Ward (Migration)

[2021] AATA 4620

Ward (Migration) [2021] AATA 4620 (10 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charlie Ward

CASE NUMBER:  2107457

HOME AFFAIRS REFERENCE(S):          BCC2020/2272886

MEMBER:Louise Nicholls

DATE:10 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 10 November 2021 at 3:33pm

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 claimed work never undertaken – no response to department’s notice and consent to decision without hearing – discretion to cancel visa – application lodged by third party – COVID-19 restrictions – after second extension, would have to depart in any case – decision under review affirmed

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

CASE
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 applicant first came to Australia as the holder of a Subclass 417 (Working Holiday) visa on 11 November 2018.  While in Australia he obtained second and third working holiday visas. His third working holiday visa was granted on 8 August 2020 and cancelled by the delegate on 2 June 2021.

3. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his Working Holiday (Extension) visa application for his third working holiday visa. The delegate found the visa holder had not complied with section s.101(b) of the Act. The delegate considered the circumstances relevant to the discretion whether to cancel the visa but after consideration concluded the visa should be cancelled.

4. The applicant sought review on 8 June 2021. He provided a copy of the delegate’s decision record and a copy of the biodata page of his Irish passport issued in 2016.

5. On 19 October 2021 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 November 2021. On 28 October 2021 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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. The issue in the present case is whether there are grounds for cancellation, and if so, whether the visa should be cancelled.

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, 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.

9. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice[1] (NOICC) 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.

   [1] Notice of Intention to Consider Cancellation (NOICC)

10. 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 (NOICC)?

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.

    Particulars of non-compliance identified in the NOICC?

12. The non-compliance identified and particularised in the s.107 notice was non-compliance with s101(b) as set out below.

13. The applicant provided the following information in the Working Holiday (Extension) visa application on 8 August 2020. The applicant used the Department’s online lodgement facility, providing the following answers on the electronic visa application form:

14. The following matters were particularised in the NOICC:

    In response to the question ‘They have carried out at least six months of specified work’ the applicant answered ‘Yes’.

    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’.

    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
ABN:	75145084046
Postcode:	6151
Employer business address
Address	Level 1 Melville Parade
Suburb / Town:	South Perth
State / Territory	Western Australia
Postcode:	6151
Work address
Business name at this location:	Gumala Aboriginal corporation
Address:	Yandicoogina
Suburb / Town:	Newman
Postcode:	6753
Work conditions
Employment type:	Direct employment
Industry type:	Construction
Industry type sub-group:	Construction
Description of duties	Land Development and Site Preparation Services
Date from:	13 January 2020
Date to:	02 August 2020
Total days worked:	190 days

Under the heading ‘Working holiday declarations’, to the question ‘Have carried out at least six months of specified work; AND 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; AND all of that work was carried out after 1 July 2019’, the visa holder answered ‘Yes’.

1. Based on the above information, as well as meeting other relevant criteria, the applicant was granted a Working Holiday (Extension) visa on 08 August 2020.

2. The Department initiated employment verification checks with Pearl Recruitment Group, the business registered under ABN 75145084046, to verify the visa holder’s employment claims as set out in the application. On 03 September 2020, Pearl Recruitment Group contacted the Department and advised that the visa holder had never worked at the business.

3. In the NOICC the delegate put it to the applicant that he provided incorrect information when he

   ·answered ‘Yes’ to the question ‘They have carried out at least six months of specified work’;

   ·answered ‘Yes’ 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)’;

   ·provided details of claimed employment with Pearl Recruitment Group, at the section of the application form titled ‘Details of Specified Work Undertaken’; and

   ·answered ‘Yes’ to the declaration ‘Working holiday declarations’, to the question ‘Have carried out at least six months of specified work; AND 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; AND all of that work was carried out after 1 July 2019’.

4. In the NOICC the delegate put it to the applicant that the above information is incorrect, as verification checks undertaken by the Department have concluded that the visa holder never worked at the business, Pearl Recruitment Group and the applicant had not undertaken six months specified work in regional Australia.

   Response to the NOICC

5. The applicant was invited to respond to the NOICC; however, he did not provide a response.

   Assessment

6. The Tribunal finds that the applicant provided incorrect information, in order to facilitate the grant of his Working Holiday (Extension) visa.

7. The applicant was required to undertake specified work in regional Australia, as defined in the legislative instrument in effect at the time of visa application, for a period of six months as part of the eligibility criteria for the grant of the Working Holiday (Extension) visa.

8. In the Working Holiday (Extension) visa application, the applicant stated that he worked at Pearl Recruitment Group from 13 January 2020 to 02 August 2020, a period of 190 days. The Department received correspondence on 03 September 2020 from Pearl Recruitment Group stating that the visa holder never worked at the business.

9. The Tribunal has considered the particulars of non-compliance set out in the NOICC and the information in the delegate’s decision record. The applicant has not disagreed with or sought to qualify the information on non-compliance set out in the NOICC and delegate’s decision record. 

10. The applicant’s statement, as well as his answers, in the Working Holiday (Extension) visa application, of having worked for Pearl Recruitment Group for a period of six months 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) and which was made at a time when the applicant held the first Working Holiday visa; and all of that work was carried out after 1 July 2019’, are incorrect answers as described by s.101(b).

11. In these circumstances the Tribunal is satisfied that there was relevant non-compliance as set out in the NOICC, that is, that the applicant provided incorrect information in the application for the Working Holiday (Extension) visa application lodged on 8 August 2020.

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 r.2.41 of the Regulations.

15. With respect to the prescribed circumstances the Tribunal notes that the applicant did not respond to the NOICC nor did he make any submissions to the Tribunal concerning his circumstances.

16. From the evidence before it the Tribunal considers  

    ·     The correct information. The applicant did not respond to the NOICC and did not provide any material to the Tribunal in which he contested the information provided by Pearl Recruitment Group which was set out in the NOICC and the decision record. That is, that the applicant did not work for Pearl Recruitment Group for six months between 13 January 2020 and 2 August 2020. In these circumstances the Tribunal finds that the applicant did not undertake specified work in regional Australia as defined in the legislative instrument in effect at the time, for a period of six months.

    ·     The content of the genuine document (if any). No documents were provided, and this factor is not relevant to the consideration.

    ·     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 applicant was granted a third working holiday visa on the basis that he had completed specified work in regional Australia, as defined in the legislative instrument in effect at the time, for a period of six months. This was a requirement for the grant of a third working holiday visa. If the applicant did not meet this requirement he would not have been entitled to the grant of the visa and the delegate made the decision to grant the third working holiday visa in part on the incorrect information given by the applicant regarding his employment at Pearl Recruitment Group. 

    ·     The circumstances in which the non-compliance occurred. There is no information before the Tribunal regarding the circumstances surrounding the non-compliance.

    ·     The present circumstances of the visa holder. The applicant has not provided any information about his present circumstances. The delegate’s decision record notes the applicant has been in Australia since 11 November 2018 and his permission to work will cease when his visa is cancelled. The delegate’s decision was made on 2 June 2021 and noted that any difficulties returning to his home country during the COVID 19 pandemic could be managed under the contingency options for visa holders in Australia[2]. The Tribunal also notes restrictions have been eased since June 2021 and return to the applicant’s home country may well be feasible.

    Under the present Departmental advice, the Tribunal notes the following:

    [2] Information is available on the Department’s website at

    Temporary visa holders returning home

    Temporary visa holders impacted by COVID-19 can make arrangements to return to their home country, if border restrictions in that country allow.

    Temporary visa holders do not need an exemption to depart Australia. They can leave at any time, as long as border restrictions in their home country allow them to return.

    Temporary visa holders should be aware that if they wish to return to Australia while COVID-19 restrictions are in place, they will generally need a travel exemption. For more information see Coming to Australia.

    Remember the COVID-19 situation continues to change.

    Check each week:

    oborder restrictions

    oavailability of flights.

    Commercial flights are available from several major airports across Australia.

    You may also wish to find out if there are any private or government repatriation flights to your home country.

    If you would like further assistance to return home, you can contact your embassy or consulate in Australia.

    ·     The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act. The delegate noted, and the Tribunal accepts, that the applicant did not contact the Department to correct the incorrect information.

    ·     Any other instances of non-compliance by the visa holder known to the Minister. There are no other instances of non-compliance by the applicant before the Tribunal. 

    ·     The time that has elapsed since the non-compliance. The Working Holiday Extension visa application was lodged on 8 August 2020. Fourteen months has elapsed since the non-compliance.

    ·     Any breaches of the law since the non-compliance and the seriousness of those breaches. There is no information before the Tribunal to indicate that the applicant has breached any laws since the non-compliance.

    ·     Any contribution made by the holder to the community. There is no information before the Tribunal regarding any contributions made by the applicant to the community.

17. 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.

18. There is no evidence that there would be any consequential cancellations under s.140 of the Act or that there are children whose interests would be affected by cancellation. There is no information that suggests that returning to the applicant’s home country, that is, the Republic of Ireland, would result in the applicant suffering serious or significant harm. There is also no suggestion that the applicant’s removal would result in a breach of family unity obligations.

19. If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention if he does not depart Australia. He will also be subject to a bar which would restrict the visas he could apply for in Australia and Public Interest Criterion 4013 may prevent him from being granted certain types of visas for a period of three years from the date of cancellation.

20. With respect to other relevant matters, the Tribunal notes that the provision of incorrect information by the applicant as particularised above does not appear to be a simple error or omission which has occurred through inadvertence or even carelessness. The Tribunal considers that the provision of the specific employment information appears to have been a considered and deliberate action taken by, or on behalf of, the applicant to overcome the applicant’s ineligibility for the visa.

21. Further in the normal course of events if the applicant had been eligible for the third working holiday visa he would have been required to return to Ireland in or about November 2021 having lived in Australia for almost three years.

22. The applicant has not responded to the NOICC or engaged with the Tribunal and accordingly there is no other relevant evidence before the Tribunal, including evidence of any hardship which may be caused to the applicant if the visa is cancelled.

23. The Tribunal has considered the prescribed circumstances and other relevant matters to determine whether the applicant’s visa should be cancelled. In weighing the circumstances, the Tribunal notes that the applicant has not put forward any matters he wishes the Tribunal to take into account in considering whether the visa should be cancelled.

24. The Tribunal finds that the applicant would not have been entitled to a third working holiday visa if the correct information had been provided in his application form and further that he has deliberately provided the incorrect information or it was deliberately provided on his behalf. Further the applicant was the holder of a temporary working holiday visa and would in the normal course of events have returned, or been about to return, to Ireland having been in Australia since 11 November 2018. The time elapsed since the cancellation is 14 months which is not a lengthy period of time. No evidence of hardship has been provided and the Department has provided advice on its website about different options applicants may have in the event of an applicant having difficulty returning to their country of origin due to the COVID 19 pandemic. These factors taken together lead to the conclusion that the visa should be cancelled. The Tribunal accepts that if the visa is cancelled the applicant may face the prospect of restrictions on his eligibility for the grant of a number of visa classes for some years but overall this factor is outweighed by those other factors which indicate the visa should be cancelled.  

1. 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

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

   Louise Nicholls
   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.