Reeves (Migration)

[2021] AATA 4616

Reeves (Migration) [2021] AATA 4616 (11 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Heidi Reeves

CASE NUMBER:  2113444

HOME AFFAIRS REFERENCE(S):          BCC2020/2727667

MEMBER:Jennifer Cripps Watts

DATE:11 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 11 November 2021 at 6:58pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information in visa extension application – specified work in regional area for 3 months – discretion to cancel visa – genuine attempt to complete work but underpaid, bullied and abused – mental health – paid third party to lodge application – incorrect information conceded at first opportunity – remorse and character references – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

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 Minister cancelled the visa on the basis that the applicant provided incorrect information in her subclass 417 working holiday (extension) visa application granted on 21 October 2020.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The visa was cancelled on 28 September 2021.  The applicant lodged a review application, within time, and provided the Tribunal with a copy of the primary decision record.

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

5. 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

6. 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.

7. 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.

8. In the present matter, the Tribunal has considered the Notice of Intention to Consider Cancellation (NOICC) sent to the applicant on 3 September 2021.  The Tribunal is satisfied that the Minister had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 of the Act complied with the statutory requirements.

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act, in the following respects, relating to incorrect information provided in the visa application. 

10. To be granted a second 417 working holiday visa, an applicant must have undertaken specified work for a period of 90 days and provide evidence in support.  The applicant, who knew she had not completed the required specified work, obtained the services of a man named Lee Hansol, who said he could help her lodge the visa application including information that made it appear she had done the work.  The application for the subclass 417 visa that is the subject of this review was lodged online on 21 October 2020 and submitted from email address [email protected].  The visa was granted on the same day.  In the visa application:

    ·at page 1 of 11, the applicant answered ‘Yes’ to the question ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’

    ·the applicant provided details of claimed employment with Lincara Pty Ltd, trading as Wandin Valley Farms, in the section ‘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’

11. The applicant responded to the NOICC, in writing, on 14 September 2021 and included in the response that she ‘did not complete my farm work’.  She had some payslips for actual work, but obtained additional false payslips from Lee Hansol, who had been recommended to her by other backpackers.  The applicant claims that she made genuine attempts to complete the required three months specified work in a regional area but says she was underpaid, bullied and verbally abused by the woman in charge of the hostel accommodation, and that this very seriously affected her mental health.  Then, after this experience, although she tried to find other specified work, she was unable to.  Details were provided in the applicant’s response to the s.107 notice and they were also discussed at the Tribunal hearing. 

12. The applicant has not sought to deny that she provided the incorrect information, in her application for the subclass 417 visa on 21 October 2020, as it was described in the s.107 notice.  She has not concocted a false or more favourable version of events to give the appearance that she was unaware that the incorrect information had been provided, or to blame someone else for providing it.  The applicant has not disputed that she provided what she described as ‘false’ information relating to farm work, that she has conceded was not undertaken by her during the period 16 March 2020 to 5 July 2020, at Wandin Valley Farms Pty Ltd. 

13. The Tribunal has carefully considered information relevant to the question of non-compliance, including documentary evidence and oral evidence given by the applicant and finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

14. 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).

    Background

15. The applicant provided information, in writing, to the Department about the circumstances relating to the provision of the incorrect information.  In 2020, the applicant decided she would apply for her second subclass 417 working holiday visa.  She said backpackers all talk to each other and she was aware that she need to undertake 90 days of specified work, essentially farm work in a regional area.  She made the necessary arrangements, arrived in Bundaberg on 2 June 2020 and checked into one of the Dingo Blue Backpackers called Dingo Base, excited to start her farm work experience.  When she was shown to her room, the applicant said it was dirty, with ‘cigarette butts and alcohol in the beds and rubbish everywhere’ and the beds ‘were itchy’.  She and her roommate cleaned the room.  The applicant complained to the manager, a woman whose name she said was Wanda. 

16. From the time the applicant complained about conditions, she claims that Wanda bullied and verbally abused her, said insulting things to and about her in front of other backpackers, and favoured giving work to other backpackers above her.  She was not getting enough work allocated to her.  The applicant there were days when she was sent to pick tomatoes or strawberries where there was not much fruit to pick and, because they were paid by quantity or the bucket, she received $11 one day and $30 on another for working from six in the morning until one in the afternoon.  The applicant said one week, she was paid a total of $200 and, with the hostel accommodation charge of $180, she didn’t have enough money to live on.  She was unable to pay the rent at the hostel.  After about a month, one night, without warning, Wanda evicted her from the hostel, giving the applicant only 15 minutes to pack her things and leave.  The applicant had no money and some friends helped her find alternative accommodation.

17. Witness statements have been provided by the applicant that support the description of the behaviour the applicant was subjected to at the hostel in Bundaberg in June 2020 and the Tribunal accepts the applicant’s version of events.  The applicant said she was left so ‘broken’ by the experience that her mental health and ‘crippling anxiety’ left her ‘emotionally drained’ and described the experience at the hostel as ‘horrendous’.  The applicant made a complaint about the bullying and abuse at the hostel to the hire manager, Dave, who she said was very understanding.  The applicant said she believes that not long afterwards Wanda’s employment was terminated  The applicant was asked if she considered making a formal complaint to Fair Work and said that she discussed it with friends but didn’t end up making a formal complaint.

18. After the applicant left the hostel in Bundaberg, she went back to Brisbane and stayed with friends and then returned to Cairns with the intention of working on a banana farm.  She had made arrangements but, when she got there another backpacker told her some ‘horror story’ about that place as well;  they said the place was awful, the rooms had no windows and the applicant said she could not face going through the same bad experience again. 

19. It was around this time, when the applicant had returned to Cairns, that she was told by a friend and other backpackers that there was ‘a guy’ who could help her.  At the Tribunal hearing the applicant said that she was told that a lot of people were using him to get their second working holiday visa.  She got his email address and contacted him; he told her that he had been helping people since 2009.  The applicant said she was nervous, and in two minds, but ultimately she ‘made the decision and did it’.  The applicant was asked the name of the guy and how much she paid him and responded that his name is Lee Hansol, that he is ‘very well known among travellers’, and that she paid him $1,000 to lodge the subclass 417 visa application for her on 21 October 2020.

20. The applicant presented as highly credible at the Tribunal hearing.  She has admitted that she provided the incorrect information at the first opportunity when it was put to her in the s.107 notice and has expressed genuinely her remorse and regret at having made what she describes as the ‘wrong decision’.

21. In exercising the discretionary 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).

22. For the most part, the background above is information that was provided by the applicant in response to the s.107 notice, including some additional details and clarification that were given in oral evidence at the Tribunal hearing. 

23. The prescribed circumstances to be considered by the Tribunal in exercising its discretionary power 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 (essentially about incorrect answers)

    ·     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

24. It was discussed with the applicant at the Tribunal hearing how much farm work she did while she held her first working holiday visa, before applying for the second working holiday visa in October 2020.  The applicant said, truthfully which is to her credit, that she did not do the required three months’ work and conceded that if she had provided the correct information, she knew she would not have met the requirements for the grant of the visa.  It is accepted that the applicant is remorseful about providing incorrect information with the application.  However, it cannot be overlooked or considered an insignificant matter that the decision to grant the visa was at least based partly, and substantially, on the incorrect information that was provided.  There is no information before the Tribunal to suggest that the applicant provided a bogus document.

25. The circumstances in which the non-compliance occurred have been detailed already.  The applicant’s experience at the backpackers hostel in Bundaberg in June 2020, and the impact it had on her mental health, left her feeling drained and she made the wrong decision to engage the services of Lee Hansol to lodge the visa application including information to satisfy the Minister that she had undertaken the specified regional work for the grant of the visa.  The Tribunal does not wish to minimise the experience she endured in Bundaberg and the debilitating effect it had on the applicant, however she knew she was paying someone to provide incorrect information relating in her visa application when it was lodged on 21 October 2020.  The conditions at the hostel and relating to the farm work may have been circumstances that were beyond the applicant’s control, but it was not beyond her control that incorrect information was provided in the visa application.

26. The applicant said at the hearing that since being granted the visa in October 2020, that she tried to find suitable work, but has not been very successful.  She has been supported financially by her father when she has needed it.  He lives in England.  Since the visa was cancelled, the applicant said she has not been working, because she does not have work rights.  Prior to that, she had managed to obtain some bar work, but had been looking for work in the health sector; she has around five years’ experience in healthcare in the UK and, after the working holiday, was planning to study nursing in Australia with a view to settling here.

27. It has been around a year since the non-compliance.  The Tribunal has had the benefit of speaking with the applicant face to face and there is no information indicating that there have been any other instances of non-compliance by her or any breaches of the law.  The applicant was asked at the hearing whether she has engaged in any community work while in Australia, paid or unpaid, and confirmed that she hasn’t.

    Consequential cancellations under s.140 and the effect on any children

28. The applicant confirmed at the Tribunal hearing that she has no immediate family in Australia.  The Tribunal is satisfied that there would be no consequential cancellations under s.140 of the Act and that there are no children who would be affected by cancellation of the visa.

    Australian’s non-refoulement or family unit obligations

29. The applicant is a citizen of the UK.  There has been no claim made by the applicant, and there is no evidence before the Tribunal, that her removal from Australia would be in breach of any non-refoulement or family unit obligations.

    Mandatory legal consequences

30. The Tribunal has considered facts and matters relevant to the question of whether there are mandatory legal consequences, such as whether the applicant 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.

31. If the applicant was required to depart Australia and did not depart before any bridging visa she may hold ceased, unless she departed or made another valid application, she may become unlawful and be subject to detention and removed from Australia.  There very are limited options for a person whose visa has been cancelled to make a valid onshore application.

    Other relevant matters

32. The Tribunal has considered the evidence of the applicant that she was hoping to study nursing and make Australia her home and acknowledges that the cancellation is likely to cause her potentially significant emotional and financial hardship.  The Tribunal is not without sympathy for the position the applicant now finds herself in.

33. The applicant also provided very positive character references to the Department and Tribunal from people who know that the applicant did not do the farm work, but who all say that it is completely out of character for her to do anything wrong or dishonest, and the Tribunal has considered them.

    Conclusion

34. It is a condition, for the grant of a second subclass 417 working holiday visa, and one of which the applicant was aware, that 90 days’ specified work must have been undertaken to be eligible for the visa.  It is effectively an essential requirement that must be satisfied for the visa to be granted.  The Tribunal has considered matters for and against cancellation and, on balance, the matters in favour of cancellation outweigh those against.

35. 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

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

    Jennifer Cripps Watts
    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.