Pritchard (Migration)

[2022] AATA 588

Pritchard (Migration) [2022] AATA 588 (7 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Emily Jane Pritchard

REPRESENTATIVE:  Mr Patrick Tien Quan

CASE NUMBER:  2107285

HOME AFFAIRS REFERENCE(S):          BCC2020/2272846

MEMBER:Kate Millar

DATE:7 March 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 07 March 2022 at 10:02am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information provided in second extension application – 6 months of specified work in regional area while holding first extension – non-compliance acknowledged – discretion to cancel visa – some specified work done before unacceptable conditions and move to metropolitan area – COVID-19 restrictions – paid third party to provide details and make application – work in metropolitan area indirectly benefited people in regional areas, but was not specified work – current work and partner’s sponsored visa application – not included as secondary applicant because of application bar – visa would have expired in any case, with no further eligibility – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211

CASES
Joshi [2018] AATA 1686
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Ms Pritchard came to Australia from the United Kingdom on 11 October 2018 on a Subclass 417 (Working Holiday) visa.  She was granted a second working holiday visa on 24 September 2019.

2. Ms Pritchard applied for a third working holiday visa on 12 August 2020.  To be eligible for this visa, she had to have carried out at least 6 months of specified work.  This involves working in particular industries in regional Australia.

3. Ms Pritchard concedes that she falsely declared that she had worked for Pearl Recruitment Pty Ltd for an Aboriginal corporation in Western Australia. As she had provided incorrect information on her visa application, her visa was cancelled by a delegate of the Minister under s 109(1) of the Migration Act 1958 (Cth) (the Act).

4. To cancel a Subclass 417 visa, a ground to cancel the visa must exist, and in this case the ground put forward is providing incorrect information in a visa application. If a ground is established, after considering the specified circumstances in the Migration Regulations 1994 and any other matter put forward by the person, it must then be considered whether the visa should be cancelled.

5. Ms Pritchard appeared before the Tribunal on 16 August 2021 to give evidence and present arguments and was represented at the hearing. After the hearing, the member who was hearing the matter became unavailable to complete the hearing and determination of this matter. The previous constitution was revoked under s.19D(2)(a)(ii) of the Administrative Appeals Tribunal Act 1975 and this application was reconstituted to me under s 19A(1)(a) of the same Act.  In considering this matter, all the material provided by the Ms Pritchard has been considered together . 

6. As the recording of the previous hearing was not available, a further hearing was held on 28 February 2022, and Ms Pritchard and her representative were advised that the Tribunal was unable to have regard to her oral evidence at the hearing on 16 August 2021.  Ms Pritchard and her representative were invited to raise anything that had been addressed in the previous hearing. 

7. 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

8. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101 of the Act. This requires non-citizens to provide correct information in their visa applications and passenger cards.

9. A pre-condition to exercising the cancellation power under s 109 of the Act is 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.  

10. In the present matter, the Department became aware that Ms Pritchard had not worked for Pearl Recruitment as she had claimed in her application.  As a result, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

    Was there non-compliance as described in the s 107 notice?

11. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act in the following respects:

    ·     In response to the question ‘They have carried out at least six months of specified work’ the visa holder answered ‘Yes’, and the correct answer was ‘No”

    ·     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 visa holder answered ‘Yes’. The correct answer was ‘No’

    ·     Under the heading ‘Details of specified work undertaken’, the visa holder provided the following answers:

Employer Details
Legal registered name:	Pearl Recruitment Group
Trading name:	Pearl Recruitment Group (WA) Pty Ltd
Australian Business Number (ABN):	75145084046

This information was incorrect as she had not worked for Peal Recruitment  Group Pty Ltd.

1. Ms Pritchard provided submissions in response to a request at the first hearing on whether the work conducted for Lifeblood in Adelaide could be considered bushfire recovery work and therefore specified work, however this was not pressed at hearing. 

2. Ms Pritchard’s employment placement at Lifeblood was paid employment conducted in the Adelaide CBD and involved contacting potential and current blood donors, and managing enquiries from people and organisations who wanted to donate blood.  Ms Pritchard says she was required to ask health screening questions to determine suitability to donate blood.  The demand increased during events such as bushfires. 

3. While an increase in blood donations indirectly benefits people who had a medical crisis as a result of the bushfires, the Tribunal does not consider this was bushfire relief work as defined in the Migration (LIN 20/103 Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020 (LIN20/103).

4. Ms Pritchard acknowledges the answers and the information provided in her visa application about her work with Pearly Recruitment was incorrect, and she did not work for Pearl Recruitment.  The Tribunal finds that there was non-compliance with  s 101 of the Act by Ms Pritchard in the way described in the s 107 notice.

   Should the visa be cancelled?

5. 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).

6. 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.

7. 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.

   Ms Pritchard’s response to the s 107 notice

8. In response to the s.107 notice, Ms Pritchard provided a statutory declaration about her circumstances in which she said she said she was living in Tolga in far north Queensland and working on farms to complete he regional work.  She declares she suffered derogatory, crude and unacceptable actions from the farmer, and she was not mentally equipped to return to complete her regional work.  She and her partner moved to Adelaide in March 2020, however following COVID companies were not hiring, working hostels were not taking in workers, and travel within the state was limited.  After 6 weeks she commenced working for Lifeblood and that “working in Healthcare, particularly in a regional city such as Adelaide contributed to my days needed to obtain my third-year visa.”  She declares the thought of returning to the United Kingdom terrified her and she took ill-advice and made an out of character decision to do the wrong thing. 

9. Ms Prichard declares she is now working as a talent acquisition adviser for a global company and her focus is to assist people, specifically in Victoria who were negatively affected by COVID into federal and State Government positions.  Her partner is working in the construction industry, and has been offered sponsorship to continue working with his company.  She stats she is regretful, and it is out of character.

10. Ms Pritchard provided a statutory declaration from her partner Mr Charles Ackerly, references from the Head of Talent and the Talent Project Lead at Serco where she has worked as a recruitment consultant since 11 March 2021, payslips from her employment, a reference from her partner’s employer, a statutory declaration from a co-worker at Lifeblood and a statutory declaration from her supervisor at Lifeblood.  She also provided payslips for the period 23 May 2019 to  27 June 2019  for Willing Workers Tolga and one payslip for Leadwood Pty Ltd for the period 8  - 14 July 2019. 

11. Mr Pritchard provided to the Tribunal a further statutory declaration stating the situation at the farm left her feeling scared and vulnerable, and “removed the option of returning to a normal farm”.  She had competed her traffic control course in two states.  She reiterated she was terrified of COVID in the United Kingdom and was concerned for her physical and mental health were she to travel at the time.  She states there were a lot of stories in the backpacker community about the changes to requirements due to COVID.  She declares she believes he work with Lifeblood would secure her third-year visa and she would not be in this position if she had been honest with that information. 

12. Ms Pritchard also provided a further statutory from her supervisor at Lifeblood stating she worked at Lifeblood from 14 April 2020 – 18 December 2020, with the role being to take incoming and make outgoing calls from and to contact for people wanting to donate blood.  Following the bushfires in early 2020 they received an increase in people wanting to donate blood in response to appeals and contacted previous donors to gain their support. People in the role of Ms Pritchard ask potential donors travel and medical questions to determine eligibility.  They call donors ahead of visits from a mobile blood donor bus to ensure they are available and eligible on the dates the bus is in the area.  Ms Pritchard also provided a payslip from Smaart Pty Ltd for her work at Lifeblood.

    A. Prescribed circumstances

    The correct information

13. The correct information is that Ms Pritchard did not work for Pearl Recruitment between 13 January 2020 and 2 August 2020 and did not undertake specified work in regional Australia as defined in LIN 20/013.

    The content of the genuine document (if any)

14. Ms Pritchard did not provide bogus or false documents, and this does not apply. 

    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

15. Under cl.417.211, a requirement for the grant of the visa included that she had carried out specified work for a period of at least 6 months.

16. The type of work specified is in LIN 20/013.  Ms Pritchard had not carried out specified work for 6 months, and she did not meet the requirements for the grant of the visa.  The information she provided was to incorrectly claim she met the requirements of the visa.

    The circumstances in which the non-compliance occurred

17. Ms Pritchard said she travelled to far north Queensland to do her regional work and was staying in  a backpacker hostel.  She was working on a banana farm and was getting regular work.  The owner of the hostel organised work and put up lists each day of where each person was working for the day.

18. During this time, Ms Pritchard said that during a party at a local house another of the local workers tried to prevent her leaving the party and tried to kiss her.  She said she had to force her way out of the property.  The following week he approached her at a local hotel to apologise and said he had acted inappropriately.  That night he came to the hostel while drunk and was inappropriate and aggressive.  The other residents at the hostel got him to leave.  She said the police were not called, but he was being inappropriate, and she was shaken. 

19. After this Ms Pritchard said she did not get any other work at the farm for a month, which she found frightening as she had no income.  Her partner and her friends supported her.  Towards the end of this time, she had another two weeks of work at a different farm.

20. Ms Pritchard said she approached the manager of the hostel about the security of the premises, as it was all open but was told they were “all adults here”.  The manager is also the person who put up the lists of who worked at which farm.  She said she asked why she was not being listed, but the manager said he did not know.  She said she attributes her lack of work to the incident with the local worker.   It is not immediately apparent how the actions of a co-worker led to Ms Pritchard not being given further shifts on the banana farm, as Ms Pritchard said the person was not in a management role. 

21. Ms Pritchard said she and her partner decided to move to Adelaide to do construction to complete her regional work, and she did a traffic control course.  When they arrived in March 2020 the borders closed and there were limited work options.  She could not work at the hostels as they had closed, and she found a job through an agency for Lifeblood.

22. Ms Pritchard said that she was panicking about meeting her regional work requirements, and through contacts in the backpacker community found a person, who she said she could not name, who completed the visa application for her for  payment.  

23. The visa application included detailed information such as the ABN of the reported employer, details of work done for the Aboriginal community, and contact details such as an email address and mobile number for the purported employer.  Ms Pritchard said the person to whom she paid money filled out the visa application for her.

24. While the Tribunal appreciates Ms Pritchard was shaken by her experiences and was not given the work she may have expected in Queensland, she did return to work at a different farm before she left Queensland.  It is also appreciated that circumstances changed when Ms Prichard and her partner arrived in South Australia due to COVID.  However, this does not excuse the payment of money to falsely complete a visa application and a failure to declare her actual circumstances.   

    The present circumstances of the visa holder

25. Ms Pritchard is on a bridging visa in Australia pending the outcome of her application to the Tribunal.   If her visa had not been cancelled, Ms Pritchard acknowledges it would have expired in approximately October 2021.  As this was her third working holiday visa, she is not eligible for further visas of this type.  It follows that even if the visa had not been cancelled, it would have expired approximately five months ago. 

26. Ms Pritchard states her partner is in the process of apply for a work visa, however she is not names as a secondary applicant on this application due to the s 48 bar. 

27. Ms Pritchard’s current work and relationship with her partner weigh against cancelling her visa, however limited weight is place on this factor as her partner is also a citizen of the United Kingdom who is currently temporarily in Australia, and it was not suggested her current job could not otherwise be filled.

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

28. The obligations in Subdivision C of Division 3 of Part 2 contain the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.

29. Ms Pritchard acknowledges she had provided false information when this was put to her and has not sought to conceal her wrongdoing in this regard. 

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

30. There are no other instances of non-compliance before the Tribunal. 

    The time that has elapsed since the non-compliance

31. Ms Pritchard applied for the visa on 12 August 2020, and it is approximately 18 months since the non-compliance. 

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

32. There are no other breaches of the law before the Tribunal. 

    Any contribution made by the holder to the community.

33. Ms Pritchard worked for Lifeblood taking incoming calls and making outgoing calls from 14 April 2020 -18 December 2020 and for Serco in recruiting from 11 March 2021.  Her employment with Serco was originally through an agency, and she has been employed directly by Serco since November 2020.  She has progressed in her role in Serco to be a lead recruiter for health centres in Victoria, South Australia and Tasmania. 

34. Ms Pritchard has previously worked in Adelaide at Lifeblood, taking incoming and making outgoing calls to potential and current donors.  This work was conducted through an agency.  This is not specified work for the purposes of a Subclass 417 visa.

35. Ms Pritchard states she contributes through her employment with Serco and participates in charity events through work.

36. Ms Pritchard’s current employment for Serco is in recruiting health professionals to be stationed on Australian Defence Force bases and involves assisting candidates to meet the health and security requirements for these positions.  This is not specified work for the purposes of a Subclass 417 visa. 

1. However, Ms Pritchard has contributed through the community by undertaking paid work.

   B. Other circumstances

   Whether there would be consequential cancellations under s 140.

2. There are no consequential cancellations in this case, and this does not apply.    

   Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

3. Ms Pritchard does not claim that removal would result in a breach of non-refoulement or family unity obligations.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

4. If Ms Pritchard’s visa is cancelled, her bridging visa will cease, and she will become an unlawful non-citizen unless she can apply for another visa.  As her visa was cancelled, there are limited other visas for which she may apply (s.48 of the Act).

5. If she is an unlawful non-citizen, she is liable to be detained under s198 of the Act and removed from Australia under s.197 of the Act.

6. If Ms Pritchard applies for other visas from the United Kingdom, she will be subject to Public Interest Criterion 4013.  This requires a period of three years to have passed since her visa was cancelled unless there are compelling or compassionate circumstances affecting an Australian citizen, Australian resident or eligible New Zealand citizen that justify the grant of the visa.   Ms Pritchard’s visa was cancelled on 31 May 2021, and unless she meets the other requirements will not be eligible for a visa until 1 June 2024.

   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

7. Ms Pritchard lives with her partner and another friend and says that if her visa is cancelled this will result in some financial hardship to her partner and friend as they will need to meet the cost of the rent. 

8. Ms Pritchard says that if her visa is cancelled, this will mean the end of her relationship as she could not expect her partner, while also a citizen of the United Kingdom, to return to the United Kingdom with her.  

9. Ms Pritchard, her partner, and her current flatmate will suffer some financial hardship and distress if her visa is cancelled.  Ms Pritchard states that her relationship with her partner will end if her visa is cancelled. 

10. Ms Pritchard has family in the United Kingdom, including her parents and a sibling, and will be able to live with her parents if she returns to the United Kingdom. 

11. It was submitted that my previous decision in Joshi[1] supported not cancelling Ms Pritchard’s visa.  This was a different visa type and occurred in circumstances that did not involve the deliberate falsification of a visa application.  In that case the person had worked in the occupation and at the location for which he was sponsored and did not provide incorrect information in his application.

    [1] [2018] AATA 1686

    CONCLUSION

12. If Ms Prichard’s visa is cancelled, she will lose the opportunity to apply for a work visa from within Australia, and states this will be the end of her relationship with her partner.  She experienced a distressing incident during her work in Queensland but was able to return to farm work before coming to South Australia.  On relocating to South Australia, circumstances changed because of COVID, and it became harder to obtain the specified work she required.   

13. However, Ms Pritchard deliberately provided false information on her visa application to be granted a visa and paid for the information to be provided for her application.  She did not meet the requirements for the visa.  Had her visa not been cancelled, it would have expired several months prior to this decision. She will return to the United Kingdom where she has family support. 

14. 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.

15. Having had regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kate Millar
    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.