Ciervo (Migration)

Ciervo (Migration) [2022] AATA 1102 (31 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Rim Ciervo
CASE NUMBER:  2108392
HOME AFFAIRS REFERENCE:               BCC2020/2294445
MEMBER:L. Symons
DATE:31 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 31 January 2022 at 4:15pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – applicant had provided incorrect answers in visa application – there was non-compliance in the way described in the notice –applicant did not undertake specified work in regional Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 99, 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2, cl 417.211
CASES
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 (Cth) (the Act).
The applicant is a national of Italy and was born on 2 July 1999. She was initially granted a Subclass 417 (Working Holiday) visa on 20 August 2019. She arrived in Australia on 8 October 2019 and her visa was valid until 8 October 2020. On 1 August 2020, she made an application to the Department of Immigration (the Department) for a 12 month extension of her Subclass 417 (Working Holiday) visa. One of the requirements for a 12 month extension of that visa is that she must have completed 3 months of specified work in regional Australia. In her visa application, she claimed that she had completed 3 months of specified work in regional Australia. On 1 August 2020, she was granted a 12 month extension of her Subclass 417 (Working Holiday) visa which was valid until 8 October 2021.
On 22 June 2021, the delegate cancelled the Subclass 417 (Working Holiday) (Extension) visa under s.109(1) of the Act on the basis that on 1 August 2020 the applicant provided incorrect answers in her application for a Subclass 417 (Working Holiday) (Extension) visa. On 29 June 2021, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 12 January 2021 to give evidence and present arguments.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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 AND FINDINGS
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
On 20 May 2021, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of her Subclass 417 (Working Holiday) (Extension) visa as she considered that there had been non-compliance with s.101(b) of the Act. The NOITCC stated that s.101(b) of the Act provided that a non-citizen must fill in or complete his or her application in such a way that no incorrect answers are given or provided.
The NOITCC stated that the applicant lodged an application for a Subclass 417 (Working Holiday) (Extension) visa on 1 August 2020 via the Department’s online facility. The NOITCC stated that 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?” she answered “Yes”.
The NOITCC stated that under the heading “Details of specified work undertaken” the applicant provided the following answers in part:
Legal registered name:  AAG Labour Services Pty Ltd
Trading name:  AAG Labour Services Pty Ltd
Australian Business N umber:            21126217294
Postcode:  6275
Industry type:  Agriculture, forestry and fishing
Industry type sub-group:  Plant and animal cultivation
Description of duties:  I was a dairy farm hand. I assisted in milking 1400 cows twice a day. I also fed cattle, mustered cattle and reared claves while on the farm.
Date from:  02 March 2020
Date to:  05 July 2020
Total days worked:  90
The NOITCC stated that under the heading “Working Holiday Declaration”, 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”, the applicant answered “Yes.” The NOITCC stated that based on this information, as well as meeting other criteria, she was granted a Subclass 417 (Working Holiday) (Extension) visa on 1 August 2020.
The NOITCC stated that the Department subsequently initiated employment verification checks with AAG Labour Services Pty Ltd to verify the applicant’s employment. On 8 September 2020, AAG Labour Services Pty Ltd contacted the Department and advised that she never worked at their business.
The NOITCC set out the provisions of s.98, s.99, s.100 and s.101 of the Act. It stated that the delegate considered that the applicant had not complied with s.101(b) of the Act, which required the applicant to fill in her application form in such a way that no incorrect answers are given or provided, when she answered ‘Yes’ to the question “Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa subclass 417?”, provided details of claimed employment with AAG Labour Services Pty Ltd in the section of the application form titled “Details of specified work undertaken” and answered ‘Yes’ to the declaration “Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first Working Holiday visa”.
The NOITCC stated that the delegate considered the above information to be incorrect because verification checks undertaken by the Department had concluded that she never worked at the business AAG Labour Services Pty Ltd as claimed and therefore had not undertaken 3 months of specified work in regional Australia. It stated that the delegate considered that, based on the above information, she had provided incorrect answers in support of her application for a Subclass 417 (Working Holiday) (Extension) visa. It stated that the delegate considered that, as she had not complied with s.101(b) of the Act, her Subclass 417 (Working Holiday) (Extension) visa may be liable for cancellation under s.109 of the Act.
The NOITCC invited the applicant to comment on the possible non-compliance and give a response as to why her visa should not be cancelled in writing within 14 calendar days after she was taken to have received the letter. She was advised of the process for deciding whether her visa should be cancelled and that her response would be taken into account. She was advised that her obligations under ss.104 and 105 of the Act continue. She was advised of the provisions of ss.108, 109, 111 and 112 of the Act. She was advised of the provisions of r.2.41 of the Regulations and what matters the delegate would consider. She was advised that she was required to keep the Department informed of her residential address and any change in her residential address until the time a decision is made about whether to cancel her visa.
On 17 June 2021, the Department received a lengthy response to the NOITCC from the applicant. In her response, she apologised for her mistake and stated that it occurred in the context of extraordinary circumstances caused by the Covid pandemic. She was overwhelmed by the events and did not know what to do. She came to Australia to learn English, get out of her comfort zone, discover the wildlife and get to know Australia and the people who live here. Her goal was to settle in Australia and build a future here.
In her response to the NOITCC, the applicant stated that shortly after her arrival in Sydney, bushfires started to spread and get worse. This had serious consequences for tourism and many backpackers, including her, lost their jobs. This situation made it difficult for her to find another job and the Covid pandemic complicated matters further. In February (2020), she started looking for work on a farm. She posted advertisements on Facebook groups and on Gumtree and downloaded applications that access contacts on farms. She received negative answers or proposals that were not legal. Farmers she contacted advised her that they were not employing backpackers and were only employing Australians.
In her response to the NOITCC, the applicant stated that she travelled to Queensland in March (2020) and eventually obtained some work on a farm in Grantham. She was not paid for the work she did there but worked in exchange for food and accommodation. She also obtained another woofing job in a coffee shop in Beerwah. She needed to make some income and moved to Brisbane where she obtained a job. She and two friends kept looking for farm jobs until they found jobs in Cairns. They flew to Cairns and when they got to the farm were told that there was only one job available. This created a problem for her and her two friends as they had spent the money they had to fly to Cairns.
In her response to the NOITCC, the applicant stated that she and her two friends looked for other work but the farms were not accepting backpackers. Once the borders closed, she was stuck in Queensland. The only work offers she got was on strawberry farms that required her to live in their apartments and pay for rent and food and this cost more than the salary she received. She had no savings. In the circumstances, she continued working until she could find a better farm job.
In her response to the NOITCC, the applicant stated that she was unable to obtain government assistance and there was no proposal to change the visa conditions. The situation in Europe was terrible and there was no family in Italy to welcome her. Many people she knew left Australia but she decided to stay on. It was a very difficult time. She eventually contacted a manager at a hostel in Cairns who was prepared to offer her and her two friends employment in exchange for free accommodation.
In her response to the NOITCC, the applicant stated that she continued to look for other work and was able to obtain a paid job at a bar in Cairns. She continued looking for jobs on farms and speaking to people. She spoke to someone who told her that he was able to stay on in Australia even though he had not done any farm work. She obtained the details of the man who helped him and contacted him (Lee Hansol). Mr Hansol appeared very professional. He told her that he had a 100% success rate in obtaining visas and she needed to correctly answer his questionnaire.
In her response to the NOITCC, the applicant stated that the situation she was in was that she did not have much money, was running out of time, had no possibility of returning home, had no help from the government and had no possibility of applying for another visa as she could not afford to apply for a Student visa and was unaware of Covid visas at that time. She told herself that the only solution was to seek the assistance of Mr Hansol. Soon after providing him with the information she received her second Working Holiday visa. With more time, she was able to find a job on a banana farm at Mareeba. She did not work there for long as she got the opportunity to work at the Whitsundays in Hayman Island.
In her response to the NOITCC, the applicant stated that she has worked hard in Australia and did not come here for a holiday. Her main reason for coming to Australia was to learn English, travel, work, build a future and open a business. She then received the letter (NOITCC) from the Department. She admits that she did not work on the farm (as indicated in the second Working Holiday visa application form). She thought she had made the right decision but definitely did not. She is 21 years old, still young, still has a lot of mistakes to make and lessons to learn. Irrespective of the outcome, something good has happened as she has realised a lot through this mistake and it will allow her to make better choices in the future.
In her response to the NOITCC, the applicant stated that she wants to apologise for not having found an alternative. She has a lot of experience in the hotel industry which is a critical sector because of the Covid pandemic. She is currently employed at a solar farm in Wellington. The farm needs her to stay until the end of the project. She feels that she is able to contribute to help Australia particularly as a number backpackers have now returned to their homes. She is fully aware that she did not meet the requirements for the second Working Holiday visa and knows that she made a serious mistake.
In her response to the NOITCC, the applicant stated that she would like to do everything she can to remedy it. She loves Australia and would like to stay here and build a future in Australia. She has found a job that allows her to earn a lot of money and she has investment projects that are available to her. She knows that there are opportunities in Australia that are not available in Europe. She has an internship opportunity with the company for 6 months to a year. She would also like to study a diploma in English through Cambridge or TOEFL.
In her response to the NOITCC, the applicant stated that she has a partner who has been in Australia for a year and they are considering some serious projects. She loves everything about Australia and feels at home here. With the Covid situation she has no reason or motivation to return to Europe. She proposed some solutions on how she could make up for what she did and show that she is really motivated and ready to do her best to stay in Australia. She included a number of supporting documents including evidence of her former and current employment and the efforts she made to obtain employment on a farm in Australia.
The applicant’s subclass 417 (Working Holiday) (Extension) visa was cancelled on 22 June 2021.
The applicant provided the Tribunal with copies of the Department’s Decision Record dated 22 June 2021, her response to the NOITCC and her supporting documents and the Tribunal has considered them.
During the hearing, the Tribunal went through the NOITCC with the applicant and she agreed with the information in the NOITCC. She stated that her visa application was prepared by Lee Hansol and she only became aware of the information in her visa application after she received the NOITCC. The information about her farm work is not correct. She understood that if she asked someone else to prepare a visa application on her behalf, she was responsible for what was in the visa application. She made a mistake.
The applicant gave evidence that she agreed that, by giving the Department incorrect answers in her application for a Subclass 417 (Working Holiday) (Extension) visa, she had breached s.101(b) of the Act.
In view of the above, the Tribunal finds that the applicant gave or caused to be given incorrect answers in her application for a Subclass 417 (Working Holiday) (Extension) visa. Specifically, the Tribunal considers that her answers to the following questions and the declaration in the visa application lodged on 1 August 2020 were incorrect:
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?” the applicant incorrectly answered “Yes”.
Under the heading “Details of specified work undertaken” the applicant provided the following incorrect answers:
Legal registered name:  AAG Labour Services Pty Ltd
Trading name:  AAG Labour Services Pty Ltd
Australian Business Number:                  21126217294
Postcode:  6275
Industry type:  Agriculture, forestry and fishing
Industry type sub-group:  Plant and animal cultivation
Description of duties:  I was a dairy farm hand. I assisted in milking 1400 cows twice a day. I also fed cattle, mustered cattle and reared claves while on the farm.
Date from:  02 March 2020
Date to:  05 July 2020
Total days worked:  90
Under the heading Working Holiday Declaration, 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, where the applicant incorrectly answered “Yes”.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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 reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The correct information is that the applicant never worked in a specified job in regional Australia for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa. She was never employed by AAG Labour Services Pty Ltd.

The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa.
The content of the genuine document
Not applicable.
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 applicant was granted a Subclass 417 (Working Holiday) (Extension) visa on 1 August 2020 on the basis that she satisfied the criteria for the visa. One of the criterion is cl.417.211(5) which requires the Minister to be satisfied that, if the applicant held only one Subclass 417 visa in Australia, she has carried out a period or periods of specified work in regional Australia as the holder of the visa and the total period of work carried out is at least 3 months and she has been remunerated for the work in accordance with relevant Australian legislation and Awards.
The applicant relied on incorrect answers in her visa application that she worked at AAG Labour Services Pty Ltd, in a specified job, in regional Australia, and undertook this work for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa to satisfy the criterion in cl.417.211(5). The Department’s Decision Record indicates that the delegate relied partly on these incorrect answers to grant her the Subclass 417 (Working Holiday) (Extension) visa. The Tribunal finds that the decision to grant her the visa was partly based on these incorrect answers.
The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa.
The circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred were that the applicant applied for a Subclass 417 (Working Holiday) (Extension) visa on 1 August 2020 and provided incorrect answers in her visa application.
The applicant provided a lengthy response to the NOITCC to the Department together with several supporting documents (see paragraphs 19 to 29 above). These documents were also provided to the Tribunal and have been considered by the Tribunal.
During the hearing, the applicant reiterated the evidence she gave in her response to the NOITCC. She stated that she came to a point where she was desperate and needed a solution. Her goal was to come to Australia, experience nature, the people and the country and to live the adventure. She wished to stay in Australia. The supporting documents she provided show that she contacted prospective employers every day and put a lot of effort into finding a job on a farm. She kept getting negative answers. She was frustrated. It is one thing not to even try but she made a lot of effort and was not successful. It was horrible.
The applicant gave evidence that the situation at the time was extraordinary. She was thinking about how she was going to stay in Australia. She talked to people around her. Someone told her that he could stay in Australia because of a contact (Lee Hansol). She had to return home or find a solution. What she chose was not the right one and she made a mistake. She did not know that she was responsible for the information he put in her visa application. She tried everything. She was doing woofing, did not have much money and thought this was a temporary solution until she found something. She really tried to find work on a farm but it was difficult for her to do so. She went directly to the farms. Everything was full and they were not accepting new people. There were no backpackers and no work due to the Covid pandemic.
The applicant gave evidence that she had no funds to apply for a Student visa. She made the wrong choice. The cancellation of her visa has been a difficult process but it has allowed her to grow. Even though she made the wrong decision she knows that this mistake will make her think before she makes a decision. When asked whether she was aware that it was a requirement for the second Working Holiday visa that she had undertaken specified work in regional Australia for 3 months, she answered yes. That was why she was looking for farm work. When asked whether she knew that she did not qualify for the second Working Holiday visa, she responded yes.
The Tribunal asked the applicant whether, after she decided she wanted to stay on in Australia, she consulted a lawyer or registered migration agent to obtain some immigration advice in relation to her options for applying for another visa. She responded that she did not as she did not have the funds to do so. Her friend contacted a migration agent who advised her to apply for a Student visa and she did so. Student visas had a lot of restrictions. She did not want to study and, even if she wanted to study, she did not have the funds to apply for a Student visa.
The Tribunal asked the applicant whether, after she realised her situation, she contacted the Department and asked for help. She responded that she did not and did not know that was an option. She thought she had to have a migration agent. She found herself in a difficult situation. The Prime Minister announced that there was no (financial) help for backpackers, they could return home and they were not Australia’s priority. When asked whether she applied for a Covid visa, she responded that she did not as she only found out about them a month after she had been granted the second Working Holiday visa. Since then visa conditions have changed. People on Working Holiday visas can now work in the hospitality industry and people on Student visas can work more hours.
The applicant gave evidence that she was given the contact details for a man named Lee Hansol by a person who told her that he and a few other people were able to stay on in Australia thanks to him. She contacted him and did not check whether he was a registered migration agent. She read the letter he sent her and it was professional. She thought he was connected to the Department. She paid him about $1,500.00. He applied for a Subclass 417 (Working Holiday) (Extension) visa on her behalf. She did not ask him for a copy of the visa application. He sent her the details of the visa after it was granted.
The Tribunal asked the applicant whether she considered the consequences of providing incorrect information to the Department. She responded, “yes and no”. She knew that if her visa application was refused, she would have to leave Australia. At the same time, she was more focussed on what she could do so that she did not have to leave.
Having considered this evidence, the Tribunal accepts that the applicant made many attempts to find farm work but was unable to obtain paid farm work due to the circumstances caused by the Covid pandemic. The Tribunal accepts that she did not wish to return home at that time, did not have the funds to apply for a Student visa, was not aware of the Covid visa at the time she applied for the Subclass 417 (Working Holiday) (Extension) visa and felt desperate. However, the Tribunal notes that she was aware that she needed to have completed 3 months of specified work in regional Australia whilst the holder of her first Subclass 417 (Working Holiday) visa in order to be granted a Subclass 417 (Working Holiday) (Extension) visa and that she did not satisfy those requirements.
The Tribunal is therefore of the view that she knowingly engaged the services of Mr Lee Hansol to obtain a visa she was not entitled to and was aware, or should have been aware, that he would have provided incorrect information in her visa application, on her behalf, in order to obtain a visa that she was not entitled to. Her evidence tends to indicate that she made some bad decisions without proper consideration of the consequences of those decisions. The Tribunal accepts that her youth and level of maturity may have impacted on her decision making ability. However, ultimately she is responsible for her decisions and the consequences of those decisions.
The Tribunal gives this consideration weight in favour of affirming the decision to cancel the applicant’s visa.
The present circumstances of the visa holder
The applicant is a citizen of Italy and was born on 2 July 1999. Her father is from Italy and her mother is from Morocco. She grew up in Switzerland. Her mother has now left Switzerland and lives in Spain. She has no family in Switzerland or Australia. She met her partner whilst in Australia. He is from France and is on a Subclass 417 (Working Holiday) visa that is valid until November. During her time in Australia, she has worked in the hospitality industry, done some woofing on a farm in Grafton and in a café. She is currently working as a labourer on a solar farm in Queensland.
Having considered this evidence, the Tribunal accepts that if the applicant’s visa is cancelled it would adversely impact on her relationship with her partner and on her plans to learn English, travel, work, open a business and build a future for herself in Australia.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence before the Tribunal to indicate that the applicant attempted to contact the Department to correct the incorrect answers provided in her application for a Subclass 417 (Working Holiday) (Extension) visa. She engaged with the Department after she received the NOITCC.
The Tribunal gives this consideration some weight in favour of affirming the decision to cancel the applicant’s visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal to indicate that there are other instances of non-compliance by the applicant.
During the hearing, the applicant gave evidence that she is currently on a Bridging E visa with work rights. She has complied with the conditions of this visa.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
The time that has elapsed since the non-compliance
The non-compliance occurred on 1 August 2020 when the applicant provided, or caused to be provided, incorrect answers in her application for a Subclass 417 (Working Holiday) (Extension) visa. It has been over 1 year and 5 months since then. The Tribunal does not consider this to be a substantial period of time.
The Tribunal gives this consideration some weight in favour of affirming the decision to cancel the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal to indicate that the applicant has breached any laws since the non-compliance.
During the hearing, the applicant gave evidence that, whilst living in Australia, she has not breached any other laws, has not been in trouble with the Police and has not been charged with any criminal offence. The Tribunal accepts this evidence.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
Any contribution made by the visa holder to the community
During the hearing, the Tribunal asked the applicant whether she had made any contribution to the Australian community. She responded that during the bushfires she volunteered to help with animals and farms in exchange for accommodation but was not chosen as there were lots of volunteers.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Whether there would be consequential cancellations under s.140 of the Act
There is no evidence before the Tribunal to indicate that there would be consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled. During the hearing, the applicant confirmed that no one else’s visa would be cancelled if her visa is cancelled.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Are there children whose interests would be affected by the cancellation of the visa
There is no evidence before the Tribunal to indicate that the applicant has any children whose interest would be affected by the cancellation of her visa.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Would the cancellation lead to the applicant’s removal in breach of Australia's non-refoulement or family unity obligations
There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s visa would lead to her removal in breach of Australia’s non-refoulement or family unity obligations.
During the hearing, the applicant gave evidence that there is no reason why she cannot return to Switzerland.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, she will become an unlawful non-citizen and may be liable to be detained under s.189 of the Act and removed under s.198 of the Act unless she departs Australia voluntarily. It is unlikely that she would be granted a Bridging visa on departure grounds and, even though she will not have a valid visa, she will have sufficient time to depart Australia voluntarily. As there is no reason why she cannot return to Switzerland, there is no prospect of indefinite detention if she does not depart Australia voluntarily.
If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, she will be subject to s.48 of the Act which means she will have limited options when applying for further visas while in Australia and Public Interest Criteria may prevent her from being granted particular temporary visas for a period of 3 years from the date of cancellation. This will affect her ability to make a valid application for certain visas. These are the intended legal consequences in the legislation when a visa is cancelled and it reflects the seriousness of a breach of s.101(b) of the Act and consequent cancellation of a visa.
The Tribunal gives this consideration no weight against affirming the decision to cancel the applicant’s visa.
Any other relevant matter
During the hearing, the applicant gave evidence that she is sorry for her mistake. She reiterated that she tried to find farm work and did some woofing. She worked in the critical sector in her second year in Australia. She thanked the Australian government for allowing her to stay in Australia for a second year. She wishes that she is not banned from returning to Australia as she would like to show her family what she has done during her time in Australia.
CONCLUSION
Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Subclass 417 (Working Holiday) (Extension) visa outweigh the grounds for not cancelling her visa. Therefore, the Tribunal concludes that the Subclass 417 (Working Holiday) (Extension) visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
L. Symons
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.

[2022] AATA 1102

31 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction