Archani (Migration)

[2021] AATA 4863

Archani (Migration) [2021] AATA 4863 (15 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ines Fatima Archani

CASE NUMBER:  2102605

HOME AFFAIRS REFERENCE(S):          BCC2020/2685448

MEMBER:Melissa McAdam

DATE:15 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 September 2021 at 11:07am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – ground for cancellation – incorrect information in visa application – completion of specified work – consideration of discretion – central requirement for the grant of visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

Migration Regulations 1994 (Cth), r 2.41

CASES
Chang (Migration) [2020] AATA 681
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was represented in relation to the review by her registered migration agent.

3. The delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Section 107 Notice (NOICC)

4. On 10 December 2020 the Delegate issued a Notice of Intention to Consider Cancellation of the applicant’s Working Holiday Visa (NOICC) under s.107 of the Act.  In the NOICC the Delegate set out the following:

   I consider that there has been non-compliance with the following section(s) of the Migration Act 1958:

   Section 101. Visa applications to be correct
   A non-citizen must fill in his or her application form in such a way that:
   …
   (b) no incorrect answers are given or provided.

   By operation of s99 of the Migration Act 1958, 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.

   On 26 June 2020 you applied for a Working Holiday Extension (subclass 417) visa via the Department’s online lodgement facility.

   On page 1 of the application form, in response to the question “Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa *subclass 417?” you answered “Yes”.

   On page 5 under the heading “Details of specified work undertaken”, you provided the following answers:
   Details of specified work undertaken
   Legal registered name: GMR Enterprise Pty Ltd
   Trading name: GMR Enterprise Pty Ltd
   ABN: 87605528238
   Is the employer a labour hire company? No

   On page 6 of the application form, under the heading “Work conditions”, you provided the following answers:
   Description of duties: Installation and removal of pits and services for NBN project in Lithgow region. Stared (sic) as telecommunications labourer
   Date from: 02 December 2019
   Date to: 26 April 2020
   Total hours worked: 750
   Total days worked: 93
   Was the applicant under a piece rate agreement? Yes

   On page 9 of the application form, under the heading “Working holiday declarations”, in response to the question “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”, you answered “Yes”.

   On the basis of the above information and meeting all other relevant criteria, your Working Holiday Extension (subclass 417) visa was granted on 26 June 2020.

   A Departmental officer contacted the employer referred to in your visa application; GMR Enterprises Pty Ltd (ABN 8760552828), who confirmed that they had no record of having employed you.

   The grant of your Working Holiday Extension (subclass 417) visa on 26 June 2020 was based on the fact that you satisfied certain criteria, one of these being subclause 417.211(5) which requires the total period of specified work carried out in regional Australia to be or equivalent to at least 3 months of full-time work.

   417.21 Criteria to be satisfied at time of application
   417.211
   …
   (5) 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.

   I consider that had the delegate been aware that you did not complete 3 months of specified work in regional Australia, your Working Holiday Extension (subclass 417) visa would not have been granted.

   As I consider this answer is incorrect, I consider you did not comply with subsection 101(b) of the Migration Act, which required you to fill in your application form in such a way that no incorrect answers are given or provided.

   Section 100 of the Act provides that an answer to a question is incorrect even if the person who gave the answer, or caused the answer to be given, did not know it was incorrect.

   As such, your Working Holiday Extension (subclass 417) visa is liable for cancellation under Section 109 of the Act.

   Response to NOICC

5. On 21 January 2021 the applicant’s Agent provided a response to the NOICC, outlining the following:

   The Client is holding a Working Holiday Extension (Subclass 417) visa granted on 26 June 2020 and will expire on 30 October 2021.  Before that, she was holding the same type of visa (i.e., first Working Holiday Visa) granted on 05 September 2019 and expired on 30 October 2020).

   The Client is currently in a partner relationship with a New Zealand citizen, Jawod Sekandar since May 2020 (they first met in January 2020), who is currently living in New Zealand.

   The Client worked as an account manager at Hytech technology from January to December 2020. Since 04 January 2021, she has been working as a Finance Analyst with Keolis Downer.

   She has been selected under the arrangement between the Government of the French Republic and the Government of Australia concerning the trainee exchange scheme. With regards to this, she has applied for International Relations (Subclass 403) visa under the Government Agreement Stream.

   Through a referral from a friend, the Client received assistance from Lee Hansol who contacted her through email address: [email protected] during her Working Holiday Extension (Subclass 417) visa application.

   On the Working Holiday Extension (Subclass 417) visa application, an incorrect answer was provided in relation to whether the Client had performed specific work in regional Australia for at least three months. This is the subject of the current notification of intention to consider cancellation under section 109 of the Migration Act 1958.

   This submission is not to dispute that there was not a non-compliance. Our Client had not undertaken specific work in regional Australia for a total of three month. We also understand that by engaging the assistance of an agent to lodge the Client’s Working Holiday Extension (Subclass 417) visa does not exempt her from the requirement to provide correct information in association with her visa application.

   Having said that, in the present matter, the Client trusted Mr. Hansol’s advice, through the recommendation from her friend, and thought the paperwork which was submitted on her behalf was legitimate and correct.

   In light of the above, the Client is a victim of fraud. To determine whether she was a victim of a fraud, the correct approach can be found in the leading case of Maharjan in which the Client needs to show:

   a.     That the application was made without the actual or implied authority of the applicant; or based on the correspondence between Mr. Hansol and the Client, she never had any control over what was provided by Mr. Hansol to the Department of Home Affairs. She does not have any actual or implied authority over what Mr. Hansol did.

   b.     The Client did not have legal capacity to authorise another person to make the application on her behalf; or – this is not applicable to the Client as she is over 18 years old.

   c.     The Client was neither “complicit” in the fraud or “indifferent” to whether unlawful or dishonest means were used to attempt to obtain a visa; and – based on the evidence available, the Client knew Mr. Hansol from a friend. She contacted him whether she can apply for Working Holiday Extension (Subclass 417) visa without having specified work to which Mr. Hansol assured her she can. The Client is not a migration agent or a lawyer so she cannot make an informed legal reasoning. A reasonable person in the Client’s case will accept what Mr. Hansol has to say because she did not know him out of nowhere instead she was referred to him from a friend. During the whole process until obtaining the visa, she was never part of the process. In the questionnaire provided by Mr. Hansol, the Client mentioned all her information correctly. In light of this, she was neither complicit in the fraud or indifferent to the dishonest actions made by Mr. Hansol.

   d.     The submission of the fraudulent document has somehow “stultified” the process of review and determination of the visa application (in other words, interfered with the fair processing of the application). – yes, it completely does. Because of our Client’s reliance on Mr. Hansol’s advice and conduct, now, her visa is about to be cancelled.

   In any event, the Client regretted and remorse for being ignorant on her own application. She did not know the incorrect information was provided in her application (for completeness, she has never even seen the submitted visa application form) until she received the Department’s NOICC.

   OTHER MANDATORY CONSIDERATIONS
   Should the Case Officer still be of the opinion that the power to cancel under s109 of the Migration Act continue to exist, then this discretionary power must be considered after having regard to the prescribed circumstances r.2.41 of Migration Regulations; s 109(1)(c).

   As the matter of policy, delegates should not weigh matters that are against the visa holder. This is because the grounds for cancellation have already been made out. Instead, any information to be provided below can be weighed in our Client’s favour whilst the amount of weight to be provided to each consideration is at the discretion of the delegate within reasonability.

   The content of the genuine document (if any)
   The Client is not aware of any bogus document provided by the representative in Working Holiday Extension (Subclass 417) visa. Therefore, this factor is not applicable.

   The correct information and 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
   As provided above, the correct answer that should have been provided was ‘No’, the Client did not work at GMR Enterprise Pty Ltd (ABN: 87605528238) during the declared period.

   An application for Working Holiday Extension (Subclass 417) visa needs to have performed specific work in regional Australia for at least 3 months under 417.211(5) of Schedule 2 of the Migration Regulations 1994 (then in force).

   As such, the Client now acknowledges that this was a legal requirement for her to extend her Working Holiday Extension (Subclass 417). Therefore, this information was material to the decision of Working Holiday Extension (Subclass 417). In other words, this factor is in favour of cancellation.

   The circumstances in which the non-compliance occurred
   The Client had engaged the services of Mr. Hansol who was referred to by her friend. We would also like to draw the attention of delegate to paragraph 16 which outlines how the Client has been a victim of fraud. Mr. Hansol even asked the Client to put payment reference for his professional fees as “rent”.

   Before receiving advice and assistance from Mr. Hansol, the Client was actively looking for the specified work at regional Australia. In addition, she asked assistance from her friends and colleagues in finding the specified work as well. This has been confirmed by her friends in their support letters.

   The Client’s ability to find a specified work has been severely affected by COVID19 because employers at regional Australia were reluctant to accept prospective workers who reside at city area where infection of COVID19 was the highest.

   Under s 100 of the Migration Act, a person’s state of mind is irrelevant when determining whether an incorrect answer has been provided. However, as emphasised in the policy guidelines, ‘their state of mind is relevant, however, in considering whether to cancel the visa’.

   Upon receiving assurance from Mr. Hansol that it was possible to apply for the visa without having worked in the regional area for three months, the Client remained in Sydney continue working at her current employer. During her engagement with Mr. Hansol, the Client was only notified when her visa application was approved. She has never seen what was submitted. In addition, when asked by Mr. Hansol to provide her detailed information, she has outlined all her information correctly. Mr. Hansol should have advised the Client, from noticing that she has never done any specific work she is not eligible, but he has assured her that her visa application would go through smoothly without any problem. In other words, the Client has never heard of the company, GMR Enterprise Pty Ltd and the ABN: 87605528238.

   Therefore, the circumstances and the regretful inadvertence of the Client are circumstances that should be taken into account.

   Under the statutory declaration of the Client, who understands the legal weight of this document carries, she states that she regrets fully trusting Mr. Hansol and did not conduct his own due diligent research on the legal requirements and procedures for the application.

   The above circumstances (i.e. COVID19 implication on her ability to find specified work and Mr. Hansol’s lodgement of the visa application with the incorrect information to which the Client is not aware of) are beyond the Client’s control, therefore, the delegate should give this consideration significant weight in favour of not cancelling the visa.

   The present circumstances of the visa holder
   The Client was lawfully employed by Hytech technology as an account manager from January to December 2020. She performed well at the company and as a result, she received a promotion and has integrated into the client success team. As per the letter from manager of the company, the Client was a great asset to her Australian employer.

   Her performance at her workplace has been acknowledged by colleagues. She has immensely contributed to the recent success of the Customer support Department and has played a major role in increasing client satisfaction levels. Her importance in the business is also cemented by the fact that she is the only French speaking employee in the business and the company mostly deals with French speaking clients. She was in charge of managing some of the most complex cases and made sure that all the client requests had been satisfactorily resolved.

   Due to her profile, qualification and work experience, the French Embassy’s Trade Commission Business France certifies that the Client has been selected under the Arrangement between the Government of the French Republic and the Government of Australia concerning the trainee exchange scheme on 22 December 2020. She has started a new employment – i.e., 12 months internship (which may be extended provided it does not exceed 24 months) in Australia with Keolis Downer, from 01 February 2021 to 31 January 2022.

   As a result, the Client has applied for Subclass 403 visa under the Government Agreement stream on 23 December 2020. It is in the best interest of Australian employer not to cancel her visa. If her visa is cancelled, it is a waste of taxpayers’ resources because if she has to appeal to the Tribunal for cancelled visa and need to fight for Public Interest Criterion 4013, the Client has a good case due to the compelling reasons – i.e. in the interest of Australia.

   Her current company, Keolis Downer, plays a major role in critical sector in logistics and transports. Moreover, the Client is one of the key members in the business which
   is a bridge between French company and Australian company. In light of this, we
   humbly request the delegate not to create any mess because her visa cancellation will
   cause a lot of individuals at stake – i.e. taxpayer resources, Australian company itself,
   and most importantly, our Client’s life.

   Moreover, the Applicant is currently in a relationship with New Zealand partner. He is
   currently in Australia and he himself is applying for permanent visa in Australia. As a
   result, should the case officer still be of the opinion that the visa should be cancelled,
   the Client will still be able to continue to remain in Australia during the processing of
   this visa application. However, there will be unnecessary inconveniences that will be
   caused including an application for a Bridging Visa E in the event of cancellation. The
   Client will then open to immigration complications including section 48 issues, 3 year
   exclusions from Australia due to PIC 4013 and 4014.

   Generally, after cancellation of the visa, the person will become an unlawful non-citizen
   which opens the person to be detained and subsequently removed from Australia.
   However, in light that the removal will not occur whilst the Client still has a pending
   subclass 403 visa application, we wish to humbly request that the Case Officer not to
   exercise the power under section 109 of the Migration Act to cancel the visa and open
   the Client to unnecessary repercussions (section 48, PIC 4013 and 4014 etc.)

   In light of the above, her current circumstances significantly put in favour of her visa
   not being cancelled.

   The subsequent behaviour of the Client concerning her obligations under Subdivision
   C of Division 3 of Part 2 of the Act
   Following the current letter, the Client was made aware of the non-compliance with the
   Act and the provision of incorrect answers. Since then, the Client has been cooperative,
   has openly acknowledged the incorrect answer and fully disclosed the circumstances
   in which this non-compliance occurred. Moreover, she immediately engage
   professionals to assist, learning from mistake, not just random person through friends’
   recommendation.

   The Client contacted our office to represent her and we have advised her of the nature of the current situation, the grave mistake made, possible repercussions and ways to rectify the mistake. She has openly admitted to her mistake. One needs to also understand the circumstances which lead to creating this mistake – i.e., wrong advice given by third party due to the recommendation of the Client’s friend, inability to find specified work due to the implication of COVID19 despite her effort, etc.

   Although Tribunal decisions are not binding, they are nevertheless persuasive providing guidance to the decisions maker in exercising their discretionary power. In the case of Kee1, the Tribunal takes a view that when the individual responds to NOICC and fully address the cancellation process, this behaviour should weigh in favour of the individual.

   Any other instances of non-compliance by the Client known to the Delegate
   There is nothing before the delegate of the Minister to indicate that there have been any other breaches of the law by the Client.

   Since her arrival in Australia, she has never breached any Australian visa conditions and laws. She has never been charged with any criminal offences. She has been tirelessly working to fight for the local community welfare in her current employment since January 2020. She was involved in charity events (i.e. hired by IVHQ to be a volunteer, applied to volunteer at different charities, the koala foundation, Eco Barge Clean Seas, etc. but her attempts were not  successful due to COVID19, taking part in 7 Bridges Challenges in fundraising for cancer awareness.

   This factor plays in favour of the Client’s visa not being cancelled.

   The time that has elapsed since the non-compliance
   The Client had applied for Working Holiday visa in June 2020. To date, around seven months have elapsed since the non-compliance.

   This factor, depending on the delegate’s interpretation, has a neutral stance. Having said that, since a lot has changed over the seven months (i.e., the Client is now working at an Australian company where she plays an important role as a bridge between Australian company and French company; her Australian company being a major player in critical sector in logistics and transports, the fact that she has contributed to Australian community through her previous employment – being a key member in her previous company surviving through COVID19 and her voluntary and charity works, etc.), this factor plays in favour of the Client’s visa not being cancelled.

   Any breaches of the law since the non-compliance and the seriousness of those breaches
   There is nothing before the delegate to indicate that there have been any breaches of the law since the non-compliance. She does not have any criminal record as well.

   This factor plays in favour of the Client’s visa not being cancelled.

   Any contribution made by the Client to the community
   The Client had produced evidence that, since 06 January 2020 until the end of December 2020, she was employed by Hytech S Technology Pty Ltd as an account manager. From 04 January 2021, she has been working as a Finance Analyst at Keolis Downer, largest provider of multimodal public transport in Australia and New Zealand.

   The letters from her previous employer, various colleagues, friends and partner have attested to the Client’s good character and the fact that her services have been valued at her current employer.

   In her work as an Account Manager at Hytech S Technology, she is responsible to actively communicate with her own book of clients to build a strong relationship, identify and develop new opportunities for her Australian employer. Her previous employer deals with French speakers, and she was the only French speaker during the recent market drop that followed COVID19. She was in charge of managing some of the most complex cases and made sure that client requests had been satisfactorily resolved.

   Most recently, she has been hired by Keolis Downer Pty Ltd as a financial analyst. To support their growth, the Regional Finance Manager was looking for a VIE Finance like the Client to integrate the team in order to assist him in the important finance tasks.

   Keolis Downer is a major provider of public transport in Australia. They are the largest light rail operator with Yarra Trams and Gold Coast operations and one of the most significant bus operators, through their KD Bus Division. The business plans to combine world leading expertise and local knowledge through the experience of French public transport company Keolis, and one of the Australia and New Zealander’s leading engineering and infrastructure management firms, Downer. It is important for them to have a French candidate like the Client who can liaise with Keolis Headquarters Finance team in France, as Australia is reporting their results to Keolis Group and participating to Group projects led by Keolis Headquarters.

   Not only through employment, but she has also made other contributions. On 18 February 2020, she was hired by IVHQ to be a volunteer and by an Australian family she found on She also took part in 7 Bridges Challenge in October 2020 and is planning and training to join 28km fundraising marathon for cancer awareness.

   The Department’s PAM3 ‘General Cancellation Powers’ lists certain other matters that, where relevant, should be taken into account as a matter of government policy when considering whether to exercise the discretion to cancel a visa under section 109 of the Act. They are:
   a. whether the visa would still have been granted if the correct information had been given;
   b. whether there are persons in Australia whose visas would, or may, be cancelled under s.140;
   c. whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:
   d. if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;
   e. whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment; and
   f. any other matters raised by the visa holder in their response.

   It is possible that the visa would not be granted because the Client did not demonstrate that she had been engaged in previous specified employment as legally required.

   There are no persons in Australia whose visa would, or may be, cancelled under section 140 of the Act. There is nothing to suggest that the cancellation would lead to the Client’s removal in breach of Australia’s non-refoulment obligations.

   As outlined above, the cancellation will result the Client to be affected by section 48 of the Migration Act and will prevent her from making a valid application for any visa (unless prescribed) whilst she remains in Australia. Upon cancellation, she will also become unlawful and is liable to be detained and removed subsequently should no bridging visa be granted to her. This will adversely affect her partner, and also the Australian company where she is the key employee who is the bridge between Australian company and French company. The Australian company will lose an employee under little to no notice.

   Despite the breach of the Migration Act by the Client, the circumstances favouring the Client, in particular her conduct since the breach outweigh the adverse circumstances in exercising the discretion to cancel her visa.

   CONCLUSIONS
   As set out above, and in light that this was a once-off event, we wish to humbly request the delegate exercises his or her discretion not to cancel the Client’s visa under section 109 of the Migration Act.

1. The Agent attached the following document copies to her submission:

   -The applicant’s French passport.

   -A visa grant letter dated 26 June 2020.

   -A visa grant letter dated 5 September 2019.

   -A letter from the applicant’s New Zealand partner regarding their relationship.

   -An agreement between the applicant and her partner to donate money to charity of they fail to go to the gym as agreed.

   -The applicant’s partner’s NZ Driver’s Licence.

   -An employer’s recommendation that the applicant would make a good tenant.

   -Two letters of recommendation from work colleagues.

   -The work colleagues’ NSW Driver’s Licences.

   -A letter of offer of casual temporary employment as a ‘Finance Analyst’ to the applicant from Keolis Downer, dated 16 December 2020.

   -A ‘VIE Finance’ Position Description from Keolis Downer.

   -A letter from the Department acknowledging the applicant’s International Relations (subclass 403) visa application

   -An email between the applicant and her Agent regarding her subclass 403 visa application and materials form Keolis Downer.

   -Email exchanges between the applicant and Lee Hansol.

   -Letters from people outlining their efforts to obtain employment for the applicant.

   -An employment performance appraisal of the applicant.

   -A letter from ‘Business France’ permitting the applicant to perform an assignment in Australia for 12 months.

   -A letter from the French Embassy that the applicant has been selected for a trainee exchange programme with Australia.

   -Insurance coverage for the applicant.

   -A message accepting the applicant as a volunteer for IVHQ.

   -Personal references plus ID from the referees.

   -The applicant’s AFP National Police Certificate.

   -A document in the French language.

   -Text messages from the applicant to others asking for volunteer and farm contacts and work possibilities.

2. The email exchanges between the applicant and Lee Hansol do not include the applicant’s initiating email to Lee Hansol.   The first in the emails submitted is dated 26 June 2020 and is Lee Hansol’s response to the applicant in which Lee Hansol includes the following: 

   Hi Archani, Yes!! you got the right person i am the one who can help you out :) please read all checklist carefully and send me all of them.

   once you fill out all questionnaire i will forward to farm owner so they start to organise apply your 2nd working holiday visa.(Limited Applicant per certain period) what they do is that they are making your paperwork in order to lodge your visa. you were supposed to work specific area for 88 days so they put you on their profile as you have been working for them during certain time

   so you don't have to worry about your 2nd visa once we have lodged your visa it will take
   minimum 2 weeks from the date we lodge and maximum would be 4~8 weeks.

   if anything happen we will act on behalf of you such as providing proof of evidence and all
   you need to do is that you need to make a reservation for taking X-ray test(Asian applicant
   only) when immigration request to do We will let you know later.

   when we lodged your application, immigration contact farm owner and check your detail after
   that, most of case would be approved but sometimes immigration request further information.
   we will respond upon their request so there is nothing to worry about from your end.

3. Lee Hansol’s email address is a Hotmail account and there is nothing to indicate Lee Hansol is a professional or has a business or company.  Lee Hansol’s payment details are to a personal bank account with the description to be written as ‘rent’.  In follow up emails the applicant writes of needing the visa to be issued quickly and an offer to refer lots of people to Lee Hansol if she is successful.  Lee Hansol again writes of sending the applicant’s details to “the farm”.

4. Later on 21 January 2021 the applicant’s Agent submitted a Statutory Declaration from the applicant which states:

   I contacted Mr. Lee Hansol as recommended by a friend. I was under the impression that he was a migration agent. He advised and instructed that I can apply for a second working holiday visa successfully without working in the regional area for three months.

   The contact details of Mr. Lee Hansol is [email protected]. He does not have phone number. Since it is through my friend’s recommendation, I completely trusted him. Throughout the process, he would use email only to contact me. I have never seen the form he submitted.

   After informing him with my details (to which I have explained to him I did not perform any specified work), the only correspondence I have received is the grant notice.

   At the time, I lacked understanding of the procedure and requirements of submitting a second working holiday visa. I incorrectly relied on Mr. Hansol to help me stay in Australia. When I asked him whether it would be okay for me to lodge the visa without farmwork experience, he said I do not need to. As a person with recommendation, I completely rely on him and now I fully regret not doing my own research. I regret being ignorant on this subject.

   Before engaging to Mr. Hansol, I was actually trying my best to find specified work but my efforts were not fruitful due to the interference of COVID19 and most of the employers did not want those living in Sydney city area to come and perform work. I also could not find flights to return to France as well at that time due to border closure and COVID19 pandemic was at its highest in Europe at that time.

   All my applications were rejected because Sydney was a hotspot. My roommate Tamara is witness of the situation, my colleagues and few peoples who helped me to find a farm job.

   I worked since 6 January 2020 for Vantage Fx and my contract was about to finish 6th July 2020. My manager offered me a new position as an account manager. But I couldn’t have the job if my visa finished in 2020. They were looking for someone for at least 6 months. I got scared and worries to lose a good job who offered me a new position and not find a farm. At the same time, the flight back to France were around $5000.

   In addition to all this, I met my boyfriend who is New Zealander and therefore who made me really want to stay. I couldn’t see him before of the closed borders.

   I had a very good track record with my employment at Vantage FX (Hytech Technology). Having said that, I was looking for different options in life and that’s why I applied for two jobs which are eligible for subclass 403 visa. I got the job with Keolis Downer as a financial analyst. I am currently applying for this visa.

   I think I should stay in Australia because I definitely helped Vantage Fx during the market dropped following COVID 19 crisis. I was the only French speaker and most of our clients are French. The company did her best results in the past 10 years, and I was part of this success.

   Then, in my new position I’m responsible to develop and build a strong relationship with my clients. However, I developed the partnership program and affiliate program all around Europe and specially with France, Belgium, Switzerland and United Kingdom.

   I assisted my manager with training of the team and my knowledge about all areas of foreign exchange, products and risk management were helpful.

   I was attentive to market developments and competitive offers in order to constantly adapt the company's offers. In addition, I helped with the French webinar that we started to realize to extend our market French market.

   I performed all these tasks competently with commitment and enthusiasm. I demonstrated the ability of work under pressure and to plan and organize successfully the deadlines.

   My strong interpersonal and communication skills have allowed to develop good working relationships with both colleagues and management.

   Recently, my manager offered me a pay rise and a new position as partnership manager for European market.

   Secondly, I brought other contributions. Last 18th February 2020 I have been hired by IVHQ to be a volunteer and by an Australian family that I found on I applied to different charities, the koala foundation, ecobargecleanseas (I attached all the emails).  I couldn't make it because of COVID.

   With my company we are members of the 7 bridges. I'm taking on the 7 Bridges Challenge this October and will be joining thousands as we conquer 28km for a cancer free future! It's more important than ever to come together this year to raise funds for people impacted by cancer. Every year in NSW alone, more than 47,000 new cases of cancer are expected to be diagnosed and the impact on families, carers and communities is significant. You can find my link here: conclude, I have been hired by Keolis downer as financial analyst. To support their growth, the Regional Finance Manager was looking for a VIE to integrate the team in order to assist him in the main Finance tasks.

   It is important for them to have a French candidate who can liaise with Keolis Headquarters Finance team in France, as Australia is reporting their results to Keolis Group and participating to Group projects led by Keolis Headquarters.

   I understand the seriousness of my conduct and consequences. I was being a victim of Mr. Hansol but I know I cannot entirely put the blame on him. I will learn from this mistake and make sure in the future I will get a proper advice from lawyers and agents moving forward. Since I am the person with a lot to contribute to Australian society, I request my visa not to be cancelled.

   I am always a good person and never break any law in any countries before.

   Tribunal Hearing

5. The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments. The following is a summary of the information she provided at the hearing:

   a.Vantage FX and Hytech Technology are the same employer. She worked for them from January 2020 to December 2020.  She contacted the Department who informed her it was permitted to work for them for more than six months as she had applied for a further visa which had been approved.  She was the only person supporting a large household in Sydney during the pandemic and had to continue working.

   b.She currently works for ACY Security in Chatswood as a business developer.  She is increasing their market shares in Europe.

   c.She withdrew her subclass 403 visa application because of her visa cancellation.  She had to quit her job at Keilor Downer. It has been a very stressful time for her.

   d.Her current employer wants to sponsor a visa application for her if the cancellation of her current visa is revoked.  She is not sure which category of visa they intend to sponsor.

   e.She also has another option to lodge a partner visa with her New Zealand partner.  He is a citizen of New Zealand.  He does not have an Australian visa. He has lived in Australia with her for six months but is now in New Zealand because his father is ill. He will return to Australia.

   f.The Tribunal asked the applicant if she had considered how PIC 4020 and PIC 4013 may impact her future visa applications in Australia. She responded she had discussed this with her representative.

   g.Her household friend Simon Delannoy recommended Lee Hansol to her. Simon told the applicant that Lee Hansol had helped another friend get a visa. The applicant trusted Simon.  She was stressed and this affected the part of her brain that made decisions.  She was confused and felt rushed. She was scared of losing her job and was not able to go to Europe.

   h.The Tribunal put to the applicant that the evidence she had submitted indicated she was well aware that completing specified work was a critical criteria for the grant of another working holiday visa, at the time of her application. The applicant agreed she was aware of this at the time.

   i.The Tribunal put to the applicant that the email correspondence from Lee Hansol made it apparent he was going to provide her details to a farm which would confirm her employment there despite this being untrue. The applicant stated she made a mistake and felt panicked.

   j.The Tribunal put to the applicant that her first working holiday visa was not due to expire until October 2020 and asked why there was urgency for the application in June 2020.  She responded that the Human Resources section at Vantage FX had told her they could not keep her if she did not obtain another visa.

   k.The Tribunal asked the applicant why she believed her visa should not cancelled if she was not eligible for the visa in that she did not fulfill the critical criteria, and it was granted on the basis of false information.  She responded because the punishment is harsh. It will be difficult for her to get another visa and she will always have to declare she had a visa cancelled.

   l.She has not breached any other laws in Australia.

   m.She has contributed to the community through her support for cancer awareness. She gave a donation to 7 Bridge charity. Her workplace is also a sponsor of the charity.  She has not done anything else to support cancer awareness.  She was going to attend an event in July but it was cancelled because of the pandemic.

   n.She has social media accounts and has been teaching women how to invest over her social media, for free.  She will submit more information about this after the hearing.

   o.She has attended the mosque in Australia occasionally. She has not been involved in any charity or community work there.

   p.There are no children she has formed any relationships or bonds with in Australia.

   q.She does not want to return to France because she likes it in Australia.  She does not fear harm in France.

   r.The Tribunal asked the applicant why she had not relocated to regional Australia if she wanted to find specified work to meet the second visa criteria.   She responded she did go to Cairns and arranged some volunteer work with a marine organisation and a family but these things were not realised after she returned to Sydney.  The Tribunal asked why she did not try to obtain farm work while she was in Cairns. She responded she just wanted to be a volunteer as she liked this.  The Tribunal asked her how long she stayed in Cairns and she replied one week.

   Post-Hearing Submission

6. On 30 August 2021 the applicant’s representative submitted the following materials to the Tribunal:

   -Covering submissions from the representative. In the lengthy submission the representative repeats statements from his previous written submission.  He maintains that the applicant is a victim of fraud in this matter. He refers to a previous decision by this Tribunal Member which he references as Chang (Migration) [2020] AATA 681, as to whether there is any intention to deceive to gain a perceived advantage. The representative argues that the applicant’s “compelling and compassionate circumstances reveal justification for providing incorrect information in the visa application. She never had any intention to deceive anyone to get a perceived advantage”. The representative emphasises the applicant’s contribution to the Australian community through her value to her current employer and her selection for an inter-government trainee exchange scheme. The representative further describes the applicant as having:

   “been tirelessly working to fight for the local community welfare in her current employment since January 2020. She was involved in charity events (i.e. hired by IVHQ to be a volunteer, applied to volunteer at different charities, koala foundation, Eco Barge Clean Seas, etc. but her attempts were not successful due to COVID19), taking part in 7 Bridges Challenges in fundraising for cancer awareness. However, she does not stop there. She has started her side “charity” since July 2020 guiding and teaching women on how to invest which is necessary during this COVID19 where work incomes are limited for most individuals due to redundancy and limited work available.”

   He refers further to the difficulties the COVID 19 pandemic has created for the applicant.  He submits that the applicant deserves a second chance.  He outlines that the visa cancellation will:

   “result the Applicant to be continued to get affected by section 48 of the Migration Act and will prevent her from making a valid application for any visa (unless prescribed) whilst she remains in Australia. Once the Tribunal affirms the cancellation decision from the Department, she will also become unlawful and is liable to be detained and removed subsequently. Her Australian employer will be adversely affected by this. Her clients and the accounts she have been holding will be adversely affected by this. The number of individuals and Australian women who have been relying on her online investment classes will also be significantly and adversely affected.”

   The representative notes that the visa, if reinstated back to the Applicant, will only be valid till October 2021 but that this is okay because it will then allow her to be able to pursue alternative migration pathways legally. It is impossible, at current situation and considering the above discussion, for her to be forced to travel overseas, go offshore, and be separated from her contribution to Australia and from her partner.

   -A copy of the contract of employment between the applicant and ACY Securities Pty Ltd.

   -Screenshots of phone text messages between the applicant and another person, dated 23 March, about working and being in Cairns, Mission Beach and Dunk Island.

   -Email correspondence between several volunteer organisations, including a business using ‘woofing’ volunteers and the applicant regarding the possibility of her performing voluntary work in Brisbane and in north Queensland.

   -A photograph of the applicant with three other people in a tropical setting, two in swimwear, wearing Christmas-type headwear.

   -A Cairns hostel accommodation booking for the applicant for four nights from 21 to 25 December 2019.

   -The applicant’s social media posts of financial and investment advice.

   -Documents regarding the applicant’s and her workplace’s involvement in Cancer Awareness charity events.

   -A Statutory Declaration by the applicant dated 29 August 2021.

7. In the applicant’s Statutory Declaration she includes the following:

   I am writing this letter to express my sincere remorse for my irresponsible and non-compliance actions. I know there is a reason to cancel my visa I admit it.

   In February 2020, after 1 month with Vantage Fx I realised that I didn’t want to work in an office anymore. I realised that Australia has a lot to offer in term of creating a positive change within a local community. When I went to Cairns back in December 2020, I met Douglas Timms, Jean Baptiste Lagarmitte and Leland at Jungle Hostel, 138 Grafton Street, Cairns, 4870, Australia. Douglas took me around with some friends and showed us farms. (I have attached pictures of this day). When I was looking for a farm, I asked his help (I have attached the screenshot). My plan was to keep saving a bit of money and fly to Queensland for a new experience.

   Meanwhile, I started applying for volunteering jobs through Facebook, wwoof.com.au, conservation volunteers.com, volunteerhq.org and different charities. By choosing to volunteer, you’ll have the opportunity to explore incredible landscapes, make friends and create positive change within the local community.

   With this program as a volunteer for 38 hours per week and living with a Host and learning their organic methods & culture. That is the great workout while volunteering. I spoke with different families that were hiring volunteer all based in Queensland. In February 2020, I have been accepted for two volunteers’ projects as follows:

   6th April 2020 – Project: Revive Nathan Road Wetlands – Morris Park – Location: Brisbane, Queensland – South
   23th April 2020 – Project Koala Habitat Restoration along the Albert River Location: Brisbane, Queensland – South

   Last 18th February 2020, I received an email that I have been hired by IVHQ to be a volunteer. Here is what I have been accepted by volunteerhq.org to work as a volunteer for marine conservation.

   Project: Marine Conservation

   Duration: 3 weeks

   Start Date: May 04, 2020

   To finish my regional work, I’ve been accepted by an Australian Family Scott and Ann Cains El Arish Tropical Exotics Australian Tropical Plant Nursery Buy Online ,that I found on mum has her own garden in France, I help her many times I helped her turn the soil over, plant the fruits and vegetables and water the vegetable patch.

   They told me to contact them 10 days before my arrival. The first confirmed case of COVID-19 in Australia was identified on 25 January 2020. In February 2020 all my plan got cancelled. Sydney entered into a lockdown. I kept working with Vantage Fx. Meanwhile I was looking for a farm I contacted Shelly, Ossama, Sole, Enes and Douglas (a friend that I meet in Cairns)

   I was trying my best to find specified work, but my efforts were not fruitful due to the interference of COVID19 and most of the employers did not want those living in Sydney city area to come and perform work.

   I also could not find flights to return to France as well at that time due to border closure and COVID19 pandemic was at its highest in Europe at that time.

   In middle of June, the HR said that I won’t be able to stay in the company if I don’t extend my visa. They offered me a new position, but they won’t take me if my visa expired in October.

   I was living in a share house in Redfern we were 10 they all lost their jobs. We were going to charity to see I was supported 2 of my friends with groceries. My housemates went several times to see associations of Marrickville and Redfern which gave food.

   I had stress, anxiety of losing my job and going back to France. I learned my lesson and I’m working closely to find a solution.

   What would happen to me if I have to leave Australa due to visa cancellation

   It means that I will be away from my partner. This is so uncertain, and it makes me anxious and nervous. I don’t even know when I will be able to come back. I have been with Jawod for more than a year and is my life and my future. I haven’t imagined a day without him and it’s only me who knows how it is like staying away from him. Last year, we spent 10 months away from each other because of COVID. He arrived in Australia in February 2021 to be with me.

   All my plans are incomplete without him. I'm feeling already empty just imagining being away from him. He is the source of my joy and has inspired me to be the best version of myself. Recently, he went back to New Zealand because his dad is sick. Following the extended lockdown, I won’t be able to see him in the future months.

   With the situation in Afghanistan Jawod is going through a stressful situation. He is trying to get his sister and children back to New Zealand. She’s stuck in Panjshir, the only village that has not been taken by the Taliban. Prominent Afghan politicians and military commanders are regrouping in Panjshir defending the village against the Taliban.

   If my visa gets cancelled, I don’t even know when I will be able to see him. I won’t even be able to apply for a visa in New Zealand. I will have to declare that my previous visa has been cancelled and they might reject me.

   When you truly love someone, just the very idea of them being away from him physically or emotionally makes me feel empty.

   I know that my visa is expiring on 30 October 2021 if I can get my visa back that means the world for me. I would do anything for that. I might be able to cure section 48 bar of the Migration Act so I can apply for a partner visa to a New Zealand citizen or Employer Sponsored visa.

   I will suffer the hardship, I really learned my lesson, I have been living with lots of remorse.

   Regardless, I work in the finance industry, and I won’t be able to follow my dream. My company will be at disadvantage as I’m in charge of our business in Europe. It’s difficult to hire peoples that have the experience, understand the market and speaks the language. ACY wants to growth in Europe, I’m part of it and they count on me. For the past month I have reached my target and helped the company on her expansion. (I have attached feedback from my two managers) The sudden COVID crisis that began last year has accelerated the stages of change and mutation that many sectors. Millions of European people have discovered, for the first time, online tools and especially online trading. With my experience I have a network of traders that I signed up as a partner with us. I know what countries to target, niches, opportunities and what types of offers work. They are planning to sponsor me. I’m anxious about the future and it is very difficult to handle on a daily.

   It was a bad intention if it was, I wouldn’t be paying that much to stay.

   Charity work – Giving Back

   Also, I started developing my side “charity” since July 2020. The goal of this activity is to democratize the world of investment and show that it is possible regardless of its level of wealth, its origin, its culture or its level of education. I help women invest and achieve financial freedom. I’m using my influence on social media which are Instagram, Tik Tok and LinkedIn. I have been sharing free financial tips to democratize the world of finance and investment. With the compound interest every woman can prepare her retirement by investing. I do short videos, posts and lives. This is only for educational purpose and not financial advice. With all the information that I provided and shared any woman can start her first investment. I go through paying debt, creating a budget and an emergency fund. I help them to learn the basics about the financial market and the risk associated. Then, I explain them how to open their brokerage account and choose their assets regarding their risk tolerance and objectives. I do private coaching of 30 min. My followers can book it through my calendry link. I’m currently working on a blog with articles. My audience follows me because they want to learn to be the best version on their own financially. They would like to invest because they have money aside, but they don't know where start and how to do.

   During COVID 19, we all realize that we cannot just rely on a job, and we need to diversify our source of income. I have been investing in the financial market for 3 years. That's my mission. I have been taught at school that women don't know how to control their expenses and I'm here to prove that it is only a limiting belief, and it is society and the media that create this image.

   In a largely male-dominated industry, female-led investment funds have been performing better since the start of the year on Wall Street. According to Goldman Sachs, women are often more patient and less optimistic than men. They tend to have overly self-confidence when managing their financial portfolio. This pushes them to carry out more transactions, to adjust investments more often, without giving way to long-term strategies. However, financial portfolios with a low turnover rate are the ones that lose the least. In addition, men are often very responsive to market downturns, which is not the case with women. According to a survey: 66% of women do not change their portfolios when faced with market volatility. As a result, women tend to be patient in investing in the future.

   After being locked out of the financial world for centuries, women are now besting men when it comes to investing returns. Not only do women consistently earn higher returns than men (by 40 basis points on average), they were also able to add more to their account balances over time (12.4 percent compared to 11.6 percent), according to a study by Fidelity.

   There's just one problem: Despite being access al investing, women just aren't doing enough of it. Women overall invest 40 percent less money than men do according to a survey by digital investment platform Wealthsimple. And if given the opportunity to do more, many women wouldn't step up. In a recent survey by Lexington Law which asked men and women what they'd do with an extra S1 ,000, men were 35 percent more likely than women to say they would invest the money. Well, given that the gender pay gap leaves the average woman earning just 80 percent of what a man earns, this means that women will have to save a higher percentage of their salary just to achieve parity with men when it comes to retirement savings. To top it off, women live an average of five years longer than men, which means their money must stretch further. Because of their longer lifespans, women are expected to have 39 percent higher out-of-pocket healthcare costs in retirement than men. Another research found 47 percent of millennial women consider money the most stressful thing in their lives, compared to 34 percent of millennial men.

   Women have all the potential to create wealth and I'm here to share my experience and knowledge.

   To conclude, I have been involving with Cancer awareness. Last year we have been involved with my team at Vantage Fx. One of my best friend Emma lost her mum because of cancer. I have seeing lots of women impact by breast and cervix cancers around me. There is not enough cancer prevention campaign and in particular the importance of having medical examinations. This cause is close to my heart and even with a small amount we can make a difference.

   This year, we're taking on the 7 Bridges Challenge this October and will be walking 28km for people impacted by cancer. It will be thousands of people across NSW completing the 28km challenge in their own neighbourhood for a cancer free future this October. You can conquer your 28km in one day on Sunday 24 October, or over 1 week (24 - 30 October).

   Every year in NSW alone, more than 47,000 new cases of cancer are expected to be diagnosed and the impact on families, carers and communities is significant. Every step count because all ' funds raised will help Cancer Council fund life-saving research and vital support services for people impacted by cancer. Also, with ACY, we are a gold sponsor and I asked them lo be part of it. I was a ticket holder for Cancer Council's upcoming Stars of Sydney Southwest event, taking place this Saturday 26 June 2021 but it got cancelled and postponed to 2022.

   I understand how frustrating, and I understand your disappointment. Kindly accept my sincere apologies for any incontinence caused because of the mistake. I acknowledge that I was wrong, and I take full responsibility for the mistake. I just want to fix it and move forward. I can assure you that this mistake will never be repeated in the future.

1. On 30 August 2021 the applicant’s representative submitted a letter from Estelle Nkubito in which she states the following:

   My name is Estelle Nkubito and I’ve known Ines Archani since 2020 through her Instagram.
   I’ve been following her for few months, and I asked her if she could help me to start investing. I’ve been approached by a few influencers and traders but the fact that she’s a woman and she works in the industry makes me confident.
   We meet at Queen Elizabeth Building in Sydney in September 2020. She asked me few questions about my risk tolerance, how much can I invest per month after my expenses and saving, and what’s the purpose of my investment. I also filled out questions about my risk tolerance to define what’s my investor profile. My goal was to have a fund when I reach the age of 60.
   She explained to me how the stock market works, and the different steps to get started as a beginner. She came with a PowerPoint presentation, and I liked how she manages to explain complicated things simply. She explained to me that this is only financial education and not investment advice. It’s important to do your research as well.
   She concluded that I could start investing in ETF and index funds. One ETF can give exposure to a group of equities, market segments, or styles. An ETF can track a broader range of stocks, or even attempt to mimic the returns of a country or a group of countries.
   For her, it was the best way to invest my money passively over the long term. I also wanted to take a bit of risk and she showed me how to open a cryptocurrency account. She showed me how to analyze a cryptocurrency with the technical side and fundamentals.
   She offered me to create an investment plan and send it to me a few weeks after. We meet for the second time in Newtown Sydney. The purpose of this session was to explain to me different options to invest my money. We created my account with Interactive Brokers and Coinbase.
   She changed my mindset about money, and it gives me the confidence to take control and invest more. I made my first profits very quickly.
   I believe that the change of circumstances is completely out of her control. Especially as the work she does contributes spectacularly to the Australian community and economy, I would expect the Australian community to be open to forgiveness and providing second chances to allow her to be in Australia.

2. On September 2021, in response to the Tribunal’s request for a copy of the applicant’s initiating email to Lee Hansol, she provided a typed page with the following message after the email header parts:

   “Hello, Hope you’re doing well. I’m looking for a 2nd year visa, my friend gave me your contact. Can we have a quick call ? Best regards Ines Archani”

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

4. 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.

5. 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?

6. 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:

   • Visa applications to be correct;
   • A non-citizen must fill in his or her application form in such a way that:
   • all questions on it are answered; and
   • no incorrect answers are given.

7. The breach of s.101(b) relates to a Subclass 417 Working Holiday visa (the Working Holiday visa) the applicant was granted on 26 June 2020.

8. Section 99 of the Act provides that any information 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 s.100, s.101(b), s.102(b), s.104 and s.105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

9. The Working Holiday visa application lodged online for the applicant included the following questions and answers:

   Q: Have you undertaken specified work in regional Australia for a total of 3 months?

   A: Yes

10. The application form included sections to provide details of the specified work undertaken, to which the following responses were provided:

    Legal registered name:  GMR Enterprise Pty Ltd

    Trading name:       GMR Enterprise Pty Ltd

    Australian Business Number (ABN): 87605528238

    Is the employer a labour hire company? No

    Description of duties: Installation and removal of pits and services for NBN project in Lithgow region. Stared (sic) as telecommunications labourer

    Date from: 02 December 2019

    Date to: 26 April 2020

    Total hours worked: 750

    Total days worked: 93

    Was the applicant under a piece rate agreement? Yes

11. A Departmental officer contacted the employer referred to in the visa application; GMR Enterprises Pty Ltd (ABN 8760552828), who confirmed that they had no record of having employed the applicant..

12. Based on this information the delegate considered the applicant did not comply with s.101(b) of Subdivision C of the Act, by providing answers to questions regarding completion of specified work, that were incorrect.

13. The above matters were particularised in the s.107 notice sent to the applicant on 10 December 2020.

14. The applicant has confirmed that the answers that were provided were not correct.

15. 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?

16. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

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

    ·     any contribution made by the holder to the community.

18. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    The correct information

19. The correct information is that the applicant had not completed three months, or any, specified work in regional Australia at the time of her second subclass 417 visa application.

20. The correct information was of critical relevance to the assessment of the visa application and should have been provided. 

21. The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.

    The content of the genuine document (if any)

22. This is not a relevant consideration in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information

23. Clause 417.211(5) of Schedule 2 to the Regulations requires the applicant to have carried out (whether on a full-time, part-time or casual basis) a period or periods, equivalent to at least three months full-time work, of specified work in regional Australia as the holder of a subclass 417 visa.

24. This was a substantive criteria and a central requirement for the grant of the visa.  If the requirement was not fulfilled the visa could not be granted.

25. The Tribunal therefore considers that the grant of the second subclass 417 visa was based, in large part, on the incorrect information given in the visa application.

26. The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.

    The circumstances in which the non-compliance occurred

27. The applicant gave evidence that the incorrect information was provided because she was stressed and worried about not being able to continue in her employment in the financial sector in Sydney and remain in Australia.  She therefore obtained the contact details for a person she was told could obtain a second subclass 417 visa for her. This was despite her awareness she had not completed specified work in regional Australia.

28. The applicant and her representative have attributed blame to the person, Lee Hansol, for the provision of the incorrect information in her visa application stating that he was fraudulent, she was the victim of his fraud, and she had merely made a mistake in entrusting her visa application to him. The available evidence, submitted by the applicant, does not support these representations.

29. As put to the applicant the evidence she submitted clearly indicated she was aware, at the time of her visa application, of the requirement to have completed specified work in regional Australia for the grant of a second subclass 417 visa. She was also fully aware that she had not completed any specified work.  The chain of email exchanges between the applicant and Lee Hansol, submitted by the applicant to the Tribunal, initially omitted the applicant’s initiating request to Lee Hansol.  Following the the Tribunal’s request for this the applicant submitted a brief typed message which does not correspond with Lee Hansol’s reply message to her, indicating there was further communication between the applicant and Lee Hansol which the applicant has not provided details about.  The first email from Lee Hansol, as submitted by the applicant, states Lee Hansol’s intention to provide the applicant’s name to a farm which will include her on their books as a person who worked there despite the fact she had not worked there.  The email exchange shows the applicant providing further information to Lee Hansol to include in the visa application and making arrangements to pay Lee Hansol.  There is no indication given by Lee Hansol to the applicant that he or she is a migration agent or otherwise qualified to lodge her visa application.

30. The circumstances demonstrate a collusion or at best acquiescence by the applicant in the provision of incorrect information in the visa application.

31. The applicant stated she was not thinking clearly at the time and was stressed and panicked about losing her employment and having to return to France in a time of global pandemic.  The Tribunal accepts this. However in the Tribunal’s view it does not excuse or justify her attempts to obtain a visa she was aware she did not meet a central criteria for, through the provision of incorrect information.

32. The applicant also gave evidence of attempting unsuccessfully to find regional volunteer work. She submitted copies of text messages to a few friends who had obtained specified work in regional Australia, asking for their help or advice for her to also obtain such work.  She also gave evidence of applying to a volunteer group for some volunteer work.  She told the Tribunal that she had gone to Cairns to try to obtain volunteer work.  She later clarified that this was only for one week.  The subsequent evidence she submitted showed accommodation in Cairns, for four nights, during the Christmas 2019 period.  She also clarified that she was not interested in farm or other paid work in regional Australia, just in temporary volunteer positions.  The Tribunal notes that this is the despite the clear remuneration requirement of cl. 417.211(5)(c).

33. The evidence provided by the applicant at, and prior to, hearing demonstrates that that she considered her priority work to be for the finance company in Sydney in the hope it would lead to a more secure position and further visa in a different subclass.  She subsequently submitted a statement contradicting this in the terms of no longer being interested in office work and wanting to see and contribute to more of Australia.  The Tribunal finds this recent statement inexplicably at odds with her previous evidence and does not accept it.

34. The applicant also identified COVID-19 restrictions as a reason for her inability to find specified work in regional Australia.  While these would have partially impacted her opportunities at times, her actual efforts were less than optimal in overcoming these difficulties.  The Tribunal considers that the efforts made by the applicant to find specified work in regional Australia were quite minimal and had low prospects of success.

35. The Tribunal considers that the applicant’s fears of losing her job in the financial sector and of not obtaining a further visa to be able to stay in Australia, and her difficulties obtaining specified work in regional Australia do not reasonably explain her seeking out and relying  upon Lee Hansol to lodge a visa application, using incorrect information, for a visa she did not meet the criteria for.

36. The Tribunal notes further that the applicant’s initial subclass 417 visa was not due to expire until October 2020.  Therefore in June 2020 the applicant still had considerable time available to her to seek professional advice and to approach the Department to review her options in light of the pandemic difficulties. She has confirmed she did not do this but instead utilised a friend’s referral to an unknown person with no apparent qualifications.

37. The Tribunal considers the circumstances in which the non-compliance occurred weigh in favour of cancelling the visa.

    The present circumstances of the visa holder

38. The applicant gave evidence that she is in a partner relationship with a New Zealand citizen and is continuing to work in the finance sector for a new employer in Chatswood.  She has submitted strong character and work references from her employers, friends, and colleagues. 

39. She has also stated she has spent a large sum of money to try to overturn the cancellation of her visa. The Tribunal accepts she has spent a significant amount of money on challenging the decision to cancel her visa.  The Tribunal considers that was a matter of choice for her and not a circumstance that weighs against the cancellation of the visa.

40. Based on the available evidence, the Tribunal accepts that the applicant is in an ongoing relationship with a New Zealand citizen.  The Tribunal also accepts she is a valued employee at her workplace and that she is generally of admirable character and well liked. 

41. The applicant gave evidence that she and her partner have experienced long periods of separation because he was based in New Zealand, because of travel restrictions caused by the pandemic, and now because of his father’s illness.

42. If the applicant’s visa remains cancelled she may have to leave Australia and either return to France or explore options to travel to another country, including New Zealand.  She has not indicated any reason why her New Zealand partner cannot join her in another country.  She has demonstrated his mobility by his willingness to come to Australia to be with her.

43. If the applicant’s visa remains cancelled and she has to leave Australia she would likely lose her current employment. The Tribunal notes that since coming to Australia the applicant has shown she is readily employable in the finance sector, and has obtained very supportive references for her work which she can utilise in her further career.  While losing her current employment is undoubtedly a negative experience for the applicant she has given no indication that she will be unable to find further employment in France or another country.  Her career experience so far strongly indicates the opposite.

44. However despite the above the Tribunal accepts that the applicant’s current circumstances show a level of establishment in, and commitment to, Australia.  The cancellation of her visa will be highly disruptive to her current circumstances.  The Tribunal gives this factor some weight against the cancellation of her 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

45. There is no adverse information before the Tribunal regarding the applicant's subsequent behaviour concerning her obligations. This factor weighs against cancellation of her visa.

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

46. There is no evidence before the Tribunal of any other instances of non-compliance by the applicant.  The Tribunal gives this factor weight against the cancellation of her visa.

    The time that has elapsed since the non-compliance

47. It has been almost 14 months since the applicant provided incorrect answers. The Tribunal does not consider this to be a significant amount of time and accordingly considers this factor neutrally.

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

48. There is no evidence or indication before the Tribunal that the applicant has breached the law in Australia since the non-compliance was determined. The Tribunal gives this factor weight against the cancellation of her visa.

    Any contribution made by the holder to the community

49. The applicant gave evidence that she has supported cancer awareness through a donation to a fundraising appeal, her intention to participate in a further fundraising event that was cancelled, and her work place’s sponsorship of a cancer awareness charity.  While this action on the applicant’s part is commendable it has not involved much contribution over the many months of her stay in Australia.

50. The applicant also gave evidence she provides financial advice to women for free over her social media accounts.

51. The Tribunal accepts the applicant’s evidence regarding her involvement in charitable events and her social media pro bono financial assistance to women.

52. While her contributions to the community may not be extensive they remain admirable and beneficial, so the Tribunal gives this factor weight against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

1. There is no evidence of any persons in Australia whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

2. The Tribunal notes that the cancellation of the applicant’s visa could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 if she chooses to remain in Australia without a valid visa.  She may also face difficulties in being granted further visas in Australia and could be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion (PIC 4013).

3. While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if her visa is cancelled, she has benefited from providing the incorrect information in the Working Holiday visa application and it is very likely that she would not have been granted that visa if she had provided correct or accurate information about satisfying the work requirement.

4. The Tribunal also notes that regardless whether or not the applicant’s visa is cancelled, she may still encounter difficulty satisfying Public Interest Criteria 4020 if she applies for a further visa. The requirements in both PIC 4020 and PIC 4013 can be waived by the Minister if the Minister is satisfied there are requisite compassionate or compelling circumstances.  The Tribunal notes there are no obstacles to the applicant seeking the Minister’s intervention.

5. The Tribunal acknowledges the difficulty the legal consequences of the visa cancellation will and may cause the applicant but they are intended consequences.  The Tribunal does not view them as unduly harsh or otherwise concerning in the circumstances.  The Tribunal does not view the mandatory consequences as a factor that weighs against the cancellation of the applicant’s visa.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

6. There is nothing to suggest that Australia's international obligations would be breached as a result of the cancellation.  The Tribunal therefore views this factor neutrally.

   Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

7. The applicant has presented evidence of wanting to stay in Australia to continue to work and be with her boyfriend.

8. The Tribunal accepts it will be emotionally hard upon the applicant and disruptive to her life  for her visa to remain cancelled and possibly be required to depart Australia.  The Tribunal gives this factor some weight against the cancellation of the visa.

   Conclusion on the exercise of the discretion

9. The Tribunal has considered the totality of the applicant's circumstances.

10. The Tribunal places significant weight on the fact that the decision to grant the visa was based upon incorrect answers, and that the applicant was not entitled to the visa, having not met a central requirement for it.  In the Tribunal's view, the fact that the decision was based on the incorrect answers and the circumstances of the non-compliance outweigh other considerations.

11. 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 discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Melissa McAdam
    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.