for a Working Holiday
   (Extension) visa when you:
   ●           answered ‘Yes’ to the question ‘Has the applicant undertaken 3 months of specified

   work as the holder of a first Working Holiday visa (subclass 417) or another eligible

   visa?’;

   ●          provided details of claimed employment with FarmPro Labour, at the section of the

   application form titled ‘Details of Specified Work Undertaken’; and

   ●          answered ‘Yes’ to the declaration ‘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 or another eligible visa.’

   .
   I consider the above information is incorrect, as verification checks undertaken by the
   Department have concluded that you never worked at the business, FarmPro Labour.

   Therefore you have not undertaken three months specified subclass 417 work.

2. The applicant agrees that she never worked for FarmPro. She says that she provided the correct information to Lee Hansol, but that Lee Hansol did not utilise this information. Rather, the application was submitted to the Department with the incorrect information. As the application was submitted online, the applicant says that she never saw the completed application prior to it being uploaded.

3. The applicant is responsible for ensuring that her application is correct. The applicant claims that she believed that Lee Hansol was a migration agent and had confidence in his services because she knew another working holiday visa holder who had utilised him. The applicant did not take any other steps to satisfy herself that Lee Hansol was a migration agent and did not follow up her application with him to ensure that the process was being managed in an appropriate way.

4. Rather, through naivety, the applicant concedes that she placed her trust in Lee Hansol only to discover when her visa was cancelled that she had been “defrauded” by an individual that did not have an OMARA registration number and did not provide her with a formal agreement to sign. The applicant concedes that this resulted in provision of incorrect information to the Department in relation to her Working Holiday (Extension) visa application.

5. 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?

6. 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).

7. 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 reg 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.

8. 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.

9. The applicant says that she does not understand why Lee Hansol did not provide the correct information to the Department, as she believes that she would have, in fact, met the criteria for the extension of her Working Holiday visa. She explains that she had undertaken more than 3-months of specified work as the holder of a first Working Holiday visa during the “worst Covid lockdown” when she applied for the extension on 23 December 2020. As such, she had no incentive to try and mislead the Department.

10. Following her receipt of the NOICC, the applicant commenced an extensive documentary evidence gathering exercise with her former employers. This proved difficult, given the itinerant nature of the farm work she had been engaged in. Not all of her former employers would respond to her; and the passage of time has created a further complexity in this respect. Nevertheless, the applicant has gathered sufficient corroborating evidence that the Tribunal is prepared to accept her oral evidence of having completed the work. Without the benefit of the corroborating evidence from a range of third-party sources, the Tribunal would have been far less willing to accept the applicant’s story that she had been duped by an unscrupulous migration fraudster.

11. The applicant’s story also makes sense – for a large portion of her working period, she was resident in a hostel, which provided her with transportation to and from a range of farm work. The applicant has provided documentary evidence, as outlined in the table above, of both the transport costs; payslips; and bank deposits. This objective third party evidence supports the applicant’s oral evidence, given under affirmation, that she did undertake the work required to be eligible for the extension. The Tribunal considers this to be a particularly compelling reason to exercise the discretion to set the cancellation aside.

12. The Tribunal accepts that the applicant did not intend to provide incorrect information to the Department, and while it believes that she has been irresponsible in ensuring that her visa application was handled appropriately, the Tribunal does not consider that she was complicit in the misconduct of Lee Hansol. The Tribunal also finds that had the correct information been provided, the applicant would have been eligible for the Working Holiday (Extension) visa.

13. As the Tribunal has found that the applicant was careless and naive, but not dishonest, the Tribunal weighs the factors before it globally in favour of not cancelling the visa.

14. The applicant’s visa, had it not been cancelled, would have expired on 25 December 2021.  The impact of this decision is to then afford the applicant an opportunity to apply onshore for a further visa, as in setting the cancellation decision aside, the applicant is not subject to a Section 48 bar.

    Conclusion

15. 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

16. The Tribunal sets aside the decision under review and substitutes a decision not 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.