Clinton (Migration)

Clinton (Migration) [2022] AATA 2202 (16 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr James Anthony Clinton
CASE NUMBER:  2118068
HOME AFFAIRS REFERENCE(S):          BCC2020/2877546
MEMBER:Melissa McAdam
DATE:16 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 16 May 2022 at 10:53am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – employer reported no record of applicant – impact of the COVID19 pandemic – relationship with an Australian citizen – limited suitable regional work – financial and emotional hardship – subsequent work in regional Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 189
Migration Regulations 1994, Schedule 2 cl 417.211; Schedule 4, Public Interest Criterion 4013; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had 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
On 12 October 2021 the Delegate issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa under s.107 of the Act. In the NOICC the Delegate set out the following:
Particulars of the possible non-compliance:
I consider that there has been non-compliance with the following section(s) of the Act:
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:
(b) no incorrect answers are given or provided.
….
Particulars of grounds for cancellation
Information provided in your visa application
On 22 November 2020, you lodged an application for a Working Holiday (Extension) (subclass 417) visa using the Department’s online lodgement facility, providing the following answers on the electronic visa form:
In response to the question ‘They have carried out at least six months of specified work’ you
answered ‘Yes’.
In response to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa.’ you answered ‘Yes’.
Under the heading ‘Details of specified work undertaken’, you provided the following answers (in part):
Employer Details
Legal registered name: Berry sweet strawberry farm
Trading name: Berry sweet strawberry farm
Australian Business Number (ABN): 78597340065
Employer business address
Address: 47 Davidson St
Suburb / Town: Bullsbrook
State / Territory Western Australia
Postcode: 6084
Work conditions
Employment type: Direct employment
Industry type: Agriculture, forestry and fishing
Industry type sub-group: Plant and animal cultivation
Description of duties Picking of ripe strawberries into 250g punnets making sure all the strawberries are the correct size and weight for each punnet. Organising trays of strawberries
once picked and distributing the trays to a nearby truck for weighing.
Date from: 16 Mar 2020
Date to: 13 Sep 2020
Total days worked: 190 Days
Under the heading ‘Working holiday declarations’, in response to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out after 1 July 2019; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa.’, you answered ‘Yes’.
Based on the above information, as well as meeting other relevant criteria, you were granted your Working Holiday (Extension) visa on 22 November 2020.
Subsequent information received by the Department
The Department initiated employment verification checks with Berry sweet strawberry farm, the business registered under ABN 78597340065, to verify your employment claims. On 18 December 2020, Berry sweet strawberry farm contacted the Department and advised that you never worked at their business for 190 days, from 16 March 2020 to 13 September 2020.
Possible non-compliance with section 101(b)
I consider that you provided incorrect information in your application for a Working Holiday (Extension) visa when you:
● answered ‘Yes’ to the question ‘They have carried out at least six months of specified work’;
● answered ‘Yes’ to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa.’;
● provided details of claimed employment with Berry sweet strawberry farm, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Have carried out at least six months of specified work; AND all of that work was carried out after 1 July 2019; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa.’
I consider the above information is incorrect, as verification checks undertaken by the Department have concluded that you never worked for 190 days at the business, Berry sweet strawberry farm. Therefore, you have not undertaken six months specified subclass 417 work.
Based on the above information, it appears you provided incorrect answers in support of your Working Holiday (Extension) visa application. I consider therefore, that you have not complied with sections 101(b), and accordingly your Working Holiday (Extension) visa may be liable for cancellation under section 109 of the Act.
What you can do
Before a decision can be taken on whether to cancel your visa, the Act gives you the opportunity to comment on the possible non-compliance and to give a written response why
your visa should not be cancelled. Your response should provide reasons:
● why you think you have complied, or why you have not complied, with section 101(b); and
● why you think your visa should not be cancelled (you should provide reasons why you think your visa should not be cancelled, even if you think you have complied, as the delegate may disagree with you); and
● provide any supporting evidence.
…
Response to NOICC
On 25 October 2021 the applicant provided the following written response:
This is written confirmation that I have received the notice of cancellation and confirm that I provided incorrect information due to a number of reasons, which I respectfully am taking this opportunity to explain the circumstances.
Firstly, I realize that my mistake has made me look unfavorable in front of the Australian government and I sincerely apologize for my actions and humbly ask for your forgiveness. I hope we can resolve this matter and I continue to work and live in this beautiful country that I wish to call home.
I want to assure you that this type of situation will never present itself again. I know now more than ever how lucky I am to be in this country but at the time when I applied for my 3rd year visa there were a lot of extenuating circumstances going on including the world-wide pandemic COVID19 that impacted my poor judgment and actions.
At that time I wasn’t in the financially stable situation that I am now. There were very little jobs prospects and I was finding it hard to find a regional job. Therefore the job I had at the time, I felt extremely lucky to have due to it not being impacted by COVID19 restrictions and the thought of having to go back to Ireland where the situation was considerably worse was very daunting and I felt unsafe to leave the country. Through fear and bad advice, I procured the services of a 3^rd party that provided the incorrect information for my visa application.
In addition to expressing my wrong doing I would like to take the time to tell you my situation now and how this cancellation will affect my life and others. I have been in your country for nearly 3 years now and since then I have settled in very well, I live a happy and different life from the one I left behind in Ireland 3 years ago. I left Ireland due to the lack of job prospects and family issues.
In Australia I have worked very hard on a lot of jobs as a skilled carpenter in hospitals, schools, FIFO in Western Australia and on a large iron ore project for FMG. I am now employed to start work on one of the biggest government jobs in the country, Snowy Hydro 2.0. During my time working in Australia, I have invested in storage lockup with all brand new tools, private and business vehicles.
I am now also in relationship with one of your citizens for last 18 months and just before receiving this letter of cancellation we were in the process of starting the application for a partnership visa. I have fallen in love with this women very much and the thought of my visa being cancelled is devastating for both of us.
I know what I have done is wrong and I will probably regret it for the rest of my life. Since arriving in Australia, I haven’t been in any trouble and never will be as I’m a hard worker and a good person. The cancellation of my visa will bring hardship as it will affect my life and my family life back in Ireland as they count on me financially, to send regular payments for my Mother’s mortgage due to COVID19 impacts. Also I am a community focused person, however since I‘ve been here I haven’t done as much charity work as I would like but I have given a few small donations and helping out feeding the homeless with one of my previous employers.
Delegate’s Decision
The delegate decided that the applicant had provided incorrect answers in his visa application, as particularised in the NOICC, and decided to cancel the applicant’s visa.
Information to the Tribunal
Pre-Hearing Submission
On 29 March 2022 the applicant provided the following written materials to the Tribunal:
-A 2013 Certificate of Completion in a carpentry module.
-The applicant’s payslips from League Engineering P/L.
-A National Trust Heritage award for work the applicant was involved in.
-A copy of the letter the applicant submitted to the department on 25 October 2021.
Tribunal Hearing
The applicant appeared before the Tribunal on 7 April 2022 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant did not complete 6 months specified work in regional Australia before he applied for a third Working Holiday visa.
b.At the time he applied for his third working holiday visa he was aware that to receive the third visa he must have completed six months of regional work. He applied for the visa despite knowing this because Covid had struck and people were getting sacked and losing their job. The applicant saw a guy who said he would obtain the visa for him. The applicant knew it was illegal but at the time he felt he had no choice. He felt this way because he was running out of time and could not find regional work.
c.He tried to find regional work on the Internet and Face Book and through Seek. He did not travel to any regional areas to find work.
d.He thought he was pretty lucky to have a job through Covid. He had paid carpentry work.
e.He previously completed three months of specified work in regional Australia to obtain his second Working Holiday visa. He worked on a cattle farm in rural Victoria. He contacted them again for further work but they didn’t have any.
f.He did not contact the department to discuss his visa options because he did not know anything. He also did not see a Migration Agent to discuss his options.
g.The applicant did not return to Ireland because he doesn’t want to go back to Ireland. He never wants to go back to Ireland. If his visa remains cancelled he will try to get a visa to Canada.
h.In February 2020 he went back to Ireland for three weeks for his sister’s wedding. He stayed inn a hotel with his sisters while he was there. He has a good relationship with his three sisters. They are all in Ireland. He has a problem with his father in Ireland. The applicant still sends, and wants to keep sending, money to his mother for her mortgage. This is because he does not want to see his mother thrown out of her house, his parents are still family.
i.He cannot live with his mother in Ireland. He lived with his sister but she has now had two children so has no space for him. His other sisters live with his mother. The applicant’s mother gives him support but his father doesn’t. It is more his father he has a problem with than his mother.
j.There is not a lot of work for carpenters in Ireland and it is very underpaid work. There is no living, just surviving. His friends in Ireland are on job benefits. He does not know if he could receive benefits.
k.The applicant worked in Ireland as a carpenter, in the maintenance of social housing. He hated it because it was hard to see people so poor and go into their houses. He was helping them but it was too much for him seeing kids with nothing, not even beds.
l.He only speaks English so he could only find work in other countries like England.
m.The applicant’s third Working Holiday visa would have expired by now. He had planned to start a Partner visa application with his girlfriend. They met in Australia just before Covid hit. She is an Australian citizen.
n.He has been working in regional Australia now for over 9 months - in Port Hedland for 3 months and currently on the Snowy Hydro project. It’s a year late but he has made up for the 6 months he didn’t do. He works 2 weeks on and one week off.
o.There are no other visa conditions which the applicant has not complied with.
p.He has not breached any laws apart from parking and speeding tickets.
q.He has worked in hospitals in Westmead and in nursing homes in Ryde. He also gives money to homeless people sometimes.
r.He has not formed any relationships with any children in Australia.
s.He does not know if he can get a visa to Canada. He hasn’t yet rung the Consulate.
t.It will cause his mother hardship if his visa remains cancelled because she lost her job as a special needs teacher during Covid. He thinks she will go back to work soon. His sisters don’t earn much because they are nurses. His younger sister is in University. His father does not work and is on benefits.
u.It would break his girlfriend’s heart if he has to leave Australia. He doesn’t think she would cope. She has been crying for a week over this. He doesn’t think she would go to Ireland and the applicant does not want her to have to. She has a good job here. He wouldn’t put that burden on her.
v.The visa cancellation will affect him a lot. He has made a lot of new friends here. He has made good money and worked a lot of hours. He likes this country and the lifestyle.
Post-Hearing Submission
On 20 April 2022 the applicant submitted the following Materials:
-A letter from the applicant’s partner, Ms Chow Hsien Percival. It contains photographs and copies of text messages. In the letter she states:
… I can confirm that James Anthony Clinton and I have a mutual commitment to a shared life as partners to the exclusion of all others. Our relationship is genuine and continuing.
We first met in May 2020 online via Bumble app.
We both decided to enter into our committed and exclusive relationship in April 2021.
Since November 2021, James works on rotation of two weeks in the Snowy Mountains and one week off, during his week off, he stays with me at [home address].
.
James and I first met online via Bumble app in May 2020 and there was an instant connection, so we quickly moved from the app and started messaging/talking via Facebook Messenger on 20 June 2020. When we met I knew he was different from my previous relationships, that he was more caring and attentive, on one occasion we went to a pub and he just ordered me a Pure Blonde beer without asking what I would like to drink as he thought this was something I would drink based on our conversations.
During our first year of meeting each other, we would usually see each other around once or twice a week due to work commitments but we would and still do to this day message/talk to each nearly every day.
James and I became a lot closer during July and August when he was going through a stressful period, James was applying for his visa, started having stomach problems and had a family tragedy. I think this is when both of us started to develop feelings of care and support for each other.
On 25 September 2020, we had birthday party for Chanel (my housemate), where James bought two of his friends Barry and Mick and met majority of my friends. This was a big step for both of us introducing each other to our friends.
On the October long weekend 2020, we went away together for the first time to the Blue Mountains after a couple months of planning. We got to know each other a lot more during this trip, so this trip and time together was an important step and development in our relationship. It was at this time that we talked to each other about dating each other as partners but as we both had commitment issues, we said if we both are still together in May 2021, after knowing each other for year, we would make it official.
From November 2020 to January 2021, I had experienced a lot of loss and James was always supportive, patient and caring. I believe if we were not together I would have fallen into deep depression as it felt like the world was too cruel.
In April 2021, a lot happened, this is when entered into our committed and exclusive relationship even though we had not seen anyone else since the day we met, we both declared our love for each other and James took a job in Perth working on rotation of three weeks in Perth and one week off, the one week off he would fly back to Sydney and we would split his time round his house and mine, this continued until 15 June 2021. During the three week separations, it felt time slowed down and that our hearts will break from not seeing each other.
Just after James departure back to Perth on 15 June 2021, COVID restrictions came into place and prevented James to returning to Sydney until 101 days later, we missed each other extremely and I worried a lot as James continued to have stomach problems but finally he went into surgery for his stomach. We continued to message/call nearly daily and our love for each other grew stronger.
When James returned back to Sydney on 24 September 2021, we decided that he would not return to Perth in case there as another lockdown, as James had given up his accommodation in July 2021, he stayed with me at … St Peters until he found a new job on 5 November 2021.
Since November 2021, James works on rotation of two weeks in the Snowy Mountains and one week off, during his week off, he continues to stay with me and a number of occasions, we would book Staycations and a couple times we were able to have my dog Mika come with us too, Mika usually lives with my Ex.
Since meeting James, I have never felt happier and loved, I have been in a few long-term relationships (A marriage of 8.5 years and most recently a failed relationship that lasted 10 years), in my previous relationships I have been mentally abused, not been able to express my opinions and as I child I was physically and mentally abused and I never thought I deserved or would find love or happiness, which I would have given up on, if it was not COVID and I got bored and started to try out dating apps and luckily I did as I met James within a month of joining the apps. What I love most about James is that he doesn’t judge me, he finds me funny, he lets me eat off his plate, he offers to pick me up and drop me off at places and he has a great bum. I know they are simple things but after years of walking on eggshells, I finally feel free to be and happy, James is the reason for this and I cannot imagine a life without him.
Therefore, when in October 2021, James got notified his visa got cancelled and the possibility of him leaving Australia, this has caused us both constant anxiety, stress and tremendous sadness. However, we support each other and take it day by day and be grateful for what we have.
Since we started our relationship, we both knew from early on that we have found our forever person. We both are terrible communicators but we admit this and push each other to open up and communicate, which has led us to talking about plans in the near future and distant future. From starting a business together to retiring, where James will build us a home to grow old in.
Please see on page 4 some ‘Extracts of messages’ from Facebook that supports the above timeline and demonstrates the development of our relationship.
.
As our relationship is uncertain due to his visa status, we have not shared finances. However, we take turns paying for food, entertainment, social events with friends when he is back in Sydney.
.
When James is staying at [home address], both Chanel (my housemate) and I work from home mainly, so to keep James busy, we give him a list of household chores, such as put up the Christmas lights, mow the lawns, fix the fly screens etc. James is extremely handy to have around.
I am mainly responsible for cooking as James prefers my cooking, however we order take out or go out to eat mostly when he is back in Sydney.
Chanel has a dog named Poppy and when Chanel and I have plans and James is staying, he looks after Poppy. Poppy loves her Uncle James. Please see on page 9 ‘Poppy photos’.
.
Over the past year or so, James has become more social with my friends and I see his friends occasionally. Both James and I are similar, we prefer to be home bodies but I do have a large circle of friends.
We have attended several major festival celebrations together as a couple (Christmas, New Year and birthdays). Please see page 9 ‘Relationship photos social’, however James doesn’t like his photo being taken therefore we don’t have many together as a couple but we have sent each other many photos, which I have attached a few from our conversations ‘Relationship photos personal’ on page 9.
Both James and I do not talk to our family about our relationships but both families know there is something special and I hope one day, James can meet my family and I meet his family, expect for my youngest sister who lives in Sydney who has met James multiple times and calls him little brother!
Our friends are supportive of our relationship and invite us to events as a couple.
.
The relationship between James and I is genuine and continuing. We are both committed to a shared life as partners to the exclusion of all others. In the short time we have known each other, we have been and will continue to support each other in all aspects of our lives.
From the beginning, James and I have valued each other’s opinions, we do not judge and respect each other, which is something I have never experienced in a partnership.
James and I have lost many loved ones during the last year. It has been an extremely challenging time for both of us, especially because we both could not travel to comfort our family due to COVID restrictions. James and I have supported each other emotionally and mentally through those difficult periods.
These adverse life events in the end made our relationship even stronger. We both knew then we would stick together for better, for worse, in sickness and health, and that we were ready to spend the rest of our lives together.
I know that James is working hard with his job in the Snowy Mountains even though it takes him away from me every two weeks but I know he is doing this to save money for our future. James has always worked hard throughout his life, and he is intelligent, well-liked and easy-going.
I currently work for Commonwealth Bank of Australia and have done so for the last 16 years but I hope one day in the near future my dream comes true that James and I start a business together of making kitchens.

A character reference from Chanel Leigh in which she writes:
… I have known James through my good friend Annie, who has been in a relationship with James for around a year and a half from memory.

I first came to meet James in June 2020 when he visited my home. James and I immediately got along well, due to shared interests and values.

Since then, I’ve seen James on a regular basis as he has stayed at mine and Annie‘s home very regularly, and over the last 6 months has lived there when he hasn’t been away working.

Throughout the time I have known James, he has become a very close and trusted friend, to the point that recently one of his friends referred to us as being like siblings, which I found endearing.

James has been very loyal and supportive of me and my beloved dog Poppy, whom he shares a strong bond with. Just before Christmas of 2020, I was hospitalized for 4 days after being bitten by a white tail spider, and without hesitation or request James cancelled his Christmas plans to stay with Poppy whilst I was in hospital.

James has displayed nothing but loyalty, honesty, dedication and commitment to a high level of integrity in all of his actions, from my very close account of him as an individual.

I can without hesitation provide a character reference for James, and provide assurance that he is a an upstanding member of Australian society.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act in the following respects:
That the applicant provided incorrect information in his application for a Working Holiday (Extension) visa when he:
● answered ‘Yes’ to the question ‘Has the applicant undertaken 6 months of specified
work as the holder of a first Working Holiday visa (subclass 417)?’;
● provided details of claimed employment with Berry sweet strawberry farm, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Are applying for their third Working Holiday visa (subclass 417) and have completed 6 months of specified work as the holder of a second working holiday visa’.
The above information was considered incorrect, as verification checks undertaken by the Department concluded that the applicant never worked at the business, Berry sweet strawberry farm. Therefore he had not undertaken six months specified work in regional Australia.
The applicant has confirmed that he did not complete six months of specified work in regional Australia. On the evidence before it the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances 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.
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 had not completed six months specified work in regional Australia, while holding his second Working Holiday visa, at the time of his third subclass 417 visa application.
The correct information was of critical relevance to the assessment of the visa application and should have been provided. The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.
The content of the genuine document (if any)
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
Clause 417.211(6) 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 six months full-time work, of specified work in regional Australia as the holder of a second subclass 417 visa.
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.
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. The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.
The circumstances in which the non-compliance occurred
The applicant gave evidence that the incorrect information was provided because he wasn’t financially stable at the time and he was finding it hard to find a regional job. He had a non-regional job and did not want to go back to Ireland. He provided the incorrect information through fear and bad advice. He was aware that he did not meet the criteria for the grant of a third Working Holiday visa and that he knew what he did was illegal. He felt he had no choice because he was running out of time and could not find regional work.
The applicant gave evidence that he searched unsuccessfully on the Internet and through a job agency for regional work.
The Tribunal accepts that the pandemic restrictions in place in Australia at the time the applicant held a second Working Holiday visa did adversely impact his ability to find suitable regional work to some degree. However the fact that he chose to pursue an application for the visa using incorrect information, instead of making more effort to actually comply with the visa requirements is not creditable.
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
The applicant gave evidence that he is currently working on the Snowy Hydro scheme following three months’ work at Port Hedland. The Tribunal accepts this work has been done in regional Australia and that he has been working for several months on the Snowy Hydro project with his employment there continuing.
The Tribunal also accepts that he is in a committed relationship with an Australian citizen and that they are planning a future together.
The applicant gave evidence that he feels settled and happy in Australia and wishes to continue working and living here with his partner.
The Tribunal gives this factor weight against the cancellation of his 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 adverse information before the Tribunal regarding the applicant's subsequent behaviour concerning his obligations. This factor weighs against the cancellation of his visa.
Any other instances of non-compliance by the visa holder known to the Minister
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 his visa.
The time that has elapsed since the non-compliance
It has been about 18 months since the non-compliance. 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
The applicant gave evidence that he has received parking fines and speeding tickets in Australia, but has not otherwise breached the law. While his infringements have been relatively ordinary speeding is quite a serious offence and does put the community at large at some risk. The Tribunal therefore gives this factor a little weight in favour of cancelling of his visa.
Any contribution made by the holder to the community
The applicant stated that he has not done much charitable work in Australia but occasionally gives money to homeless people.
He also gave evidence that he has paid taxes in Australia and worked on projects of value to the country.
The Tribunal considers that the applicant has made significant contributions to the Australian community through his work in hospitals, aged care centres, mining, construction and the Snowy Hydro scheme project.
The Tribunal therefore gives this factor weight against the cancellation of his visa.
Whether there would be consequential cancellations under s.140
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
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 he chooses to remain in Australia without a valid visa. He may also face difficulties in being granted further visas in Australia and could be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion (PIC 4013).
While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if his visa is cancelled, he has benefited from holding a visa with respect to which he did not meet the central requirements.
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
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
The applicant gave evidence that he is helping to financially support his mother in Ireland since her employment has been temporarily discontinued due to the COVID-19 pandemic, until she can resume her employment. The Tribunal accepts that if the applicant’s visa is cancelled and he is required to cease his work and depart Australia, the applicant’s mother will suffer some financial hardship.
The applicant gave evidence that he feels settled in Australia and has established a fulfilling life for himself here. The Tribunal accepts that it will cause him substantial disruption and financial and emotional hardship to have to leave Australia.
The Tribunal accepts it will cause significant emotional hardship to the applicant’s partner in Australia for the applicant to have to depart. She has written a very detailed and compelling statement about her reliance upon the applicant and their wish to continue to live together in Australia.
The Tribunal further notes that if the applicant’s third Working Holiday visa had not been cancelled, it would have expired in February this year.
The Tribunal gives this factor weight against the cancellation of the visa.
Conclusion on the exercise of the discretion
The Tribunal has considered the totality of the applicant's circumstances.
The Tribunal acknowledges that cancellation of the applicant’s visa will result in a high level of disruption to his life, his partner’s life and to his employer. The Tribunal also accepts that restrictions imposed due to the COVID pandemic increased the difficulty for him to find regional specified work. However problems meeting a central criteria for the grant of a visa do not justify falsifying information to unlawfully overcome a legal and purposeful requirement.
The Tribunal places significant weight upon the fact that the decision to grant the applicant’s visa was based upon incorrect answers to substantive and critical questions, and that the applicant was not entitled to the visa, having not met a central requirement for it. His actions were deliberate with the intent to obtain a visa based upon false information.
However the Tribunal considers the discretionary factors are somewhat balanced in this matter. The Tribunal notes the applicant has fully acknowledged responsibility for his wrong actions. Further, that the applicant has started working in regional Australia since movement restrictions have eased, and has been doing so for over six months, is of very favourable relevance to the applicant. The applicant’s partner was also persuasive in her statements regarding the serious emotional harm it will cause her if the applicant cannot stay in Australia. The applicant presented at hearing as a person who is caring and concerned for his friends and family and otherwise responsible in his personal life. He appeared quite distressed by his wrongful actions and there are no indications that he has any tendency to such unlawful behaviour. Finally, the visa is past its expiry date so the Tribunal’s decision will not result in the applicant obtaining a valid third Working Holiday visa on the basis of his false information. It will however mean there are less obstacles for the applicant in making a further visa application in Australia. It will then be a matter for the department whether or not the applicant is assessed to meet the criteria of any future visa grant, including relevant public interest criteria.
While the applicant’s non-compliance is of a very serious nature the Tribunal considers that his subsequent work in regional Australia and the hardship the cancellation may cause the applicant’s partner together with the passing of the expiry date of the visa, are sufficiently in the applicant’s favour for the Tribunal to decide that the applicant’s visa should not be cancelled.
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 not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
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.

[2022] AATA 2202

16 May 2022

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