Marino (Migration)

[2019] AATA 6054

Marino (Migration) [2019] AATA 6054 (10 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marco Marino

CASE NUMBER:  1831800

HOME AFFAIRS REFERENCE(S):           BCC2018/2203466

MEMBER:Moira Brophy

DATE:10 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2019 at 8:51am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – false information in visa application – claimed work in regional Australia for total of three months – application lodged by agent known only through an intermediary – discretion to cancel visa – factors for and against cancellation – applicant either complicit in actions of agent or negligent and recklessly indifferent – work and community contribution – likely consequences of cancellation – family members in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 98, 99, 100, 101(b), 107, 109(1), 111

Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(5)

CASE

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 dated 29 October 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided false information in their application for the 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, Mr Marco Marino appeared before the Tribunal on 11 September 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

5. The applicant is a 27 year old male born in Italy. He entered Australia on 8 February 2014 on a Subclass 417 (Working Holiday) visa which ceased on 8 February 2015. He was granted a TU-572 Student visa on 20 February 2015 which was to cease on 26 March 2018. The applicant was granted a further Subclass 417 (Working Holiday) visa on 27 November 2017.

6. As part of his application for a further Subclass 417 (Working Holiday) visa the applicant completed an electronic application form and in response to a question about specified work in regional Australia for a total period of three months the applicant indicated he had undertaken that work.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101(b) in the following respects:

    • Visa applications to be correct
    • A non-citizen must fill in his or her application form in such a way that: all questions on it are answered; and
    • No incorrect answers are given.

11. The breach of s.101(b) relates to a Subclass 417 Working Holiday visa (the Working Holiday visa) the applicant was granted on 27 November 2017.

12. Section 99 of the Act provides that any information 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.

13. The Working Holiday visa application (lodged online by the applicant on 27 November 2017) form included the following questions and answers:

    Q: Have you undertaken specified work in regional Australia for a total of 3 months?

    A: Yes

14. The application form included a Details of specified work undertaken section and in response the applicant provided the following information:

    ABN 99587936707

    Postcode 4670

    Start date 14 April 2014

    End date 13 July 2014

15. On 8 March 2018 the Department was advised by the manager of L.E.Nicholas & J.M.Nicholas (ABN 99587936707), that it had not employed anyone by the name of the visa applicant.

16. Based on this information the delegate considered the applicant did not comply with section 101(b) of subdivision C of the Migration Act, because at the time he lodged his subclass 417 Working Holiday (Extension) visa on 27 November 2017 he provided answers to questions asked that were incorrect. The delegate considered those answers to be incorrect because the nominated employer had given advice the applicant had not been employed by them.

17. The above matters were particularised in the s.107 Notice of Intention to Consider Cancellation (NOICC) notice sent to the applicant on 4 October 2018.

18. On 18 October 2018 the applicant, through his migration agent, provided the following information in response to the NOICC:

    ‘ My client confided he had been approached by a person who has left him the details of another person to help with his WHV application.

    Without ever meeting the third person only known as “Lee” he entrusted them and provided them with his personal data via email. The Lee person lodged an online application using an email address which is not Mr Marco Marino’s email address’

19. The following documents were provided by the applicant:

    ·ILSC Business College Payments made to Australian Education Provider in amount of $15,820,

    ·ILSC payment plan

    ·income tax assessment for 2018 and PAYG Summary for tax withheld in amount of $2208,

    ·taxation documents for 2015,

    ·receipts for donations made to Children’s Tumour Foundation of Australia, Project Karma, Animals Asia,

    ·photographs taken when delivering presents to children at Children’s Hospital,

    ·thank you note from Royal Sydney Randwick Hospital for Children,

    ·payments to Let’s Go Planet Proprietary Limited for tuition fees dated 5 September 2018 in amount of $1500,

    ·a letter of thanks to the visa applicant from Mr Trent Duffield,

    ·payment receipts from Go Study Australia in amount of $1300 dated 15 May 2017, 31 December 2015, 1 September 2015,

    ·Payment slips for the visa applicant.

20. At the time of hearing the applicant told the Tribunal he had not done paid work outside Sydney in the period from 14 April 2014 to 13 July 2014. The applicant said he had not met the agent who had submitted the 417 application on his behalf. He said he had met a guy at the Establishment hotel where he went for salsa dancing. He was Italian and he told the applicant he knew a guy who could help him get a Working Holiday visa. Their contact was only ever through an email address he was provided with. He was told that if he signed the paperwork his placement for regional farm work would be arranged. The applicant told the Tribunal he did not have the computer skills to lodge the application himself. He said it was not his fault that he did not understand the requirements of the law in Australia. He was Italian.

21. The Tribunal finds that on the application form, in response to questions about the work he had previously undertaken in Australia, the applicant gave incorrect answers by stating that he had completed a total of 3 months work in regional Australia. He provided further incorrect responses when he stated that he had worked from 14 April 2014 to 13 July 2014 for an employer with an ABN 99587936707.

22. The Tribunal finds the applicant completed his application form in a way that incorrect answers were given.

23. The Tribunal further finds the applicant declared in his application form that the information provided was complete, correct and up to date. The Tribunal finds that this was also an incorrect answer.

24. The Tribunal acknowledges the applicant's evidence that the provision of the incorrect answers was done without his knowledge or consent. However, the Tribunal is of the view that by instructing an agent to prepare and lodge the application for him and paying the fees for the service, the applicant created an agency arrangement between himself and the agent preparing his application.

25. Further, the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s. 98 of the Act states that if the applicant did not fill in his application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. Section 100 provides that 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. Further, s. 111 states that ss.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers.

26. For these reasons, the Tribunal finds that there was non-compliance with section 101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

27. 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).

28. 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.

29. 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.

30. The applicant was informed at the beginning of the hearing that each of the r.2.41 prescribed circumstances would be considered by the Tribunal and also any other relevant facts and matters. The Tribunal has had regard to the documentary evidence the applicant provided and also to the oral evidence given by the applicant at the hearing.

31. The Tribunal has taken these matters into account when considering the discretion. The Tribunal has also taken into account that had the incorrect information not been provided – and the correct information had been – relating to the regional work requirement, the Working Holiday visa would not have been granted in 2017.

    The correct information

32. The applicant was granted the Working Holiday visa on 27 November 2017 on the basis that he had worked for at least 3 months in specified work in regional Australia. The applicant was asked at the hearing what the correct information was relating to his work in a regional area at time he lodged the application. He said he did not work in a regional area during the period from 14 April 2014 to 13 July 2014 as he had indicated in his application.

33. The Tribunal has found that the correct information at the time of application was that the applicant had not worked for at least 3 months in specified work in regional Australia.

34. The correct information was not provided. This is a significant issue which weighs in favour of cancellation.

    The content of the genuine document (if any)

35. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information

36. Clause 417.211(5) requires the applicant to have carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa and the total period of the work carried out is, or is equivalent to, at least 3 months full-time work.

37. The Tribunal finds that the assessment of the applicant's previous employment in regional Australia was central to the assessment of his eligibility for the Working Holiday visa. The Tribunal finds that the decision to grant the Working Holiday visa was based partially on incorrect information relating to the applicant's employment in regional Australia. This weighs in favour of cancellation.

    The circumstances in which the non-compliance occurred

38. The applicant said his agent provided incorrect information on his application form. He said he did not take any action to ensure the information provided was correct. He trusted the agent to take care of the matter as he considered he was not sufficiently competent to do so. Whether or not this was the case the applicant did not take any further action to ensure his application was completed correctly.

39. The Tribunal finds the applicant's submission that his agent provided the incorrect information problematic. The Tribunal is of the view that the applicant had the responsibility to learn what evidence was being submitted on his behalf. The applicant could have requested to check the entire application before its lodgment and required the agent to provide a draft copy of the form. In the Tribunal's view, it was his responsibility to do so to ensure that any information that was being submitted on his behalf was correct and accurate.

40. The Tribunal finds that the applicant was either complicit in the actions of his agent or he was negligent in his actions and recklessly indifferent in his dealings with the agent.

41. The circumstances in which the non-compliance occurred, including the applicant’s reliance on his agent are not accepted as justifying the non-compliance.

    The present circumstances of the visa holder

42. The applicant told the Tribunal that since being granted a Working Holiday visa he has ceased his studies and he is working full time as a pizza chef. He was working in Bondi but has now moved to Campsie. He currently lives with his brother and their partners. His partner is employed working with children on the spectrum. They live in rented accommodation. The applicant said it was his intention to complete his studies in Australia and then return to Italy where with his family he would set up a chain of pizza stores but if his visa were cancelled it would make their relocation much more difficult as he would not be able to complete his studies and gain further work experience. The applicant said he had recently been a finalist in a pizza making competition. The applicant submits that since the information was provided by his agent and not by him it is unfair that he have to bear the consequences. The applicant said there was other information on the form that was incorrect. He had not told the agent he was in a defacto relationship. He said it was obvious the agent was fabricating the information on the application. It was not based on fact.

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

43. Nothing adverse is known about the applicant's subsequent behaviour concerning his obligations. This is a relevant consideration and weighs against cancellation.

    Any other instances of non-compliance by the visa holder known to the Minister and any breaches of the law since non-compliance:

44. There is no evidence that the applicant has otherwise breached the obligations under the Act or that there are other instances of non-compliance. The Tribunal is not aware of any other breaches of the law since the non-compliance. The Tribunal has given weight to this as a factor against cancellation.

    The time that has elapsed since the non-compliance

45. It has been nearly two years since the applicant provided incorrect answers. The Tribunal does not consider this to be a significant amount of time and accordingly does not place weight on this as a factor.

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

46. There is nothing before the Tribunal to indicate that the applicant has breached the law in Australia since the non-compliance was determined. The Tribunal has given weight to this as a factor against cancellation.

    Any contribution made by the holder to the community

47. When asked at the time of hearing the applicant said he had made a positive contribution to the Australian community. He had run cooking classes for kids and he had run special classes for kids with Downs Syndrome. He said he had also made a positive contribution to the community by fostering good relations within the Australia and Italian community. He had been instrumental in establishing a not for profit club playing soccer. He spends time on those activities each week.

48. The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in r.2.41 where they are relevant or applicable in this case.

49. As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered additional matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109. They are:

    • whether there are persons in Australia whose visas would, or may, be cancelled under s.140;
    • whether there are mandatory legal consequences to a cancellation decision; for example whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non-refoulement obligations;
    • whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister's personal intervention (e.g.s.46A, s.46B, s.48, 48A etc.); and
    • whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and is liable to be detained under s.189 and removed under s.198
    • whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation; for example:

    if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;

    • whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment; and
    • any other relevant matter.

    Whether there would be consequential cancellations under s.140

1. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant's visa is cancelled.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention

2. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant's favour.

3. There are no provisions in the Act which prevents the applicant from making a valid visa application without the Minister's intervention although the applicant may have limited opportunities when making future visa applications in Australia.

4. While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if his visa is cancelled, he has benefited from providing the incorrect information in the Working Holiday visa application and it is very likely that he would not have been granted that visa if he had provided correct or accurate information about satisfying the work requirement.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

5. There is nothing to suggest that Australia's international obligations would be breached as a result of the cancellation.

   Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

6. When asked about the hardship that may be caused by cancellation of his visa the applicant said it was the effects on his family that were of most concern to him. His father was also in Australia on a student visa and he had not been well of late. He had been admitted to hospital with cardiac problems in December 2018. His brother was also here and he has a sister in Melbourne. If he had to live overseas for a time and was subject to a consequent bar it would be difficult if he was not able to travel back to Australia each year to visit his family and to participate in family events such as his sister’s wedding. He said there would also be an adverse effect on his finances if he had to relocate and establish himself elsewhere. If he were to move to Italy he would need money behind him to enable him to meet his living expenses while he was looking for work.

7. He told the Tribunal that the effects of the cancellation would be very difficult for him at this time in his life. He was doing well in Australia and was highly regarded in his profession. He said the effects would be personal, professional and financial. He has a great sense of responsibility to his father and did not want to be separated from him..

8. The Tribunal accepts that there is at least a possibility that if the visa is cancelled there may be a period of separation between the applicant, his partner and other family members which may cause them some level of inconvenience or hardship.

9. However, the Tribunal does not consider it to be significant in the circumstances. That is, the Tribunal's view is that the applicant and his partner and family could make other arrangements if they were motivated to do so including temporary relocation or temporary separation with regular visits.

   Conclusion on the exercise of the discretion

10. The Tribunal has considered the totality of the applicant's circumstances.

11. The Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s.101.

12. The Tribunal accepts that there are no other known instances of non-compliance and no other known breaches of the law. The Tribunal accepts that certain hardship may be caused by the cancellation because of the effects on him, personally, professionally and financially if he has to relocate. The Tribunal has formed the view that Australia's international obligations would not be breached as a result of the cancellation. There are no consequential cancellations.

13. The Tribunal accepts that if the applicant's visa is cancelled, and unless he is granted another visa, he may be subject to a period of detention.

14. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect answers. The Tribunal has formed the view that the applicant did not take adequate steps to ensure the correctness of his application. Having instructed an agent to lodge the application on his behalf, the applicant then did nothing to check the content of the application. In the Tribunal's view, the fact that the decision was based on incorrect answers outweighs other considerations.

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 be cancelled.

    DECISION

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

    Moira Brophy
    Member