Mannix (Migration)

[2022] AATA 3139

Mannix (Migration) [2022] AATA 3139 (29 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr James Mannix

CASE NUMBER:  2118958

HOME AFFAIRS REFERENCE(S):          BCC2021/400013

MEMBER:Mark Bishop

DATE:29 July 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 29 July 2022 at 2:15pm

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 – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133    

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 information in the Working Holiday (Extension) visa application as he did not work at the named employer. 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 29 July 2022 to give evidence and present arguments. The applicant provided a copy of the decision record to the Tribunal.

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.

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

8. 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 the following section of the Act:

   Section 101 Visa applications to be correct:

   ·A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.

   ·The applicant provided employer detail, employer business and address, work conditions and period of employment.

   ·The department initiated employment verification checks with Lincara Pty Ltd the business registered under ABN 21103091783, to verify the applicant employment claims. On 22 January 2021, Lincara Pty Ltd contacted the Department and advised that the visa holder never worked at their business.

9. The Department initiated employment verification checks with Lincara Pty Ltd, the business registered under ABN 56831787511, to verify the visa holder’s employment claims. On 22 January 2021, Lincara Pty Ltd contacted the Department and advised that the visa holder never worked at their business.

10. For these reasons, the Tribunal finds that there was non-compliance with s 101 of the Act by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

11. 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).

12. 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.

13. The applicant did not provide a response to the NOICC (Doc ID number 9236094). The applicant did not provide a written submission to the Tribunal.

14. The Tribunal has reviewed the departmental file. The Tribunal is satisfied the visa holder was required to undertake specified work in regional Australia as defined in the legislative instrument in effect at the time for a period of three months, while he held his first Working Holiday visa, as part of the eligibility criteria for the grant of the Working Holiday (Extension) visa. In the Working Holiday (Extension) visa application, the visa holder stated that he worked at Lincara Pty Ltd from 02 March 2020 to 05 July 2020, a period of 90 days. The Department received correspondence on 22 January 2021 from Lincara Pty Ltd stating that the visa holder never worked at the business. The visa holder’s statement in the Working Holiday (Extension) visa application, of having worked for Lincara Pty Ltd for a period of three months, therefore meets the definition of an incorrect answer as described by section 101(b). As outlined in paragraph 13 above the visa holder did not respond to the NOICC and therefore did not provide reasons why the visa should not be cancelled.

15. 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.

16. The Tribunal is also required to consider both the prescribed matters, where relevant or indicate where not relevant; any matters raised by the applicant in response to the s 107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:

    ·whether there would be consequential cancellations under s 140.

    ·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

    ·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

    ·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

17. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

18. In evidence to the Tribunal the applicant advised he was unmarried without children or dependants in Australia. At the time of Covid a friend provided him with details of a person who could help by the name of Lee Hansol. The applicant contacted Mr Hansol by email, filled out a questionnaire, paid $1,000 by bank transfer, Mr Hansol lodge the application for a visa and it was granted by the department. The applicant acknowledged he had been stupid and regretted his actions.

19. The Tribunal now turns to  consider the above as follows:

    (a) the correct information

20. In order to satisfy the criteria for the grant of the Working Holiday (Extension) visa, the visa holder was required to meet the criterion relating to specified work in regional Australia as defined in the legislative instrument in effect at the time for a period of three months.

21. The visa holder did not respond to the NOICC. I can therefore only consider the information provided by the business in response to the Department’s queries regarding the visa holder’s claimed employment against the information provided by the visa holder in the application.

22. The correct information is the visa holder did not undertake specified subclass 417 work as defined in the legislative instrument in effect at the time for a period of three months; and he did not work for Lincara Pty Ltd (ABN 56831787511) between 02 March 2020 and 05 July 2020. The correct information is significantly different from the information provided by the visa holder.

23. The Tribunal gives this aspect significant weight in favour of cancelling the visa.

    (b) the content of the genuine document (if any)

24. No genuine document is being considered.

    (c) 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

25. The visa holder previously held a first Working Holiday (subclass 417) visa granted on 20 December 2019.

26. The visa holder’s employment details related to his regional work experience, was central to the grant of his Working Holiday (Extension) visa. As the Tribunal has determined the visa holder provided incorrect information regarding his employment at Lincara Pty Ltd in his application for the Working Holiday (Extension) visa, the Tribunal considers the delegate made the decision to grant the visa based, in part, on this incorrect information, and the visa holder may have received an immigration benefit to which he may not have been entitled.

27. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

    (d) the circumstances in which the non-compliance occurred

28. The applicant did not provide a response to the NOICC. The applicant did not provide a written submission to the Tribunal. There is no information before the Tribunal to indicate there were extenuating circumstances beyond the visa holder’s control which gave rise to the non-compliance. The applicant outlined the circumstances of the application. See paragraph 18 above. 

29. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

    (e) the present circumstances of the visa holder

30. The applicant did not provide a response to the NOICC. The applicant did not provide a written submission to the Tribunal.

31. There is no information before me to indicate the visa holder has any other family in Australia, or has otherwise established any significant ties to Australia such that cancelling his Working Holiday (Extension) visa will cause significant hardship to him or any family members. The applicant advised the Tribunal he did not have any family in Australia. He work construction and nets about $2,000 per week. He is not involved in any community groups or community activities as he works long shifts of 12 hours.

32. The Tribunal gives this consideration weight in favour of cancelling the visa.

    (f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958

33. There is no information before the Tribunal to indicate the visa holder attempted to contact the Department to inform of the incorrect information.

34. The Tribunal gives this consideration minor weight in favour of cancelling the visa.

    (g) any other instances of non-compliance by the visa holder known to the Minister

35. There are no other known instances of non-compliance by the visa holder. Temporary visa holders are expected to comply with visa conditions at all times.

36. The Tribunal give this consideration neutral weight concerning possible cancellation of the visa.

    (h) the time that has elapsed since the non-compliance

37. Approximately 2 years months from application lodged date has elapsed since the non-compliance which the Tribunal does not consider to be a significant amount of time.

38. The Tribunal gives this consideration some weight in favour of cancelling the visa.

    (Note: there is no consideration (i) in the current legislation)

    (j) any breaches of the law since the non-compliance and the seriousness of those breaches

39. There is no information before the Tribunal to indicate the visa holder has breached any laws since the non-compliance. Temporary visa holders are expected to conform to the law at all times.

40. The Tribunal gives this consideration no weight against cancelling the visa.

    (k) any contribution made by the holder to the community

41. The applicant advised the Tribunal he was not involved in any community groups.

42. The Tribunal gives this consideration neutral weight in favour of cancelling the visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.

43. The Tribunal is not aware of any person’s visa who would, or may, be consequentially cancelled under section 140 of the Act.

44. As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.

45. The visa holder has not applied for protection nor made any claims that returning to his home country would result in him suffering significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations if the visa were to be cancelled and the visa holder had to return to his home country. The applicant advised the Tribunal he does not have any children.

46. Furthermore, there is no information before the Tribunal to suggest the visa holder has any children in Australia who may be affected by a decision to cancel the visa. The Tribunal is  satisfied that should the visa be cancelled, this would not breach Australia’s obligations in respect to the International Convention on the Rights of the Child.

47. As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration.

    Whether there are mandatory legal consequences to a cancellation decision.

48. If the visa is cancelled, the visa holder will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia, as he would no longer hold a valid visa.

49. A bar under section 48 of the Act will also be imposed, limiting the visa holder’s options to apply for further visas from within Australia. Furthermore, he will also be affected by Public Interest Criterion 4013, where he may be prevented from being granted certain types of visas for a period of three years from the date of visa cancellation.

50. The Tribunal gives this consideration  neutral weight

    Any other relevant matters.

51. There are no other relevant matters for the Tribunal to consider.

    CONCLUDING PARAGRAPHS

52. 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

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

    Mark Bishop
    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.