Speight (Migration)

[2021] AATA 4397

Speight (Migration) [2021] AATA 4397 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Josh Speight

CASE NUMBER:  2108290

HOME AFFAIRS REFERENCE(S):          BCC2020/2272781

MEMBER:Catherine Carney-Orsborn

DATE:8 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 08 November 2021 at 9:27am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers in second extension application – specified work in regional area for 6 months while holding first extension – verification checks showed applicant never worked for claimed employer – no responses to department’s notice or tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 359, 395C, 360(3), 363A
Migration Regulations 1994 (Cth), r 2.41

CASES
Hasran v MIAC [2010] FCAFC 40
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his application for a Subclass 417 (Working Holiday) (extension) 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. On 8 October 2021, the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide information and comments on adverse information that it considered would be part of the reason for affirming the decision under review in writing.

4. The invitation was sent to the last address provided in connection with the review and advised that, if the information and or comments were not provided in writing by 22 October 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant has not provided the information or comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or comments.

6. 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

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: the applicant declared having completed at least six months of specified work in a designated area in Australia whilst he held either a Working Holiday visa or a bridging visa that was in effect and granted on the basis of the application for the Working Holiday extension visa and that work was carried out after 1 July 2019.

11. On 27 August 2020, the applicant lodged an application for a Working Holiday extension visa online. In that application, the applicant provided the Department with answers in relation to his claimed employment as being from 13 January 2020 to 2 August 2020 in Land Development and Site Preparation Services for Pearl Recruitment Group (WA) Pty Ltd. The applicant was granted an extended Working Holiday visa based on the information provided and claimed employment.

12. On 3 September 2020, as part of the Department’s integrity employment checks, the Department received confirmation from the claimed employer that the applicant in fact never worked for them.

13. On 24 May 2021, the Department wrote to the applicant in the form of a s 107 notice outlining the reasons for an intention to cancel his Working Holiday visa, being the provision of incorrect answers when completing the application form. The applicant was given the opportunity to respond within 14 days addressing the incorrect information.

14. The applicant did not respond to the Department within 14 days.

15. On 22 June 2021, the Department notified the applicant that his Working Holiday visa had been cancelled. On 27 June 2021, the applicant lodged a review of that cancellation with the Tribunal.

16. Departmental records indicate that the applicant held previous Working Holiday visas since 13 September 2018.

17. On 8 October 2021, the Tribunal wrote to the applicant inviting him to comment and provide information on adverse information as follows:

    Departmental records indicate that you did not comply with s 101(b) of the Act regarding the provision of correct answers in your visa application on 27 August 2020. Section 101(b) of the Act states:

    A non-citizen must fill in or complete his or her application form in such a way that:

    (b) no incorrect answers are given or provided.

    On 27 August 2020, you indicated in your Subclass 417 (Working Holiday) visa application that you had completed work in Land Development & Site Preparation Services for Pearl Recruitment Group (WA) Pty Ltd from 13 January 2020 to 2 August 2020. Based on the above information, as well as meeting other relevant criteria, you were granted your Working Holiday (Extension) visa on 27 August 2020.

    Departmental records indicate that you did not complete at least six (06) months of specified work whilst holding your second Working Holiday (subclass 417) visa;OR whilst holding 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 you held the first Working Holiday visa (subclass 417); AND all of that work was carried out after 1 July 2019.

    The Department in conducting employment verification checks received confirmation from your claimed employer that you in fact never worked for Pearl Recruitment in WA with the business registered under ABN 75145084046.

    On 4 May 2021, the Department wrote to you notifying you of the intention of cancelling your Working Holiday (Extension) (subclass 417) visa. You were given 14 days to respond to the letter with reasons why your visa should not be cancelled. You did not respond on time.

    This information is relevant to the review because if we rely on this information in making our decision, we may affirm the decision.

    You are invited to give comments on or respond to the above information in writing.

    You are also invited to provide the following information in writing:

    •         why you think you have complied, or why you have not complied, with section    101(b); and

    •         why you think your visa should not be cancelled (you should provide reasons   why you think your visa should not be cancelled including any compelling or compassionate reasons you think your visa should not be cancelled); and

    •         provide any supporting evidence.

    18.The Tribunal provided the applicant with 14 days to respond to the invitation letter.

    19.The applicant did not respond to the Tribunal’s request to provide comments or information on the above adverse information held on the Department file.

    20.The Tribunal is satisfied on the evidence before it that the applicant provided incorrect answers in his visa application.

    21.For these reasons, the Tribunal finds 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?

    22.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).

    23.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.

    24.The applicant has not responded to requests to comment or provide information on the incorrect information; therefore, the Tribunal only has the information held on the Department file before it.  On the information before it the Tribunal is satisfied that the correct information was that the applicant did not work at the place and for the time he stated in his application for the visa.

    25.There is no relevant genuine document before the Tribunal for it to consider. 

    26.The decision to grant a visa was based on the applicant providing details of specified work in a regional area.  As the Tribunal has found that this did not occur then the decision to grant the visa was based on incorrect information supplied by the applicant.

    27.The non-compliance occurred when the applicant applied for the visa.

    28.As the applicant did not respond to any requests for comment or information to the Department or the Tribunal the Tribunal has no evidence of the applicant’s present circumstances before it. 

    29.There is no evidence before the Tribunal of the applicant contacting the Department nor is there any evidence of previous non-compliance by the applicant.

    30.Since the non-compliance in August 2020 over a year has elapsed.  The Tribunal does not have any information before it to indicate this has impacted adversely on the applicant. Nothing before the Tribunal indicates that there were any breaches of the law since the non-compliance.  There is no evidence before the Tribunal to indicate any contribution by the applicant to the community.

    31.The Tribunal has considered and had regard to the above considerations, however, is not satisfied that on the information before it that there are any mitigating factors for not cancelling the applicant’s visa. 

    32.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.

    33.The Tribunal has considered the above issues.  On the information before it there are no other persons whose visa may be consequentially cancelled, there is no information on any children whose interests would be affected by the cancellation. There is nothing to indicate that cancellation would lead to any breaches of Australia’s obligations under international obligations. 

    34.There are mandatory legal consequences if the applicant’s visa is cancelled.  He will become unlawful and liable to detention and removal. He will also be subject to a s48 bar and public interest criterion for a period of time.  While these consequences may cause the applicant difficulty, they are a consequence of his non-compliance with s101 of the Act.

    35. The Tribunal has considered all the above on the information and evidence before it, the Tribunal is not satisfied that there are any circumstances which warrant the Tribunal using its discretion to set aside the cancellation.

    36.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

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

    Catherine Carney-Orsborn
    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.