2112204 (Migration) - [2022] AATA 2401

2112204 (Migration) [2022] AATA 2401 (4 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Adeel Khan
CASE NUMBER:  2112204
MEMBER:David Crawshay
DATE:4 May 2022
PLACE OF DECISION:  Melbourne
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 04 May 2022 at 1:36pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 Working Holiday (Extension) visa – ground for cancellation – incorrect information in visa application – completion of specified work in a regional area – consideration of discretion – grant of visa based on incorrect information – de facto partner pregnant with applicant’s child – best interest of the child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
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

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).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information in order to facilitate the grant of his Working Holiday (Extension) visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 1 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is claimed to be the applicant's partner.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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
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.
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.
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?
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.
Background and proceedings in front of the delegate
On 18 September 2020, the applicant lodged an application for the visa the subject of the cancellation, a Working Holiday visa (TZ-417). This visa was granted on the same day. In the application form, under the heading of “Application Type”, the applicant relevantly answered as follows (in bold text):
Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?
Yes
Elsewhere in that application, the applicant relevantly provided as follows under the heading of “Details of specific work undertaken”:

Employer details

Legal registered name:

[Company 1] trading as [Name]

Trading name:

[Name]

Australian Business Number
(ABN)

[ABN]

Work conditions

Employment type:

Direct employment

Industry type:

Mining

Industry type sub-group:

Mining

Description of duties:

[Details redacted]

Date from:

16 Mar 2020

Date to:

05 Jul 2020

Total hours worked:

760

Total days worked:

90

Finally, under a section of the application form headed “Working holiday declarations”, the applicant relevantly provided as follows (in bold text):
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.
Yes
On 27 October 2020, the Department sent an email to the person identified as the employer of the business the applicant purported to work for to verify the applicant’s claim to have carried out work with the business. By email of 3 November 2020, this person confirmed that the applicant had not worked at the business.
This information was particularised in a Notice of Intention to Consider Cancellation (NOICC) dated 6 August 2021. The NOICC listed the possible non-compliance as follows:
I consider that you provided incorrect information in your application for a Working Holiday (Extension) visa when you:
·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 [Company 1] trading as [Name] 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’.
I consider the above information is incorrect, as verification checks undertaken by the Department have concluded that you never worked at the business, [Company 1] trading as [Name]. Therefore you have not undertaken three months specified work in regional Australia.
Based on the above information, it appears you provided incorrect answers in support of your Working Holiday (Extension) visa application. I consider therefore, that you have not complied with sections 101(b), and accordingly your Working Holiday (Extension) visa may be liable for cancellation under section 109 of the Act.
The non-compliance identified and particularised in the NOICC was therefore non-compliance with s.101(b) of the Act in that the applicant gave incorrect answers in his application form and specifically gave incorrect information that he had carried out specified work in a particular business in a particular region for a period of time when he had not.
On 20 August 2021, the applicant responded to the above letter via an email wherein he relevantly stated as follows:
I was referred to someone who was able to attain me a second year visa. I initially had not considered my future visa plans as I was always planning to go home. For the above mentioned reasons, I made the now regrettable decision to use this contact as a way to prolong my stay in Australia.
The applicant claimed in the email to be panicked at the time when he claimed to have engaged the services of this third person. He claimed that he initially tried to return to the UK but was unable to do so because his flight was cancelled. He said that he felt anxious about returning home due to family members contracting COVID-19 and others working in the health service. The applicant said that he was making a contribution to Australia through his work with a [specified] company in Sydney. He claimed to attach a character reference to the email, although no such attachment was apparent.
On 7 September 2021, the applicant’s visa was cancelled by the Department. In the decision, the delegate found that the applicant did not comply with s.101(b) of the Act as he provided incorrect answers in support of his application, and decided that there was non-compliance by the applicant in the way described in the NOICC: s.108. The delegate then proceeded to assess whether to cancel the visa after having regard to any prescribed circumstances under r.2.41: s.109(1)(c). After having given consideration to the circumstances under r.2.41 and other circumstances, the delegate found that the visa should be cancelled.
Proceedings in front of the Tribunal
The evidence in front of the Tribunal about the purported incorrect information comes from the application form dated 18 September 2020, an email from the director of [Name] dated 3 November 2020 in response to an email from the Department of 27 October 2020 and the testimony of the applicant at hearing.
The relevant information in the application form is as set out above in paragraphs 10, 11 and 12. It states that the applicant worked in a mining job for [Company 1] trading as [Name] for a period of over three-and-a-half months from March to July 2020. In two separate places on the application form, the applicant declared that he had carried out at least three months of specified work.
The relevant information from the director’s email of 3 November 2020 includes what is set out in the body of that email, where he stated to the Department that “[n]one of the listed people worked for us (or are known by us)”. This is in response to the Department’s email, which asked for his assistance to check his records and confirm who had or had not worked for him. The Department email contained a list of four people, one of whom was the applicant. Under a column marked “Worked – Yes or No?”, a “NO” has been placed in the row corresponding with [the applicant].
Finally, the applicant confirmed at hearing that the information he had given in the application was incorrect.
The Tribunal has considered the above evidence and accepts that the applicant had not worked at [Company 1] despite having claimed to have done so in his application form. In this way, the Tribunal finds that he has provided incorrect information about carrying out specified work when he had not.
The applicant has therefore not filled in his application form in such a way that no incorrect answers are given or provided. The Tribunal therefore finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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 under s.109(1)(c) are set out in r.2.41 of the Regulations and are used as subheadings below. Consistent with Department policy, the Tribunal will not weigh these matters in favour of cancelling the visa as the grounds for cancellation have already been made out. As such, the evidence will either be weighed against cancellation or will be given no weight.
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.
The correct information
The correct information is that the applicant did not carry out specified work in regional Australia as defined in legislative instrument LIN 20/103 (as it was at the time of application) for at least three months. This is significantly different from his claim that he worked in mining for [Company 1] from March to July 2020.
The Tribunal accords considerable weight in favour of cancelling the applicant’s visa based on the correct information.
The content of the genuine document (if any)
There is no genuine document. No weight is attached to this matter.
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
Among the visa criteria that are required to be satisfied by the applicant at the time of application are either cl.417.211(5) or cl.417.211(6) depending on the number of Subclass 417 visas the applicant has previously held. As the applicant has held one Subclass 417 visa, he is required to satisfy cl.417.211(5), which at the time of application provided as follows:
If the applicant has held only one Subclass 417 visa in Australia, the Minister is satisfied that:
(a)the applicant has carried out a period or periods of specified work in regional Australia as the holder of the visa; and
(b)the total period of the work carried out is at least 3 months; and
(c)the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.
As can be seen, two of the cumulative requirements under cl.417.211(5) are that an applicant carry out a period or periods of specified work in regional Australia and that the total period of this work be at least three months. In the present case, the applicant gave information in relation to the nature of the work and the period of the work that meant that he satisfied the requirements of cl.417.211(5), and if the correct information was given by him instead of the incorrect information, he would not have been able to satisfy these requirements. Based on this information, it is clear that the delegate relied on the incorrect information in coming to a decision to grant the applicant’s visa.
This matter is given significant weight in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant has provided information in front of the delegate and in front of the Tribunal about the circumstances in which the non-compliance occurred.
The circumstances according to the applicant are that he was given a job in February 2020 when there was “talk” of an outbreak of COVID-19. He said that, by March 2020 there were lots of COVID-19 lockdowns and he made the “rash” decision to book a flight back to the UK. He said that this flight was cancelled and he was not refunded his money from Qantas for 70 days afterwards.
The Tribunal can confirm from its own research that the flight in question was cancelled, and it accepts this claim. It does not, however, accept the claim that the applicant waited 70 days to be refunded his money. In coming to this finding, the Tribunal has considered and given weight to a screenshot of an email from Qantas Customer Services dated 24 April 2020 that states as follows:
This is to confirm that the requested refund for booking reference [ ] has been processed back to the same form of payment that you used to make your original purchase. The nominated back or financial institution may take some time to process the funds back to this bank account.
[redaction added]
Even allowing for a conservative timeframe of five business days for the applicant’s bank to process the funds, this falls well short of the 70 days claimed by the applicant. The Tribunal reasonably considers that the applicant would have been refunded the money used to purchase the flight ticket by around 4 May 2020 at the latest and not 2 June 2020 (based on being 70 days after the cancelled flight of 24 March 2020).
At hearing, the applicant gave evidence that regional work was hard to find. He said that he had heard from friends that went off in search of farm-work that they had to wait six weeks to get work and others were not able to get it. He said that some friends went to Griffith where they had to undergo a two-week quarantine period. He said that, towards the end of September 2020, a lot of people were going home. The Tribunal put to the applicant that it was not unreasonable to undertake three months of work in the nine months from March 2020 until his visa expired in December 2020. He said that he had little money until July 2020, owing to the delayed refund of his airline fare. He said that it would have taken him four-to-six weeks to find work. He said that he had been told by friends that people would turn up at hostels in the hope of getting work, and it was a risk. He said that, in the frame of mind he was in, he was not thinking straight.
The Tribunal has considered the above claims made by the applicant, but finds that they are speculative at best and, even if they are to be believed, rely on the anecdotal evidence of friends and acquaintances. Moreover, even if the applicant were to rely on the claims by his friends, he would still have been able to potentially fulfil his work obligations even if he were forced to undergo some type of quarantine period or to look for work in different areas. In terms of his ability to financially support himself during any quarantine period or for travel and accommodation while looking for work, the Tribunal notes its above finding in relation to the applicant being refunded the sum of his airfare in early-May 2020 – or six months before his Working Holiday visa was due to expire.
The Tribunal has considered the applicant’s claims of suffering from conditions such as severe anxiety, low mood and feelings of hopelessness as stated in his undated submissions. It has considered that the submissions argue these conditions were exacerbated by the COVID-19 “climate”, difficulties securing employment and dealing with his struggling business in the UK. It has considered the claim in the submissions that the non-compliance occurred during the “height of the Applicant’s emotional and psychological stress and depression”.
The Tribunal notes that various letters from friends and work colleagues have claimed that the applicant’s behaviour during the period in question was “out of character” and “not characteristic”. The latter comment was made by Dr James Boylan, a doctor and consultant psychiatrist, and the applicant’s step-father, who stated in a letter of 24 February 2022 that he witnessed the applicant being more anxious and lower in mood during 2020.
Although the Tribunal is aware of the pre-existing step-relationship between the applicant and Dr Boylan, it accepts based on the evidence and on Mr Boylan’s credentials that the applicant may have been more anxious and lower in mood during 2020 and the events that accompanied it – including the unfolding COVID-19 pandemic and its effects on Australia and on his family in the UK, but also including his business in the UK which appeared to be suffering financially. However, in the absence of any evidence of a diagnosis being made, it does not accept that he was suffering from “extreme anxiety”. The most that can be said, based on probative evidence, is that he was anxious and low in mood. These are feelings that, while perhaps symptomatic of something deeper, do not of themselves reveal any underlying mental or psychological conditions. In this way, although the Tribunal notes the submission of the applicant’s representative that it should regard the applicant as being “less culpable than an ordinary person” in respect of the “offending” owing to his mental illness, it does not accept that the applicant suffered from such mental illness and does not accept that these feelings of anxiousness and low mood by themselves excuse or adequately explain the non-compliance.

The Tribunal has considered the claims of the applicant, through his representative, that he approached an “agent” to facilitate the extension of his visa. In the undated submissions letter of his representative, it was claimed that the applicant was referred the agent by a friend, and that he engaged the agent via email. It was claimed that the decision to engage the agent was “an instance of poor decision making arising from the substantial mental pressures faced by him and inability to cope in such circumstances”, and that he failed to turn his mind to alternative avenues available to him “[d]ue to the fear and panic at that time”. The submissions state that the applicant did not take the adequate level of responsibility for filling in his own application and that it was “naïve” of him to not conduct further enquiries.
Due to the complexities involved in applying for these extensions, including providing detailed and specific information about the “specified work”, the Tribunal accepts that the applicant engaged an “agent”. However, and even if it is to accept that the applicant engaged the agent out of a sense of fear and panic or showed a level of naïveté in not making further enquiries of the agent, these events occurred in September 2020. The applicant had opportunities until this time to be able to fulfil, or at least begin working so that he could fulfil, his work obligations under the legislation. As above, the applicant has only provided either anecdotal evidence or speculation as to why there would be fewer opportunities to engage in specified work, and even if this evidence is taken as true, there was still opportunities to engage in work after a quarantine period. As above, while he may have been anxious and lower in mood during this period, these feelings do not excuse or adequately explain the non-compliance.
Having considered and weighed the evidence in front of it, the Tribunal accords no weight against cancelling the visa.
The present circumstances of the visa holder
The applicant, either by himself or through his representative, has provided evidence of his current circumstances.
This evidence includes evidence that he has been employed during most of the time he has been in Australia, firstly at a [specified] company and now more recently as an [Occupation 1]. Based on the evidence, on the letters of support from his employers, co-workers and business partners, the applicant appears to be highly motivated and to have shifted seamlessly into the Australian labour force. The submissions provided by the applicant’s representative argue that the decision to cancel his visa will “severely disrupt his present employment and personal connections he has made in Australia”. Later in those submissions, it was stated that the applicant will likely face difficulties finding employment and will be dependent on his mother, causing “undeniable hardship”. While the Tribunal accepts that cancellation would disrupt the applicant’s present employment, it does not accept that he would likely face difficulties finding employment that would necessitate him being dependent on his mother such that she would face “undeniable hardship”. The evidence in front of the Tribunal is that the applicant has faced very little difficulty in finding employment in Australia, likely due to his high levels of motivation. Even if the labour market in the UK is more depressed than here (and the Tribunal is not in a position to say that this is so with any certainty), at the very least he would be able to shift back into a position at his business. While this may have an effect on others within the business, it would allow him a wage.
Of the most significance in the eyes of the Tribunal is the claim that the applicant is in a de facto relationship with [Ms A]. Although it has not engaged in a thorough assessment of the genuineness of the claimed relationship, it notes the substantially similar evidence given by the applicant and [Ms A], along with some evidence that they are regarded by others as being in a relationship.
The evidence of the applicant and [Ms A] at hearing was that [Ms A] was in the early stages of pregnancy and that the applicant was the father. After hearing, on 9 March 2022, the Tribunal received evidence from a registered medical practitioner that [Ms A] was pregnant. Based on this evidence, it accepts that [Ms A] is pregnant. Based on evidence of the relationship between the applicant and [Ms A], and in the absence of any evidence to the contrary, it accepts that the applicant is the father.
Having considered the above evidence relating to the present circumstances of the applicant, the Tribunal gives substantial weight against cancelling the visa owing to the presence of the applicant’s de facto partner and mother of his child.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
In terms of the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act, the Tribunal accepts that he admitted to his error although this only occurred after he was confronted with the incorrect information.
The Tribunal accords a little weight against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance by the visa holder with the terms of ss.101-105.
However, the Tribunal is aware of one instance of non-compliance with other legislative requirements. At hearing, the Tribunal heard that the applicant had moved to [Suburb 1] last year and yet has still not told the Department of this, which he was required to by virtue of having condition 8506 attached to his Bridging E visa (WE-050). Condition 8506 relates to notifying the Department of any change of address.
The Tribunal finds that there has been some non-compliance in the form described above, and this matter is given some weight in favour of cancellation.
The time that has elapsed since the non-compliance
The Tribunal notes that the original non-compliance occurred on 18 September 2020 when the visa was applied for and granted, which is a year-and-a-half ago. In his undated submissions letter, the applicant’s representative pointed to the applicant being in Australia since December 2019. Neither the period of time since the non-compliance occurred or the period of time since the applicant arrived here could be viewed as significant.
The Tribunal accords this matter little weight against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence to show that the applicant has committed any breaches of the law since the non-compliance.
This matter is given some weight against cancellation.
Any contribution made by the holder to the community
The Tribunal has seen little evidence to show that the applicant has made any contribution to the community. At hearing, it heard from him that the company with which he worked had installed [product] in a homeless shelter. A letter dated 12 February 2022 from a person who described himself as senior site coordinator for the [specified] company for whom the applicant used to work substantiated that the applicant had volunteered his time to be a part of their charity work by measuring and installing [product] for “accommodation projects”. At hearing, the Tribunal asked the applicant if he was involved in any community groups such as sporting groups, and he replied that he was not.
In the undated submissions letter, the applicant’s representative argued that the applicant has continued to make contributions to the community through his employment as an [Occupation 1] and also by paying taxes on his income. It is difficult to see how either of these could be viewed as contributions to the community – one relates to his employment and the other is something he is compelled to do under Australian law under penalty.
The Tribunal accords some weight against cancelling the visa based on the contribution made by the applicant to the community through his charity work with his ex-employer.
Additional considerations
The Tribunal has considered if there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act. However, there is no evidence to show that anyone’s visa would be cancelled in this way, and this factor does not weigh against cancellation.
The Tribunal has considered whether there are mandatory legal consequences to a cancellation decision. It has considered that by his visa being cancelled, the applicant will become an unlawful non-citizen and will be liable to be detained under s.189 and removed under s.198 of the Act if he does not voluntarily depart, although there is no information to show that he would be indefinitely detained due to Australia’s non-refoulement obligations. It has also considered that he will be unable to apply for all but a certain number of visas set out in r.2.12 of the Regulations by virtue of the operation of the s.48 statute bar. Lastly, if the applicant chooses to apply for another visa he may face a three-year exclusion period under Public Interest Criterion 4013 (depending on the visa he subsequently applies for and whether there are circumstances that justify the granting of the visa within this time). This matter is given weight against cancellation.
The Tribunal has considered whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation. There is no evidence that the applicant has custody or otherwise of a child in Australia whose interests could be affected by the cancellation or by a consequential cancellation, although he and [Ms A] gave evidence that [Ms A] is in the early stages of a pregnancy and he is the father. The Tribunal notes that various articles under the Convention of the Rights of the Child are applicable in situations where a child may be separated from one or both parents due to a visa cancellation, such as Article 9(1) that relevantly states as follows:
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
Furthermore, and as a state that has ratified the Convention, Australia has an obligation to ensure that in all actions concerning children the best interests of the child are a primary consideration: Article 3.
The Tribunal will not enter into any calculus about whether [Ms A] will go full-term and be delivered of a baby – it accepts that a baby will be born. Having found in this way, it accepts that it would be in the best interests of this child to have a father present to be able to offer care and support. Although not recognised by the Convention, the same would apply in respect of [Ms A] who will, at various stages, have to cope with pregnancy, then childbirth, and finally with motherhood.
However, it is well to consider that both the applicant and [Ms A] do not currently hold a permanent visa – the applicant because he has had it cancelled, and [Ms A] because she is on a bridging visa (Bridging C visa (WE-030)) after having her cancellation set aside by a differently constituted Tribunal. While the applicant told the Tribunal that he intended to be a secondary applicant on [Ms A]’s working visa, there was little evidence presented to the Tribunal at or before hearing or that could be discerned from other sources to show that she has taken active steps to apply for such a visa. An undated letter on the Tribunal file for her cancellation matter (matter number 2112224) from the [head] of the [workplace] where she worked stated that the [workplace] “would … work with the relevant authorities to provide sponsorship to her to allow her to remain in the country and [workplace] indefinitely”. Her cancellation was set aside on 12 January 2022.
After hearing, the Tribunal wrote to the applicant through his representative, seeking information about whether steps have been taken to sponsor [Ms A] under a Subclass 482 visa (the visa nominated by the representative at hearing), whether [Ms A] has identified a pathway to permanent residency, and the effect, if any, of the impending birth on her ability to be able to fulfil the criteria for the grant of the visa or, if the visa is granted, the ongoing conditions.
In response, the representative stated that [Ms A] intends to submit an application for the Subclass 482 visa with the applicant as a secondary applicant, pending the outcome of the applicant’s matter. The representative also stated that [Ms A] will apply for a Subclass 186 application as a special needs teach which would allow her to obtain permanent residency. In relation to the effect of the impending birth, the representative stated that [Ms A] and the applicant have been in the process of making the appropriate arrangements to ensure full compliance with the criteria and conditions of the Subclass 482 visa, including by having the applicant care for the child when [Ms A] is teaching and by sourcing childcare. The applicant stated that this will have a limited impact on [Ms A]’s eligibility and the experience required to qualify for permanent residency.
The Tribunal accepts that [Ms A] will apply for a Subclass 482 visa and, based on the letter of support from her employer, that she will be sponsored by her employer. It accepts that if his cancellation is set aside, the applicant will be attached to this application as a secondary applicant.
The Tribunal accepts that [Ms A] will be able to fulfil the requirements for the grant of the Subclass 482 visa, as these requirements are in large part based on her skills, qualification and employment background of which there appears to be ample evidence on the file dealing with the review of her cancellation decision. It accepts that she has an easily identifiable pathway to permanent residency. Although it is obviously difficult to predict what ability she has to be able to fulfil her obligations given the impending arrival of a child, the Tribunal accepts as plausible the proposed childcare arrangements.
Given the above evidence and findings, the Tribunal accepts that it would be in the best interests of the child of [Ms A] and the applicant to not be separated from the applicant.
The Tribunal accords substantial weight against cancellation based on this factor.
There is no evidence that the applicant’s removal would breach Australia’s non-refoulement obligations. This matter is given no weight against cancellation.
There are no other relevant matters that reveal themselves on the evidence.
CONCLUSION
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. This non-compliance was egregious, and the Tribunal was not able to excuse it by reference to the applicant’s situation at the time of the non-compliance.
However, having regard to other relevant circumstances as above, and especially the ongoing relationship between the applicant and his de facto partner and the impending arrival of their child, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
David Crawshay
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.

Employer details
Legal registered name:	[Company 1] trading as [Name]
Trading name:	[Name]
Australian Business Number (ABN)	[ABN]
Work conditions
Employment type:	Direct employment
Industry type:	Mining
Industry type sub-group:	Mining
Description of duties:	[Details redacted]
Date from:	16 Mar 2020
Date to:	05 Jul 2020
Total hours worked:	760
Total days worked:	90