McKenna (Migration)

McKenna (Migration) [2021] AATA 4342 (28 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Darragh Joseph McKenna
CASE NUMBER:  2107376
HOME AFFAIRS REFERENCE(S):          BCC2020/2294428
MEMBER:Melissa McAdam
DATE:28 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 28 October 2021 at 9:08am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect answer in visa application – specified work in regional Australia – employer reported no record of applicant – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 101, 107, 109, 140, 359, 363
Migration Regulations 1994, r 2.41; Schedule 2, cl 417.211
CASES
Hasran v MIAC [2010] FCAFC 40
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Section 107 Notice, NOICC
On 10 May 2021 the delegate issued a s.107 Notice of intention to consider cancellation of Working Holiday (Temporary) (class TZ) Working Holiday (subclass 417) visa (the NOICC) to the applicant. In the NOICC the delegate set out the following:
I consider that there has been non-compliance with the following section(s) 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.
…
On 07 August 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)?’ you answered ‘Yes’.
Under the heading ‘Details of specified work undertaken’, you provided the following answers (in part):
Employer Details
Legal registered name: AAG Labour Services PTY LTD
Trading name: AAG Labour Services PTY LTD
Australian Business Number (ABN): 21126217294
Postcode: 6275
Industry type: Agriculture, forestry and fishing
Industry type sub-group: Plant and animal cultivation
Description of duties I was a dairy farm hand. I assisted in milking 1400 cows twice a day. I also fed cattle, mustered cattle and reared calves while on the farm.
Date from: 02 Mar 2020
Date to: 05 Jul 2020
Total days worked: 90
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’, you answered ‘Yes’.
Based on the above information, as well as meeting other relevant criteria, you were granted your Working Holiday (Extension) visa on 07 August 2020.
Subsequent information received by the Department
The Department initiated employment verification checks with AAG Labour Services Pty Ltd, the business registered under ABN 21126217294, to verify your employment claims. On 08 September 2020, AAG Labour Services Pty Ltd 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)?’;
● provided details of claimed employment with AAG Labour Services Pty Ltd, 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’.
I consider the above information is incorrect, as verification checks undertaken by the Department have concluded that you never worked at the business, AAG Labour Services
Pty Ltd. Therefore you have not undertaken three months specified work in regional Australia.
Based on the above information, it appears you provided incorrect answers in support of your Working Holiday (Extension) visa application. I consider therefore, that you have not complied with sections 101(b), and accordingly your Working Holiday (Extension) visa may be liable for cancellation under section 109 of the Act.
What you can do
Before a decision can be taken on whether to cancel your visa, the Act gives you the opportunity to comment on the possible non-compliance and to give a written response why your visa should not be cancelled. Your response should provide reasons:
● why you think you have complied, or why you have not complied, with section 101(b); and
● why you think your visa should not be cancelled (you should provide reasons why you think your visa should not be cancelled, even if you think you have complied, as the delegate may disagree with you); and
● provide any supporting evidence.
Applicant’s Response to the NOICC
According to the delegate’s decision record the applicant did not provide a response to the NOICC.
Information to the Tribunal
On 11 October 2021 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information in writing about whether he provided incorrect answers in his visa application and why he believes his visa should not be cancelled.
The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 25 October 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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?
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) of the Act in the following respects:
The applicant 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)?’;
The applicant provided details of claimed employment with AAG Labour Services Pty Ltd, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
The applicant 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’.
The applicant’s visa application form confirms that the applicant provided responses to questions in the form, as outlined above. The Tribunal therefore finds that the applicant did provide these answers in his visa application form.
The delegate subsequently obtained information from the applicant’s putative employer that the applicant had not worked for the company. The applicant has not provided any evidence or indication that this advice is incorrect. The company, AAG Labour Services Pty Ltd, included the applicant’s name in a list of names of people who had not worked for them, by email to the department dated 8 September 2020. Again, there is no suggestion from the applicant or any other source to contradict the company’s advice to the department.
On the basis of the evidence before it the Tribunal finds that the applicant did not work for AAG Labour Services Pty Ltd. The applicant has provided no other information in regard to having undertaken or completed three months of specified work. On the evidence before it the Tribunal finds that the applicant has not completed three months of specified work as the holder of a first working holiday visa. The relevant answers he provided in his visa application form were therefore incorrect.
On the basis of these conclusions 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?
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).
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.
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.
The correct information
The correct information is that the applicant had not completed three months of specified work in regional Australia at the time of his second subclass 417 visa application.
The correct information was of critical relevance to the assessment of the visa application and should have been provided.
The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.
The content of the genuine document (if any)
This is not a relevant consideration in this case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information
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, equivalent to at least three months full-time work, of specified work in regional Australia as the holder of a subclass 417 visa.
This was a substantive criteria and a central requirement for the grant of the visa. If the requirement was not fulfilled the visa could not be granted.
The Tribunal therefore considers that the grant of the second subclass 417 visa was based, in large part, on the incorrect information given in the visa application.
The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.
The circumstances in which the non-compliance occurred
The applicant has not provided any evidence regarding how or why the non-compliance occurred. The Tribunal has no information before it regarding these circumstances. The Tribunal therefore views this factor neutrally.
The present circumstances of the visa holder
The applicant has not provided any evidence regarding his present circumstances. The Tribunal has no information before it regarding his circumstances. The Tribunal therefore views this factor neutrally.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Section 105(1) of the Act requires a person who becomes aware that an answer given in his or her application form was incorrect when given, to as soon as practicable notify the department of the incorrectness and of the correct answer. There is no indication before the Tribunal that the applicant has complied with this obligation. The Tribunal therefore views this factor as weighing in favour of cancellation of the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of any other instances of non-compliance by the applicant. The Tribunal gives this factor weight against the cancellation of his visa.
The time that has elapsed since the non-compliance
It has been approximately 14 months since the applicant provided incorrect answers. The Tribunal does not consider this to be a significant amount of time and accordingly views this factor neutrally.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence or indication before the Tribunal that the applicant has breached the law in Australia since the non-compliance was determined. The Tribunal gives this factor weight against the cancellation of his visa.
Any contribution made by the holder to the community
The applicant has not provided any evidence regarding contributions he has made to the community. The Tribunal has no information before it regarding this factor. The Tribunal therefore views this factor neutrally.
Whether there would be consequential cancellations under s.140
There is no evidence of any persons in Australia whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa. The Tribunal therefore views this factor neutrally.
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
The Tribunal notes that the cancellation of the applicant’s visa could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 if he chooses to remain in Australia without a valid visa. He may also face difficulties in being granted further visas in Australia and could be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion (PIC 4013).
While the mandatory legal consequences may cause difficulty to the applicant if his visa is cancelled, he has benefited from providing the incorrect information in the Working Holiday visa application. It is very likely that he would not have been granted the visa if he had provided correct or accurate information about satisfying the specified work requirement.
The Tribunal also notes that regardless of whether or not the applicant’s visa is cancelled, he may also encounter difficulty satisfying Public Interest Criteria 4020 if he applies for a further visa. The requirements in both PIC 4020 and PIC 4013 can be waived by the Minister if the Minister is satisfied there are requisite compassionate or compelling circumstances. The Tribunal notes there are no obstacles to the applicant seeking the Minister’s intervention.
The Tribunal acknowledges the difficulty the legal consequences of the visa cancellation will and may cause the applicant but they are intended consequences. The Tribunal does not view them as unduly harsh or otherwise concerning in the circumstances. The Tribunal does not view the mandatory consequences as a factor that weighs against the cancellation of the applicant’s visa.
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
There is nothing to suggest that Australia's international obligations would be breached as a result of the cancellation. The Tribunal therefore views this factor neutrally.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member
The applicant has not submitted any evidence of other relevant matters or hardship that may be caused by the cancellation of his visa.
Conclusion on the exercise of the discretion
The Tribunal has considered the totality of the applicant's circumstances.
The Tribunal places significant weight on the fact that the decision to grant the visa was based upon incorrect answers and that the applicant was not entitled to the visa, having not met a central requirement for it. In the Tribunal's view, the fact that the decision was based on the incorrect answers provided by the applicant is of serious significance and outweighs the considerations that favour not cancelling the applicant’s visa.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Melissa McAdam
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.

[2021] AATA 4342

28 October 2021

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