Searl-Eslor (Migration)

[2022] AATA 2677

Searl-Eslor (Migration) [2022] AATA 2677 (10 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ellie Searl-Eslor

REPRESENTATIVE:  Mr Adeel Khan

CASE NUMBER:  2117877

HOME AFFAIRS REFERENCE(S):          BCC2021/328286

MEMBER:Margie Bourke

DATE:10 February 2022

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 10 February 2022 at 4:23pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – employer reported no record of applicant – impact of the COVID19 pandemic – quarantine restrictions – employment assisting delivery of COVID19 vaccinations – significant contribution to the community – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information in her application for the visa and therefore did not comply with s.101(b) of the Act. The delegate considered the relevant matters and decided it was appropriate to cancel the applicant’s visa. 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 Tribunal considered its objective is to provide a mechanism for review that was fair, just, informal, economical and quick. The Tribunal considered the circumstances of the applicant and the nature of the review. The Tribunal had regard to the conduct of the hearing by video which would give the applicant a fair opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and enable the Tribunal to properly assess the evidence before it. The Tribunal had regard to the circumstances of the hearing which did not involve an excessive amount of documents to be put to the applicant during the hearing. The Tribunal had regard to the restrictions on availability of in-person hearings due to the ongoing pandemic. For all these reasons the Tribunal decided this matter was an appropriate review to be conducted by video. Accordingly the applicant was invited to attend the hearing by video.

4. The applicant appeared before the Tribunal on 10 February 2022 by video to give evidence and present arguments..

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing by video with the applicant.

6. 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

7. 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.

8. 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.

9. 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?

10. 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: in the application for a Working Holiday (Extension) (subclass 417) visa lodged by the applicant on 24 November 2020 the applicant (1) recorded an answer yes to the question that she had undertaken three months of specified work, the applicant (2) provided details of the specified work including the employer’s registered name, trading name, ABN number, business address, employment type, industry type, industry type subgroup, description of duties, dates worked from 23 March 2020 to 12 July 2020, total days worked 90 days, and the applicant (3) recorded an answer yes that she had completed three months of specified work as the holder of the first working holiday visa and was applying for a second working holiday (subclass 417) visa. In the s.107 Notice, the Department recorded that during the employment verification checks with the named employer, that the employer advised the applicant had never worked at their business.

11. I am satisfied based on the information provided to the Department and recorded in the Department’s decision record dated 25 November 2021, and based on the written statements of the applicant, the submissions of the applicant’s representative, the oral evidence in the hearing and the oral submissions of the applicant’s representative, that the applicant provided the incorrect information as described in the s.107 notice. I am satisfied that the applicant recorded in her application that she had undertaken the three months of specified work, and that the applicant provided details of the employer, the type of work undertaken and the dates of the work undertaken, and this information was incorrect and false.

12. 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?

13. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

14. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

15. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

16. The correct information: – I am satisfied that the correct information is that the applicant did not undertake three months of specified work as required under the Working Holiday visa. I give this consideration weight in favour of cancellation of the visa.

17. The content of the genuine document (if any): – I am satisfied that there is no genuine document and this consideration does not apply.

18. Whether the decision to grant a visa to the applicant was based, wholly or partly, on the incorrect information: – I am satisfied that the incorrect information provided was a criteria for the grant of the visa, and the decision to grant the visa to the applicant was based on the incorrect information. I am satisfied the applicant would not have been granted the visa if she had not provided the incorrect information. I give this consideration weight in favour of cancellation of the visa.

19. The circumstances in which the non-compliance occurred: – I am satisfied that the applicant made some attempts to obtain work to fulfil the requirement of doing 88 days specified work in a regional area. I am satisfied based on the written and oral evidence provided by the applicant, that she sent two emails to farmers dated 5 March 2020 and 16 March 2020 making enquiries about possible work. I am satisfied based on the written and oral evidence provided by the applicant that she joined a Facebook group in March 2020 to obtain information about farm work available for backpackers in Australia. I accept the applicant made some telephone enquiries in relation to possible work in regional areas, in both New South Wales and Queensland. I accept that the availability of seasonal farm work for backpackers, or people on working holiday visas, was limited due to the pandemic. I accept that for some periods in 2020 there were quarantine restrictions if the applicant travelled out of New South Wales.

20. I have also considered the written statements and oral evidence of the applicant, and the statements or statutory declarations provided in support of the applicant. I accept that the applicant did not wish to return to England at that time because the pandemic was having a greater impact there, the applicant’s family members had been unwell, and there was a higher mortality rate in England. My assessment of the applicant’s choice to provide false information to the Department is because she did not wish to return to England and that she acted out of self-interest.

21. I have considered the medical report provided and accept that the applicant consulted a doctor on 16 June 2020 and 26 June 2020 for mental health issues, which are named in the report as depressive anxiety. I accept the applicant’s evidence that the treatment prescribed was mechanisms to cope with her anxiety. I accept the applicant was not prescribed any medication or referred to a psychiatrist for mental health issues. On this basis I am not satisfied that the applicant was suffering any significant mental health issues when the non-compliance occurred. I accept the applicant experienced anxiety and consulted medical professionals for this condition, however there is no evidence before me that the applicant’s anxiety is the reason the applicant provided false information to the Department. I am not satisfied that the fact that the applicant consulted a doctor on two occasions in relation to anxiety means her judgement was impacted as claimed. I am satisfied that the circumstances in which the non-compliance occurred are that the applicant was unable to fulfil the requirement of obtaining regional work, and chose to provide false information to the Department that she had completed this requirement in order to obtain a further visa to remain in Australia. I am satisfied circumstances in which the non-compliance occurred are that the applicant acted out of self-interest but in the context of a global pandemic, because she wished to obtain a further visa to remain in Australia. I give this consideration weight in favour of cancellation of the visa.

22. The present circumstances of the applicant: – I am satisfied based on the extensive evidence before me, including evidence of the applicant’s current employment and shared tenancy, that the applicant is currently living in Sydney in rented accommodation with friends and is employed by Healthcare Australia Pty Ltd. I am satisfied that the applicant is employed as a clerk who assists healthcare professionals deliver covid-19 vaccinations to vulnerable groups in the community, including people in aged nursing homes, indigenous communities and people with disabilities. I am satisfied that the applicant has employment where she demonstrates she does not act out of self-interest, and contributes in a significant way to the community. I am satisfied the applicant also currently volunteers at an op shop for a charity.

23. I have considered the extensive letters in support of the applicant and I accept that she discussed the situation with her employer, colleagues, friends and family. I accept the applicant has told these people that she provided false information to the Australian government in an attempt to obtain a further visa. I accept the present circumstances of the applicant include that she has the support of many people, including people with whom the applicant is in a position of trust, and who recommend to the Tribunal that the applicant is currently a person of responsibility, truthfulness, diligence and community commitment. I give the consideration of the present circumstances of the applicant weight in favour of not cancelling the visa.

24. Subsequent behaviour of the applicant concerning obligations under the Act: – there is no evidence before the Tribunal that the applicant has not complied with her obligations under subdivision C of the Act after the matters identified in the s.107 notice. I give this consideration weight in favour of not cancelling the visa.

25. Any other instances of non-compliance by the applicant: – there is no evidence before the Tribunal that there are any other instances of non-compliance by the applicant. I give this consideration weight in favour of not cancelling the visa.

26. The time that has elapsed since the non-compliance: – the application for the visa was lodged on 24 November 2020, and the incorrect information was provided in the application on that date. The time that has elapsed since the non-compliance is now 14 months. The applicant’s visa was not cancelled until 25 November 2021. The period that has elapsed since the non-compliance is a relatively short period of time, and the applicant was the holder of the working holiday (subclass 417) visa for most of that time. I give this consideration weight in favour of cancellation of the visa.

27. Any breaches of the law since the non-compliance and the seriousness of those breaches: – there is no evidence before the Tribunal that the applicant has breached any laws since the non-compliance. I give this consideration weight in favour of not cancelling the visa.

28. Any contribution made by the applicant to the community: – I am satisfied based on the evidence of the applicant, the statements or statutory declarations made by the supporting persons, and the information in particular in relation to her current employment and volunteer work, that the applicant makes significant contribution to the community. I am satisfied that the applicant is employed in a high health risk position in taking vaccinations to vulnerable groups within the community, and travels to regional areas on a fortnightly basis as part of her employment. I am satisfied that the applicant also volunteers in an op shop on weekends. The letters in support provided to the Tribunal by the applicant overwhelmingly suggest that she is a person who makes a positive contribution to the general community and people within her immediate circle. I give this consideration weight in favour of not cancelling the visa.

29. Consequential cancellations: – there is no evidence that there would be any consequential cancellation or that the visa of any other person would be impacted by the cancellation of the applicant’s visa. This consideration does not apply.

30. Australia’s international obligations: – there is no evidence before the Tribunal that the cancellation of the applicant’s visa would be in breach of any of Australia’s international commitments or obligations.

31. Mandatory legal consequences: – I am satisfied that the usual legal consequences would flow from the cancellation of the applicant’s visa, including the possibility of detention or deportation, and the impact of s.48 of the Act and PIC 4013 upon future visa applications made by the applicant. I give this consideration weight in favour of not cancelling the visa.

32. Other relevant matters: – I am not satisfied that the cancellation of the applicant’s visa would cause hardship to her parents. I accept that the applicant’s father is currently employed, and her mother’s self-employment business has resumed. There is no evidence before the Tribunal that the applicant’s parents would not be pleased to have her home and part of their family unit, and be willing to support her until she obtained employment. I am not satisfied that if the applicant returned to her parent’s home they would suffer financial or other hardship.

33. I am satisfied that the applicant has made connections in the Australian community, and has established community ties with friends and colleagues. I am satisfied that the applicant intends in the future to study nursing and has applied to do so in Australia. I accept that there would be hardship to the applicant if she was unable to continue her current employment in the health industry, and remain with her friends and relatives in Australia. I give this consideration weight in favour of not cancelling the visa.

34. I have considered all the matters above, and have carefully balanced all the considerations in favour of cancellation of the visa and in favour of not cancelling the visa. I give the most weight to the present circumstances of the applicant and the contribution she is making to the community. It is for this reason that the Tribunal concludes that the applicant’s visa should not be cancelled.

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 not be cancelled.

    DECISION

36. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Margie Bourke
    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.