2115559 (Migration)

[2022] AATA 2347

2115559 (Migration) [2022] AATA 2347 (15 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2115559

MEMBER:K. Chapman

DATE:15 February 2022

PLACE OF DECISION:  Brisbane

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 15 February 2022 at 10:31am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information provided in second extension application – six months of specified work in regional area while holding first extension – integrity checks – discretion to cancel visa – COVID-19 restrictions and prevalence in home country – attempts to obtain specified work – no approach to department – paid third party to complete and lodge application – full admissions and acceptance of responsibility – value of current work to employer – meritorious conduct in assisting victim of crime and giving evidence at trial – finely balanced factors – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 101(b), 107, 109(1)
Migration Regulation 1994 (Cth), r 2.41

CASES
Botha v MIBP [2017] FCA 362
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 (Cth) (‘the Act’).

2. The delegate cancelled the visa on the basis the applicant had not complied with sub-section 101(b) of the Act, in that he incorrectly declared in his visa application he had performed 6 months of specified work in a regional area, when integrity checks confirmed he had not done so. It is worth pausing to reflect that generally an applicant is not entitled to the grant of a third Subclass 417 visa without having performed 6 months of specified work, commonly required to be in a regional area.

3. On 9 August 2021, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 417 visa, on the basis that he failed to comply with sub-section 101(b) of the Act. He responded to the NOICC on 23 August 2021. On 1 November 2021, the delegate cancelled the applicant’s Subclass 417 visa.

4. On 1 November 2021, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with his application. The applicant subsequently submitted his personal statement, an employment reference and documentation pertaining to his appearance in the Supreme Court of NSW as a witness to an incident in Sydney. Following the review hearing, the applicant submitted written confirmation from a Detective Senior Constable of the NSW Police Service, attesting to the assistance he provided as a first responder and witness regarding an incident in Sydney.

5. The applicant appeared by telephone before the Tribunal on 7 February 2022 to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by telephone. The Tribunal is satisfied that the telephone method of hearing was fair and appropriate, given the prevailing situation with the COVID-19 pandemic.

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

   ISSUES AND LAW

7. The issues in the present case are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

8. Sub-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, 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence at the review hearing

10. The applicant’s evidence to the Tribunal at hearing may be summarised as follows. He agreed that he received the NOICC and responded to it. The applicant indicated he had read and understood the delegate’s visa cancellation decision. He outlined his University studies in [Subject] in [City], in addition to his work experience with [Employer] as an [Occupation 1] in Dublin. The applicant departed Ireland in October 2018 to engage in a working holiday. He travelled first through [Region], then arrived in Sydney in late 2018 as the holder of a Subclass 417 visa. The applicant initially performed casual work in Victoria. He then undertook specified work within regional areas in Queensland and New South Wales to qualify for his second Subclass 417 visa. Thereafter, he returned to Sydney in late 2019 for the summer period.

11. The applicant explained that in September 2019 he witnessed [an attack on] a [man] in [Sydney]. The applicant stepped forward and rendered first aid to the man, who had a gaping [wound] that was bleeding profusely. The applicant removed his shirt and applied pressure to the wound, asking others to call for assistance. Subsequently, the applicant was assisted by another passer by who attempted to comfort the injured man. Following the arrival of the emergency services, the applicant assisted the NSW Police Service with their investigation as a witness. Most unfortunately, the [victim] of the [attack] passed away from his wounds. In late 2021, the applicant attended the Supreme Court of NSW to give his evidence at the criminal trial of the accused. Ultimately, the accused was found guilty of manslaughter for the [attack]. The applicant advised that the NSW Police Service could confirm his assistance regarding the incident. He also referred to submitted documents such as that pertaining to him being a witness in the Supreme Court of NSW.

12. The applicant explained that the incident significantly affected him. He feels proud of his efforts for stepping forward and rendering assistance. Yet, he also feels great remorse that his efforts could not save the life of the victim. The applicant advised that he felt it his civic duty to attend the criminal trial of the accused and provide evidence in relation to the [attack] he witnessed. The applicant also told the Tribunal that the incident had affected his thought process when later, in the midst of the COVID-19 pandemic, he was under pressure and seeking to obtain the third Subclass 417 visa (the visa that is the subject of this review).

13. The applicant went home to Ireland for Christmas in 2019, then returned to Sydney for the remainder of the summer. He had planned to search for regional work in mid-2020, then perform it during the winter months of that year so he would be eligible for his third Subclass 417 visa. When the COVID-19 pandemic struck Australia in March 2020, the applicant felt secure residing in Sydney and was concerned about retuning to Ireland, which had a very heavy second wave of COVID-19. He explained that throughout 2020 he attempted to obtain regional work, but it was impossible to do so due to the pandemic. The applicant informed the Tribunal that he felt compelled to remain in Australia so he could provide his evidence in the trial pertaining to the death of the [man] he assisted.

14. The applicant advised the Tribunal that he felt under pressure as 2020 wore on and it was not possible for him to acquire regional work to make him eligible for the third Subclass 417 visa. He informed the Tribunal he was determined to remain in Australia to provide evidence in the trial pertaining to the [attack] victim in Sydney. Further, he was concerned at returning to Ireland amidst the pandemic there. The applicant advised that his ability to think clearly was clouded by these matters, in particular the crime that he had witnessed.

15. According to the applicant, he obtained the details of a [Mr A] from social media. He then contacted [Mr A] for assistance in obtaining a third Subclass 417 visa. [Mr A] used an email address containing the term ‘[Term]’. The applicant admitted to the Tribunal that he had done the wrong thing in contacting [Mr A], citing it as a serious mistake. The applicant explained to the Tribunal he paid [Mr A] the sum of $2,000 to procure his third Subclass 417 visa. They exchanged information via the internet to do so. The applicant expressed regret at his actions, given he had not completed the necessary specified work in a regional area to obtain the third Subclass 417 visa.

16. The Tribunal canvassed with the applicant the information contained in the delegate’s visa cancellation decision, regarding his alleged provision of incorrect information concerning regional employment with [Employer 2]. The applicant made full admissions regarding the provision of incorrect information concerning the claimed specified work in his visa application. The Tribunal canvassed with the applicant the provisions of s.98 of the Act pertaining to responsibility for information contained in visa applications. He took full responsibility for the submitted information.

17. The Tribunal raised with the applicant that the evidence before it might tend to suggest that the ground for cancellation of his visa exists in that incorrect answers have been given or provided in the manner outlined by the delegate. He was invited to comment and conceded this matter. In addition, the applicant provided fulsome information to the Tribunal regarding the assistance he received from [Mr A]. This is to the applicant’s credit. He also outlined he was afraid of catching COVID-19 in Ireland at the time of application and that the [attack] incident in Sydney had a profound impact upon him.

18. The Tribunal raised with the applicant that his failure to provide correct information in relation to his third Subclass 417 visa application might tend to weigh in favour of cancelling his visa. The applicant was invited to comment and indicated that he took full responsibility for his actions, asking for a second chance. The Tribunal raised with the applicant that the failure to provide correct information in relation to his third Subclass 417 visa application might tend to suggest that the decision to grant him that visa was based wholly or partly on incorrect information and this might tend to weigh in favour of cancelling his visa. The applicant was invited to comment and he accepted he was in the wrong.

19. The Tribunal canvassed the applicant’s current circumstances and issues of hardship with him. He works full time as an [Occupation 2] in Brisbane for [Employer 1], which has established an Australian office. His role includes training Australian citizens in [Work sector] related duties and he is also the live-in caretaker for the business premises. He outlined that he is a critical employee of this business and that it would suffer without his knowledge, also referring to the submitted employer reference from the [Employer 1] Country Manager for Australia. The applicant stated that he loves his employment and lifestyle in Australia. He explained that he wishes to remain in Australia to pursue his career in [Work sector] and it is likely his employer will nominate him for an employer sponsored visa if his Subclass 417 visa is not cancelled. He had nothing further to add regarding his present circumstances.

20. The applicant indicated he had not breached any Australian laws or other visa requirements. He referred the Tribunal to his contribution to the Australian community by assisting the [attack] victim in Sydney and also more generally in assisting homeless people by purchasing food for them when the opportunity arises. The applicant confirmed to the Tribunal that he is single and has no children in his care. The Tribunal canvassed the mandatory legal consequences of visa cancellation with the applicant. In response he advised that he understood those consequences. The applicant confirmed that no international obligations were relevant to his case.

21. When asked by the Tribunal if there was any reason he could not return to The Republic of Ireland, the applicant advised there was not. Upon enquiry of the Tribunal, the applicant confirmed that he is fully vaccinated against COVID-19. He wishes to remain in Australia and is hopeful he will be successfully nominated for an employer sponsored visa if he retains his Subclass 417 visa.

22. Towards the conclusion of the review hearing, the applicant again asked for a second chance to remain in Australia. He reiterated that he had performed his civic duty when he rendered assistance to the [attack] victim in Sydney. Additionally, he reinforced that he assisted the NSW Police Service with their investigation pertaining to the incident and he appeared in the Supreme Court of NSW as a witness in November 2021.

23. In sum, the applicant wishes to remain in Australia where he has built his career and his life. At the conclusion of the hearing, the applicant confirmed to the Tribunal that he had no further evidence to submit at hearing. He indicated he would provide post-hearing material by way of confirmation from the NSW Police Service of the assistance he rendered regarding the [attack] incident in Sydney.  

    Did the notice comply with the requirements in s.107?

24. Section 107 of the Act is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

25. The Tribunal notes that the NOICC dated 9 August 2021 was properly despatched by the Department to the applicant. He provided a response to the NOICC on 23 August 2021. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and further that the delegate had reached the necessary state of mind to engage the provisions of s.107 of the Act.

26. Therefore, in the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

27. The Tribunal must consider 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 is non-compliance with s.101(b) of the Act.

28. The s.107 notice particularises non-compliance with s.101(b) of the Act by the applicant in relation to his third Subclass 417 visa application. It indicates the applicant incorrectly answered questions in that visa application in relation to having performed 6 months specified work in a regional area.

29. It is not in dispute that the applicant’s visa application incorrectly declares the performance of 6 months specified work in a regional area. He admitted to seeking the assistance of [Mr A], paying him the sum of $2,000 in return for lodging the visa application. The applicant took full responsibility for his actions.

30. Following careful consideration, the Tribunal finds that the untruthful answers regarding the applicant’s performance of 6 months of specified work in a regional area constitute the provision of incorrect answers in the manner particularised in the s.107 notice. On balance, the Tribunal is satisfied that the answers provided by the applicant as particularised in the s.107 notice are incorrect.

31. Therefore, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

32. 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).

33. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. 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; and

    ·     any contribution made by the holder to the community.

34. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

35. The Tribunal notes the applicant responded to the NOICC on 23 August 2021. He set out his role in providing assistance in the aftermath of the [attack] incident in Sydney, his concern at the COVID-19 situation in Ireland and his desire to remain in Australia. On balance, the Tribunal finds that the response of the applicant to the NOICC dated 9 August 2021 weighs neither in favour, nor against, cancellation of his visa, given that more contemporary evidence is before it.

36. The correct information in relation to the questions in the relevant visa application, previously outlined, is that the applicant did not perform 6 months specified work in a regional area. The false information submitted in his visa application regarding this topic is, in the view of the Tribunal, a very serious matter. This is particularly so given the applicant knew he was not entitled to be granted the third Subclass 417 visa without performing the relevant work, and he was already familiar with the requirements to perform specified work to obtain his second Subclass 417 visa but chose to pay [Mr A] the sum of $2,000 to proceed with the visa application. These circumstances weigh strongly in favour of cancelling the applicant’s Subclass 417 visa, given the untruthful nature of the incorrect information submitted. For completeness, the Tribunal finds that there is no circumstance in the present matter regarding the content of a genuine document and therefore no weight is given to that prescribed circumstance.

1. The Tribunal forms the view that the decision regarding the applicant being granted the third Subclass 417 visa was based wholly or partly on incorrect information. That is, the applicant’s visa application incorrectly submitted that he performed 6 months specified work in a regional area. Given that this topic is central to the grant of a third Subclass 417 visa, had the true information been known to the Department the applicant would not have been granted the visa. Following careful consideration, the Tribunal finds that the circumstances in relation to the grant of the third Subclass 417 visa to the applicant weigh strongly in favour of cancelling his visa.

2. The Tribunal finds that the applicant engaged in a deliberate course of conduct to pursue a third Subclass 417 visa application, in the knowledge that he had not performed 6 months specified work in a regional area. That he chose to pay $2,000 to [Mr A] to lodge the application on his behalf reflects poorly upon him. Whilst the Tribunal understands that the applicant felt under pressure when the COVID-19 pandemic struck and he felt committed to assisting the NSW Police Service with their investigation regarding the [attack] victim in Sydney, at no stage did he contact the Department during 2020 to discuss his options in light of the unfolding situation. Rather, he made the conscious decision to pursue a pathway that would submit incorrect information on his behalf in his third Subclass 417 visa application. It is worth pausing to reflect that the incorrect information only came to light when the Department conducted integrity checks and the applicant never volunteered the true information to the Department. Following careful consideration, the Tribunal finds that the circumstances in which the non-compliance occurred weigh strongly in favour of cancelling the applicant’s Subclass 417 visa.

3. The applicant submitted that his present circumstances weigh against the cancellation of his visa. In particular, his current employment as an [Occupation 2] with [Employer 1] in Brisbane is offered as a reason weighing against visa cancellation. This contention is also supported by the applicant’s employer through the written reference of the [Employer 1] Country Manager Australia, who indicates that the business will face difficulty without the applicant in its employ. Further, the applicant is likely to be nominated for an employer sponsored visa if his Subclass 417 visa is not cancelled. The applicant also advised that he fears catching COVID-19 in Ireland and that his life is now in Australia.

4. The Tribunal notes the applicant is fully vaccinated against COVID-19, which will mitigate the health risks to him if he returns to The Republic of Ireland, noting that the virus is prevalent in that location. Further, the Tribunal considers that given the applicant’s extensive experience in [Work sector], both in Australia and Ireland, he will be able to locate suitable employment if he returns to his country of nationality. This will ensure he is able to meet his needs for subsistence.

5. Of note, the applicant made full admissions concerning his wrongdoing. He also provided information regarding the alleged dubious assistance provided to him by [Mr A]. The Tribunal considers these matters reflect well upon the applicant with respect to his present circumstances.

6. On balance, the Tribunal finds that the applicant’s present circumstances weigh moderately against the cancellation of his visa. This is primarily due to his supervisory role in his current employment in Australia with [Employer 1] and his full admissions of wrongdoing. Further, the applicant’s expressed reasons for not wishing to return to The Republic of Ireland have been considered in combination with the aforementioned matters by the Tribunal.

7. The Tribunal has carefully considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act and also whether there are any other instances of non-compliance by the visa holder. There are no adverse matters before the Tribunal with regard to these matters. Therefore, on balance, the Tribunal finds that these matters weigh moderately against the cancellation of the applicant’s Subclass 417 visa.

8. The time that has elapsed since the non-compliance with s.101(b) has been carefully considered by the Tribunal. The applicant made the application for the third Subclass 417 visa on 4 November 2020, approximately 15 months prior to the time of this decision. Given this period of time is not lengthy, on balance, the Tribunal finds that the time that has elapsed since the non-compliance weighs neither in favour, nor against, cancellation of the applicant’s visa.

9. There is no evidence of any breaches of the law since the applicant’s non-compliance and the Tribunal affords this circumstance moderate weight against cancellation of his Subclass 417 visa.

10. The applicant has clearly made a contribution to the Australian community by rendering assistance to the [attack] victim in Sydney. He also assisted the NSW Police Service over a prolonged period with their investigation and prosecution of the perpetrator, including by way of giving evidence as a witness in the Supreme Court of NSW. The applicant also makes a continuing contribution by his training of Australian citizens in [Work sector] duties at his workplace. In combination, these matters weigh very strongly against the cancellation of his Subclass 417 visa.

11. 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.

12. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention. As outlined above, the mandatory legal consequences of visa cancellation were canvassed with the applicant at the review hearing. If the applicant’s Subclass 417 visa is cancelled and he does not hold a valid visa he will become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act. He may also be subject to s.48 of the Act, which limits further specific onshore visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. Further, the applicant may be subject to an exclusion period regarding future visa applications. There is no evidence before the Tribunal to suggest that the applicant would be subject to indefinite detention and be unable to be removed to The Republic of Ireland. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s Subclass 417 visa given they are the intended consequences of the legislation.

13. The Tribunal has carefully considered all other relevant matters, including the degree of hardship that may be caused to the applicant if his Subclass 417 visa is cancelled. As detailed above, the applicant expressed his desire to keep working as an [Occupation 2] for his current employer. Further, his supervisor indicated some hardship would be caused to the business if the applicant departs. Additionally, the applicant advised his life is now in Australia, he seeks employer sponsorship to remain in this country and he does not wish to return to life in The Republic of Ireland.

14. The Tribunal accepts that there will be some hardship for the applicant if his visa is cancelled in relation to leaving current employment and returning to a situation he considers less desirable than remaining in Australia. The Tribunal also accepts there will be some disruption to the applicant’s employer if his visa is cancelled. On balance, the Tribunal finds that the applicant (and his employer) would face a moderate degree of hardship if his visa is cancelled and this weighs moderately against the cancellation of his Subclass 417 visa.

15. For reasons previously outlined, the Tribunal finds there is no persuasive evidence before it to suggest that any international obligations would be breached as a result of the cancellation of the applicant’s Subclass 417 visa, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. Accordingly, this consideration weighs neither in favour of, nor against, cancellation of the applicant’s Subclass 417 visa. The Tribunal records that it has duly considered all relevant matters in the applicant’s case.

    CONCLUSION

16. The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 417 visa. For reasons previously expressed, the Tribunal finds that the applicant engaged in a knowingly untruthful course of conduct to engage [Mr A] to lodge his third Subclass 417 visa application, relying upon the false premise that he completed 6 months of specified work in a regional area. In doing so there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

17. In the present matter, the Tribunal is of the view that the outcome is very finely balanced. The Tribunal takes a very dim view of the conduct of the applicant regarding his blatant provision of false information in the Subclass 417 visa application. This is a matter of the utmost seriousness, particularly as the performance of specified regional work is central to the grant of an additional Subclass 417 visa. However, the Tribunal has also been presented with compelling evidence of the applicant providing laudable assistance in relation to a tragic incident in September 2019, whereby a [man] lost his life in a violent [attack] in Sydney. The applicant displayed great courage by rendering immediate first aid to the profusely bleeding [wound] of the victim. Indeed, Detective Senior Constable [B] of the NSW Police Service provided written confirmation to the Tribunal of the applicant’s efforts as a first responder, his assistance with the subsequent investigation and his appearance as a witness in the Supreme Court of NSW at trial. Detective Senior Constable [B] wrote, inter alia, “[The applicant] used a shirt to apply pressure to the wound while most others stood back and watched.” In the view of the Tribunal, the actions of the applicant pertaining to this incident were exemplary.

18. On the one hand, the Tribunal has before it an applicant who has obtained a visa whilst being undeserving of it through the provision of false information. Yet, on the other, the applicant displayed exemplary conduct in trying to save the life of a [man], who was callously [fatally attacked] in Sydney. He intervened to assist a stranger on the margins of society, whom many passers by did not aid, displaying great humanity in doing so. In the view of the Tribunal this is a most significant contribution to the Australian community. It weighs very strongly against the cancellation of his Subclass 417 visa. It is the circumstance that tips the balance in the applicant’s favour.

19. On balance, following much consideration, the Tribunal finds that the circumstances in favour of cancelling the applicant’s visa are outweighed by those circumstances to the contrary. Therefore, the Tribunal does not exercise its discretion to cancel the applicant’s visa.

20. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as outlined above, the Tribunal concludes that the Subclass 417 visa should not be cancelled.

    DECISION

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

    K. Chapman
    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.