Crosse (Migration)

[2022] AATA 95

Crosse (Migration) [2022] AATA 95 (7 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lydia Ann Crosse

CASE NUMBER:  2114011

HOME AFFAIRS REFERENCE(S):          BCC2021/690573

MEMBER:K. Chapman

DATE:7 January 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 07 January 2022 at 1:39pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers and bogus documents given in extension application – 3 months of specified work in regional area while holding first visa – payslips – integrity checks showed work not undertaken in full – discretion to cancel visa – no approach to department or response to department’s notice – some specified work before redundancy – more than required hours on less than required days – application partly completed by third party and applicant’s attempt to diminish own responsibility – current part-time work in regional area – hardship if visa cancelled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 101(b), 103, 107, 109(1), 359(2)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(6)

CASES
Botha v MIBP [2017] FCA 362
MIAC v Khadgi (2010) 190 FCR 24

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW  

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 October 2021 to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (Cth) (‘the Act’). This is the second Subclass 417 visa held by the applicant. She is a national of The United Kingdom.

2. The delegate cancelled the visa on the basis the applicant had not complied with sub-sections 101(b) and 103 of the Act. The delegate determined, respectively, that the applicant incorrectly declared in her visa application she had performed 3 months of specified work in a regional area, when integrity checks confirmed she had not done so, and she provided bogus documents, being payslips for this purported employment. It is worth pausing to reflect that generally an applicant is not entitled to the grant of a second Subclass 417 visa without having performed 3 months of specified work, commonly required to be in a regional area.

3. On 8 September 2021, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of her Subclass 417 visa, on the basis that she failed to comply with sub-sections 101(b) and 103 of the Act. She did not respond to the NOICC. On 7 October 2021, the delegate cancelled the applicant’s Subclass 417 visa.

4. On 12 October 2021, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with her application. On 9 November 2021, the Tribunal wrote to the applicant, pursuant to s.359(2) of the Act, inviting her to provide the following:

   ·    Information concerning her Australian visa history;

   ·    Information concerning her present circumstances;

   ·    Information concerning the degree of hardship that may be caused to her if her Subclass 417 visa is cancelled; and

   ·    Information concerning any contribution made by her to the community.

5. The applicant responded by submitting material including, but not limited to, two personal statements, a reference from Pat Hickey of Intura Pty Ltd, a reference from Luke Clifford of GCO Solar, a reference from Ben Eastoe of Nilsen (QLD) Pty Ltd, payslips of the applicant from Nilsen (QLD) Pty Ltd, an email regarding representation, an email to a United Kingdom Member of Parliament and media articles concerning the COVID-19 pandemic. The Tribunal has duly considered all information submitted by the applicant.

6. The applicant appeared by telephone before the Tribunal on 7 December 2021 to give evidence and present arguments. She confirmed she was comfortable participating in the hearing by telephone and that no other person would give evidence at the hearing. The applicant participated in the hearing by telephone from Chinchilla, where she is presently residing. The Tribunal is satisfied that the telephone method of hearing was fair and appropriate, given the prevailing situation with the COVID-19 pandemic.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   ISSUES AND LAW

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

9. Sub-section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

10. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence at the review hearing

11. The applicant’s evidence to the Tribunal at hearing may be summarised as follows. She agreed that she received the NOICC. She did not respond to the NOICC, initially believing it to be a scam email, although she regretted not responding ultimately. The applicant indicated she had read and understood the delegate’s visa cancellation decision.

12. The applicant outlined her tertiary studies in The United Kingdom and work experience in the retail, hospitality and administration sectors. The applicant further outlined that she had worked in the solar farm sector in regional areas of Australia. She came to Australia as she saw better opportunities for her here and as her home life in The United Kingdom was not great. The applicant outlined that her parents had separated and she went to University at the age of 17 years. She developed depression whilst studying and was treated by a health professional with counselling. The applicant did not ultimately finish all her tertiary studies. She indicated that her mother didn’t want her at home and she decided to travel to Australia (the applicant is 24 years of age at the time of this decision).

13. The Tribunal canvassed with the applicant the information contained in the delegate’s visa cancellation decision, regarding her alleged provision of incorrect information and bogus documents concerning regional employment with Tranex Solar Pty Ltd, at the Darlington Point Solar Farm, including the submission of five fake payslips. The falsely claimed period of employment with Tranex Solar Pty Ltd was, according to the delegate, 31 days between 26 March and 29 April 2020.

14. The applicant explained that she legitimately worked at the Darlington Point Solar Farm, in regional New South Wales, until 22 March 2020 (her visa application indicates she was employed by Nilsen (QLD) Pty Ltd between 13 January and 22 March 2020 for 67 days at this location). However, as the project was coming to its conclusion, she was made redundant. After 22 March 2020, the applicant was unsuccessful in obtaining further regional work prior to her application for the second Subclass 417 visa.

15. The applicant contends that she worked long hours with Nilsen (QLD) Pty Ltd. In her view, she did more than enough hours to be eligible for the second Subclass 417 visa. However, she accepts that the requirements for the visa do not make the calculations in the same way she has done by totalling hours, rather that is done with reference to total actual days of work performed.

16. The applicant initially told the Tribunal she accepted responsibility for the information contained in her visa application. Additionally, she agreed that the five submitted payslips in respect of Tranex Solar Pty Ltd were not genuine. When the Tribunal further canvassed how the application was made by the applicant, she indicated a person named Mr Lee Hansol completed most of the application for her. The applicant paid him the sum of $150 to assist her. She located him on a FaceBook site called ‘Irish around Sydney’. The applicant also confirmed she completed some of the application herself. She indicated that she relied upon Mr Hansol for her visa application.

17. The Tribunal canvassed with the applicant the provisions of s.98 of the Act pertaining to responsibility for information contained in visa applications. She indicated she understood and accepted this. The Tribunal raised with the applicant that the evidence before it might tend to suggest that the ground for cancellation of her visa exists in that incorrect answers and bogus documents have been given or provided in the manner outlined by the delegate. She was invited to comment and conceded this matter. However, the applicant then advised that she was unaware of the COVID-19 pandemic related visa at the time of her Subclass 417 visa application and she was naïve then. She also wrote to her United Kingdom Member of Parliament to seek advice and contends this demonstrates she usually seeks professional advice, however she could not afford legal representation at the time the pandemic struck.

18. When asked by the Tribunal to confirm if she provided incorrect information and bogus documents in relation to her second Subclass 417 visa application, in contrast to her earlier evidence, the applicant sought to distance herself somewhat from responsibility. The applicant advised at the time of application she wasn’t aware she was doing those things, then acknowledged it was in her name, then indicated ‘yes’ they were done but she didn’t realise. When specifically asked by the Tribunal if she realised there was wrongdoing, the applicant responded that she didn’t realise incorrect information was given. She added that she thought she had performed the correct hours of regional work because she did more than 35 hours per week at the Darlington Point Solar Farm and Lee Hansol said this was ok and that he was helping people. When asked by the Tribunal if she was aware of the requirements to perform 3 months of specified work to obtain the visa, the applicant confirmed she knew this prior to travelling to Australia.

19. The Tribunal raised with the applicant that her apparent failure to provide correct information, and the apparent provision of bogus documents, in relation to her second Subclass 417 visa application, might tend to weigh in favour of cancelling her visa. The applicant was invited to comment and she replied that ‘on paper it doesn’t look good’, however she contended she actually did complete the specified work when considered by the performance of hours. She added she was close to completing the work as calculated by days performed, when she lost employment with Nilsen (QLD) Pty Ltd at the Darlington Point Solar Farm. Thereafter, she couldn’t readily find employment due to the COVID-19 pandemic.

20. The Tribunal raised with the applicant that the apparent failure to provide correct information, and the apparent provision of bogus documents, in relation to her second Subclass 417 visa application, might tend to suggest that the decision to grant her that visa was based wholly or partly on incorrect information and this might tend to weigh in favour of cancelling her visa. The applicant was invited to comment and replied that she ‘didn’t willingly do that.’ The applicant added she has a clear record and it is not in her character to do this. She explained that she trusted Lee Hansol and he advised it was all legitimate. She indicated it was a stupid mistake, she didn’t submit bogus documents herself, ‘although it looks like that’ it is not the case and she can’t add anything further. On balance, the Tribunal forms the view that as the review hearing progressed, the applicant sought to further distance herself from responsibility for the provision of incorrect information and bogus documents to the Department, with her increasing emphasis on the role played by Lee Hansol.

21. The Tribunal canvassed the applicant’s current circumstances. She presently is employed by Intura Pty Ltd at Chinchilla, in regional Queensland, in an office capacity at a solar farm. The applicant has worked for Intura Pty Ltd since June 2021 and was initially in a field role. The applicant is limited to performing 20 hours work per week on her Bridging Visa. The applicant also volunteers with an indigenous employment agency and has raised funds with a cancer charity. The applicant wishes to remain in Australia and further her career in the renewable energy sector. She has the prospect of further employment with Intura Pty Ltd, she has formed strong links in the Chinchilla community and she wishes to travel more in Australia. She had nothing further to add regarding her present circumstances.

22. The applicant indicated she had not breached any Australian laws or other visa requirements. She advised the Tribunal that she made a contribution to the Australian community through her work in the solar energy sector and with her volunteering. The applicant outlined she volunteered with an indigenous employment charity, she has raised funds for a cancer charity, in Sydney she volunteered to help new mothers and she also collected plastics off beaches.

23. The Tribunal canvassed the mandatory legal consequences of visa cancellation with the applicant. In response she indicated she understood them, however she didn’t wish for them to happen. The applicant confirmed that no international obligations were relevant to her case, adding that COVID-19 is worse in The United Kingdom than in this country.

24. The Tribunal canvassed issues of hardship with the applicant. She contended that if her visa was cancelled she would have to return to The United Kingdom and the difficulties she previously faced there. She claimed she would most likely have to go to a homeless shelter if she returned to her country of nationality. The Tribunal canvassed her likely circumstances in The United Kingdom further and in due course the applicant conceded she would be able to obtain employment and accommodation after a period of adjustment, although initially it would be difficult for her and she may have to avail herself of Government accommodation services in the short term.

25. When asked by the Tribunal if there was any reason she could not return to The United Kingdom, the applicant advised she would have to check COVID-19 related travel updates. Upon enquiry of the Tribunal, the applicant advised she has not received a vaccination against COVID-19. The applicant explained that she wanted to research the vaccination further before having it, adding it was also more difficult to obtain in a regional setting (subsequently resiling somewhat from the latter contention when it was canvassed further by the Tribunal). Ultimately, the applicant advised she would conduct further research on the vaccine before taking it.

26. Towards the conclusion of the review hearing, the applicant contended she was the victim of a scam by Lee Hansol, she didn’t really understand what was happening and trusted him. She had lost her regional job at the time and it was difficult for her then. The applicant maintained that she worked a lot more regional hours than others who have had their Subclass 417 visa applications granted. She asked the Tribunal to consider all the regional work she has completed. The applicant referred to her employment references as indicators of good character and asked for another chance to outweigh her stupid decision. The applicant has since spoken to a few lawyers and wouldn’t make the same mistake again. She added she has never been in trouble with the law. The applicant contends that her employers know of the visa cancellation. She reiterated she will not make the same mistake again. At the conclusion of the hearing, the applicant confirmed to the Tribunal that she had no further evidence to submit.

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

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

28. The Tribunal notes that the NOICC dated 8 September 2021 was properly despatched by the Department to the applicant. She decided not to respond to it. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage the provisions of s.107 of the Act.

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

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

30. The Tribunal must consider whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and s.103 of the Act.

31. The s.107 notice particularises non-compliance with s.101(b) of the Act by the applicant in relation to her second Subclass 417 visa application. It indicates the applicant incorrectly answered questions in that visa application in relation to having performed 3 months specified work in a regional area. Additionally, the s.107 notice particularises non-compliance with s.103 of the Act by the applicant, in relation to the provision of five bogus payslips from Tranex Solar Pty Ltd.

32. It is not in dispute that the applicant’s visa application falsely declares the performance of 3 months specified work in a regional area. Whilst at hearing the applicant initially seemed to take responsibility for the provision of incorrect information, she subsequently sought to distance herself from full responsibility for the contents of the application, shifting the emphasis to Lee Hansol and claiming she didn’t understand what was happening. Furthermore, the applicant claimed she didn’t realise fake payslips were submitted on her behalf by Lee Hansol.

33. The Tribunal does not accept the evidence of the applicant seeking to diminish her responsibility for the provision of incorrect information and bogus documents. This is because of the initial spontaneous evidence of the applicant indicating responsibility, her acknowledgement that she filled in a portion of the visa application herself, her references to having made a stupid mistake and her knowledge that she had not completed the necessary specified work even though she wished it was calculated in a different manner. Furthermore, the applicant accepted the application of s.98 of the Act to her circumstances.

34. Following careful consideration, the Tribunal finds that the incorrect answers regarding the applicant’s performance of 3 months of specified work in a regional area, and the submission of fake pay slips, constitute the provision of incorrect answers and bogus documents in the manner particularised in the s.107 notice. On balance, the Tribunal is satisfied that the answers provided by the applicant, as particularised in the s.107 notice, are incorrect. Further, the Tribunal is satisfied that the pay slips provided by the applicant, as particularised in the s.107 notice, are bogus.

1. Therefore, the Tribunal finds that there was non-compliance with s.101(b) and s.103 of the Act by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

2. 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).

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

   ·     the correct information;

   ·     the content of the genuine document (if any);

   ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

   ·     the circumstances in which the non-compliance occurred;

   ·     the present circumstances of the visa holder;

   · the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

   ·     any other instances of non-compliance by the visa holder known to the Minister;

   ·     the time that has elapsed since the non-compliance;

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches; and

   ·     any contribution made by the holder to the community.

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

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

5. The Tribunal notes the applicant did not respond to the NOICC issued by the Department. On balance, the Tribunal finds that the lack of response of the applicant to the NOICC dated 8 September 2021 weighs neither in favour, nor against, cancellation of her visa, given that more contemporary evidence is before it.

6. The correct information, in relation to the questions in the relevant visa application previously outlined, is that the applicant did not perform 3 months specified work in a regional area. The false information (including by way of bogus payslips) submitted in her visa application regarding this topic is, in the view of the Tribunal, a very serious matter. This is particularly so given the applicant knew she was not entitled to be granted the second Subclass 417 visa without performing the relevant specified work (even though she laments the manner in which the performance of regional work is calculated by the Department), but chose to pay Lee Hansol the sum of $150 to proceed with the visa application anyway. The applicant’s attempts in the review hearing to increasingly distance herself from wrongdoing reflect dimly upon her. On balance, these circumstances weigh strongly in favour of cancelling the applicant’s Subclass 417 visa, given the mendacious nature of the incorrect information submitted (including that contained in the fake pay slips). For completeness, the Tribunal finds that there is no circumstance in the present matter regarding the content of a genuine document and therefore no weight is given to that prescribed circumstance (noting only fully bogus payslips were submitted and no genuine original document was tampered with).

7. The Tribunal forms the view that the decision regarding the applicant being granted the second Subclass 417 visa was based partly on incorrect information and bogus documents. That is, the applicant’s visa application untruthfully submitted that she performed 3 months specified work in a regional area and five bogus payslips in support were submitted. The Tribunal accepts that the applicant partially performed the required specified work prior to the time of the visa application, however it is clear she understood that the requirements for the visa were not satisfied by her at the time of application. Given that the topic of specified regional work is central to the grant of a second Subclass 417 visa, had the true information been known to the Department the applicant would not have been granted the visa. Following careful consideration, the Tribunal finds that the circumstances in relation to the grant of the second Subclass 417 visa to the applicant weigh strongly in favour of cancelling her visa.

8. The Tribunal finds that the applicant engaged in a deliberate course of conduct to pursue a second Subclass 417 visa application in the knowledge that she had not performed 3 months specified work in a regional area (noting she laments the manner in which her prior regional employment is not fully accepted as satisfying the requirements for this visa). That she chose to pay $150 to Lee Hansol to lodge the application on her behalf reflects dimly upon her. The Tribunal accepts that the applicant had performed some specified work in a regional area with Nilsen (QLD) Pty Ltd, prior to the time of the visa application, and was made redundant through no fault of her own around the time of the COVID-19 pandemic (the Tribunal also accepts the veracity of the evidence, both documentary and at hearing, submitted in relation to this employment). Further, the Tribunal accepts that the applicant attempted to secure alternate regional employment but was ultimately unsuccessful.

9. However, at no stage prior to the time of the visa application did the applicant contact the Department to discuss her options in light of the unfolding situation with the pandemic. Rather, she made the conscious decision to pursue a pathway that would submit incorrect information and bogus documents on her behalf in her second Subclass 417 visa application, using the paid assistance of Mr Lee Hansol. The Tribunal accepts the applicant contacted her United Kingdom Member of Parliament (and she would normally seek professional advice but could not afford it at the time of application) and also the veracity of submitted media articles relating to the difficult circumstances for her during the pandemic. However, it is worth pausing to reflect that the incorrect information and bogus documents only came to light when the Department conducted integrity checks and the applicant never volunteered the true information to the Department. For completeness, the Tribunal notes it does not accept the applicant’s assertion that she was unwittingly involved in the submission of this dubious material to the Department, for reasons previously outlined. Following careful consideration, the Tribunal finds that the circumstances in which the non-compliance occurred weigh strongly in favour of cancelling the applicant’s Subclass 417 visa.

10. The Tribunal has duly considered the present circumstances of the applicant. The Tribunal accepts the applicant is presently employed in regional Queensland in the solar industry, has prior experience in this industry obtained in regional New South Wales and she wants to continue her career in Australia (the veracity of supporting documentary material is also accepted). The Tribunal further accepts the applicant has demonstrated participation in volunteer work, including with an indigenous employment agency and cancer charity in recent times, and previously in Sydney assisting new mothers and collecting plastics off beaches. Additionally, the Tribunal accepts she has formed links in the regional community of Chinchilla. Furthermore, the Tribunal accepts that the applicant wishes to travel more throughout Australia and has not had the opportunity to do so previously due to the pandemic.

11. The Tribunal also accepts that the applicant had mental health issues previously during her studies in The United Kingdom that were treated with counselling (although this is unsupported by medical evidence) and that her relationship with her parents is fractured, contributing to her unwillingness to return to her country of nationality. The Tribunal accepts the applicant is concerned with the COVID-19 situation in The United Kingdom. However, she is hesitant to receive a COVID-19 vaccination, although it is freely available to her in this country or in her own and it is ultimately a choice for her. Additionally, the Tribunal considers the applicant’s education to date and work experience will enable her to find suitable employment and accommodation, following a short period of transition, if she returns to her native United Kingdom. On balance, the Tribunal finds that the applicant’s present circumstances weigh moderately against the cancellation of her visa.

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

13. The time that has elapsed since the non-compliance with s.101(b) and s.103 has been carefully considered by the Tribunal. The applicant made the application for the second Subclass 417 visa on 7 November 2020, approximately 14 months prior to the time of this decision. Given this period of time is not unduly lengthy, on balance, the Tribunal finds that the time that has elapsed since the non-compliance weighs neither in favour, nor against, cancellation of her visa. There is no evidence of any breaches of the law since the applicant’s non-compliance and the Tribunal affords this circumstance moderate weight against cancellation of her Subclass 417 visa.

14. The applicant has made a contribution to the community through her work in the solar energy sector in regional Australia and with her volunteer work (including with an indigenous employment charity, a cancer charity, with new mothers and also collecting plastics off beaches). Furthermore, the Tribunal accepts the veracity of the documentary evidence submitted from employers attesting to her work ethic and character. Following careful consideration, the Tribunal finds that these matters weigh moderately against the cancellation of her Subclass 417 visa.

15. 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.

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

17. The Tribunal has carefully considered all other relevant matters, including the degree of hardship that may be caused to the applicant if her Subclass 417 visa is cancelled. The Tribunal accepts hardship will be experienced by the applicant if she is made to relinquish her employment, charitable activities, connections in the community and lifestyle through visa cancellation. Further, the Tribunal accepts hardship will arise for the applicant if she must return to The United Kingdom without family support, employment and accommodation secured upon initial arrival. Additionally, the Tribunal accepts that the applicant does not wish to return to her country of nationality and this may have an impact upon her mental health. Further, the Tribunal acknowledges the applicant is concerned with the COVID-19 situation in The United Kingdom, although it is a matter for her whether she seeks a COVID-19 vaccination and she is entitled to avail herself of all health services provided in that country available to its nationals.

18. The Tribunal simply does not accept that the applicant will be consigned to a homeless shelter if she returns to The United Kingdom, given her ability to obtain employment with her education to date and work experience, that she resiled somewhat from this contention at hearing and given she is entitled to avail herself of all the usual services (including with respect to health, accommodation and social services) provided by her country of nationality (which is a developed nation). Whilst the Tribunal accepts there will be a difficult initial period of adjustment for the applicant if she must return to her country of nationality, on balance, this will be overcome by her given her personal attributes in the view of the Tribunal. On balance, the Tribunal finds that the applicant would face a moderate degree of hardship if her visa is cancelled and this weighs moderately against the cancellation of her Subclass 417 visa.

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

20. The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 417 visa. For reasons previously expressed, the Tribunal finds that the applicant engaged in a knowingly mendacious course of conduct to engage Lee Hansol to lodge her second Subclass 417 visa application, relying upon the false premise that she completed 3 months of specified work in a regional area. In doing so there was non-compliance with ss.101(b) and 103 of the Act by the applicant in the way described in the s.107 notice. In the applicant’s favour, she has undertaken significant regional employment and meaningfully volunteered with charities in Australia. Her application for review is finely balanced in the view of the Tribunal.

21. On balance, following much consideration, the Tribunal finds that the circumstances in favour of cancelling the applicant’s visa outweigh those circumstances to the contrary.

    CONCLUSION

22. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as outlined above, the Tribunal concludes that the Subclass 417 visa should be cancelled.

    DECISION

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

    K. Chapman
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.