O'Rourke (Migration)

O'Rourke (Migration) [2021] AATA 5392 (1 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Aimie O'Rourke
CASE NUMBER:  2106907
HOME AFFAIRS REFERENCE(S):          BCC2020/2243229
MEMBER:Anne Grant
DATE:1 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 1 December 2021 at 8:37am
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – applicant had provided false information – applicant had not been working in specified work during her time in Australia – applicant is a qualified social worker – valuable contribution to vulnerable members of Australian society – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2
CASES
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 ground for cancellation was made out and the visa should be cancelled. The issue in the present case is therefore whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review by her registered migration agent. The applicant was initially invited to attend a hearing at the Tribunal scheduled for 1 December 2021. On 25 November 2021, the Tribunal received a submission and several attached documents from the applicant and has given these consideration. The Tribunal considered after taking this new submission and material into consdieration that it was able to make a favourable decision on the information and evidence before it and has proceeded to do so.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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 sections s101 as follows:
“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 EKC, 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, EKC. 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.”
As noted in the s.107 notice, the application for a Working Holiday Visa stated that the applicant had worked at a company called EKC in Nowra from 2 December 2019 to 26 April 2020 in the construction industry. The applicant has conceded in the submissions made to the Department and to this Tribunal that this information is not true. The applicant’s submissions explain the circumstances in which this occurred – and that she was unaware of the false information lodged on her behalf.
From the information before me, I make the following findings of fact in relation to the lodgement of the application for a second working holiday visa:
·On 4 May 2020, the applicant contacted a migration agent known to her as Lee Hansol or ‘goldenfish7777’ by email, advising that she had been given their contact details and that her friend said they may be able to help her with her second year visa. She requested information about the process.
·On 26 May 2020, the agent responded to the applicant’s email advising that they could help her and giving her information about the process, the fees for lodgement and also for payment of the agent. In addition, the letter asked her to answer 29 questions listed below, including significant and personal information including her passport, her work in Australia and credit card information, among others.
·On 27 May 2020, the applicant emailed the agent with the full answers to the 29 questions, and provided a copy of her visa and also her passport. She signed the letter ‘Thanks a million’.
·In her email to the agent, the applicant provided correct information and details about work she had completed since arriving in Australia and included the postcodes for the areas she had stayed since being in Australia. None of those postcodes is one specified in the relevant instrument.
·On 29 May 2020 the applicant received an email from Lee Hansol advising her that her second visa had ‘surprisingly’ been approved. The approval letter was attached with details of how to log in and pay the fee for the visa as well as the agent’s fees. The email also stated ‘Once I confirm your payment I will proceed to send your documents’.
·The agent did not provide the applicant with an opportunity to read the application before lodging it.
In the first submissions lodged with the Department, the applicant conceded that the information in the application for a visa was incorrect and that, applying ss 98 and 100 she is taken to have given the incorrect information because she caused it to be filled in on her behalf, even if she did not know that it was incorrect. In the submissions made on 25 November 2021, the representative argues that the applicant actually only contacted the agent who lodged the application ‘for information’ and then responded to his request for information only. The very next day she was informed that the application had been successful, without paying or providing any instructions to lodge the application. The submission claims the agent had entered the incorrect information despite being given the correct information by the applicant. It is submitted that consequently, the applicant did not ‘cause’ the information to be given to the Department and it was not ‘submitted on her behalf’.
I do accept that the applicant was unaware that the application would be or had been lodged so quickly, or of the incorrect information included in that application. I also accept that the applicant had in fact given the correct information to the agent who had sought no clarification of that information from her. Nonetheless, I reject these submissions made on 25 November 2021 suggesting that the applicant did not cause the information to be given and that it was not ‘submitted on her behalf.’ The chain of emails and the provision of information by the applicant to the agent clearly demonstrates an intention to engage that person to apply for a second year visa for her. I find that it was submitted on her behalf and she engaged the agent to do so, even though she did not know the information used in the application was incorrect.
The information provided in the application form is incorrect. Applying s.98, the applicant is taken to have filled in the application form; and s.100, the answer is incorrect even though the applicant did not know that it was incorrect.
S.101 provides that a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given. (s.101(b)).
I am satisfied that and find that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As I have 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 was that the applicant had worked in the health and welfare sector throughout her time in Australia as a social worker and fundraiser and had not worked in a regional area in specified work of any kind. Her representative submissions claim that the applicant would have satisfied the criteria for a new visa on the basis of her actual employment, had the application been lodged after 18 August 2020, and therefore that she has not actually gained any benefit from the provision of the false or misleading information. Whilst this might be a reasonable assessment, it is noted that the correct information would not have, at the time the applicant’s visa application was lodged, met the description of specified work in the applicable instrument. The new instrument, Migration (LIN 20/182: Subclass 417 (Working Holiday) visa—Specified work and places) Instrument 2020, was registered on 18 August 2020 and came into force on 19 August 2020 as described in section 2. It applies to an application for a Subclass 417 visa made on or after the commencement of the instrument. That instrument, at section 9, specifies critical COVID-19 work in the healthcare and medical sectors, carried out after 31 January 2020, including (but not limited to) work mentioned as medical treatment, nursing, contact tracing, testing and research and medical and health care facility cleaning as ‘specified work’, regardless of the location in Australia.
Without determining finally whether the work carried out by the applicant would have qualified as ‘specified work’ under s.9 of the instrument had she lodged her application after 19 August, it is noted that working as a social worker in child protection and domestic violence during the period of the pandemic is at least arguably of a nature that may be considered ‘critical COVID-19 work’.
However, as noted by the delegate, the applicant could not have known at the time she lodged the visa via her agent that her work might ‘become’ ‘specified work’ later in the year and before her first working holiday visa expired. The fact is, she had not been working in specified work during her time in Australia and therefore at the time she lodged the application, was not qualified for a second working holiday visa.
I give this factor some weight towards cancelling the visa, not against it.
The visa was granted based on the incorrect information as it was critical in assessing whether an applicant had performed ‘specified work’ in accordance with the visa pre-requisites. I give this factor some weight towards cancelling the visa.
In considering the circumstances in which the non-compliance occurred, I note that the applicant submitted that she expected the agent to use the correct information that she provided about her employment to obtain a visa (or to attempt to do so). As noted above, the applicant has provided her emailed instructions to the agent, including her detailed responses about her personal circumstances and work history and I accept that she sent that email to the agent with the intention that it be used to lodge an application which contained the correct information. I am satisfied that the agent submitted the application containing the false information without further consulting with the applicant (in fact almost immediately), and did not give her an opportunity to read the application before it was lodged. In those circumstances, it is difficult to see how she could have prevented the incorrect information being lodged.
I am satisfied that the applicant was not aware of the incorrect information or that the information she had given (which was correct) was not used in the application. Whilst the applicant is nonetheless taken to have provided the incorrect information due to the operation of the legislation, I find that she has not provided the incorrect information used by the agent to the agent - nor did she give him other, misleading or incorrect information in the hope of gaining a visa that she knew she was not qualified for. In addition, as raised by her representative submissions, it is noted she had only arrived in Australia six months prior, had never before engaged a migration agent and spent three months during 2020 in and out of lockdown in NSW. I accept that the applicant was only 23 years of age at the time and not familiar with the Australian visa system. I give these factors some weight against cancelling the visa, in particular in this case because of the applicant’s demonstrated intention that the correct information be used in the application and that it was changed without her specific direction or consent.
No genuine document is under consideration in this case.
The applicant is a qualified social worker. As noted in her representative submissions, this occupation is on the Priority Migration Skilled Occupation List. According to supporting documents submitted from her employer, she is currently employed by The Benevolent Society, as a child and family practitioner since 25 January 2021. She works on a full time basis within the Fostering Young Lives program, performing a range of duties supporting families and children involved in the child protection space. According to her employer, the applicant “is an essential part of the Fostering Young Lives team and has been instrumental in completing difficult Guardianship and Kinship assessments. Aimie has formed vital relationships with adults and children who have been affected by trauma in the child protection space. These relationships would be severely affected if Aimie does not remain within the team.” Her employer also confirms that the Benevolent Society was exploring the option of Sponsoring Aimie to remain with the organisation as a very valued member of staff.
If the visa is cancelled, the applicant will cease to hold permission to work and stay in Australia and will be required to leave Australia and the employment and personal relationships she has built here. This will cause her some personal hardship and also the information from her employer suggests that her loss would have a negative impact on work which is essential and of significant benefit to vulnerable members of Australia’s community.
I give the applicant’s present circumstances some weight against cancelling the visa.
There is no information before me which suggests that the applicant has failed to comply with any obligations under Subdivision C of Division 3 of Part 2 of the Migration Act after the notice of intention to consider cancellation of her visa under s.107. The applicant has engaged with the Department and the Tribunal. Consideration of this factor weighs against cancelling the visa.
On the information before me there is no suggestion that the applicant has failed to comply with any other visa during her time in Australia. Consideration of this factor weighs against cancelling the visa.
In considering the time that has elapsed since the non-compliance, it is noted that more than 17 months has now elapsed since the grant of the visa and, without putting too fine a point on it, the last 17 months have been unusually challenging for everyone in Australia, and particularly for those working in the health and welfare sectors. I consider that the experience of working in a team in the child protection space through this difficult and unforeseen global and national pandemic crisis will have significantly increased the applicant’s attachment to Australia and also her value to the sector in which she works. I accept that her employer considers her to be a valuable and connected member of their team. I have also taken into consideration the letters of support from her friends and accept that the applicant has formed important personal and professional relationships in the time that has elapsed since the non-compliance, which has increased her attachment to Australia. Unlike the delegate, I give the past 17 months, being the time that has elapsed since the noncompliance, moderate weight against cancelling the visa.
There is no information before me which suggests that the applicant has breached any laws since the non-compliance. This weighs against cancelling the visa.
Significant submissions have been made in support of the applicant’s contributions to the community. I have taken into consideration the submissions made on this factor, namely:
·She worked as a Support Worker/Case Manager in a domestic violence refuge with the St Vincent de Paul Society from January 2020 to January 2021. In this time she provided support to families, women and their children who experienced trauma and homelessness due to domestic violence. The applicant has provided a letter of support from St Vincent de Paul Society confirming her work.
·Throughout the Covid-19 Pandemic, she assisted the Department of Communities and Justice in outreach casework to support individuals experiencing homelessness or a risk of homelessness. She was considered an ‘essential worker’ during that time.
·From 25 January 2021 she has worked with The Benevolent Society (TBS) Family Partnerships Team, as a family assessor within the Fostering Young Lives program. The applicant has provided a letter confirming this work and offering her support from her current employer.
·The applicant liaises with the NSW Department of Communities and Justice and plays a key role in the lives of the most vulnerable Australian children and families who would be deeply impacted if she were required to leave her role. This contribution and consequence of her having to leave the role has been confirmed by her employer.
·In 2019, the applicant was involved in running a White Ribbon Campaign fundraising event in Illawarra. Her role was to speak with people at the event to raise awareness of domestic violence at fundraising programs.
·In February 2021 she began volunteering for ‘The Flawed Journey’ and is currently the appointed Mental Health Ambassador for the program, which is a counselling and therapy practice providing a safe space for mental health issues. According to the letter of support from the program, she has participated in fundraisers and outreach programs for the support of mental health and Lifeline.
·The impact of the pandemic on mental health was recognised early by the Mental Health Services in Australia. The applicant has demonstrated a critical contribution to the community through her employment and volunteer work since her arrival in Australia.

I am satisfied that the applicant’s skills and qualifications as a social worker and the programs, employment and advocacy work she has undertaken in Australia do represent a valuable contribution to vulnerable members of Australian society and the Australian community more generally. It has to be noted, as mentioned earlier, that this work has been performed and continues to be performed during an unforeseen and unprecedented national (and international) crisis as the COVID19 pandemic runs its course around the world and the country. In addition, she has volunteered as a mental health ambassador for Flawed Journey, who supported people during the pandemic. I consider that these contributions to the community should be given moderate weight against cancelling the visa.
According to the information before me, no other person’s visa would be cancelled consequentially if the applicant’s visa is cancelled. I give this factor no weight either for or against cancelling the visa.
The submissions suggest that given the nature of the applicant’s work, consideration of Australia’s obligations under the International Convention on the Rights of the Child is relevant because her employer has confirmed that she plays a key role in the lives of vulnerable Australian children and families.
The applicant has no children. I do not accept the submissions about the relevance of Australia’s convention obligations in this case. I find that the cancellation of the visa would not breach Australia’s obligations in respect to any international agreements. I give this factor no weight.
As noted by the delegate, cancellation of the visa would mean that the applicant will become an unlawful non-citizen and may be liable for detention under s.189 and removal under s.98 if she does not voluntarily depart Australia. In addition, she would be subject to a bar under s.48 of the Act which will limit her options for applying for any other visa within Australia for three years. Given the applicant’s work history, her particular skills and prospects for possible sponsorship via alternative pathways, I give this consideration some weight against cancelling the visa.
All of the applicant’s submissions have been weighed and considered above. There are no other relevant factors to consider.
Conclusion
After considering my findings and the assessment of each of the various factors as required in r.2.41 of the Migration Regulations as discussed above, I am satisfied that the particular circumstances of this case and my findings about each of the factors which must be considered -(when considered together), weigh against cancelling the visa; and consequently I am satisfied that the visa should not be cancelled.
I have 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, I conclude that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Anne Grant
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 5392

1 December 2021

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