2111679 (MIGRATION)

[2022] AATA 412

2111679 (MIGRATION) [2022] AATA 412 (21 JANUARY 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2111679

MEMBER:Christine Cody

DATE:21 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 January 2022 at 11:59am

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers provided in extension application – 3 months of specified work in regional area while holding first visa – verification checks – discretion to cancel visa – applicant waiting for sponsorship opportunity with another employer – opportunity fell through then applicant faced COVID-19 restrictions – no contact with department – paid agent to complete and lodge application – personal and family circumstances in home country – documented mental and physical health conditions – current work, value to employer and possibility of sponsorship – extensive voluntary community work and new relationship – decision under review set aside

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

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 to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (the Act). The applicant is a [age]-year-old man born in [City 1, Country 1], who came to Australia with his first working holiday visa in February 2020. He was subsequently granted a second working holiday visa on 10 September 2020. It is the second visa that is the subject of the cancellation proceedings.

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his second application for a Subclass 417 (Working Holiday) visa thus not complying with s 101 of the Act and having considered the prescribed circumstances under reg 2.41 of the Migration Regulations 1994 (the Regulations). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant lodged an application for review with the Tribunal. He provided to the Tribunal a copy of the delegate’s notification of cancellation of his visa as well as the decision record setting out the reasons for the cancellation dated 26 August 2021.

4. He submitted some late documents, received by the Tribunal about half an hour prior to the hearing. The Tribunal noted that these should have been submitted 7 days prior to the hearing. He apologised. The Tribunal considered the documents, which are referred to below.

5. The Tribunal exercised its discretion to hold the hearing by MS Teams given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely.

6. The applicant appeared before the Tribunal on 22 December 2021 to give evidence and present arguments. He raised some issues not previously raised and the Tribunal agreed to delay its decision until 14 January 2022 to allow him the opportunity to provide supporting documents. He provided further documentation in support in January 2022.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

   Notice of intention to consider cancellation under s 107

10. A notice of intention to consider cancellation (NOICC) of the applicant’s second working holiday visa granted 10 September 2020 was sent to the applicant on 6 August 2021. The notice indicated that the delegate reached a state of mind that the applicant has not complied with the Act by giving incorrect information about the details of specified work undertaken while the holder of a first Working Holiday visa (Subclass 417) in the application for a second Working Holiday visa (Extension) (Subclass 417) lodged and granted on 10 September 2020.

11. The NOICC provided particulars of the allegedly incorrect information given by the applicant being the reference to employment with Territory Road Marking PTY LTD - ABN: 51009625656, in Katherine, Northern Territory, Australia (postcode 0850) in the period 9 March 2020 to 12 July 2020 for 90 days; and his declaration that he had completed at least 3 months of specified work as the holder of a working holiday visa.

12. The NOICC noted that in his application form he had provided the following answers to the form’s questions:

    Work conditions
    Employment type: Labour hire company
    Industry type: Construction
    Industry type sub-group: Construction
    Description of duties: Traffic Controller
    Start Date: 09 Mar 2020
    End Date: 12 Jul 2020
    Total days worked: 90

13. The NOICC advised that after his application form was lodged, the Department conducted employment verification checks by contacting Territory Road Marking, the business registered under ABN 51009625656, to verify the employment claims. On 20 October 2020 the Department was informed that the applicant never worked at their business (and therefore did not complete the specified work with the business as claimed).

14. The delegate considered on the basis of this information that the applicant had provided incorrect answers in support of his second Working Holiday (Extension) visa application and did not comply with s 101(b).

15. 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?

16. 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 the following respects: that the applicant provided incorrect information in the application for a second Working Holiday visa when he:

    ·answered ‘Yes’ to the question ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’;

    ·provided details of claimed employment with Territory Road Marking, at the section of the application form titled ‘Details of Specified Work Undertaken’; and

    ·answered ‘Yes’ to the declaration ‘Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa’.

17. The applicant provided a response to the NOICC on 17 August 2021 in which he stated that he had not done his regional work because he was waiting for a sponsorship opportunity with [an employer] he was working with, and by the time the negative response came through he did not have enough time to complete his 90 days of regional work. He also believed his chances of finding regional work after the commencement of the COVID-19 pandemic were slim. The applicant did not deny that the above information was provided to the Department, although he did not claim that he completed the information himself. He said that:

    I was then panicking as I did not know what to do now. I then heard of this company that sorts out visas for people and I sent an email and explained my situation. I was told that I was fine this is no problem and that they are established and have been helping people since 2009. They asked me for minor details, Employment history, Passport etc. & said it could take a few weeks and that was it. Within 3 days I received an email back saying my visa was granted and they sent me my Immi grant & now knowing this was a scam I am truly and utterly so sorry I ever sent that email it is a decision I cannot take back and cannot change but will never ever do anything like that or go through a non-government entity again for and legal or visa applications.

18. On 26 August 2021 the delegate found that there was non-compliance as described in the s 107 notice.

    Evidence before the Tribunal as to the non-compliance described in the s 107 notice

19. At hearing the applicant said that he didn’t do the regional work, and that he had used an email address containing the word “goldfish”. They completed an application for a second working holiday visa for the applicant; he hasn’t even seen the application form lodged on his behalf. The Tribunal asked if he requested a copy of the application from the Department and he said no. He said that he saw what was on the NOICC and he accepts that must be correct. After the fact the person asked for his bankcard details and he was charged $1000. He agrees that the application form was incorrect and that he turned a blind eye to the contents of the application form. He knew that it was a requirement to obtain a second working holiday visa to have undertaken the 3 months regional specified work and that he had not undertaken this work. He agrees that what was submitted on his behalf was incorrect, and he takes full responsibility. He did not work for Territory Road Marking at all.

20. The Tribunal notes that ss 98, 99 and 100 of the Act specify that an applicant who does not complete their application form is still responsible for its contents if he or she causes it to be filled in or it is otherwise filled in on his or her behalf, and even if the applicant did not know at the time that a particular answer was incorrect.

21. On the basis of the evidence of the verification undertaken by the Department with Territory Road Marking and the applicant’s acknowledgement of the incorrect information, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

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

    Should the visa be cancelled?

23. 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).

    The prescribed circumstances: reg 2.41 of the Regulations

24. 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.

    The correct information

25. The correct information is, as conceded by the applicant, that he never worked in a specified job in regional Australia for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa. He was never employed by Territory Road Marking Pty Ltd.

26. The correct information according to his NOICC response and evidence at hearing is that he has not left Sydney since he arrived. About 2 weeks after he arrived in February 2020, he got a job as an [Occupation 1] (3–4 weeks) for [Employer 1]. He then worked for [Employer 2] (March 2020 – September 2020) as an [Occupation 1]. He did not work again (during a lockdown period) until November 2020. Thus, the correct information is that he had only ever worked in Sydney throughout his first working holiday visa.

27. The Tribunal gives this matter considerable weight in favour of affirming the decision to cancel the applicant’s visa.

    The content of the genuine document (if any)

28. There is no allegation relating to a genuine document. Therefore, this factor is 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

29. The applicant was granted a Subclass 417 (Working Holiday) (Extension) visa on 10 September 2020 on the basis that he satisfied the criteria for the visa. One of the criteria is cl 417.211(5) which requires the Minister to be satisfied of matters including that, if the applicant held only one Subclass 417 visa in Australia, he has carried out a period or periods of specified work in regional Australia as the holder of the visa and the total period of work carried out is at least 3 months.

30. The applicant relied on incorrect answers that he was employed by Territory Road Marking Pty Ltd, in a specified job, in regional Australia and undertook this work for 3 months whilst the holder of a Subclass 417 (Working Holiday) visa, to satisfy the criterion in cl 417.211(5). The delegate’s decision record provided to the Tribunal by the applicant notes that the delegate relied on these incorrect answers (as well as meeting other relevant criteria) to grant him, on 10 September 2020, the Subclass 417 (Working Holiday) (Extension) visa.

31. When discussing this with the applicant at hearing, he agreed that the visa was granted on the basis of the incorrect information he gave.

32. The Tribunal finds the incorrect information was relied on by the delegate to grant him the visa. It finds that if the correct information was provided, he would not have met this criterion and the visa would have been refused. The Tribunal considers this is a significant matter and weighs in favour of affirming the decision to cancel the applicant’s visa.

    The circumstances in which the non-compliance occurred

33. The circumstances in which the non-compliance occurred were that the applicant applied for a Subclass 417 (Working Holiday) (Extension) visa on 10 September 2020 and provided incorrect answers in his visa application.

34. In the applicant’s response to the NOICC the applicant provided the following reason for not having complied with s 101(b):

    When I arrived in Australia I began to work straight away in the occupation I have been in for over 10 years an [Occupation 1] & after a short few weeks the world was struck with COVID-19 and lockdowns commenced which left me with very little options to travel the country and explore … I decided then to put my head down and focus on my career whilst in Lockdown and to get myself a good job and after many weeks I finally got the Job I was looking for which was with [Employer 2] a well-established [Country 2 company] as an [Occupation 1]. I worked very hard in this role and it was noticed by management. Coming towards the last 2 months of my 6 months with [Employer 2] (I could only work for 6 months at a time per employer as this is a condition on the Working holiday visa) and they offered me sponsorship to stay and work with them to progress my career. It was then getting to the last few weeks until the 6 moths where coming to a close and I received notification from my manager that HR and their legal team were in the progress of finding the best way to get my sponsorship approved and sorted. It was then 1 weeks before I was legally not allowed work for [Employer 2] past the 6 month condition as the visa states & I received a phone call from my manager with the bad news of they were “not able to get the sponsorship over the line” due to certain circumstances that were not disclosed with me. I was then left with 1 week left with employment and not enough time to complete my 90 days of regional work. I was truly disappointed that I was not let know earlier as I would have gone and completed this and enjoyed doing it too.

    I immediately start looking and applying for regional work which was difficult at the time due to been in lockdown and having to isolate for 2 weeks if I travelled outside NSW my chances of getting this done and completed was very slim. I was then panicking as I did not know what to do now. I then heard of this company that sorts out visas for people and I sent an email and explained my situation. I was told that I was fine this is no problem and that they are established and have been helping people since 2009. They asked me for minor details, Employment history, Passport etc. & said it could take a few weeks and that was it. Within 3 days I received an email back saying my visa was granted and they sent me my Immi grant & now knowing this was a scam I am truly and utterly so sorry I ever sent that email it is a decision I cannot take back and cannot change but will never ever do anything like that or go through a non-government entity again for and legal or visa applications.

35. The delegate raised a concern that the applicant did not have the time to complete the regional work, stating: Given the visa holder made an application, and was granted his second working holiday visa on 10 September 2020, I consider he still had approximately five (5) months validity on his first working holiday visa in which to find and complete his three months regional work. I therefore do not accept the visa holder’s claims that he did not have enough time to complete the required regional work.

36. At hearing the applicant said that the [employer] was going to sponsor him, but the manager said it would not work. If he had known earlier, he would have tried to do regional work earlier. He then said that he had no savings at the time, so he was not able to go and do regional work. The Tribunal notes that he said he paid $1000 to an agent to obtain a visa; the Tribunal does not accept that a lack of money meant that he was unable to engage in regional work. The Tribunal considers this to be a poor argument. However, he did then say that there were lockdowns and moving to a regional location would have meant first that he had to quarantine for 2 weeks (in the regional area), which made it difficult to obtain work.

37. The Tribunal does accept that the applicant arrived in Australia only a few weeks before the start of the global pandemic and that it would have been difficult, since that time, to find specified work in a specified postcode and to be able to travel there to work.

1. The Tribunal had greater concerns with the applicant’s failure to consult the Department, and his claim that he made a general enquiry about his options with a migration agent. The Tribunal asked whether he called the Department to discuss his situation, and he said that he did not contact the Department. He said that he contacted a legal company at the time to get advice and they said he had to do the farm work, that was his only option. The Tribunal noted that many people were in a difficult situation at the time and if he had contacted the Department, he could have found out about bridging visas (or other visas issued as a consequence of the pandemic). The Tribunal said that he could have sought advice, approached the Department, but he did not, and instead he decided to provide false information to obtain a further visa. He agreed and said that this is the big mistake he made.

2. It is of concern to the Tribunal that the applicant, who is capable and resourceful (noting that he managed to work in a senior position in [Occupation 1 work sector] in [Country 1] before he came to Australia, organised a working holiday visa to a foreign country and managed to maintain employment for the most part in this foreign country during the COVID-19 pandemic) did not contact the Department to ascertain what options were available for temporary visa holders during the COVID-19 pandemic. Instead, in September 2020, he took the option of paying $1000 to lodge a visa application based on false information.

3. While the applicant’s response to the NOICC did not discuss additional reasons why the applicant did not want to return to [Country 1] at the time, it did indicate that his life in [Country 1] had not been good. At hearing the applicant provided the following further background information as to his situation in [Country 1] before coming to Australia:

   ·His mother was diagnosed with schizophrenia. His parents separated. He took over the role as his mother’s carer when he was [age]–[age] years old (2014–2015) and continued with this role until he came to Australia. Before that, he had been living out of home with his partner and her child; they all moved back into the family home so that he could look after his mother and make sure that she took her medications. This took a significant emotional toll on him.

   ·Then, in about June 2019 his partner left him, taking her child, after they had been together for 7 years. This was difficult because the child was [age] old when they first got together, so he considers himself like the child’s father. This was a very stressful event for the applicant.

   ·In 2019 he felt that many pressures were building up, including that his parents were going through their divorce, and he felt that he had no way out of all the pressures, and he made a suicide attempt. He was suffering severe depression. He then went to hospital and was then released and went to stay with his father. He saw a counsellor once a week for about 2 months which was of significant assistance.

4. His siblings agreed that he should come to Australia because he had taken on so much of the burden of caring for their mother for years, and it was now their turn to become more involved with their mother. At around the start of the COVID-19 pandemic his mother went missing for 2 days which caused him a lot of stress. She now resides in a nursing home.

5. The applicant’s post hearing documentation from [Country 1] corroborates his evidence at hearing. He provided his GP’s referral letter for suicidal ideation and Accident and Emergency notes which confirm that his mother has a delusional disorder, he had experienced depression, the details of his previous suicide attempts, that he had attended upon a counsellor previously, the effect of his parents’ break-up and the difficulties for his relationship arising from his decision to live with and be a carer for his mother because of her mental health problems.

6. The Tribunal also accepts that the significant events that had occurred in his country of origin formed a significant part of the reason why he did not want to return to [City 1]. Since that time, he has had further difficulties with his mental health in Australia (referred to below). The Tribunal accepts that at the time of the provision of the incorrect information, the applicant had strong motivating factors, being a background of significantly difficult experiences, not to return to [Country 1], and that the world was in a global pandemic. The Tribunal accepts that he acted out of character.

7. On balance, the Tribunal is of the view that the circumstances in which the non-compliance occurred, given the applicant’s mental health issues and complications he had faced in [Country 1], should be given weight in favour of setting aside the decision to cancel the applicant’s visa.

   The present circumstances of the visa holder

8. The applicant confirmed that his actions and the subsequent cancellation of his visa have had a significant effect on his mental health. He said that he has not had a great year; he has a rare condition called [Condition 1] arising from when he was [doing an activity] and [a body part injured]. He suffers from [Symptom] and will need a [Medical device] (this is confirmed by NSW hospital admission notes). This, as well as the uncertainty of his visa situation, continued a downward turn in his mental health and he started feeling low and he was concerned that he was “going down that route again”. So, he went to hospital (this is confirmed by NSW hospital admission notes) and he was then referred to a GP.

9. The applicant stated in his letter and evidence at hearing that he currently holds a permanent position with [Employer 3]. He is [a] team leader, and his manager has encouraged him to seek a promotion which is [an Occupation 1 work sector] manager role. They may be prepared to sponsor him, and his area of expertise is listed on the skilled visa list. If his visa is not cancelled, he would like to get sponsored by his employer.

10. He has a girlfriend, [Ms A], who provided a letter in support. Their evidence is that they met in about May 2020, she is from [Location 1] in [Country 1], and they intend to move in together after Christmas. She arrived in Australia having been sponsored as [an Occupation 2]. She lost her job due to the pandemic and she decided to study. She is now on a student visa. She intends to stay in Australia. She stated that he had expressed remorse for his actions on numerous occasions and she can see that it has had an effect on his mental health. It would be detrimental to her and himself and his friends if he had to leave Australia.

11. The Tribunal accepts that if the applicant’s temporary working holiday visa is cancelled it would adversely impact on the applicant’s employment and his plans to be sponsored, the proposals of his employers, and his social network that he has accumulated in Australia. If his temporary visa was cancelled this would have a significant effect on the relationship of the applicant and his girlfriend because she would remain here. The Tribunal also accepts that this would have an adverse effect on his mental health.

12. The Tribunal gives these matters some weight in favour of setting aside the decision to cancel the applicant’s visa.

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

13. The delegate noted in the decision record that there is no evidence that the applicant contacted the Department to correct the incorrect information. At hearing the applicant told the Tribunal that he did not correct the information and he does not have an excuse for this.

14. The Tribunal considers that his subsequent behaviour (of not correcting the incorrect information) concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act weighs in favour of affirming the decision to cancel the applicant’s visa.

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

15. There is no evidence before the Tribunal to indicate that there are other instances of non-compliance by the applicant. The applicant confirmed this. While this is positive, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.

    The time that has elapsed since the non-compliance

16. The non-compliance occurred when the visa holder provided incorrect information on his Working Holiday (Extension) visa application lodged 10 September 2020. Since then, the applicant has been permitted to remain in Australia.

17. It is about 16 months since the non-compliance. Since that time the Tribunal accepts that the applicant has applied himself and created numerous ties in Australia, and as set out below he has contributed to a number of charitable events.

18. The applicant told the Tribunal that since that time, his life has changed monumentally, he is in a happy place and he hopes to continue here and if he was given a second chance, he will never do this again.

19. The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.

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

20. At hearing, it appeared that there was no evidence to indicate that the applicant had breached any laws since the non-compliance. The applicant said at hearing there have been no breaches of the law, except perhaps a parking ticket. However, in his post hearing documentation, it was shown that in [Country 1], he had had a [drug] addiction and had been recommended to stop, but that his recent NSW hospital admission that indicated that he still takes [specified drug] once a week (and it was again recommended that he stop this).  It may be that the applicant considers his drug use is not serious, but it is illegal; and the Tribunal gives this some weight in favour of the cancellation of his visa. 

    Contribution to the community

21. The applicant has attended a number of charitable events in the community including as follows:

    ·     After he arrived he started volunteer work with [Organisation 1]; he lived nearby and he helped them to organise events including to support [Service provider 1] which provides a free, therapeutic approach to people who are in suicidal distress and those who engage in self-harm. The events included [Events 1s] and [Event 2], organising [participants] from [City 1] who were live streamed into a [venue] in Sydney, raising a few thousand dollars. The CEO of [Organisation 1] provided a support letter which stated:

    We have worked closely with [the applicant] over the last 1.5 years on many different occasions, mainly in regard with the charity events we organise at our primary location in [Venue 1].

    With the support of [City Council], [the applicant] was able to organise and project manage several different events we have run in support of [Service provider 1] and [Charity 1]. With strong ties to the [Country 1] community here in Sydney, we were all able to raise significant funds for such worthy causes and for that we hold his assistance and persona in the highest regard.

    He has mentioned his visa situation to us and expressed remorse on several occasions for not lodging it correctly. After everything that he and our team have achieved together and the significant amount of funds that have been raised for charity, it would be a shame to not be able to continue such important work with him. I would personally endorse him for wanting to help less fortunate others out of the goodness of his heart and hard work

    ·     In April 2020 a [Country 2] man died in Australia and he was an instrumental part of a fundraiser including organising [participants] to raise funds to get his body home.

    ·     [In] May 2020, he assisted with a fundraiser for a person who had [Medical Condition 1] and died.

    ·     In October 2020 he did [an activity] in [Location 2] for [to raise awareness for specified issue]. [Details of activity redacted].

    ·     In May 2021 he organised [participants] from [City 1] to [participate] at home; this was live streamed in Australia, where he organised 100 people to attend and show support. This was for [raising awareness to specified issue], and about $1000 was raised for [Service provider 1].

22. All of these events took place before the applicant’s visa was cancelled. The Tribunal accepts that the applicant’s character and contribution to the community has been genuine and not insignificant, and that he has been able to use his experience to help others with suicidal ideation and those in difficulty, and that he has used his skills to raise funds to benefit people who really need help.

23. The Tribunal gives these matters some weight in favour of setting aside the decision to cancel the applicant’s visa.

    Other matters for consideration

24. 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 Procedures 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.

    Whether there would be consequential cancellations under s 140 of the Act

25. There is no evidence before the Tribunal to indicate that there would be consequential cancellations under s 140 of the Act if the applicant’s visa is cancelled; the applicant said there are no consequential cancellations. This factor is not relevant.

    Are there children whose interests would be affected by the cancellation of the visa?

26. The applicant said that there are no children whose interests would be affected by the cancellation of his visa. This factor is not relevant.

    Would the cancellation lead to the applicant’s removal in breach of Australia’s non-refoulement or family unity obligations?

27. The applicant said that these matters are not relevant. Insofar as the applicant has a partner who is also on a temporary visa, this has been considered above.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

28. If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, he will become an unlawful non-citizen and may be liable to be detained under s 189 of the Act and removed under s 198 of the Act unless he departs Australia voluntarily.[1] The applicant said that he would depart instead of being detained.

    [1] As set out in the delegate’s decision record

29. If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, he will be subject to s 48 of the Act which means he will have limited options when applying for further visas while in Australia. Further, he will be affected by Public Interest Criterion 4013 where he may be prevented from being granted certain types of visas for a period of 3 years from the date of visa cancellation.[2]

    [2] As set out in the delegate’s decision record

30. The applicant said that if his visa is cancelled, this will affect his sponsorship options. He understood that there may be a number of skilled visa options open to him but he was not sure that he qualified.

31. The Tribunal accepts that such consequences would be difficult for the applicant and it considers that this does weigh in favour of setting aside the decision to cancel the applicant’s visa, although this is somewhat tempered by the fact that these are the intended legal consequences as set out in the legislation when a visa is cancelled, reflecting the seriousness of a breach of s 101(b) of the Act and consequent cancellation of a visa. The applicant has benefitted from providing the incorrect information in his Working Holiday visa application, and it is very likely that he would not have been granted that visa if he had provided correct or accurate information about the 3-month regional work requirement.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

32. As discussed above, the Tribunal accepts that the visa cancellation will lead to a degree of hardship for the applicant. It is foreseeable that it will have a significant effect on the life he has established here, and his mental health.

33. The Tribunal gives this consideration some weight against affirming the decision to cancel the applicant’s visa.

    Conclusion on the exercise of the discretion

34. Having carefully considered all of the above, the Tribunal concludes the matters that weigh against cancellation outweigh the factors in favour of cancelling the visa.

35. The Tribunal is prepared to accept that the applicant’s circumstances in [Country 1] including his choice to take on a carer role, for years, for his mentally ill mother, the effect that this had on his own mental health, his relationship and its ultimate breakdown and loss of his immediate father role to the child he had been fathering for many years, and his own suicide attempts, led to his desire not to return to [Country 1] and, in the context of the new and evolving global pandemic, played a significant role in his deceptive actions which, the Tribunal accepts, are out of character. The Tribunal also notes the applicant’s charitable actions, the majority of which occurred before he was informed that his visa was liable to be cancelled (6 August 2021). These are the unusual factors which have tipped the balance against the case for cancellation, which was given significant weight as the Tribunal had concerns that the applicant’s actions undermined the migration system by relying upon incorrect information, as well as with his drug use. Nevertheless, for the reasons specified, the Tribunal has concluded that the discretion should be exercised.

36. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Christine Cody
    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.