Mcnally (Migration)

[2022] AATA 106

Mcnally (Migration) [2022] AATA 106 (7 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Emer McNally

CASE NUMBER:  2110106

HOME AFFAIRS REFERENCE(S):          BCC2020/2376476

MEMBER:Rosa Gagliardi

DATE:7 January 2022

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 7 January 2022 at 4:30pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in extension application – 3 months of specified work in regional area while holding first visa – verification checks showed applicant never worked at claimed business – discretion to cancel visa – non-compliance not disputed – application completed and lodged by third party – prevalence of COVID-19 in home country – physical health condition – asthma – no approach to department – currently working in essential service in regional area – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101(1), 107, 109(1)
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 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 had contravened s.101(b) of the Act which requires that no incorrect answers are given or provided – in this case in respect of an application for a second Working Holiday visa – a Working Holiday (Extension) visa, subclass 417.  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 17 November 2021 to give evidence and present arguments.

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 s.101(b) of the Act.  

9. The applicant applied for a Working Holiday (Extension) subclass 417 visa on 4 September 2020 and provided the following answers on the electronic visa application form:

   The applicant was asked ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?  The applicant responded ‘yes’. 

   Asked to provide ‘Details of specified work undertaken’, the visa holder provided the following answers:

Employer Details
Legal registered name:	Banana Exchange Pty Ltd
Trading name:	Banana Exchange Pty Ltd
Australian Business Number (ABN):	86052441139
PO Box 442
Suburb / Town:		Tully
State / Territory		Queensland
Postcode:		4854
Work conditions
Employment type:		Direct Employment
Industry type:		Agriculture, forestry and fishing
Industry type sub-group:		Plant and Animal cultivation
Description of duties		Generally we could get to the farm at 6.30am. Then throughout the day i was generally in the factory where I would undertake a variety of different roles ranging from hanging, clustering, sorting and packing Bananas until 3.30pm with 2 x 15 minute cigarette breaks and 1 x 30 lunch break

1. The applicant also declared that she had worked from 4 November 2019 to 8 March 2020 for a total 90 days in the employ of Banana Exchange Pty Ltd.

2. 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’, the applicant responded ‘Yes’.

3. The above information was submitted to the Department as evidence that the applicant met the relevant criteria for her second Working Holiday visa, namely that she undertook specific work for a period of at least three months as per the requirements specified in Regulation 417.211(5):

   Regulation 417.211
   
   (5) If the applicant has held only one Subclass 417 visa in Australia, the Minister is satisfied that:
   
   (a) the applicant has carried out a period or periods of specified work in regional Australia as the holder of the visa; and
   
   
   (b) the total period of the work carried out is at least 3 months; and
   
   (c) the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

4. Based on the information provided by the applicant indicating that she had completed 3 months’ specified work in regional Queensland, undertaking a variety of different roles, the applicant was granted her Working Holiday (Extension) visa – the second Working Holiday (Extension) visa – on 4 September 2020.

5. Since the applicant was granted the Working Holiday (Extension) subclass 417 visa, the Department engaged with her claimed former employer, Banana Exchange Pty Ltd, being the business registered under ABN: 86052441139, to verify the applicant’s employment claims.  Banana Exchange Pty Ltd, however, contacted the Department on 23 September 2020 and advised that the applicant had never worked at the business.

   Possible non-compliance with section 101(b)

   -The applicant stated ‘yes’ that she had carried out at least 3 months of specified work;

   -The applicant was asked whether she had completed 3 months of specified work as the holder of a first Working Holiday visa and she responded ‘yes’, unequivocally;

   -She provided specific details of claimed employment with Banana Exchange Pty Ltd, under the section of the application form titled ‘Details of Specified Work Undertaken’; and

   -The applicant specified that she met the requirements of cl.417.211(5).

6. The Tribunal finds that the above information is incorrect as verification checks undertaken with Banana Exchange Pty Ltd revealed that the applicant had never worked at that business and the Tribunal cannot be satisfied that the applicant had undertaken at least 3 months’ specified work in regional Australia as required by cl.417.211(5).

7. The applicant was required to undertake specified work in regional Australia as defined in the relevant legislative instrument in effect at the time of application for a period of 3 months while she held her first Working Holiday visa, as part of the eligibility criteria for the grant of the second Working Holiday visa (the Working Holiday (Extension) visa).

8. In the second Working Holiday visa (Working Holiday (Extension) visa application the applicant stated that she worked at Banana Exchange Pty Ltd, ABN: 86052441139 from

   
   

   4 November 2019 to 8 March 2020 for 90 days.  The Department received written correspondence on 23 September 2020 from Banana Exchange Pty Ltd stating that the visa holder never worked at the business.

9. The applicant’s statements in the Working Holiday (Extension) visa application, that she had worked for Banana Exchange Pty Ltd in regional Queensland, from 4 November 2019 to

   
   

   8 March 2020, therefore meets the definition of an incorrect answer as described by section 101(b).

10. The applicant has not disputed that incorrect information was provided.  It is also to be noted that section 100 of the Act 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.

11. On the basis of the evidence before it, the Tribunal finds that the correct information is that the applicant did not undertake specified work in regional Australia as defined in the legislative instrument in effect at the time, for a period of 90 days; and she did not work for Banana Exchange Pty Ltd (ABN: 86052441139) from 4 November 2019 to 8 March 2020.  The Tribunal has little information in rebuttal that would persuade it that the applicant had provided correct information.  In the circumstances, had the Department been aware of the correct information, it would have refused the applicant’s Working Holiday (Extension) visa. 

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

    Should the visa be cancelled?

13. 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).

14. 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

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.

    The correct information

16. To satisfy the regulatory requirements for the grant of the Working Holiday (Extension) subclass 417 visa, the applicant was required to meet the criterion relating to specified work in regional Australia as defined in the legislative instrument in effect at the time of the visa application for a period of at least three months.

17. On the basis of the evidence before it, the Tribunal finds that the correct information is that the applicant did not undertake specified work in regional Australia as defined in the relevant legislative instrument in effect at the time for a period of 90 days; and she had not worked for Banana Exchange Pty Ltd (ABN: 86052441139) from 4 November 2019 to 8 March 2020.

18. In the applicant’s response to the Notice of Intention to Consider Cancellation (NOICC), the applicant confirmed she had provided incorrect information, conceding she had engaged the assistance of a third party, and was referred to someone who said he would help her get her second Working Holiday visa. 

19. The Tribunal places significant adverse weight on the extent and specificity of the incorrect information provided.  While the applicant herself did not compile the incorrect information, she would have been aware that she could not fulfil the requirements of cl.417.211(5) because she had not undertaken specified work in regional Australia as required for her first Working Holiday visa.  The applicant has argued that she was desperate to stay in Australia at the time because of the severity of COVID-19 in her home country, Ireland, indicating that she was prepared to do anything to remain in the country, even if it meant providing incorrect information. 

    The content of the genuine document (if any)

20. This is not applicable as the issue is not about genuine (or not) documents that have been provided.

    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

21. The decision to grant the applicant the second Working Holiday visa was based partly, at least, on the incorrect information provided by the applicant.  The applicant was required to provide correct answers about her past work experience for the grant of her second Working Holiday visa – the Working Holiday (Extension) visa, subclass 417, as set out in the relevant legislative instrument at the time of application.  This reliance by the Department on the applicant’s provision of the incorrect information, led her to be granted a visa to which she was not entitled.  The Tribunal places significant adverse weight on this matter as the applicant’s actions have undermined Australia’s migration scheme.

    The circumstances in which the non-compliance occurred

22. In her response to the NOICC the applicant wrote that after she arrived in Australia, she had started to hear about COVID-19 and she became very frightened and concerned when Australia went into lockdown in March 2020.  The applicant also wrote that she was worried about her health and was scared for her well-being. She was unsure what she needed to do to remain in Australia as Europe was suffering with a large number of cases.  She was concerned that she might catch the virus and bring it home to vulnerable family members.  The applicant now understands that she should have been more careful in appointing someone to lodge a visa application for her.  However, she panicked and thought she had to do this to stay safe.  But for COVID, the applicant argued, she would not have entered into the arrangement where someone else took responsibility for her visa application.  Her family members were in isolation at the time and given the applicant is asthmatic, she was concerned about the adverse impact contracting the virus would have on her.  The applicant also expressed her remorse for her actions.

23. At hearing the Tribunal attempted to obtain details about who exactly she had used to procure her visa and the applicant responded that someone had given her an email of a person who could help.  She stated that she had no idea what had been written on her behalf as she did not have to sign anything.  

24. The Tribunal acknowledges that at the time the applicant lodged her second Working Holiday visa, Ireland was in the grip of COVID-19 and accepts she may have held fear of returning both for herself, and her family.  Nonetheless, rather than enter an underhanded arrangement to remain in Australia, it was open to the applicant to liaise with the Department to advise she could not meet the criteria for a second Working Holiday visa but was anxious not to return to Ireland in the immediate future due to COVID-19.  As such, the Tribunal does not accept that the applicant had no option but to provide incorrect information to the Department. 

25. While the Tribunal is sympathetic to the applicant’s concerns about COVID-19, it considers that obtaining a benefit she was not entitled to, being a second visa to remain in Australia when she had not fulfilled the requirements of the first, outweighs considerations about COVID-19.

    The present circumstances of the visa holder

26. The applicant at hearing stated that she was unable to afford her return trip to Ireland now, even though her concerns about COVID-19 were somewhat allayed because she was double vaccinated.  She stated that she wanted to remain in Australia to continue working so that she would be able to afford to return to her home country.  As the Tribunal put to the applicant issues of her return trip could be discussed with the Department as the Tribunal could not facilitate her continuing to work in Australia for this purpose. 

27. The applicant stated that her parents could not assist financially with her return trip to Ireland.  She stated her mother is an office clerk and her father a joiner by trade.  She stated that they did not have the money to assist her.  She stated that she had an elder sister who was a student, and she did not think her sister would be able to assist her either.  When asked she stated that initially she would return to her parental home in Ireland. 

28. In Australia the applicant stated that she had been working in traffic control and was now living in Cairns undertaking an essential service regarding COVID. 

29. The Tribunal asked whether the applicant during her time in Australia had been able to save any money for her return trip and she stated it would be expensive to return home as she would need to go via London.  She stated she had a car she could sell but she owned it with other persons, and she was not confident that selling it would result in a financial gain.

30. The Tribunal considers that any financial gain the applicant has made in Australia has been in circumstances where she was not entitled to.  In applying for the first Working Holiday visa the applicant would have had to make provisions for a return flight as she was not given any indication that her stay in Australia would be permanent.

31. Given the applicant has now been vaccinated against COVID-19, the Tribunal is not persuaded that any health concerns should overwhelmingly outweigh the fact the applicant provided incorrect information.  The applicant has also been working in Australia and the Tribunal is not satisfied that financial constraints mean the visa should not be cancelled.  The applicant has resided in Australia since 22 October 2019, over two years now.  She has had the advantage of working even though she did not work in a regional area undertaking specified work contrary to cl.417.211(5).  Instead, she chose where she worked and in industries of her choosing.

32. Considering the applicant’s current circumstances, the Tribunal is unable to discern anything compelling which would move the Tribunal not to cancel the visa.

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

33. The applicant has been honest about the provision of incorrect information to both the Department and the Tribunal.  The Tribunal does not have any information before it to indicate that subsequent to the NOICC being issued, the applicant has not complied with any of her obligations under subdivision C of the Act.  The Tribunal places some weight on this matter in the applicant’s favour against cancelling the visa.

    Any other instances of non-compliance by the visa holder known to the Minister

1. The Tribunal and the Department before it, are not aware of any other instances of non-compliance by the applicant.  This matter weighs in the applicant’s favour.

   The time that has elapsed since the non-compliance

2. The applicant provided the incorrect information when she lodged her application for her second Working Holiday visa on 4 September 2020.  It has now been over 12 months since the non-compliance occurred by virtue of the time it has taken for the review to come to hearing.  As stated above, the applicant has worked and lived in Australia since 22 October 2019, without a legitimate basis.  Hence, while the Tribunal understands that the applicant has built friendships in Australia and has some distant relatives here, any work or personal connections established have occurred in a context where the applicant did not fulfil the requirements of her first Working Holiday visa. 

3. The Tribunal finds there is little in the time that has elapsed since the non-compliance which forces the Tribunal to place significant weight on this matter against cancellation.

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

4. The Tribunal is not aware of any breaches by the applicant of the law since the non-compliance and the Tribunal is prepared to accept that none have occurred.  The Tribunal affords some weight on this matter in favour of the applicant.

   Any contribution made by the holder to the community

5. The applicant conceded that she was remunerated for her work in Australia, so this was not voluntary work.  However, she had worked on a cattle farm as well as undertaken contact tracing for COVID and had helped with bush fires.  She had also donated food and clothes to

   
   

   St Vincent’s.  The Tribunal has taken into account the applicant’s contribution to Australian society and does not dismiss it outright. 

6. Nonetheless, such a contribution has lesser significance when viewed in light of the fact that the applicant had not fulfilled the requirements of her first Working Holiday visa. 

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

7. There is little information before the Tribunal to indicate that the applicant has applied for a Protection visa and has not sighted or heard evidence that in returning to her home country now or in the reasonably foreseeable future, the applicant would suffer serious harm.  The applicant has not argued that.  Indeed, when the Tribunal asked the applicant whether it would be the case that she might end up homeless and without work in Ireland, she responded that that was not the case.  The Tribunal notes that the applicant is versatile and employable.  As such, the Tribunal does not consider Australia would be in breach of its international non-refoulement obligations if the visa were cancelled and the applicant was required to return to her home country.

8. This matter, therefore, does not play a significant part in the Tribunal’s decision regarding whether the visa ought not be cancelled.

   Whether there are mandatory legal consequences to a cancellation decision

9. If the visa is cancelled and the applicant does not depart Australia as required within the time period permitted, she may be liable to detention under s.189 of the Act, as well as removal under s.198 of the Act when she no longer holds a valid visa.

10. Other consequences include the imposition of a section 48 bar, limiting the applicant’s options to apply for further visas from within Australia.  Additionally, she would be affected by Public Interest Criterion 4013, in which case she may be prevented from being granted certain types of visas for a period of three years from the date of cancellation.

11. The Tribunal appreciates that there will be attendant hardships in having the visa cancelled.  Cancellation is, however, a direct consequence of the applicant’s non-compliance and resulting limitations for her to apply for visas in Australia while unfortunate, do not, in the view of the Tribunal constitute significant hardship in that they are not unforeseen.

    Any other relevant matters

12. The applicant is not married and does not have children in either Australia or Ireland and it would appear that her significant effective ties live in her home country, being her parents and sister, although the Tribunal accepts the applicant has established bonds in Australia. 

    CONCLUSION

13. 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

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

    Rosa Gagliardi
    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.