Delannoy (Migration) - [2021] AATA 4583

Delannoy (Migration) [2021] AATA 4583 (17 November 2021)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Simon Raphael Daniel Delannoy
CASE NUMBER:  2101543
HOME AFFAIRS REFERENCE(S):          BCC2020/2685385
MEMBER:Linda Symons
DATE OF DECISION:  17 November 2021
DATE CORRIGENDUM
SIGNED:23 November 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

Date of birth on page 2 paragraph 2 of the decision record to be corrected from 2 February 1988 to 18 March 1994.
Linda Symons
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Simon Raphael Daniel Delannoy
CASE NUMBER:  2101543
HOME AFFAIRS REFERENCE:               BCC2020/2685385
MEMBER:L. Symons
DATE:17 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 17 November 2021 at 4:09pm
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 COVID-19 pandemic – reluctance to return to home country during pandemic – possible employer sponsorship – employment opportunities in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 48, 97-105, 107-109, 110, 111, 140, 189, 198
Migration Regulations 1994, r 2.41
CASES
MIAC v Brar (2012) 201 FCR 240
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a national of France and was born on 2 February 1988. He was initially granted a Subclass 417 (Working Holiday) visa on 9 October 2019. He arrived in Australia on 15 November 2019 and his visa was valid until 15 November 2020. On 24 September 2020, he made an application to the Department of Immigration (the Department) for a 12 month extension of his Subclass 417 (Working Holiday) visa. One of the requirements for a 12 month extension of that visa is that he must have completed 3 months of specified work in regional Australia. In his visa application, he claimed that he had completed 3 months of specified work in regional Australia. On 24 September 2020, he was granted a 12 month extension of his Subclass 417 (Working Holiday) (Extension) visa.
On 9 February 2021, the delegate cancelled the Subclass 417 (Working Holiday) (Extension) visa under s.109(1) of the Act on the basis that on 24 September 2020 the applicant provided incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa. On 10 February 2021, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 21 September 2021 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
On 10 December 2020, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of his Subclass 417 (Working Holiday) (Extension) visa as he considered that there had been non-compliance with s.101(b) of the Act. The NOITCC stated that s.101(b) of the Act provided that a non-citizen must fill in or complete his or her application in such a way that no incorrect answers are given or provided.
The NOITCC stated that the applicant lodged an application for a Subclass 417 (Working Holiday) (Extension) visa on 24 September 2020 via the Department’s online facility. The NOITCC stated that in response to the question “Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa subclass 417?” he answered “Yes”.
The NOITCC stated that under the heading “Details of specified work undertaken” the applicant provided the following answers:
Legal registered name:          Atlantic (Aust) Enterprise Pty Ltd trading as Adenco
Trading name:  Adenco Water Management and Civil Engineering
ABN  47601690662
Is the employer a labour hire company?       No
The NOITCC stated that under the heading “Work conditions” the applicant provided the following answers:
Description of duties:             Installation and removal of pits and services for NBN project in Lithgow region. Stared (sic) as telecommunications labourer.
Date from:  02 March 2020
Date to:  05 July 2020
Total hours worked:               760
Total days worked:                90
Was the applicant under a piece rate agreement?    No
Hourly rate of pay:                 28AUD
The NOITCC stated that under the heading “Working Holiday Declaration”, in response to the question “Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first Working Holiday visa”, the applicant answered “Yes.”
The NOITCC stated that, on the basis of the above information and meeting all other relevant criteria, the applicant’s Working Holiday Extension (subclass 417) visa was granted on 24 September 2020.
The NOITCC stated that a Departmental officer contacted the employer referred to in his visa application, Atlantic (Aust) Pty Ltd t/a Adenco (ABN 47601690662), who confirmed that they had no record of having employed him.
The NOITCC stated that the grant of his Working Holiday Extension (subclass 417) visa on 24 September 2020 was based on the fact that he satisfied certain criteria one of these being subclause 417.211(5) which requires the total period of specified work carried out in regional Australia to be or equivalent to at least 3 months of full-time work. The provisions of cl.417.211(5) were set out in the NOITCC.
The NOITCC stated that, had the delegate been aware that the applicant had not completed 3 months of specified work in regional Australia, his Working Holiday Extension (subclass 417) visa would not have been granted.
The NOITCC stated that the delegate considered that the applicant did not comply with s.101(b) of the Act which required him to fill in his application form in such a way that no incorrect answers are given or provided. It stated that s.100 of the Act provides that an answer to a question is incorrect even if the person who gave the answer, or caused the answer to be given, did not know it was incorrect. It stated that, as such, his Working Holiday Extension (subclass 417) visa is liable for cancellation under s.109 of the Act.
The NOITCC invited the applicant to comment on the possible non-compliance and give a response as to why his visa should not be cancelled in writing within 14 calendar days after he was taken to have received the letter. He was advised when the issue of cancellation would be considered and that his response would be taken into account. He was advised that his obligations under ss.104 and 105 of the Act continue. He was advised of the provisions of ss.108, 109, 111 and 112 of the Act. He was advised of the provisions of r.2.41 of the Regulations and what matters the delegate would consider. He was advised that he was required to keep the Department informed of his residential address and any change in his residential address until the time a decision is made about whether to cancel his visa.
The applicant did not comment on or respond to the NOITCC. His Subclass 417 (Working Holiday) (Extension) visa was cancelled on 9 February 2021.
During the hearing, the applicant gave evidence that he arrived in Australia on 15 November 2019. He lived in Sydney and worked in various jobs in the hospitality industry. He subsequently moved to Darwin in about mid-2021 and has been working in the hospitality industry in Darwin since 4 June 2021. He was aware that if he wanted to apply for a Subclass 417 (Working Holiday) (Extension) visa he needed to have worked in a regional area in Australia in a specified job. He was aware that working in the hospitality industry was not a specified job. Prior to applying for the Subclass 417 (Working Holiday) (Extension) visa on 24 September 2020 he had not worked in regional Australia.
The applicant gave evidence that he provided false information in his application to the Department for a Subclass 417 (Working Holiday) (Extension) visa. When asked why he did not respond to the NOITCC, he stated that he contacted two lawyers after he received the NOITCC and was advised that he was going to lose his visa and it was therefore useless to respond to the letter within 14 days. The Tribunal went through the NOITCC with him and he did not disagree with the information in the NOITCC. He stated that he contacted an unknown person by email and paid him money to help him to get a Subclass 417 (Working Holiday) (Extension) visa. He did not prepare his visa application. This person prepared it on his behalf but he is responsible for it.
The applicant gave evidence that he agreed that, by giving the Department incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa, he had breached s.101(b) of the Act.
In considering whether there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice, the Tribunal notes that there was an error in the s.107 notice (NOITCC). The NOITCC incorrectly stated that under the heading “Work conditions” the applicant provided the following answer:
Description of duties: Installation and removal of pits and services for NBN project in Lithgow region. Stared (sic) as telecommunications labourer.
In fact, in his application for a Subclass 417 (Working Holiday) (Extension) visa filed on 24 September 2020 the applicant provided the following answer:
Description of duties: Yard work included tidying up yard signing up for new stock that arrived and sorting it out for delivery in the main site. Other duties included bolt ups, fixing leaks on the water line, digging trenches, install of form work, delivery of new stock around site and operating machinery on site. (sic).
The Tribunal has considered whether this error goes to the substance of the allegations or affected the applicant’s capacity to respond to the allegations. The Full Federal Court in MIAC v Brar[1] confirmed that a purposive approach must be taken, so that an error which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegation of non-compliance will not deprive a decision maker of jurisdiction under ss.108 and 109 of the Act.
[1] MIAC v Brar (2012) 201 FCR 240, overturning Brar v MIAC [2011] FMCA 435.
In this case, the applicant gave evidence that he did not undertake any specified work in regional Australia as the holder of a Subclass 417 (Working Holiday) visa at the time he applied for the Subclass 417 (Working Holiday) (Extension) visa on 24 September 2020. His evidence is that he did not prepare his visa application filed on 24 September 2020. He paid an unknown person money to obtain the Subclass 417 (Working Holiday) (Extension) visa for him and this person lodged the visa application on his behalf. He agreed that all the answers provided in the visa application filed on 24 September 2020 in relation to him undertaking specified work in regional Australia was incorrect. He was served with the NOITCC and had the opportunity to respond to it. After receiving legal advice, he decided not to respond.
In view of the above, the Tribunal considers that the error in the NOITCC is minor and insignificant in the context of the facts of this case. It does not go to the substance of the allegations of non-compliance. The applicant was not prejudiced by the error and it did not affect his capacity to respond to the allegations. Other than for this error, all the other information in the NOITCC is correct. The NOITCC sufficiently identifies the grounds for cancellation. The applicant did not avail himself of the opportunity to respond to the NOITCC.
In view of the above, the Tribunal finds that the applicant gave or caused to be given incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa. Specifically, the Tribunal considers that his answers to the following questions and the declaration in the visa application lodged on 24 September 2020 were incorrect:
Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa subclass 417? where the applicant answered Yes.
Details of specified work undertaken where the applicant answered:
Legal registered name:          Atlantic (Aust) Enterprise Pty Ltd trading as Adenco
Trading name:  Adenco Water Management and Civil Engineering
ABN  47601690662
Is the employer a labour hire company?       No
Under the heading Work conditions where the applicant answered:
Date from:  02 March 2020
Date to:  05 July 2020
Total hours worked:               760
Total days worked:                90
Was the applicant under a piece rate agreement?    No
Hourly rate of pay:                 28AUD
Under the heading Working Holiday Declaration, in response to the question Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first Working Holiday visa, where the applicant answered Yes.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice other than for the Description of Duties specified 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 (other than for the Description of Duties specified in the s.107 notice), 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 never worked in a specified job in regional Australia for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa. He was never employed by Atlantic (Aust) Enterprise Pty Ltd trading as Adenco Water Management and Civil Engineering.
The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted a Subclass 417 (Working Holiday) (Extension) visa on 24 September 2020 on the basis that he satisfied the criteria for the visa. One of the criterion is cl.417.211(5) which requires the Minister to be satisfied that, if the applicant held only one Subclass 417 visa in Australia, he has carried out a period or periods of specified work in regional Australia as the holder of the visa and the total period of work carried out is at least 3 months and he has been remunerated for the work in accordance with relevant Australian legislation and Awards.
The applicant relied on incorrect answers that he worked at Adenco Water Management and Civil Engineering, in a specified job, in regional Australia, was remunerated 28 AUD per hour and undertook this work for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa to satisfy the criterion in cl.417.211(5). The delegate relied on these incorrect answers to grant him the Subclass 417 (Working Holiday) (Extension) visa. The Tribunal is of the view that the decision to grant him the visa was primarily based on these incorrect answers.
The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa.
The circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred were that the applicant applied for a Subclass 417 (Working Holiday) (Extension) visa on 24 September 2020 and provided incorrect answers in his visa application.
The applicant did not respond to the NOITCC to the Department.
The applicant sent the Tribunal a letter dated 21 February 2021 in which he stated that he contacted different farms but did not receive positive responses. He could not find any jobs during the lockdown as a result of the Covid pandemic. He has worked hard during the time he has been in Australia. He has a partner and they have been together for a year. They were planning to move to northern Australia and obtain work there. If his visa is cancelled, he will not be able to see his partner again. The situation in France is bad and is getting worse. He is aware of his mistake but did not have many choices.

During the hearing, the applicant gave evidence that he was working in the hospitality industry in Sydney in 2020. The first lockdown in Sydney, as a result of the Covid-19 pandemic, was for 3 months. During that period, he looked for jobs in regional Australia. He applied for jobs on farms in the Northern Territory but did not receive any responses. He could not return to France and was receiving money from France to pay for his living expenses. After the lockdown, he did not have much money and was not able to go to a farm. He started working in Bondi and his employer discussed sponsoring him for a visa. It was an opportunity for him to stay in Australia, keep working and then apply for permanent residence after a few years. He kept working and several months passed. The situation in France was disastrous.
The applicant gave evidence that by September 2020 he had not been able to get a job on a farm. He did not want to return to France as the situation there was getting worse. By November 2020 there were 80,000 new cases of Covid per day. It was not safe for him to return to France. He decided to contact a person to help him to obtain a Subclass 417 (Working Holiday) (Extension) visa. This person made the visa application on his behalf and he was granted the visa. He made a mistake by doing this and this was out of character for him.
The Tribunal asked the applicant whether he consulted a migration agent to obtain advice prior to applying for the Subclass 417 (Working Holiday) (Extension) visa. He responded that he was contacted by his then employer’s lawyer in relation to sponsoring him for a visa. He did not consult a migration agent. It was his first year living in a foreign country. He was lost and did not have much money. He did not want to return to France. He found out about migration agents about 6 months after he arrived in Australia. In his mind, he wanted to be sponsored by his then employer. However, things went bad there, he did not feel comfortable there anymore and resigned. He was therefore not able to be sponsored. He should have contacted a migration agent. They might have been able to help him find a job on the farm. It was his fault.
The Tribunal asked the applicant whether he considered any other visa options. He responded that sponsorship was a good option. He considered applying for a Student visa because he wants to study zoology in Australia. He was not able to do so because he was on a Bridging E visa. If he is successful in relation to his application for review before the Tribunal, he will apply for a Student visa or a sponsorship. His employer in Darwin wants to sponsor him. They struggle to find employees in Darwin. If he is sponsored, he will stay in Darwin and they will have his services for years.
The Tribunal asked the applicant whether he was aware that he would be providing false information in his visa application. He answered yes. When asked whether he considered the consequences of providing false information to the Department, he responded that it was out of character. He was lost and did not think about the consequences. He was stressed and just thought about staying in Australia. He thought the man would help him.
The applicant gave evidence that he is a hard worker and follows the rules. He has not been in trouble with the law. He always does his best. He has obtained reference letters from his real estate agents and bosses.
The applicant provided the Tribunal with a number of work references, including from his current employers, and letters from property managers where he has leased premises. He has provided three letters, one from a former employer and two from his current employers, indicating that they would like to sponsor him for a visa. He also provided the Tribunal with two WhatsApp images of two emails dated 8 April 2020. The first appears to be from a prospective employer in relation to an inquiry they received. The second is from him to a prospective employer seeking employment. In his email, he states that he is working in the construction industry in Sydney as a general labourer. This is not consistent with his evidence to the Tribunal that he has only worked in the hospitality industry in Sydney. This reflects poorly on his integrity and his evidence that providing incorrect answers in his visa application was out of character.
The Tribunal considers that the circumstances in Australia in 2020 were unusual with the Covid-19 pandemic and lockdowns and that it would have been challenging to find employment at that time. The Tribunal is also mindful that the situation in France in relation to the Covid-19 pandemic was not good at that time and accepts that the applicant did not want to return to France for that reason and for other personal reasons. However, it is of concern to the Tribunal that he did not seek immigration advice from a migration agent in relation to his options.
The applicant’s evidence is that he was aware that the Department was issuing special Covid-19 pandemic related visas to temporary residents (so that they could remain in Australia lawfully) but did not make inquiries or seek to obtain that visa. Instead, his first option was to seek to obtain a Subclass 417 (Working Holiday) (Extension) visa by providing incorrect answers to the Department. This indicates a disregard for Australia’s immigration laws. When the Tribunal raised this as an issue with him, he responded that it was his first year in a foreign country on the other side of the world. He was broke and could not return to France. He was not able to get farm work.
The applicant gave evidence that someone gave him a contact and told him that it was going to be alright. He was not well advised and made a huge mistake. He could not apply for a Student visa as it was expensive and he did not have the money. He could also only work 20 hours a week. He could have applied for the Covid visa but wanted to stay in Australia for another year.
Having considered all the evidence, the Tribunal is of the view that knowingly providing, or causing to be provided, incorrect answers in a visa application for the purpose of obtaining a visa is a serious offence. It undermines the integrity of the visa system and demonstrates a disregard for Australia’s immigration laws. The Tribunal does not accept that the applicant’s circumstances at the time justify his conduct.
The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa.
The present circumstances of the visa holder
The applicant is a citizen of France and has been in Australia since 15 November 2019. His family live in France and he has no family in Australia. He gave evidence at the hearing that he does not have a partner and has friends and workmates in Australia. He currently lives in Darwin and works in two part time jobs in the hospitality industry. His two employers are prepared to sponsor him for a visa.
The Tribunal accepts that if his visa is cancelled it would adversely impact on the applicant’s employment, his plans to get sponsored for a visa and his long term plans to apply for permanent residence in Australia. The Tribunal also notes that it would have an impact on his current employers.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence before the Tribunal to indicate that the applicant attempted to contact the Department to correct the incorrect answers provided in his application for a Subclass 417 (Working Holiday) (Extension) visa. He did not respond to the NOITCC.
During the hearing, the Tribunal asked the applicant why he did not engage with the Department during the process of cancellation of his Subclass 417 (Working Holiday) (Extension) visa. He responded that after he received the NOITCC he thought it was a chance to convince the Department to let him stay in Australia. He then contacted a lawyer who told him not to bother. They probably saw this before and knew what would happen. He did not hire them and only spent an hour with them. He took their advice. He now sees that it was a missed opportunity. It would have cost him $20,000.00 so he did not hire them.
The applicant stated that he has been working hard since he arrived in Australia. He only stopped working during the lockdown. Even now he works hard despite knowing that he could be deported. He works hard for two businesses in Darwin and hopes that they can change things for him. His situation is bad. He made one mistake and has risked his journey in Australia and his future in different countries in the world. That is why he sought a review of the decision.
The applicant’s evidence indicates that he has been ill advised and has made a series of bad decisions. Ultimately though, he is responsible for his decisions and the consequences of those decisions.
The Tribunal gives this consideration some weight in favour of affirming the decision to cancel the applicant’s visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal to indicate that there are other instances of non-compliance by the applicant.
During the hearing, the applicant gave evidence that he is the holder of a Bridging E visa and has work rights. He has complied with the conditions of his Bridging visa. He has not failed to comply in the past other than the issue of providing incorrect answers in his visa application.
The Tribunal gives this consideration little weight against affirming the decision to cancel the applicant’s visa.
The time that has elapsed since the non-compliance
The non-compliance occurred on 24 September 2020 when the applicant provided, or caused to be provided, incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa. It has been over 12 months since then. The applicant has been working, except during the lockdown, and has been working in Darwin since 4 June 2021.
The Tribunal gives this consideration some weight against affirming the decision to cancel the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal to indicate that the applicant has breached any laws since the non-compliance.
During the hearing, the applicant gave evidence that he has not had any trouble with the Police in Australia and has not been charged with any criminal offence. When he worked at a restaurant a customer had a problem and the Police asked him questions about it.
The Tribunal gives this consideration little weight against affirming the decision to cancel the applicant’s visa.
Any contribution made by the holder to the community
During the hearing, the Tribunal asked the applicant whether he had made any contribution to the Australian community. He responded that when he came to Australia there were bushfires and animals and vegetation were burnt. He was very affected by what happened. He applied for be a volunteer to plant trees after the bushfires. However, he could not do so because of the Covid-19 pandemic. After the lockdown, he was broke and had to get a paying job as he needed the money.
The Tribunal gives this consideration no weight against affirming the decision to cancel the applicant’s visa.
Whether there would be consequential cancellations under s.140 of the Act
There is no evidence before the Tribunal to indicate that there would be consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled.
The Tribunal gives this consideration no weight against affirming the decision to cancel the applicant’s visa.
Are there children whose interests would be affected by the cancellation of the visa
There is no evidence before the Tribunal to indicate that the applicant has any children whose interest would be affected by the cancellation of his visa.
The Tribunal gives this consideration no weight against affirming the decision to cancel the applicant’s visa.
Would the cancellation lead to the applicant’s removal in breach of Australia's non-refoulement or family unity obligations
There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s visa would lead to his removal in breach of Australia’s non-refoulement or family unity obligations.
The Tribunal gives this consideration no weight against affirming the decision to cancel the applicant’s visa.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, he will become an unlawful non-citizen and may be liable to be detained under s.189 of the Act and removed under s.198 of the Act unless he departs Australia voluntarily. It is unlikely that he would be granted a Bridging visa on departure grounds and, even though he will not have a valid visa, he will have sufficient time to make arrangements to depart Australia voluntarily. As there is no reason why he cannot return to France, there is no prospect of indefinite detention if he does not depart Australia voluntarily.
If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criteria may prevent him from being granted particular temporary visas for a period of 3 years from the date of cancellation. This will affect his ability to make a valid application for a Student visa or to be sponsored for a Business visa for 3 years. These are the intended legal consequences in the legislation when a visa is cancelled and it reflects the seriousness of a breach of s.101(b) of the Act and consequent cancellation of a visa.
The Tribunal gives this consideration little weight against affirming the decision to cancel the applicant’s visa.
Any other relevant matter
During the hearing, the applicant gave evidence that he knows he has made a mistake and is sorry for what he has done. He is a guest in Australia and should have followed the law. He is a hard worker and does not care where he works. He could be an asset in Darwin. There is a shortage of workers in Darwin and during the wet season workers leave. The two companies he works for will struggle without him. If he is allowed to stay, he will remain in Darwin as he will be sponsored. He has a plan to stay in Darwin and give classes on bar tending and working in hospitality.
The applicant stated that, if he cannot be sponsored, he will apply for a Student visa and study zoology or maybe management for his future in the hospitality industry. Even if he is unsuccessful, he has really enjoyed being in Australia and loves the country and the people. It is a young economy and has plenty of opportunities. He would like to stay in Australia and is prepared to work on a farm.
The Tribunal accepts that the applicant is genuinely sorry for his conduct and has shown contrition. The Tribunal accepts that the cancellation of his visa will cause him considerable hardship in that it will impact on his future plans. The Tribunal also accepts that it may cause his employers hardship in that they may have difficulty obtaining a replacement for him.
The Tribunal gives this consideration weight against affirming the decision to cancel the applicant’s visa.
CONCLUSION
Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Subclass 417 (Working Holiday) (Extension) visa outweigh the grounds for not cancelling his visa. Therefore, the Tribunal concludes that the Subclass 417 (Working Holiday) (Extension) visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
L. Symons
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.