Moran (Migration)

[2022] AATA 929

Moran (Migration) [2022] AATA 929 (24 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kevin Moran

CASE NUMBER:  2109469

HOME AFFAIRS REFERENCE(S):          BCC2020/2361653

MEMBER:Louise Nicholls

DATE:24 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 24 January 2022 at 2:06pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – applicant had provided incorrect answers in visa application – there was non-compliance in the way described in the notice – false information–applicant did not undertake specified work in regional Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, 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 applicant came to Australia as the holder of a Subclass 417 (Working Holiday) visa on 16 December 2017. While in Australia he obtained second and third working holiday visas.

3. His third working holiday visa was granted on 16 August 2020. On 6 July 2021 the delegate issued a Notice to Consider Cancellation (NOICC) of that visa pursuant to s. 107 of the Act and cancelled the visa on 26 July 2021.

4. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his Working Holiday (Extension) visa application for his third working holiday visa. The delegate found the visa holder had not complied with section s.101(b) of the Act. The delegate considered the circumstances relevant to the discretion whether to cancel the visa but after consideration concluded the visa should be cancelled.

5. The applicant sought review on 26 July 2021. He provided a copy of the biodata page of his passport and a bank statement. He also provided written references from employers and friends.

6. The applicant appeared before the Tribunal on 10 December 2021 to give evidence and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by MS Teams audio. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams audio, 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.

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

   CONSIDERATION

9. The issue in the present case is whether there are grounds for cancellation, and if so, whether the visa should be cancelled.

10. 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.

11. 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.

12. 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?

13. 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.

    Particulars of non-compliance identified in the NOICC?

14. The non-compliance identified and particularised in the s.107 notice was non-compliance with s101(b) as set out below.

15. The applicant provided the following information in the Working Holiday (Extension) visa application on 16 August 2020. The application was made using the Department’s online lodgement facility, providing the following answers on the electronic visa application form.

16. The following matters were particularised in the NOICC:

17. In response to the question ‘They have carried out at least six months of specified work’ the applicant answered ‘Yes’.

18. In response to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’ the applicant answered ‘Yes’.

19. Under the heading ‘Details of specified work undertaken’, the applicant provided the following answers

    Employer Details
    Legal registered name: Core traffic control pty Ltd
    Trading name: Core traffic control pty Ltd
    Australian Business Number (ABN): 84155689508

    Employer business address
    Address: 7 aristos place
    Suburb / Town: Darwin
    State / Territory Northern Territory
    Postcode: 0820

    Work conditions
    Employment type: Direct employment
    Industry type: Construction
    Industry type sub-group: Construction
    Description of duties Managing traffic for active construction sites and enforcing traffic management plans

Date from:	09 Dec 2019
Date to:	07 Jun 2020
Total days worked:	190

1. Under the heading ‘Working holiday declarations’, in response to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’, the applicant answered ‘Yes’.

2. Based on the above information, as well as meeting other relevant criteria, the applicant was granted a Working Holiday (Extension) visa on 16 August 2020.

3. The Department initiated employment verification checks with Core Traffic Control Pty Ltd, the business registered under ABN 84155689508, to verify the applicant’s employment claims. On 17 September 2020, Core Traffic Control Pty Ltd contacted the Department and advised that the visa holder never worked at the business.

4. In the NOICC the delegate put it to the applicant that he provided incorrect information when he

   ·answered ‘Yes’ to the question ‘They have carried out at least six months of specified work’.

   ·answered ‘Yes’ to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’.

   ·provided details of claimed employment with Core Traffic Control Pty Ltd, at the section of the application form titled ‘Details of Specified Work Undertaken’; and

   ·answered ‘Yes’ to the declaration ‘Working holiday declarations’, to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’.

5. The applicant did not respond to the NOICC.

   Evidence at hearing

6. The applicant gave evidence that he was 32 years of age and was born in Galway in Ireland. His parents and two brothers and two sisters grew up in Galway. After he completed high school, he attended college where he studied sport and recreation.

7. He has been in a long-term relationship with his partner who accompanied him to New Zealand where the couple lived and worked for about three years. They then both came to Australia on working holiday visas.

8. He agreed that the information in his working holiday application was incorrect. He has not done six months specified work in a regional area during the period of his second working holiday visa. The applicant is a drainer/pipelayer and has been working as a drainer in Sydney. He stated that he had intended to do six months specified work in a regional area during the period of his second working holiday visa but at the time he was looking for work he could not leave NSW due to the pandemic and struggled to find work in regional areas of NSW. He applied to many places but was not successful in getting farm work.

9. He saw an advertisement from Lee Hansol on Facebook. The advertisement claimed that Lee Hansol could help with obtaining second and third working holiday visas. He thought that Lee Hansol could help him get some farm work. However, when his visa was granted, he knew that something was wrong but panicked because he did not know what to do. He stated at the time he applied for the working holiday visa only health care workers could get special COVID visas. He understands that the provision of incorrect information was not acceptable and regrets that conduct.

10. The applicant is a drainer by occupation, and he was hoping to obtain a sponsorship from an Australian employer so that he and his partner could get temporary work visas. If he and his partner return to Ireland, they will not have anywhere to live and it is very difficult to get work. His partner has a difficult family situation so her family cannot provide support for the couple. His own family have had financial difficulties and one of his siblings and her four children have had to move in with his parents due to a business collapse.

11. He stated he and his partner have been living in Randwick, Sydney and he has been working as a drainer on a couple of large projects, that is for Sydney Water on the airport and West Connex.

12. He is a member of a local GAA team (Gaelic football and hurling) and helps with organising games. He also helps Irish expatriates find work and accommodation. He explained the Irish community in Sydney was a tightknit community.

    Conclusion on non-compliance.

13. The Tribunal finds that the applicant provided incorrect information, in order to facilitate the grant of his Working Holiday (Extension) visa.

14. The applicant was required to undertake specified work in regional Australia, as defined in the legislative instrument in effect at the time of visa application, for a period of six months as part of the eligibility criteria for the grant of the Working Holiday (Extension) visa.

15. In the Working Holiday (Extension) visa application dated 16 August 2020, the applicant stated that he worked at Core Traffic Control Pty Ltd, Darwin for a period of 190 days. The Department received correspondence on 17 September 2020 from Core Traffic Control Pty Ltd stating that the visa holder never worked at the business.

16. The Tribunal has considered the particulars of non-compliance set out in the NOICC and the information in the delegate’s decision record. The applicant has not disagreed with or sought to qualify the information on non-compliance set out in the NOICC and delegate’s decision record. 

17. The applicant’s statement, as well as his answers, in the Working Holiday (Extension) visa application, of having worked for Core Traffic Control Pty Ltd for a period of six months while the applicant held the second Working Holiday visa (subclass 417); or while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) and which was made at a time when the applicant held the first Working Holiday visa; and all of that work was carried out after 1 July 2019, are incorrect answers as described by s.101(b).

18. In these circumstances the Tribunal is satisfied that there was relevant non-compliance as set out in the NOICC, that is, that the applicant provided incorrect information in the application for the Working Holiday (Extension) visa application lodged on 16 August 2020.

19. For these reasons, 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?

20. 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).

21. 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.

22. With respect to the prescribed circumstances the Tribunal notes that the applicant did not respond to the NOICC but has provided evidence and submissions to the Tribunal concerning his circumstances.

23. From the evidence before it the Tribunal considers  

    ·     The correct information. The applicant admitted that the information provided in his application and particularised in the NOICC was incorrect. That is, that the applicant did not work for Core Traffic Control for six months after 1 July 2019. In these circumstances the Tribunal finds 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 six months.

    ·     The content of the genuine document (if any). No documents were provided, and this factor is not relevant to the consideration.

    ·     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 applicant was granted a third working holiday visa on the basis that he had completed specified work in regional Australia, as defined in the legislative instrument in effect at the time, for a period of six months. This was a requirement for the grant of a third working holiday visa. If the applicant did not meet this requirement he would not have been entitled to the grant of the visa and the delegate made the decision to grant the third working holiday visa in part on the incorrect information given by the applicant regarding his employment at Core Traffic Control.

    ·     The circumstances in which the non-compliance occurred. The applicant stated that he had intended to complete six months of specified regional work, however, due to the impact of COVID 19 pandemic state borders closed from March 2020.  He tried to find work in NSW and made many applications but was not able to find farm work. He saw an advertisement by Lee Hansol on Facebook guaranteeing the grant of working holiday visas. At first, he thought Lee Hansol could find farm work for him but when his visa was granted he realised what had happened.

    ·     The present circumstances of the visa holder. The applicant is living with his partner of 17 years in a rented apartment in Sydney. They previously lived and worked in New Zealand for a period of three years before coming to Australia together on working holiday visas. The applicant has been working as a drainer for SWD Constructions, a contractor with Sydney Water. SWD has been involved in large infrastructure projects in Sydney. His employer states that it is currently difficult to obtain skilled workers due to COVID travel restrictions and the loss of the applicant from their workforce will have a negative effect on that business and on completion of those projects. The applicant’s employers and friends hold the applicant in high regard and state that he is reliable and honest. His employer (SWD) was aware of the circumstances of the visa cancellation. The applicant indicated that he was hoping to obtain sponsorship from his employer and apply for a temporary work 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. Although the applicant has acknowledged the non-compliance the applicant did not contact the Department to correct the incorrect information prior to being issued with the NOICC.

    ·     Any other instances of non-compliance by the visa holder known to the Minister. There are no other instances of non-compliance by the applicant before the Tribunal. 

    ·     The time that has elapsed since the non-compliance. The Working Holiday Extension visa application was lodged on 16 August 2020. Seventeen months has elapsed since the non-compliance.

    ·     Any breaches of the law since the non-compliance and the seriousness of those breaches. There is no information before the Tribunal to indicate that the applicant has breached any laws since the non-compliance.

    ·     Any contribution made by the holder to the community. The applicant has provided evidence of his membership of a local Irish community sporting club and claims he has been involved in organising events and assisting members of the club in relation to employment and accommodation.

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. There is no evidence that there would be any consequential cancellations under s.140 of the Act or that there are children whose interests would be affected by cancellation. There is no information that suggests that returning to the applicant’s home country, that is, the Republic of Ireland, would result in the applicant suffering serious or significant harm. There is also no suggestion that the applicant’s removal would result in a breach of family unity obligations.

26. If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention if he does not depart Australia. He may also be subject to a statutory bar which would restrict the visas he could apply for in Australia and Public Interest Criterion 4013 may prevent him from being granted certain types of visas for a period of three years from the date of cancellation. However, recent amendments to the Regulations[1] allow applicants whose visas have been refused or cancelled to apply for three specific visas, that is, skilled nominated, skilled work regional and skilled employer sponsored regional visas, in effect lifting the bar in some matters. 

    [1] Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021

1. With respect to other relevant matters, the Tribunal notes that the provision of incorrect information by the applicant as particularised above does not appear to be a simple error or omission which has occurred through inadvertence or even carelessness. The Tribunal considers that the provision of the specific employment information appears to have been a considered and deliberate action taken on behalf of the applicant to overcome the applicant’s ineligibility for the visa. The applicant’s evidence indicates that he was aware that Lee Hansol had provided incorrect information and he did not seek to advise the Department that the information provided had been incorrect.

2. Further in the normal course of events if the applicant had been eligible for the third working holiday visa he would have been required to return to Ireland in or about August 2021 having lived in Australia for around three years.

3. The Tribunal has considered the prescribed circumstances and other relevant matters to determine whether the applicant’s visa should be cancelled.

4. The Tribunal finds that the applicant would not have been entitled to a third working holiday visa if the correct information had been provided in his application form and further that incorrect information was deliberately provided on his behalf and he was aware that the incorrect information had been provided.

5. Further the applicant was the holder of a temporary working holiday visa and would in the normal course of events have returned, or been about to return, to Ireland.

6. With respect to hardship the applicant has given evidence that he wanted to remain in Australia together with his partner and he was hoping he would be sponsored by one of his employers for a temporary work visa. The Tribunal considers that the applicant and his partner should seek the advice of a reputable migration lawyer or agent to discuss their options.

7. The evidence also suggests that the applicant’s partner is a working holiday visa holder who will in the normal course of events also have to return to Ireland soon. There is no evidence the applicant and his partner will have a prolonged separation if the applicant’s visa is cancelled.

8. The factors set out above, taken together, lead to the conclusion that the visa should be cancelled.

9. The Tribunal accepts that if the visa is cancelled the applicant may face the prospect of restrictions on his eligibility for the grant of a number of visa classes for some years. It also accepts that the applicant’s wish to remain in Australia may not be possible and that he will suffer considerable disappointment on this basis. The Tribunal considers the applicant was honest and straightforward with the Tribunal and showed high levels of contrition and regret. The Tribunal has some sympathy with the applicant who now realises that the actions he has taken have had a large impact on his future life plans.

10. However, overall, the factors referred to above and which weigh in the applicant’s favour are outweighed by those other factors which indicate the visa should be cancelled. That is, that the applicant was involved in a deliberate act of deception in relation to his application, that he would not have been entitled to the grant of the visa but for the provision of the false information and that the provision of incorrect information was not inadvertent, negligent, or marginal in its relevance. The information was central to the applicant’s eligibility for the visa. The Tribunal has also considered that the visa is a temporary visa which was reasonably close to its expiry date at the time of cancellation and there is no evidence that the applicant will face harm or significant adverse impacts if he returns to Ireland. There are no minor children who will be affected by the cancellation and the applicant’s partner is also a temporary visa holder and there is no evidence of the prospect of prolonged separation.

    Conclusion

11. 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

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

    Louise Nicholls
    Senior 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.