Brennan (Migration)

Brennan (Migration) [2021] AATA 3342 (31 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Chris Brennan
CASE NUMBER:  2102996
HOME AFFAIRS REFERENCE:               BCC2020/2033172
MEMBER:Rosa Gagliardi
DATE:31 August 2021
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 31 August 2021 at 5:23pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers provided in extension application – specified work in regional area for three months – integrity checks – COVID-19 pandemic, travel restrictions and regional employers not taking on workers – prevalence of COVID in home country – application made by another person on applicant’s behalf – no approach to department – public information about skills shortages in regional areas – discretion to cancel visa – now value to current employer – recklessness or complicity in provision of incorrect information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(5)
CASE
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had contravened s.101(b) which requires that no incorrect answers are given or provided – in this case in respect of the application for a second Working Holiday visa, subclass 417. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 13 August 2021 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
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 section 101(b) of the Act.
The applicant applied for an extension of his Temporary Working Holiday (subclass 417) visa on 4 May 2020. He completed an on-line application form, ‘Application for a Working Holiday Visa – Record of Responses’ in which he provided the following answers (in part):
Application Type
Page 1:
Select the type of working holiday visa the applicant is applying for:
Second Working Holiday visa (subclass 417)
Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?
Yes

Specified Work Undertaken
Page 5:
Give details of the specified work undertaken by the applicant for each employer whilst on their Working Holiday visa.

Details of Specified Work Undertaken
Employer Details
Legal registered name: B CINI & S.A CINI
Trading name: SHAYNE & BLAISE CINI
Australian Business Number (ABN)
51908175569
Work Conditions
Employment type: Direct employment
Industry type: Agriculture, forestry and fishing
Industry type sub-group: Tree farming and felling
Description of duties: Banana Picking & Packing
Date from: 02 Dec 2019
Date to: 26 Apr 2020
Total hours worked: 535
Total days worked: 104
The applicant employed under a piece rate agreement?
Yes
Working Holiday Declarations
Page 8 & 9:
Warning:
Giving false or misleading information is a serious offence.
The applicant declares that they:
Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa.
Yes

Declarations
Page 9:
Warning:
Giving false or misleading information is a serious offence.
The applicants declare that they:
Have read and understood the information provided to them in this application.
Yes

Have provided complete and correct information in every detail on this form, and on any attachments to it.
Yes

Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
Yes
The applicant signed and dated the declaration on 4 May 2020. Section 101 states:
Section 101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that;
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided
Section 100 of the Act provides that 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.
Was there non-compliance as described in the s.107 notice?
The above information was submitted to the Department as evidence that the applicant met the relevant criteria for an extension of his Working Holiday visa, namely that he undertook specific work for a period of at least three months as per the requirements specified in Regulation 417.211(5) of the Migration Regulations 1994:

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 Subclass 417 work 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.
Based on the incorrect information it appeared that the applicant met the relevant criteria and was granted a Temporary Working Holiday (subclass 417) visa on 4 May 2020 (the second Working Holiday visa).
Since the grant of the applicant’s visa on 4 May 2020 integrity checks were undertaken by the Department. These checks indicated that the information the applicant provided in support of his Temporary Working Holiday (subclass 417) visa, in relation to the specific work he undertook, was incorrect.
The applicant declared that he worked for B Cini & S.A Cini (trading name Shayne & Blaise Cini – ABN 51908175569) from 2 December 2019 to 26 April 2020 as a fruit picker. On
1 August 2020, however, the director of B. Cini & S.A. Cini informed the Department that they did not employ anyone under the ABN 51908175569, and confirmed that the applicant had not been employed with them.
By signing the declaration on pages 8 & 9 of the form ‘Application for a Working Holiday Visa – Record of Responses’, the applicant agreed to provide complete, correct and up to date information in his application. However, it appears he did not provide correct information in his application because he had never worked for B Cini & S.A Cini.
The above was put to the applicant in the Notice of Intention to Consider Cancellation (NOICC) pursuant to s.107 and it was noted that his subclass 417 visa was liable to cancellation for possible non-compliance with section 101(b) under section 109 of the Act. This is because he had not completed at least three months of specified work on his first Working Holiday visa.
In response to the NOICC dated 18 January 2021, the applicant submitted a statutory declaration stating, in the main, that he was first granted a Working Holiday visa on

19 September 2019, and that he first entered Australia on 20 November 2019. Further:
When Australia locked down because of COVID I got very concerned.
With all that was going on in the world at that time I became very anxious and felt I needed to make sure I stayed in Australia as it seemed a lot safer than anywhere else in the world.
I was referred to someone who promised he could get me a second-year visa and I jumped at the opportunity because I was in such a desperate situation.
He lodged my application with minimal questions and I was unaware of the work details he put in the form.
The visa was lodged and granted on the same day.
I in hindsight should have taken more care with who I choose to lodge my visa and the information that was in it. I regret doing this as I should have made sure I was aware of the information.
My first visa still had several months on it and if it were not for COVID I would not have even been thinking of lodging my second one so early. I was just so concerned because all the country was closed and I did not know how I was going o do my farm work when we were only allowed to leave the house for essential reasons. At that time we did not know how long the restrictions would be in place.
Ireland is currently suffering from its large surge of COVID-19 cases with almost 7000 cases yesterday and the death toll is climbing. This makes me so scared and I am very nervous that if my visa is cancelled that I would have to return to Ireland at the worst possible time.
Ireland’s hospitals are being overwhelmed by the virus with reports of people being treated in ambulances as they cannot get into hospitals. Also reports are saying 60% of people testing positive are under 45, which places me in the high risk category, Other reports are showing that Ireland has the worst infection rate in Europe and even worse than the US
I believe that if my visa is cancelled and I had to return to Ireland that there is a real risk that I would catch the virus. This is so worrying as it is a dangerous illness and I am scared of the effect it will have on me.
I work as the Project Manager for Excel Building Solutions and my role is critical for the business and the staff it employs. I provide a benefit to the Australia community in my role and my sponsor was hoping to sponsor me as he sees me as vital to his business.
Excel Building Solutions submitted a letter dated “2021” arguing, among other things, that the applicant is an integral part of the company and that his role helps secure 10+ further employees. It is also argued that other employees have not worked to the high standard that the applicant has, and that if the applicant were not able to remain in Australia, the employer would need to retrain someone else, costing more time and money in the constrained circumstances of the pandemic. The letter had not been signed by the employer, but the Tribunal does not take anything away from the document because of this.
The applicant stated at hearing there was a second letter regarding the applicant’s work in Australia and the Tribunal accepts this to be the case. The applicant also undertook at hearing to provide further letters by way of character references by a specified time but he did not do so and did not request an extension to do so and at the time of writing, the applicant has not provided any further material for the Tribunal to consider.
The hearing with the Tribunal held on 13 August 2021
The applicant conceded he had provided incorrect information in respect of his Working Holiday visa. He maintained at hearing that he and his girlfriend were working full-time in Sydney when they realised they would need to do regional work to be able to obtain a second Working Holiday visa. The applicant advanced that at the time it was around when COVID-19 was rife and farms were not taking on workers. They were in a tricky situation because they were unable to fulfil the requirements for the grant of the second Working Holiday visa.
The applicant also stated that he and his girlfriend were not in a position to return to Ireland given the overwhelming situation with COVID there. The Tribunal asked the applicant whether he had not thought of asking the Department about how to regularise his status in Australia. The applicant responded that it was before the COVID visa came into existence. A person he worked with knew someone who could provide him with assistance with the application. The applicant stated that he had not asked too many questions. He thought it was his only option at the time. There were thousands of cases of COVID-19 in the United Kingdom at the time, and few in Australia. He felt safe here.
The applicant stated that he and his girlfriend had no other viable option at the time. His girlfriend was in the same situation and he had to look out for her as well.
The Tribunal asked what the situation in Ireland was now in terms of COVID-19. He responded that the situation was, and was not, better.
The Tribunal noted that it was not in a position to assist the applicant regularise his status. It also observed that the Department stated that there was little evidence that Excel Building Solutions was making an effort to sponsor the applicant. The applicant stated that his previous employer had wanted to sponsor him. The applicant confirmed that he was no longer employed by Excel Building Solutions. He was now working as a carpenter.
The Tribunal asked whether the applicant’s current employer had made an effort to sponsor him given his situation. The applicant responded that he had consulted a migration agent who told him that given he was on a Bridging visa E it was not an option to lodge an onshore application. The Tribunal asked whether the applicant had work rights on his Bridging visa E, and he responded that he did.
The applicant has not disputed that he has never worked for B Cini & S.A Cini, undertaking specified work in the agriculture, forestry and fishing Industry. He has also conceded that the total period of the work carried out was not at least for 3 months, because no such work was ever carried out. The applicant has stated that he did not ask too many questions of the person who had helped him with his visa application, thereby distancing himself from the process of the provision of incorrect information. Nonetheless, by operation of s.98 of the Act, 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.
The applicant is from an English-speaking country. Furthermore, the applicant signed off on his application and would have been aware that the information being provided to the Department was incorrect and that it was a serious matter to provide any incorrect information. The Tribunal considers that the applicant did not ask too many questions and that in doing so, was complicit in the provision of the incorrect information because it suited his purposes to remain in Australia. His girlfriend had also taken a similar course of action and used the same person who had assisted the applicant to be granted a second Working Holiday visa.
The Tribunal has given consideration to the applicant’s claims that he and his girlfriend could not find work on farms due to the lockdown in relation to COVID-19. Even if the Tribunal were to accept that the farming industry may have been affected by the lockdown and crossing borders might have been difficult, this does not explain why the applicant did not immediately turn to the Department of Home Affairs to state that he and his girlfriend had concerns that they would not be able to fulfil the requirements of the Working Holiday visa (the first) to undertake specified work as required by the regulations, for reasons beyond their control, despite efforts to do so. The applicant did not dispute that he did not go to the Department, instead he worked outside the subclass 417 visa framework.
The Tribunal also has reason to question the applicant’s account that he had difficulty finding work in the agricultural sector for 3 months when news reports have widely circulated that during the pandemic there has been a shortage of workers in regional Australia. For example:
Changing patterns of economic activity since the outbreak of COVID-19 have resulted in regional areas, for the first time, having far higher and more persistent levels of skills shortages than cities, with trades and technical skills in particularly short supply.
…
[1]
Simon Walker, managing director of the National Centre for Vocational Education Research, said the regions would also be suffering from the lack of backpackers and international students who picked up jobs in the “hidden part of the economy” such as fruit picking, cleaning, hospitality and the care sector.[1]
The applicant has stated that when he was on his first Working Holiday visa there was no COVID-19 visa to ensure he remained in Australia lawfully. Therefore, he had no option but to take up the offer of help by another person to help him be able to remain in Australia because he was frightened of returning to Ireland due to the pandemic.
The Tribunal has no doubts that Ireland has experienced significant COVID-19 infections and deaths. The Tribunal can understand and accepts that the applicant was frightened of returning to Ireland due to the outbreak of the pandemic. Nonetheless, this does not explain why the applicant did little to discuss his circumstances with the Department instead of prolonging his stay in Australia on a fabricated basis, being that he had held a subclass 417 visa previously, working in the agriculture, forestry and fishing industry and that he had fulfilled the requirements of that previous visa.
The Tribunal considers that the fact the applicant was looking for ways to maintain an ongoing presence in Australia, demonstrates also that the applicant was to some degree aware that the information provided under his name and signature was incorrect. Even if the Tribunal were to accept that the applicant’s conduct in providing the incorrect information was motivated solely by his fear of returning to Ireland due to the pandemic (and the Tribunal has doubts), the gravity of the action of providing substantially incorrect information outweighs several other concerns. This is particularly so as the Tribunal does not accept that the applicant had no other option but to provide such incorrect information – the applicant always had the option of availing himself of the Department’s advice if it were indeed the case that he were unable to fulfil the requirements of his first Working Holiday visa on the basis that he could not find specified work as required due to Covid-19 and feared returning to Ireland.
As put to the applicant at hearing, the Tribunal is unable to offer him a means of continuing his ongoing residence in Australia.
For these reasons, the Tribunal finds that there was non-compliance with section 101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations and the Tribunal discussed these with the applicant at hearing. The Tribunal’s assessment of the applicant’s responses and all the prescribed circumstances as set out in Migration Regulation 2.41, is as follows:
· The correct information
The correct information is that the applicant did not work for B Cini & S.A Cini (ABN 51908175569) from 2 December 2019 to 26 April 2020, picking and packing bananas as declared by him in his application for his second Working Holiday Visa.
The Director of B Cini & S.A Cini advised the Department on 1 August 2020, that the applicant had not worked for them and they did not employ anyone under the ABN 51908175569. The applicant has not, either at the time of the Departmental cancellation or at the time of review, disputed the fact that he did not work for B Cini & S.A Cini and that the associated information was not correct.
The Tribunal considers that this is a major factor weighing against the applicant and in favour of cancelling the visa.
·the content of the genuine document (if any)
The circumstances in which the incorrect information was provided is not relevant to the provision of the content of any genuine or non-genuine document provided by the applicant. As such this is not a matter that goes to the Tribunal’s consideration of whether the visa ought to be cancelled.
·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 visa holder applicant purported to meet the requirements of subclass 417 for his second Working Holiday visa based wholly on the untrue information stating he had worked in regional Australia, undertaking specified work for three months with his claimed employer,
B Cini & S.A Cini. The applicant was granted his second Working Holiday visa wholly on the basis that he satisfied cl.417.211(5). The Department’s decision to grant the visa was based squarely on the incorrect information provided by the applicant. It goes without saying that had the Department been aware that the applicant had never undertaken specified work as required under cl.417.211(5) he would not have met the key requirements for the second Working Holiday visa and the visa would not have been granted.
The applicant was, therefore, never legally entitled to the second Working Holiday visa which is subject of cancellation and the Tribunal has attributed significant adverse weight to this factor.
·the circumstances in which the non-compliance occurred
The non-compliance occurred in the context of when the visa holder lodged an application for a second Temporary Working Holiday (subclass 417) visa, on 4 May 2020. As part of that application, the visa holder declared he had worked for B Cini & S.A Cini from

2 December 2019 to 26 April 2020, picking and packing bananas. However, the applicant had never undertaken such work and the details of the employer were provided by another person to assist the applicant gain a visa he was never entitled to.
The Tribunal has taken into account the applicant’s claims provided to the Department and the Tribunal that he personally had not provided the incorrect information regarding alleged prior work in his application. The Tribunal has taken into account that it is claimed by the applicant that he had someone assist him to complete the visa application and that he was not aware that false work details had been provided. At hearing on the other hand, the applicant stated that he did not ask too many questions, implying that he was happy to turn a blind eye to any wrong doing by the person assisting him, because the Tribunal considers that the applicant’s only intention was to continue remaining in Australia to work on a full-time basis, in work of his choosing and which might have been more lucrative than working in regional Australia, in specified work.
The applicant has expressed regret for not taking more care with the details in his application and recognises that ultimately it was his responsibility to make sure that all the information provided in his application was true and correct.
As previously stated, however, the applicant is from an English-speaking country. It appears implausible that the applicant would not have had even a quick glance at his application on signing off on it to make sure that the details were correct. Further, the applicant at hearing stated that he was desperate to remain safe in Australia and not return to Ireland due to the developing COVID-19 situation there. To the Tribunal this indicates that the applicant was willing to be complicit in any conduct that would secure his ongoing residence in Australia, regardless of whether he met the criteria for the subclass 417 visa.
The Tribunal appreciates that there might not have been a COVID-19 visa to allow him to remain in Australia at the time he lodged his second Working Holiday visa but he could have come to some arrangement with the Department for a Bridging visa to remain onshore lawfully until he was ready to return to the United Kingdom. Had the applicant availed himself of the Department’s assistance it is not likely that he would have been immediately required to go offshore, particularly as flights have been disrupted during the pandemic.
The Tribunal has also had regard to the applicant’s claims that he was not able to find specified work in regional Australia during lockdowns and border closures. The applicant, however, has been able to find some work of his choosing and it was open to him, if indeed, he had not been able to find work as specified under subclass 417, to request assistance from the Department to assist him meet the requirements of his first Working Holiday visa. The Tribunal considers that the applicant did not avail himself of any assistance from the Department because it suited him to work and live where he chose.
The Tribunal places significant adverse weight on the applicant’s role in the provision of the incorrect information (or at the very least, his total recklessness in its provision). It is not for an applicant to resolve their status in Australia by providing incorrect or false information to maintain an ongoing presence in the country.
The Tribunal does not diminish the applicant’s concerns regarding the COVID-19 situation in his home country, Ireland, and his anxiety about the risks of contracting the virus. However, it was not for the applicant to seek solutions which would undermine Australia’s immigration system to avoid those risks. The applicant would not have been the only person in his situation and the Tribunal considers that the Department would, even without a COVID-19 visa been able to exercise discretion in returning people to countries where the pandemic was at its height.
The Tribunal considers that the applicant’s nonchalant attitude to providing correct information in an application for a visa in Australia, leads the Tribunal to tend toward cancellation, particularly as there is no evidence that the applicant had sought assistance from the Department and been left without a choice to remain here lawfully for a period to avoid the pandemic in Ireland.
·the present circumstances of the visa holder
The applicant advised the Tribunal that he did not have any immediate family members in Australia. He had come to Australia with his girlfriend who had similarly relied on the person he had to assist him with his application. It appears that the same incorrect information about her working details was provided in her application for a second Working Holiday visa. The applicant at hearing stated that he had to look out for her and not just himself, as he was concerned for both their health in returning to Ireland.
The applicant stated that he was now working as a carpenter even though he had previously worked as a Project Manager for Excel Building Solutions. The applicant stated that his previous migration agent had advised him that there was no point in lodging a nomination and associated application for a skilled visa because he was on a Bridging visa. The applicant states he has skills that are of value to the Australian economy but this does not totally exclude the applicant applying offshore in the future for any skilled visa.
In terms of the situation with COVID-19 in Ireland, the Tribunal accepts that it may not be totally safe now, however, the applicant at this stage would have had an opportunity to avail himself of an initial dose of vaccination to protect himself. If he wishes to remain onshore for a short period to complete this process to allay his fears, then he should pursue his options with the Department.
The applicant has now resided in Australia several months short of two years – a period for which he had no basis to be in Australia since he did not fulfil the requirements of his initial Working Holiday visa. This is a substantial period in which the applicant has been able to work in Australia and benefit from the economic opportunities here. At hearing the applicant stated that he had been able to earn money in Australia but that he had spent a lot of it on pursuing migration advice and in relation to the applications. Regardless, the applicant has, due to his refusal to liaise with the Department been able to continue his presence in the country on a false premise – that is, that he has undertaken specified work in regional Australia.
Given these factors individually and cumulatively, the Tribunal does not find that there are substantial matters that would weigh against cancellation.
·the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
The Tribunal has taken into consideration the Department’s comments that the applicant has been co-operative throughout the cancellation process. The applicant confirmed his contact details and responded to the NOICC within the prescribed timeframe, indicating that the applicant did not become unlawful or take action to evade the immigration authorities.
This matter goes in the applicant’s favour, but it does not mitigate the seriousness of the provision of incorrect information to the Department in the circumstances that he did. In view of the applicant’s conduct as a whole, the Tribunal cannot find the subsequent behaviour of the applicant a reason in itself for not cancelling the visa.
·any other instances of non-compliance by the visa holder known to the Minister
The Department held no other information to indicate other instances of non-compliance by the applicant and the Tribunal similarly holds no such information.
The Tribunal gives this matter some weight against cancelling the visa.
·the time that has elapsed since the non-compliance
It is now over a year ago that the non-compliance occurred on 4 May 2020, when the applicant lodged his second Working Holiday visa application. In that application, he provided false information claiming he met the requirements of the subclass 417 visa because he had undertaken regional farm work on the initial Working Holiday visa. The correct information was provided to secure a visa outcome when the applicant was not entitled to one.
As put to the applicant at hearing, a significant period has not elapsed since the applicant’s non-compliance, and while the Tribunal accepts that the applicant feels safe in Australia and may have formed some bonds here, it appears that his fate is closely tied to that of his girlfriend (who has also sought review of the cancellation of her visa, according to the applicant). They appear to be relying on one another and have pursued the same path in attempting to remain in Australia.
Overall, the Tribunal does not attribute a great deal of weight in the applicant’s favour in terms of the time that has elapsed since the non-compliance, because in reality little has changed in the applicant’s personal life or more generally, during that period.
·any breaches of the law since the non-compliance and the seriousness of those breaches
The Department was not aware of any breaches of the law by the applicant at the time of application. Nor is the Tribunal at the time of review.
The Tribunal places some positive weight on the applicant’s apparent law-abiding conduct generally during his time in Australia.
·any contribution made by the holder to the community
In his statutory declaration above, the applicant declared that his work as a Project Manager for Excel Building Solutions was a critical role for the business and the staff it employs and was of benefit to the Australian community. At hearing it appeared that the applicant was no longer working for that company but was working as a carpenter.
The applicant stated at hearing that he had produced tiny houses but that apart from his employment, he had not been involved in any charitable or community events.
The Tribunal accepts that the applicant has worked hard but that he benefited from his contribution as did his employers and others. The Tribunal places some weight on this matter in the applicant’s favour against cancellation, albeit, only limited weight.
Other considerations
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.
Consequential cancellations
The Tribunal has not identified that there would be consequential cancellations under s.140 – his girlfriend has lodged a separate application and the applicant is the sole applicant. The fact the cancellation’s immediate consequences are confined to the applicant, leads the Tribunal to find that this is not a matter which would compel it not to cancel the visa.
Best interests of children
The applicant does not have any children for whom the Tribunal is required to consider their best interests. As such, any decision to cancel is not affected by such considerations.
Person’s removal in breach of Australia’s non-refoulement or family unity obligations
The Tribunal is not satisfied that as an Irish national, the visa cancellation would impact Australia's international obligations or would be in breach of Australia's non-refoulement obligations. The applicant stated at hearing that he had no fear about any human rights practices in his country. His only concern was COVID-19.
Given these findings, the Tribunal is not minded to substitute a cancellation decision with a non- cancellation decision, as the Tribunal considers that the applicant would be returning to a country where it’s laws and system of government are reasonably close to those of Australia. In terms of family, apart from his girlfriend, the Tribunal presumes they reside in his home country or other similar countries.
Are there mandatory legal consequences?
The Tribunal gives consideration to the fact that if the visa is cancelled, the applicant will become an unlawful non-citizen and may be detained under section 189 of the Act and removed from Australia under section 198 of The Act. This is so if he does not voluntarily depart Australia, given he would no longer hold a valid visa. Moreover, he would be subject to section 48 of the Act which may prevent him from applying for certain visas while in Australia. He might also be affected by Public Interest Criterion 4013 which limits the grant of further temporary visas for a specified period. He may not be permitted to work or study in Australia following a visa cancellation.
As the Tribunal put to the applicant at hearing, a Working Holiday visa was never intended as an automatic pathway to gaining permanent residency in Australia. The Tribunal appreciates that having to depart Australia brings uncertainty, particularly in relation to the COVID-19 pandemic and other matters such as having to find work in Ireland. Nonetheless, the Tribunal is not convinced that such considerations outweigh the severity of the applicant’s actions in being able to be in Australia for almost two years without having fulfilled the requirements of his first Working Holiday visa. The mandatory consequences of the cancellation are in effect a direct consequence of the provision of incorrect information.
Any other relevant matters
The Tribunal gave the applicant the opportunity at hearing to consider whether the Tribunal should take into account any other matters in terms of hardship caused to him or others by the cancellation. The applicant stated that he could not think of any. While disappointment and regret might be genuine sentiments felt by the applicant, he took an opportunity to be less than truthful with the immigration authorities about past work in Australia. The applicant’s remorsefulness of itself, does not move the Tribunal, however, to find that it outweighs the adverse conduct of the applicant in pursuing an application he was not entitled to.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Rosa Gagliardi
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.

Financial Review, Julie Hare, Education Editor, 16 August 2021, ‘Regions Bear Weight of Skills Shortages’, COVID Australia: Skill shortages hit the regions hardest (afr.com), accessed on
30 August 2021.

[2021] AATA 3342

31 August 2021

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Immigration

Administrative Law

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Procedural Fairness

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