2106901 (Migration)

[2021] AATA 5012

2106901 (Migration) [2021] AATA 5012 (14 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2106901

MEMBER:Michael Judd

DATE:14 December 2021

PLACE OF DECISION:  Perth

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

Statement made on 14 December 2021 at 2:16pm

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 – lockdown travel restrictions – impact of the COVID19 pandemic – decision under review affirmed          

LEGISLATION
Migration Act 1958, ss 48, 99, 100, 101, 107, 107A, 109, 111, 140, 189, 198
Migration Regulations 1994, r 2.41; Schedule 4, PIC 4013

CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 on 24 May 2021 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 visa applicant did not comply with sections 101(b) to 109 of the Migration Act 1958 (‘The Act’). Specifically, the applicant provided incorrect answers about her specified work experience in her application for a ‘second’ Working Holiday Visa (TZ-417) (subclass 417) (‘the 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 24 May 2021 the applicant electronically lodged an application for review of this decision and a hearing date was subsequently scheduled for Friday 22 October 2021. On or about 11 October 2021 the visa applicant notified the Tribunal by written response to the hearing invitation that she would not participate in the scheduled hearing and that she consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear before it.

4. 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

5. 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.

6. 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.

7. In the present matter, the Tribunal is sufficiently satisfied that the delegate did reach 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?

   The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being in 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 section 101(b) of the Act. Section 101 of the Act states:

   Section 101 Visa 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.

8. Section 99 of the Act states:

   Information 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.

9. Section 100 of the Act states:

   Incorrect answers

10. 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.

11. Section 107A of the Act states:

    Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    The possible non-compliances that:

    (a)  may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)  if so specified, can constitute a ground for the cancellation of that visa under section 109;

    include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

12. Section 111 of the Act states that, to avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.

13. By Notice of Intention to Consider Cancellation (NOICC) dated 3 May 2021 the department informed the applicant that on 1 June 2020 she applied for the visa and as part of her electronic visa application form, she provided the following information:

    In response to the question ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’ you answered ‘Yes’. Under the heading ‘Details of specified work undertaken’, you provided the following answers:

    1.Legal registered name: EKC

    2.Trading name: EKC

    3.Australian Business Number (ABN): 52607542503

    4.Postcode: 2540

    5.Industry type: Construction

    6.Industry type sub-group: Construction

    7.Date from: 02 December 2019

    8.Date to: 26 April 2020

    9.Total days worked: 94 days

14. Based on the information provided by the applicant the Department granted the visa.

    Summary of the evidence of non-compliance

15. In her application for the second working holiday visa dated 1 June 2020 the applicant gave the following answers on the electronic application form:   

    a.The visa applicant answered ‘yes’ to a question directed towards ascertaining if she had undertaken three months of specified work as the holder of a first working holiday visa (subclass 417).

    b.The visa applicant provided information by way of details of claimed employment with the entity named EKC at the section of the application form titled ‘Details of Specified Work Undertaken’. She claimed she had commenced work on 2 December 2019 and ended on 26 April 2020, being a total of 94 days worked; and

    c.Answered yes to the declaration ‘are you applying for the second working holiday visa (subclass 417) and have completed three months of specified work as the holder of a first working holiday visa’.

16. Based on this information, in conjunction with other information meeting other criteria, the applicant was granted a Working Holiday (Extension) visa on 25 June 2020.

17. The Department subsequently initiated employment verification checks with EKC, the business registered under ABN 52607542503, to verify the visa holder’s employment claims. On 31 August 2020, EKC contacted the Department and advised that the applicant had never worked at the business for 94 days from 02 December 2019 to 26 April 2020. As such, it appeared to the delegate that the visa applicant provided incorrect answers in support of her working holiday (Extension) visa application and that she had not complied with section 101(b). Accordingly, the delegate considered the visa may be liable for cancellation under section 109 of the Act and the section 107 notice was duly issued to the applicant.

    The responses to the section 107 Notice

18. The visa applicant provided responses to the section 107 notice on 16 May 2021, stating as follows:

    a.On 1 June 2020, she had applied for a Working Holiday (subclass 417) visa with incorrect answers, falsely answering that she did 3 months of specified regional work;

    b.She had limited options “during the height of COVID-19” while Sydney was in lockdown and was not able to afford the travel involved in crossing borders to find work. This caused her mental health to deteriorate;

    c.She admitted that she did not comply with section 101 (b) and deeply apologised for her actions and regretted her decision;

    d.She had attempted to find employment with several different farms, but it was difficult due to borders being shut across Australia and this reduced her employment opportunities;

    e.She reached out to many farms in Queensland, but they were not employing many backpackers from across different states as they did not want to risk the virus spreading on their farms;

    f.She “could not afford to cross borders and could not afford to pay for a place to quarantine for 2 full weeks with no guaranteed farm or a job to go to;

    g.Her mental health deteriorated; she joined Facebook groups and messaged several people in the hope of finding farming opportunities.

    h.she was desperate and her mental health also played a role which led to her non-compliance; and

    i.She agreed that she provided the Department with incorrect information when submitting her second Working Holiday Visa application.

19. Based upon this information the Tribunal finds that the applicant clearly did not perform the work as claimed in her visa application, and as such, did not comply with section 101(b) of the Act in the manner outlined in the section 107 Notice.  

    Documents submitted in support of the application for review – references and personal statement

20. The applicant provided a character reference from a [Ms A], sales manager for [Business 1], in which [Ms A] stated as follows:

    I, [Ms A], a citizen of Australia, first met [name] (the Applicant) in [Country 1] when she helped me carry my bags from the plane before we had even officially met. Apart from instantly thinking how kind she was, I was soon impressed with her work ethic and early 5am mornings [the applicant] scheduled herself in for with her work up the mountain. However, while [the applicant] threw herself into all experiences in [Country 1], I know she was yearning for a more stimulating job where she could contribute and learn more. Now that we are both back in Sydney together, I've been so happy to see [the applicant] thriving in her roles in Finance, especially in her current role as [an occupation 1] at [Employer 1]. I can tell how much she enjoys challenging herself in new ways and expanding her skill set and knowledge base. Speaking to other friends working at [Employer 1] in [her section], they've said that the stream [the applicant] is in is the hardest of an already difficult bunch. That's just another reason for why I always feel inspired after catching up with [the applicant] and hearing about the new challenges and what she's learnt. While I understand that [the applicant] has made mistakes during COVID with her farm work processing, I was her friend during the time she was trying and trying to get farm work and I felt her pain, frustration and disappointment when she was unsuccessful and I can fully sympathise with what must have felt like a very difficult and trying decision at the time. With family back in the UK myself, I understand the fear of going back, particularly when the option is to be living with elderly and vulnerable parents. However, when [the applicant] found out she was unable to do farm work, she committed herself to bettering herself in a challenging job and give back to the Australian economy in an impressive role requiring specialist expertise and fulfilling a massive social good. But not only to her job, she's committed to exploring Australia, a country she finds so beautiful, and to enjoy the amazing, active and outdoors lifestyle that it offers. Knowing many backpackers in Australia, I understand the negative perception many may attract, but for me, [the applicant] does not fit into his box and is an asset to any community and my heart goes out to her in what I know she felt was an impossible, extremely taxing and emotionally draining position which forced her to go against her better judgment.

21. The applicant also provided a character reference from a [Ms B], Director an entity named ‘[Agency 1]’, dated 23 April 2020, by way of an employment reference for work completed in early 2020. The letter confirms that the applicant was employed through [Agency 1] with [Employer 2] assisting in [Project 1].

22. Both letters are given weight in the Tribunal’s assessment as to whether the visa should be cancelled in its discretion.

    Applicant’s letter to the Tribunal dated 25 May 2021 

23. On 25 May 2021 the applicant lodged a letter with the Tribunal. The full text is as follows:

    I, [name], am [age] years old with passport number: [number]. I am originally from London, in the United Kingdom and I currently live in [Sydney], working as [Occupation 1] at [Employer 1]. I am writing this letter in response to my Notice of Intention to Consider Cancellation of TZ417 Working Holiday (TZ 417) visa that I received on 03 May 2021.

    On 01 June 2020, I applied for my Working Holiday (subclass 417) visa with incorrect answers, falsely answering that I did do 3 months of specified regional work. In shame, I admit that I did not comply with section 101 (b) and I deeply apologise for my actions and regret my decision. However, several factors led me to make this huge mistake which I hope you will consider when reviewing my case.  

    Firstly, I submitted this application nearly a year ago, during the height of COVID-19. Sydney was still in lockdown when I needed to consider moving/going to a farm. I tried conducting research on different farms, however, with the borders shut across the whole of Australia, my choices were very limited. Many farms in Queensland that I reached out to via telephone, were not employing many backpackers from across different states as they did not want to risk the virus spreading on their farms.

    Additionally, I could not afford to cross a border and afford to pay for a place to quarantine for 2 full weeks with no guaranteed farm or job to go to. Due to this, my mental health deteriorated and I started to become panicked, flustered and stressed as well as trying to work my current job at the time; working for [Agency 2], on a project at [Employer 3] working on [Project 1].

    With frustration, I kept trying to find farm work where possible. I joined several Facebook groups for Farm Work opportunities and also messaged several people that had posted on these groups via Facebook messenger). An example of this is my application to [Employer 4], located in NSW. I rung the farm which gave me a glimpse of hope as they said they were still recruiting. Therefore, I applied via their recruitment method on their website in hope I would get employed and do my 3 months regional work there.  However, as shown from Appendix D, I was sadly rejected from the farm, therefore my options were deteriorating. Desperation deeply got the better of me during this period and with the height of COVID back home, mixed with my own troubling mental health, this led me to not comply. Admittingly, I was not in the right frame of mind and panic set in as I did not want to lose my good job at [Employer 3] or go home to the virus where I would be unemployed.

    Many of my friends and even family were catching COVID-19 and becoming severely ill. The thought of going to a farm nerved me as I thought I wouldn't have the same contact with them as I would when working from home in lockdown. I wanted to be able to always be in contact with them and get regular updates. However, I know this does not excuse my action that I took, however, these factors severely impacted my mindset and I felt like I had little choice with what to do. My mental health did get the better of me and I deeply apologise for the decision I made.

    Additionally, my job at the current time at [Employer 3] were looking to extend me. I had been working with [Employer 3] since 6th January 2020 and my 6 months was nearly coming to an end. My manager at [Employer 3], [Ms C], was looking to extend me as we had a great working relationship and she was impressed with my work I had contributed to [Project 1] since being on the project.

    [Ms C] fought my case to immigration as well as my recruiter (see PDF attachment) and I was able get a visa waiver approval (condition 8547) on my 417 visa (see PDF attachment) on 28 April 2020 to work with my employers on [Project 1] until 28 October 2020. This made me ecstatic as I was able to feel fulfilled in my role here in Australia by contributing to [Project 1] and also help the economy during the difficult time. I wanted to be able to still make a difference in my role and help Australia during this time. Also, I felt a sense of loyalty to my manager as she was also struggling with the pressure and workload on the project which is why she wanted to keep me and extend me.

    I know carrying out regional work is mandatory and helps the economy, however, I was tunnel visioned during this period, therefore, it led me to not comply. My family back home were so proud that I impressed my employers at [Employer 3] so much as well. This sense of proudness from my family, security from my job and also loyalty to my manager/the [employer] made it even more difficult to me to try find farm work during COVID as this could’ve left to insecurity and unemployment. These points are not excusing for the mistake that I made but these are factors which blinded me into making the decision I greatly regret.

    Since last June, 11 months ago when the non-compliance took place, I have been in two other job roles since. My role at [Employer 3] came to an end, due to the end of my visa extension, and I was fully employed by [Agency 2] as a [specified role] helping with a [Project 2] from November 2020 to February 2021. I am now currently employed, via [Agency 3], at [Employer 1] as [Occupation 1]. Throughout my time in Australia, since October 2019 when I arrived, I have been constantly employed and been in fulfilling roles which are helping the economy. I believe that I have made a difference in these roles and I also feel that I have helped contribute to the economy during the most worrying time at all, during COVID-19 last year.

    I have constantly paid my taxes since November 2019 and despite me not complying, I have been able to help contribute to Australia still. I want to be able to continue contributing to the economy, pay my taxes and help Australia. This is why I do not want my visa cancelled as I believe that I can make a difference to Australia by being able to continue with my employment and make a difference in the role I am in. Further to this, my current employer and role I am in do sponsorships. I have had several conversations with them, and they have stated that once my “Graduation Programme” is complete at the [employer], in the [Occupation 1] role, they can consider sponsorship. Therefore, if my visa is cancelled this takes away this amazing opportunity for me which I will be devastated about. I want to be able to really build and progress in this role and stay for another couple of years with [Employer 1]. I really wish for my visa cancellation to be reconsidered as I do not want to leave this role, my employer or Sydney yet. The stability and security in my role is something I do not want to lose. I deeply apologise for my non-compliance last year and I deeply regret it now as it is now taking away a current career opportunity for me that my family in London are so proud of me for. However, if I lose this job then I face being unemployed back in London and I want to be able to stay here and progress in the role to the best of my ability.

    Further to this, since last June, I have travelled different parts of Australia including, Uluru, Byron Bay, the Gold Coast and Melbourne; helping to contribute towards the tourism industry. If my visa is cancelled, this limits my ultimate aspiration and dream of travelling most of Australia. Before I entered Australia, I wanted to travel more than anything, however, with the bushfires and then COVID-19, this made it nearly impossible. Therefore, now with COVID-19 reducing and the borders opening, I am now able to have the option to travel more.

    I’d love to be able to travel the West Coast, Northern Territory and also South Australia before leaving. If my visa is cancelled, I will not be able to contribute to the tourism industry and travel these destinations. However, if I’m able to stay until the end of my visa, I will travel these destinations before departing home at the end of the year. I do not want to miss out on seeing the beauty that Australia has to offer.

    Furthermore, to this, I believe I am a good and loyal character in Australia. Despite my mental health last year during COVID becoming increasingly unstable, I have always been a determined, happy, energetic, and hard worker. As per my reference, from [Ms A] (see attachment), I am a loyal character who always pays rent on time (please ask to contact my landlord for this), I pay my taxes and I ensure I contribute back to the community as much as possible. Also, I like to engage in beach cleans up initiatives with my housemates. We have completed several cleans up, most recently on 15 May 2021 at [a named beach]. We have also signed up to do it for Clean Up Australia on 30^th May 2021 at the same location, [named beach]. I care for the environment and I like to give back to the community. I do not want my visa cancelled as these initiatives, such as beach clean-up initiatives, are not as readily available back in London. I want to keep helping the beautiful land and wildlife of Australia. I once again ask to please consider my case based on my character as well.

    Lastly, I want to express that I would offer to go do farm work for 3 months to ensure that I contributed to the Australian economy and I completed my regional farm work. I do not want my visa cancelled as I made incorrect or false statements and I would love to be able to overcome this by doing my farm work and helping the regional economy of Australia. If I was able to do this then it would allow me to get sponsored by my company when I return as well and I’d be able to fulfill my time here in Australia and role whilst also again, constantly helping contribute to the Australian economy after a pandemic has occurred. I do not want to go back to the UK where COVID-19 is still very much unstable, most recently a rise in the Indian variant has occurred so this worried me greatly. I do not want to go back to a country where the virus is, where I will become unemployed and my mental health will deteriorate again. I want to again express in no way is this letter a response of excuses for my actions but instead it’s a story of what led me to not comply. As stated previously, I deeply regret my decision that I made 11 months ago but I am willing to do farm work if necessary and also I want to be able to get sponsored by my employer so I really hope my case could be reconsidered before my visa is cancelled. I sincerely apologise for my behaviour.

1. As stated above, the Tribunal has found that there was non-compliance with section 101(b) of the Act by the applicant in the way described in the s.107 notice.

   Assessing discretion - should the visa be cancelled?

2. 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) of the Act. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

3. In exercising this power, the Tribunal must consider the applicant’s responses to the s.107 notice about the non-compliance, and, have regard to any prescribed circumstances: s.109(1)(b) and (c) of the Act. The prescribed circumstances are set out in regulation 2.41 of the Migration 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.

4. 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. Whilst not bound to apply departmental policy, the Tribunal may have regard to 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. The Tribunal is generally aware of the policy.

   The correct information

5. The visa applicant has fully acknowledged that the true state of affairs was that she did not undertake any ‘specified work’ in regional Australia for a period of three months through work in the agricultural, construction or mining industries, and, in particular, she did not work for an entity named EKC (ABN 52607542503) between 2 December 2019 and 26 April 2020.

   The content of the genuine document

6. Not relevant

   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

7. The delegate decided to grant the visa wholly or partly on the basis of the incorrect information advanced by the visa applicant in her second working holiday visa application. Had the delegate been aware of the true circumstances it is highly likely the visa would not have been granted; as indicated within the decision record, the applicant’s employment details relevant to her regional work experience were pivotal considerations for the grant of the working holiday (extension) visa. That the visa was granted is indicative of the delegate making the decision wholly or partly upon the incorrection information. The applicant received the benefit of further stay in Australia to which she would not have been entitled had the delegate known the true facts and circumstances. By providing the incorrect answers the applicant knowingly and intentionally misled the department in its assessments of granting the applicant the visa. The Tribunal gives this consideration substantial weight in favour of cancelling the visa.

   The circumstances in which the non-compliance occurred

8. The visa holder knowingly and intentionally submitted incorrect information as has been particularised above by claiming to have been employed by an entity named EKC (ABN 52607542503) between 2 December 2019 and 26 April 2020. In her section 107 response the visa holder admitted to providing incorrect information so that she would be granted a Working Holiday (Extension). She responded to the effect that she was ashamed of her actions – see her responses above.

9. The Tribunal notes that the applicant applied for the second visa on 1 June 2020.  The departmental delegate issued the Notice of Intention to Consider Cancellation (NOICC) on 3, eleven months post application. There are no indications that the applicant sought to notify the department of the true circumstances until she received the NOICC notifying her of the non-compliance. This is an aggravating factor in the view of the Tribunal.

10. The Tribunal has considered the applicant’s submissions and evidence lodged to explain the non-compliance and her personal circumstances. Whilst the Tribunal accepts that the applicant was faced with difficult circumstances arising from the COVID 19 pandemic, these matters do not satisfactorily explain or excuse her fraudulent representation to a Government entity to ensure the benefit of a longer stay in Australia. Whilst the Tribunal has accorded weight to the circumstances in which non-compliance occurred, it does not accord significant weight.

    The present circumstances of the visa holder

11. The visa applicant departed Australia (via Sydney) bound for [Country 2] on flight [number] [in] October 2021. It can be reasonably assumed that she has returned home to the United Kingdom although this is not entirely certain. The booking was made online [in] August 2021.

12. The applicant had earlier stated to the department that she did not wish to return to the UK given the COVID-19 situation there. She was worried about the virus, about being unemployed and that her “mental health will deteriorate again” if forced to depart Australia. The delegate had noted that the visa holder may face some degree of hardship if she were to return to the UK but considered that the applicant had been residing in Australia based on incorrect information provided in her visa application. It was accepted that she will cease to hold permission to work and reside in Australia if her visa was cancelled and that she may experience a degree of hardship (financial, psychological, emotional or other hardship) in the event her visa was cancelled. The Tribunal is unable to accord any significant weight to the present circumstances of the applicant in her favour.

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

13. The applicant applied for Tribunal review on 24 May 2021 by electronic application. From 4 June 2021 she was subject to a bridging visa E. She departed Australia, presumably bound for the United Kingdom, [in] October 2021, having advised the Tribunal in writing she no longer wished to appear at a hearing to give evidence and present arguments upon this application. There is no information before the Tribunal that the applicant has breached any other obligations or conditions of her bridging visa.

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

14. No other instances of non-compliance are known to the Tribunal. The Tribunal does not accord any weight either for or against the applicant in the circumstances.

    The time that has elapsed since the non-compliance

15. The non-compliance occurred when the visa holder provided incorrect information on her Working Holiday (Extension) visa application lodged 1 June 2020. The visa was subsequently granted on 25 June 2020.  Approximately seventeen months has elapsed since the non-compliance. The applicant has recently departed Australia bound for the United Kingdom. The Tribunal is unable to accord significant weight in favour of the applicant, the non-compliance having occurred within the relatively recent past.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

16. There is no information before the Tribunal suggesting any breaches of Australian law.

    Any contribution made by the holder to the community.

17. The applicant has outlined her work history in Australia; the Tribunal accepts that she has provided a contribution to Australia through working within Australia’s [specified] industry and in particular with [her specified work projects]. She has also contributed in minor ways to environmental strategies. The Tribunal accords weight to these matters but is unable to accord significant weight.

    Consequential cancellations under s. 140

18. There is no evidence that any person would, or may, be consequently cancelled under section 140 of the Act. The Tribunal gives no weight to this consideration for or against the applicant.

    Any breach of international obligations Australia may have because of the applicant’s visa being cancelled

19. The Tribunal has considered if the cancellation of the applicant’s visa would breach the Convention of Rights of the Child (CRC) which states that the best interest of the child must be the primary consideration in making decisions that affect them and that a decision maker considering cancelling a visa must turn their mind to the consequences of cancellation of the visa, especially if the child will be separated for the family unit.  There is no information before the Tribunal which indicates that cancellation of the applicant’s visa would result in any breach of Australia’s international obligations, nor has the applicant advised the Tribunal of any concerns she may have in relation to Australia international obligations. The Tribunal places no weight in relation to the consideration for or against the applicant.

    Mandatory legal consequences

20. If the visa is cancelled, the applicant will not become an unlawful non-citizen and be liable for detention under s.189 of the Act and removal under s.198 of the Act.  As identified above, she has voluntarily departed Australia.  The applicant will likely be subject to s.48 of the Act which means that she will have limited options when applying for a further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 because of cancellation.

    Other relevant considerations

21. There are no other relevant considerations.

    CONCLUDING PARAGRAPHS

22. 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.

23. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that, in exercising its discretion, the visa should be cancelled.

    DECISION

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

    Michael Judd
    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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.