McGann (Migration)

[2021] AATA 5002

McGann (Migration) [2021] AATA 5002 (10 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shane McGann

CASE NUMBER:  2112929

HOME AFFAIRS REFERENCE(S):          BCC2020/2727645

MEMBER:Moira Brophy

DATE:10 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 10 December 2021 at 4:28pm

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 – impact of the COVID19 pandemic – financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, Schedule 2 cl 417.211; 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 false information had been provided at the time of application. 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 Tribunal exercised its discretion to hold the hearing by way of video link. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal by way of a video conference on 3 December 2021 to give evidence and present arguments.

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

   BACKGROUND

6. The applicant is a 31-year-old male born in Ireland. He is a citizen of Ireland. He entered Australia on 26 November 2019 on a Subclass 417 (Working Holiday) visa, which ceased on 26 November 2020. He lodged an application for a further Subclass 417 (Working Holiday) visa, which was granted on 27 October 2021.

7. 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

8. 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.

9. 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.

10. 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?

11. 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:

    ·Visa applications to be correct.

    ·A non-citizen must fill in his or her application form in such a way that:

    oall questions on it are answered; and

    ono incorrect answers are given.

12. The breach of s 101(b) relates to a Subclass 417 Working Holiday visa (the Working Holiday visa) the applicant was granted on 27 October 2020.

13. 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 s 100, s 101(b), s 102(b), s 104 and s 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.

14. The Working Holiday visa application form (lodged online by the applicant on 27 October 2020) included the following questions and answers:

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

    A: Yes.

    The application form included a ‘detail of specified work undertaken’ section, and in response the applicant provided the following information:

    Legal registered name: Lincara Pty Ltd

    Trading name: Wandin Valley Farms

    Australian Business Number (ABN): 56831787511

    Business Address: 47 Hunter Road, Wandin North (Victoria)

    Postcode: 3139

    Industry type: Agriculture, forestry, and fishing

    Industry type sub-group: Plant and Animal Cultivation

    Description of Duties: cherry picking and separating cherries into different sections, placing plastic bags onto mouldings and putting boxes onto pallets.

    Date from: 16 March 2020

    Date to: 5 July 2020

    Total days worked: 90.

15. The Department initiated employment verification checks with Lincara Pty Ltd, the business registered under ABN 56831787511, to verify the applicant’s employment claims. On 19 November 2020, Lincara Pty Ltd contacted the Department and advised that the applicant never worked at their business.

16. Based on this information, the delegate considered the applicant did not comply with s 101(b) of Subdivision C of the Act, because at the time he lodged his Subclass 417 Working Holiday (Extension) visa on 27 October 2020 he provided answers to questions asked that were incorrect. The delegate considered those answers to be incorrect because the nominated employer had given advice that the applicant had not been employed by them.

17. The non-compliance identified and particularised in the s 107 notice was non‑compliance with s 101(b) by the applicant in the way described in the s 107 notice sent to the applicant on 23 September 2021.

18. The applicant initially did not respond to the non-compliance notice.

19. The Tribunal has considered the material on file and the notice of intention to consider cancellation. The Tribunal discussed with the applicant whether he contacted the Department to discuss the matters raised in the non-compliance. He said he did not make contact.

20. The Tribunal has considered the impact of COVID-19 on employment opportunities at the time. However, the Tribunal was also mindful the applicant was on a temporary visa for a limited period. His conduct in engaging the agent was indicative of his preparedness to access and use services that would enable him to achieve his preferred migration outcome with little regard for the actual requirements of the visa.

21. 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?

22. 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).

23. 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.

24. 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.

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

26. 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 2020.

    The correct information

27. The applicant was granted the Working Holiday visa on 27 October 2020 on the basis that he had worked for at least three 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 the time he lodged the application. He said he did not work in a regional area during the period from 16 March 2020 to 5 July 2020 as he had indicated in his application.

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

29. 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)

30. 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

31. Clause 417.211(5) of Schedule 2 to the Regulations 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 three months’ full-time work.

32. The Tribunal finds that the assessment of the applicant’s claimed 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 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

33. The applicant told the Tribunal that it had not always been his intention to apply for a second Working Holiday visa. He had come to Australia with his partner and they had no fixed views as to how long they would stay. COVID 19 changed that. His partner worked in the health sector and her visa was extended because she was classified as an essential worker. They did not want to be separated and they were reluctant to return to Ireland because of the situation there. The applicant considered ways to enable him to stay beyond his initial 12-month visa. He was aware of the requirement to complete regional work for a second Working Holiday visa, but he was anxious that his opportunities to do farm work would be curtailed by the COVID-19 pandemic. He said he panicked because it looked like lockdown was never going to end. He said at the time it was generally accepted farms were reluctant to employ people from the city because of the high rates of COVID-19 in the city. The regions had far lower numbers at the time and they were anxious to keep it that way.

34. The applicant said when he learned from a fellow traveller on a Facebook page that there was someone, he could engage to handle the application in a way that ensured a positive outcome for him, he contacted them. He said he never met with him, he only knew his contact as ‘golden fish,’ all contact was via email, and he paid a sum of money to handle the application for him. He said he had been told the result was guaranteed. It all seemed so easy and happened so quickly that he said he just did not think it through. The applicant told the Tribunal he understood he was not able to meet the requirements of the visa and that information provided that he did meet the requirements was false. He said he did not take any action to ensure the information provided was in fact correct. He paid someone to take care of the matter as he considered he had no other option when he wanted to remain in Australia. The applicant told the Tribunal he did not check his application prior to it being lodged.

35. 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.

36. The Tribunal finds that the applicant was complicit in the actions of his agent. He knowingly allowed an application to be submitted on his behalf knowing the information provided was false.

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

    The present circumstances of the visa holder

38. The applicant told the Tribunal that he has been working full time in construction. Most recently he had been working on the Parramatta High Rail. His partner was working in the health care sector. While he loved his time in Australia and was reluctant for it to end, he now appreciated the mistake he made had consequences. He was booked to return to Ireland on 17 December 2021. He was anxious about the COVID situation at home. At the time of hearing, he was touring on the Great Ocean Road. While accepting of the mistake that had been made and his role in that, he asked that the uncertainty during the COVID-19 pandemic at the time the application was submitted be taken into consideration. While at the time the application was made, he did not understand the seriousness of his actions he now understood the consequences of his providing false information in a visa application. He told the Tribunal he was truly remorseful and wished he had his time over again.

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

39. 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

40. 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

41. It has been 14 months 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

42. 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

43. When asked at the time of hearing, the applicant said he had made a positive contribution to the Australian community through his work in construction.

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

45. As noted, the prescribed circumstances are not exhaustive. The Tribunal has considered additional matters that under policy should be considered, 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 of the Act.
    • 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, s 48A etc. of the Act).
    • 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 of the Act.
    • 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, or cruel, inhuman, or degrading treatment or punishment.
    • Any other relevant matter.

    Whether there would be consequential cancellations under s 140

46. 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

1. 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. When this was discussed with the applicant at the time of hearing he said he was booked to leave Australia on 17 December 2021.

2. There are no provisions in the Act which prevent 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.

3. 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

4. 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

5. When asked about the hardship that may be caused by cancellation of his visa, the applicant said the effects would be personal and financial, but it was the effects on his future that were of most concern to him. He was concerned about the effects of a cancellation on any future applications for a visa he may make. In the short term the applicant said he and his partner would return to Ireland. After they had spent Christmas with their respective families they would move to Dublin and work there. He said they had yet to determine if they would seek to return to Australia at a later stage.

6. The Tribunal has also considered the potential impact of the current COVID-19 pandemic both in Australia and in Ireland and appreciates the applicant’s concerns in this regard.

   Conclusion on the exercise of the discretion

7. In considering the exercise of the discretion, the Tribunal has considered the totality of the applicant’s circumstances including his submission that he was in this situation because of COVID-19 and consequently he made a poor judgement call at the time the application was made. The applicant was genuinely remorseful and constantly referred to his desire to ‘do anything to right the wrong.’ The Tribunal accepts the applicant is genuinely contrite and accepts there were contributing circumstances (COVID-19) that were outside his control.

8. However, after taking all factors into account the Tribunal has found that there are grounds for cancelling the visa because the applicant did not comply with s 101.

9. 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 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.

10. 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. When this was discussed with the applicant at the time of hearing he said it would not be an issue as he was scheduled to leave Australia on 17 December 2021.

11. 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. He knew he was not able to meet the requirements of the visa and he paid someone to lodge an application containing false information. 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 to grant the visa was based on what the applicant knew to be incorrect answers outweighs other considerations.

12. 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

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

    Moira Brophy
    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.