Webster (Migration)

[2021] AATA 4870

Webster (Migration) [2021] AATA 4870 (22 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ry Webster

CASE NUMBER:  2115280

HOME AFFAIRS REFERENCE(S):          BCC2020/2748755

MEMBER:Luke Hardy

DATE:22 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 22 December 2021 at 2:47pm

CATCHWORDS            
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information given in second extension application – 6 months of specified work while holding first extension – verification checks showed claimed work not undertaken – discretion to cancel visa – information provided by third party – COVID-19 restrictions limited work opportunities – prevalence in home country – specified work undertaken after application made – 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that:

   the visa holder provided incorrect information in the application for a Working Holiday (Extension) visa 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 (WA) Pty Ltd, 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’.

3. The delegate found the above information is incorrect, as verification checks undertaken by the Department had concluded that the visa holder never worked at (or through) the labour hire business named Pearl Recruitment Group (WA) Pty Ltd.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared by telephone before the Tribunal, constituted by me, on 16 December 2021 to give evidence and present arguments.

6. The hearing was held during the COVID-19 pandemic. I exercised the Tribunal’s discretion to hold the hearing by telephone, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances and health of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to the avoiding undue delay to the matter were the hearing not to be conducted by telephone.

7. There were no audio or other factors affecting clear communication during the hearing. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. 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

9. 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.

10. 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.

11. 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?

12. 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) in that the applicant, on 26 October 2020, had given incorrect information about having worked for the Pearl recruitment group from 9 March to 30 August 2020.  

13. At the Tribunal hearing, the applicant acknowledged that he had knowingly provided the incorrect information as described. He described having used the services of a person going by the name of “Lee Hansol” to falsify a history of having worked in regional Australia for the period described.

14. There is no question that there was non-compliance with the visa.

15. For these reasons, the Tribunal finds that there was non-compliance by the applicant with s 101 of the Act in the way described in the s 107 notice.

    Should the visa be cancelled?

16. 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).

17. 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.

18. 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.

19. To argue that the visa should not be cancelled, the applicant told the delegate that when he was granted his second Working Holiday visa, his plan was to stay another summer in Sydney, do some travelling and return then home at the end of his visa. He said that at the end of the summer of 2019-20, Covid-19 cases began to appear in NSW, leading to the introduction of lockdown. He said he then lost his job which meant he was spending his savings. He said that, as time went by, he decided to stay in Sydney hoping cases would drop in Australia and in the UK, however this did not happen as hoped. He said he managed to find full-time work in Sydney with a steady income, and knew that if he returned to the UK at that time it would be difficult to find work due to the pandemic and lockdowns there. He said that time started to fly by and that by August-September 2020 he suddenly had only three months left on his visa and a lot of concerns about leaving the country. He said that by the time it came to October 2020, Covid-19 cases in the UK were “going through the roof,” with nearly 1,000 cases per week, while in Sydney, he had a job, a roof over his head and good health. He said he would have been putting himself at huge risk for no reason if he had returned to the UK, and that this led him to applying for the Working Holiday (Extension) visa in the way that he did. The applicant said he deeply regretted choosing the visa path he took, and apologised for his decision.

20. At the Tribunal hearing, the applicant said that he opted to use the services of Lee Hansol to falsify his second working visa application because, at the time, he saw it as his “only option.” He said that farming work was hard to find with the onset of the first wave of Covid-19 in 2020 and that he thought he was running out of time to perform the requisite work. He said he had heard that people who utilised Lee Hansol were granted their visas within 10 days. He also said that the “Covid visa” for people stuck in Australia and at risk of overstaying visas here, had only just came out and that there was not much information about it. He said he first approached Lee Hansol in October 2020. I put to him that information about the Covid visa was published by the Department of Home Affairs as soon as the visa became available, and at least by April 2020.

21. In response to this, the applicant said, “It wasn’t like it was being given out like … as much as I needed … in terms of what was going on back home.” He said that his parents had foster children taking up all available accommodation at home and that he had been “sofa surfing,” as it were, in UK before he came here. He said that he had been certain that that would be his only option on return to England and not a very good one given the Covid-19 pandemic in the UK. He said that the visa obtained with help from Lee Hansol was set to give him an extra year here.

22. I asked the applicant how he would be affected in the event that this review application were unsuccessful. He said he has a job here that he had started “six weeks ago.” He said his employers needed him to stay on at least into the New Year. He said that he hoped to be able to stay here at least until the end of January 2022, when he would have a bit more money. He said if he could stay until then or longer, his mental health would be better. He did not provide any expert evidence of poor mental health, but he said he had been in a relationship that ended in January 2021. On this evidence, he was in a relationship in Sydney during the period he claimed to be working in regional Australia. In any event, he said that after the break-up he did go to work in regional Australia for six months and that doing so was god for his mental health and “the best decision I ever made in Australia.” He said he worked for a pacing company in Darwin  from February to April 2021 and then worked on a Paspaley Co. pearling farm from April to August 2021, for almost five months. He provided screen captures of bank statements to show he received salary from these jobs over the period discussed. I accept that the evidence is genuine and I accept that the applicant indeed worked in regional Australia for six months in 2021. He appeared to ask that I weigh this as an effort to comply substantially, if belatedly, with immigration requirements to make up for the incorrect information previously provided.

23. The applicant said his current job is in window fitting in the construction industry, which has been hard hit by lockdowns in 2020 and 2021.

24. The applicant said it would be a significant change for him to have to re-start back in the UK, particularly I view of the likely difficulty for him finding accommodation, and reminded me of the Covid situation there.

25. I have assessed the applicant’s evidence and all the prescribed circumstances as set out in Migration Regulation 2.41 is as follows:

    (a) the correct information

26. I accept that the applicant is remorseful for submitting incorrect information to the Department. Whilst I acknowledge that the Covid-19 pandemic affected the job market and impacted on his plans to return to the UK, I nevertheless find that he consciously decided to submit the incorrect information in his Working Holiday (Extension) visa application, gaining an immigration benefit to which he was not entitled as a result. The correct information is significantly different from the information subsequently provided and I give this consideration significant weight.

    (b) the content of the genuine document (if any)

27. This consideration does not apply in the present case.

    (c) 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

28. Clearly the decision to grant the visa was made on the basis of the incorrect information cited in this matter. I give this factor some eight.

29. (d) the circumstances in which the non-compliance occurred

30. Having considered the applicant’s testimony, I am satisfied that the circumstances that led to the non-compliance arising in this case were not outside of the applicant’s control, and that they do not outweigh the existence of the ground for cancellation.

    (e) the present circumstances of the visa holder

31. I give little weight in this matter to the claims about menta health in that they are unsupported and because the applicant says his moral has markedly improved this year.

32. That said, I do give some weight in the applicant’s favour with regard to the potential financial and emotional hardship that will arise if the visa remains cancelled and he is required to return to the UK.

    (f) the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958

33. The delegate noted that the applicant responded to the NOICC in the prescribed timeframe, confirming that the answers he submitted to the Department in relation to his claimed regional work were incorrect. I note that he has been forthcoming with the correct information from this time. There is no information before me to indicate that subsequent to the NOICC being issued, the applicant has not complied with any of his obligations under Subdivision C of the Act. In fact, as noted, I find that he undertook six months’ work in regional Australia in 2021. I give these consideration some weight in the applicant’s favour.

    (g) any other instances of non-compliance by the visa holder known to the Minister

34. There are no other known instances of non-compliance by the applicant, and I give this consideration some weight against cancelling the visa.

    (h) the time that has elapsed since the non-compliance

35. The non-compliance occurred when the visa holder provided incorrect information in his Working Holiday (Extension) visa application lodged 26 October 2020. The visa was subsequently granted on the same date. Just over one year has elapsed since the non-compliance. In my view, this is not a significant period. Meanwhile, there is no information before me to indicate that the applicant has established strong ties to Australia in this time. All things, considered, I give this consideration little weight in his favour.

    (j) any breaches of the law since the non-compliance and the seriousness of those breaches

36. There is no evidence before me to the effect that the applicant has breached any laws since the non-compliance. I give this consideration a little weight in his favour.

    (k) any contribution made by the holder to the community

37. Although he has evidently performed paid work in the Covid-affected construction industry, there is no information before me to suggest that the applicant has made a significant contribution to the Australian community. Hence I give this consideration very little weight in his favour.

38. I have also taken into account the following matters:

    Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.

39. On the evidence before me, I am not aware that any other person's visa would, or might, be consequentially cancelled under section 140 of the Act. Accordingly I am unable to give any weight either way with regard to this consideration.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.

40. The applicant has not evidently applied for protection or made any claims that returning to the UK would result in his suffering significant fear or harm. There is no information before me to indicate Australia would be in breach of its international non-refoulement obligations if the visa were to be cancelled and the visa holder had to return to his home country. There is no information before me to suggest the applicant has any children in Australia who might be affected by the delegate’s decision to cancel the visa. I am therefore satisfied that should the visa be cancelled, this action would not breach Australia’s obligations in respect to the International Convention on the Rights of the Child. Accordingly, I am unable to attribute weight either way in regard to this consideration.

    Whether there are mandatory legal consequences to a cancellation decision.

41. If the visa is cancelled, and if he does not depart Australia before his bridging visa expires, the applicant the would become an unlawful non-citizen and might be liable for detention under section 189 and removal under section 198 of the Act, as he would no longer hold a valid visa. A bar under section 48 of the Act would also be imposed, limiting his options to apply for further visas from within Australia. Further, he would also be affected by Public Interest Criterion 4013, where he might be prevented from being granted certain types of visas for a period of three years from the date of visa cancellation. I give this consideration some weight against affirming the delegate’s decision in this matter.

    Any other relevant matters.

42. I conclude that there are no other relevant matters before me to consider.

43. I have 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, I conclude that the visa should be cancelled.

    DECISION

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

    Luke Hardy
    Member

    
    

    wATTACHMENT – 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.