Donnelly (Migration)

Donnelly (Migration) [2022] AATA 142 (18 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shane Donnelly
CASE NUMBER:  2111645
HOME AFFAIRS REFERENCE(S):          BCC2020/2685487
MEMBER:Jane Marquard
DATE:18 January 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 18 January 2022 at 3:30pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in extension application – 3 months of specified work in regional area while holding first visa – verification checks – discretion to cancel visa – COVID-19 restrictions, financial position and mental state – paid agent to complete and lodge application – work in regional areas while on extension visa, and current work on major infrastructure projects – volunteer community work – work and character references – partner completing work in regional area while holding second extension visa – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a young man from the Republic of Ireland. He arrived in Australia on 21 October 2019 on a Subclass 417 (Working Holiday) visa. He applied for and was granted a Subclass 417 (Working Holiday) extension visa on 1 July 2020.
A delegate of the Minister for Home Affairs decided to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (Cth) (the Act) on 25 August 2021. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his application for the visa in contravention of s.101 of the Act.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 10 December 2021 to give evidence and present arguments. The applicant also provided written submissions and a number of support letters. The applicant was represented in relation to the review, and the representative was present at the hearing. The Tribunal exercised its discretion to hold the hearing by MS Teams video due to restrictions imposed by the COVID-19 pandemic. The Tribunal determined that it was reasonable to hold a video hearing having regard to the nature of the matter and the objective of the Tribunal to provide a mechanism of review that is fair, just, economical and quick. The Tribunal took into consideration likely delays if the hearing was not held by video. The applicant confirmed that he could hear and see well, and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and provide arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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.
Extracts of the Act relevant to this case are attached to this decision.
Validity of the s.107 notice
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
The first issue for the Tribunal - was there non-compliance as described in the s.107 notice?
The first 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.
The non-compliance particularised in the s.107 notice
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act as follows:
‘On 01 July 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 ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’ you answered ‘Yes’.
Under the heading ‘Details of specified work undertaken’, you provided the following answers (in part):
Employer Details
Legal registered name: GMR ENTERPRISES PTY. LTD.
Trading name: GMR ENTERPRISES PTY. LTD.
Australian Business Number (ABN): 87605528238
Employer business address
Address: 53 Fourth Avenue
Suburb / Town: Llandilo
State / Territory New South Wales
Postcode: 2747
Work address
Business name at this location: GMR ENTERPRISES PTY. LTD.
Address: Lithgow
Suburb / Town: Lithgow
State / Territory: New South Wales
Postcode 2790
Work conditions
Employment type: Direct employment
Industry type: Construction
Industry type sub-group: Construction
Description of duties Installation and removal of pits
and services for NBN project in the
Lithgow region. Started out as a
telecommunications labourer but moved
onto a pit technician position.
Date from: 20 January 2020
Date to: 31 May 2020
Total days worked: 90 days
Under the heading ‘Working holiday declarations’, 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’, you answered ‘Yes’.
Based on the above information, as well as meeting other relevant criteria, you were granted
your Working Holiday (Extension) visa on 01 July 2020.
Subsequent information received by the Department
The Department initiated employment verification checks with GMR ENTERPRISES PTY.
LTD, the business registered under ABN 87 605 528 238, to verify your employment claims.
On 05 November 2020, GMR ENTERPRISES PTY. LTD contacted the Department and
advised that you never worked at their business.
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 ‘Has the applicant undertaken 3 months of specified
work as the holder of a first Working Holiday visa (subclass 417)?’;
● provided details of claimed employment with GMR ENTERPRISES PTY. LTD, at the
section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Are applying for their second Working Holiday visa
(subclass 417) and have completed 3 months of specified work as the holder of a first
working holiday visa’.’
Response to the s.107 notice
The applicant did not reply within the prescribed time limits to the s.107 notice issued by the Department.
Decision of the Department to cancel the visa
For the reasons set out in the s.107 notice, the Department found that there was non-compliance with s.101(b) of the Act. After consideration of various factors, the Department decided to cancel the visa.
Submissions to the Tribunal
In a Statutory Declaration dated 30 November 2021 the applicant said that he arrived in Australia on his first working holiday visa on 21 October 2019. His visa expired on21 October 2020.
He said that in June 2020 he attempted to obtain a job in regional Queensland but due to the COVID-19 pandemic this did not materialise. He provided correspondence from Mr Joe Kinahan of TradeConnex who confirmed that he did not have work in NSW for the applicant in June 2020 and the Queensland borders were closed. The applicant said that he sought other regional jobs in NSW in order to comply with the requirements to legally obtain a second working holiday visa.
He said that around the end of June 2020 a workmate named Jack suggested that he had a contact that had a business registered in a regional area that could provide him with documentation proving that he had complied with the 88 days of farm work. The applicant said that he only had around 113 days left on his visa so felt that this was his last resort as he did not want to become illegal in Australia. He said that at the time his mental state was ‘not good’ as he was worried about COVID-19 and had not seen his family in Ireland for over 8 months and was struggling financially. He also feared being out of work.
He said that on his friend’s advice he contacted Lee Hansol by email who explained that he would prepare and submit his second working holiday visa application for him. The applicant said that Hansol did not show him his application before submission. Only after the visa was granted on 2 July 2020 Hansol informed and congratulated him. The applicant said that he did not know what information was put in the application.
He said that after the grant of the visa, he continued working as a Trade Assistant for Top Knot Carpentry until February 2021. At the end of February 2021 he went to regional South Australia to work for Teneo Group’s Evaporation Pond 6-BHP-Olympic Dam Project for three weeks. He said that around March 2021 he was employed by TradeConnex as Trade Assistant in regional Chinchilla, Queensland where he worked at the Blue Grass Solar Farm site until June 2021. He provided a letter from Mr Kinahan dated 22 November 2021.
He said that it was only when he saw the s.107 notice that he realised that it was claimed that he worked at GMR Enterprises for three months, and he had never seen this. He said that it was his negligence which allowed this, and he expressed regret. He said that it has been 1 year and 5 months since the non-compliance and there had been no further instances of non-compliance. He said that he had done his best to remedy his mistake by undertaking regional work. He said that he is aware that this may not have any bearing on his visa situation but had done it out of guilt for failing to do it earlier. He said that since the cancellation of his visa he has not breached any laws or migration rules.
He said that during his time in Australia a number of witnesses have willingly offered testimony of his contribution to the community during the pandemic in the area of energy and construction, which is a critical sector. His partner, Eimear Murphy, is completing her regional work for her third working holiday visa.
He requested that the Tribunal consider his present circumstances given that it would be difficult to be separated from his partner, his aunt Shauna, uncle Will and cousin Liam who are based in Queensland. He said he would struggle with the costs of setting up life in Ireland. Australia is also much safer in regard to the pandemic.
He provided a letter from Dave Butler, Director of DB Civil and Construction dated 1 December 2021. Mr Butler said that he has been the applicant’s supervisor for 4 months. He said that the applicant is hardworking, reliable and exceeds expectations. With shortages in the industry, it would be hard to replace him on the Parramatta Light Rail Project, which provides public transport to the city. He vouched for his character and contribution to the community.
A letter from Joe Kinaihan of Trade Connex dated 22 November 2021 said that the applicant first applied to work in regional areas in June 2020. As there was no work available in NSW, the company wished to employ him in Queensland but borders were closed. He was then employed from March 2021 to the end of July 2021 in regional Queensland and was a valuable part of a renewable energy project workforce. He was due to leave Sydney for Orange in July but travel restrictions prevented this from taking place.
The applicant also provided a letter from Will Munro, the uncle of the applicant. He said that the applicant is friendly and of good character as well as being diligent and hard-working.
A letter from his partner, Eimear Murphy said that the applicant is kind-hearted and genuine, and he made a mistake when applying for his visa. He regrets the decision. She said that he had a job lined up to complete his regional work in June 2020 but this fell through due to COVID-19. He panicked and could not see any way out. Ever since he has regretted the decision and is truly ‘a great man who would do anything for anyone’. They still have plans to travel around Australia. They split the rent and bills and would struggle to cover the costs on their own.
Joseph Middleton, Director at Mid City Group, stated in a letter dated 1 December 2021 that the applicant was employed as a trade assistant from April 2020 working on the tunnel project. He said that the applicant showed up earlier than asked, worked hard and carried himself in a respectable manner. He also volunteered with the Penrith Gaels Cultural and Sporting Association (Penrith GA) renovating the community hall, which was appreciated by the association.
A letter from Eoin Mara dated 2 December 2021 was provided. He said that he met the applicant due to their involvement with Young Ireland Gaelic Football Club just under a year ago. He meets him at social events and has found him to be courteous, respectful and popular. He has helped officiate at game venues which has been invaluable to the club. He has also helped as a water carrier. He has contributed to this not for profit community club.
A letter dated 29 November 2021 from Shauna Munro, personal assistant, Deloitte, and the applicant’s aunt was provided. Ms Munro said that she has known the applicant for all of his life and he is an honest and hard working person, who did well at school and is truly genuine and helpful to others and the community. She said that he has never got into trouble and has cared for his younger brother. He would always bring positivity to a community.
Submissions from the applicant’s representative requested that the Tribunal take into account the state of emotional and psychological distress the applicant was in at the time of non-compliance and how his actions were uncharacteristic. It was also requested that the Tribunal consider his community and charity work, including with the Young Ireland Gaelic Football Club. The representative asked that the Tribunal take into consideration how contrite and genuinely remorseful the applicant is and the fact that in the 18 months since the non-compliance, there has been no further non-compliance.
At the Tribunal hearing, the applicant confirmed that his home is Northern Ireland and his parents and brother live there. After high school he studied Sport and Exercise Science at university. He then worked as an audio-visual engineer. He had always wanted to visit Australia so applied for a working holiday visa. He was aware that the duration was one year and that if he needed to extend he would need to do three months’ regional work.
The applicant said that he applied for his working holiday visa using the Department website. He arrived in Australia on 21 October 2019. His visa expired on 21 October 2020. He was asked what his plans were for regional work so that he could get the extension. He said that he wanted to work on a solar farm which he heard about from other Irish people. He contacted TradeConnex to try and find work in about May 2020, and they said there was an opportunity in June 2020 but this did not eventuate because of the COVID-19 restrictions. He looked online for solar projects and joined Facebook backpacker groups to get jobs. He also contacted a few farms and through backpacker pages got contacts for fruit-picking farms, but no-one was willing to take him on.
He said that he did not contact the Department when he was unable to find work opportunities. He said that he regrets it now and knows that he should have. At the time he just did not think about it as an option. He said that he cannot recall if he looked on the Department website - he thinks that he looked, but cannot recall seeing anything about special circumstances applying for visas impacted by restrictions imposed by the COVID-19 pandemic.
He said that after a few options were unsuccessful he was getting desperate. He explained his situation to a workmate in the tunnels, and this workmate said that his friend had a contact who would ‘put him down as having worked for them for a fee’. He emailed this person and told him that a friend had recommended him and asked if he could help with his second working holiday visa. This person agreed and told him they had contacts with a registered farm and he would be ‘put down as having worked there’. He was asked for his passport and visa. He said that he was aware that Lee Hansol would be submitting his application stating that he had worked the 88 days in a regional area even though he had not done so. However he did not have the chance to review the application form. Once he sent the details to Lee Hansol he never heard back from him and he never got to review his application.
The applicant was asked why he would agree to this deception on the Australian government when from his references he otherwise appeared to be an honest, responsible and hardworking individual. He said that he is honest and hardworking, and his behaviour was very out of character. He said that he has been torn with guilt and at the end of the day he was responsible for his actions. He was looking for regional work unsuccessfully, had no money and was desperate. He said that he was struggling at the time with concerns about COVID-19 and his family back home, including worrying about his grandfather. He panicked and made a bad judgement. He said that he has deeply regretted it since the moment it happened.
He said that because of the guilt he decided that he would do everything correctly to make up for what he had done and to demonstrate his remorse. He was grateful that he had the second opportunity so wanted to show that everything was done correctly. Around Christmas time he contacted numerous places to find regional work. TradeConnex had an opportunity in March on a solar farm. While waiting for that opportunity, he went to a mine site in Olympic Dam, South Australia for three weeks and then moved on to work for TradeConnex. He moved to Queensland and saw his young cousin on the way, as he had not been able to do so during the lockdowns. He worked in Chinchilla on the solar farm for three months until the project finished. TradeConnex said that they had work in Orange for him which he planned to do but needed to complete a course in order to do so. He travelled to Sydney to complete the course. But then the next lockdown started, and he could not go to Orange. While waiting for this lockdown to end, he received the notification saying his visa would be cancelled.
The applicant was asked about the impact on him if the visa was not granted. He said that he has family in Queensland and has not been able to spend enough time with them. His own family have not been able to come and visit. He has a girlfriend of two years in Australia, and has very close friends. He said that he would feel very upset about having to leave and is not financially stable. Because of lockdowns he has not been able to earn as much as he would have liked to. He mentioned that the COVID-19 situation in Ireland is ‘pretty awful’. He said that his life is set up in Australia now.

He said that he worked in the tunnels from April to July 2020. His boss was a member of Penrith GA. They were doing renovations at the time. He asked his workers if any were prepared to volunteer on weekends to help, and the applicant agreed to do this. His boss was very thankful for this as many would not help. The applicant is actively involved in the Young Ireland Gaelic Football Club as he has a few friends who play there so he would go and support. This time last year he was asked to assist with officiating. On Sunday mornings he volunteers for umpiring and linesmen, which is again something others did not want to do.
He said that he has never breached the law in any way and will never do it again. He stated that if given the opportunity to stay in Australia he would ‘never do anything like this again’. He said that he would like to continue to contribute to the Young Ireland Gaelic Football Club. He has been living in Bondi for a while and feels like he is part of the community and would like to get more involved and feels like it is home.
He said that he wanted to express how apologetic he is. He said that he hopes that his character comes across in his references. He said that what he has done has been ‘eating him up since it happened’. He wants to contribute to the Australian community as he loves the country and its beautiful people. He would want to do all he can to make up for the mistake and help whatever way he can in the community.
The applicant’s representative said that ‘having dealt with the applicant, I must frankly say what attracted me to work on his case was the remorse about what he has done’. He said that the applicant has taken responsibility for the mistake he has made. He submitted that the finest quality about a responsible human being is being accountable and in this case the applicant has been doing regional work and community work and has expressed genuine remorse. He is not wanting to put the blame on someone else. The representative said that, being an officer of the court, this is something he respects.
Findings on non-compliance
The applicant was required to undertake specified work in regional Australia as defined in the legislative instrument in effect at the time of the visa application, for a period of three months as part of the eligibility criteria for the grant of the Working Holiday (Extension) visa.
In his application for a Working Holiday (Extension) visa, he stated that he worked at GMR Enterprises in Lithgow from 20 January 2020 to 31 May 2020 for a period of 90 days. The Department received information from GMR Enterprises on 5 November 2020 that the applicant had never worked at their business.
The application form was filled in by the applicant’s agent, Lee Hansol, whom the applicant had engaged and paid to act for him in regard to the visa application. Section 98 of the Act provides that a non-citizen who does not fill in his or her application form is taken to do so if he or she causes it to be filled in on his or her behalf. The Tribunal is satisfied therefore that the applicant is taken to have filled in his application as he caused it to be filled in on his behalf.
For these reasons, the Tribunal finds that there was non-compliance with s.101 of the Act by the applicant in the way described in the s.107 notice.
The second issue for the Tribunal - 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: ss.109(1)(b) and (c). The prescribed circumstances are set out in reg.2.41 of the Migration Regulations 1994 (Cth). 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 visa holder to the community.
These factors are discussed below.
The correct information
The applicant has admitted that the correct information was that the applicant had not completed specified work for three months in a regional area while the holder of his first working holiday visa.
The Tribunal gives this factor weight in favour of cancelling the visa as the applicant was required to complete specified work for three months in a regional area in order to be granted his extension visa.
The content of the genuine document if any
This factor is not relevant in this case.
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 working holiday visa extension on the basis that he had completed specified work in a regional area as defined in the legislative instrument in effect at the time for a period of three months. This was a requirement for the grant of the visa. If the applicant had not completed the work, he would not have been granted this visa. The decision to grant the visa was based on the incorrect information. Provision of incorrect information impacts the integrity of the migration system as Department officials rely on information provided to them to assess claims made.
This is given significant weight in favour of cancelling the visa.
Circumstances in which the breach occurred
The applicant has provided submissions in which he outlines attempts to find specified work in regional Australia in June 2020. He provided correspondence from Mr Joe Kinahan of TradeConnex who confirmed that he did not have work in NSW for the applicant in June 2020 and the Queensland borders were closed. The applicant also sought other work on solar projects and joined Facebook backpacker groups to get jobs. He also contacted a few farms and through backpacker pages got contacts for fruit-picking farms, but no-one was willing to take him on.
The Tribunal accepts that this would have been a stressful situation for a young person who needed to do the regional work in order to be granted an extension visa. The Tribunal also accepts that his anxiety was exacerbated by worry about COVID-19 and not having seen his family in Ireland for over 8 months as well as financial pressures. The Tribunal accepts his testimony that he was desperate, which led to him making poor decisions, which he claims were uncharacteristic for him.
While these factors are taken into account when considering why the applicant agreed that he would be represented by Lee Hansol who would provide incorrect information to the Department about the applicant’s work in regional areas, the Tribunal has concerns that the applicant did not attempt to contact the Department to explain his difficult situation and request assistance. He said that he regrets it now and did not think about it at the time.
His mental state at the time of employing Lee Hansol is given some weight against cancelling the visa, however also taken into account is the fact that he had a conscious choice to use an agent who would provide incorrect information, and he chose to do so.
Present circumstances of the visa holder
The applicant currently has a partner in Australia who is on her third working holiday visa as well as his aunt, uncle and cousin who are based in Queensland. He said he would struggle with the costs of setting up life in Ireland and prefers to stay in Australia as it is safer in regard to the pandemic.
He provided a letter from the Director of DB Civil and Construction dated 1 December 2021. Mr Butler said that he has been the applicant’s supervisor for 4 months. He said that the applicant is hardworking, reliable and exceeds expectations. He said that there are shortages in the industry and it would be hard to replace him on the Parramatta Light Rail Project, which provides public transport to the city. He vouched for his character and contribution to the community.
The Tribunal notes that the applicant also has family in Ireland and although it would be difficult to leave his partner she will return there when her visa expires. The Tribunal has however taken into consideration in favour of not cancelling the visa the fact that the applicant is employed in a job in which there is a critical shortage.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant said that after the grant of the visa, he continued working as a Trade Assistant for Top Knot Carpentry until February 2021 He said that he always regretted his mistake in employing Mr Hansol and has since undertaken regional work to remedy his error. He said that he is aware that this may not have any bearing on his visa situation but he had done it out of guilt for failing to do it earlier. He said that because of the guilt he decided that he would do everything correctly to make up for what he had done and to demonstrate his remorse. He was grateful that he had the second opportunity and wanted to show that everything was done correctly. He said that he contacted numerous places to find regional work. TradeConnex had an opportunity in March 2021 on a solar farm. While waiting for that opportunity, he went to a mine site in Olympic Dam, regional South Australia for three weeks from February 2021 to work for Teneo Group’s Evaporation Pond 6-BHP- Olympic Dam Project. He said that around March 2021 he was employed by TradeConnex as Trade Assistant in regional Chinchilla, Queensland where he worked at the Blue Grass Solar Farm site until June 2021. He provided a letter from Mr Kinahan dated 22 November 2021 confirming his employment. He said that he worked in Chinchilla on the solar farm for three months until the project finished. TradeConnex said that they had work in Orange for him which he planned to do but needed to complete a course in order to do so. He travelled to Sydney to complete the course however the next lockdown started, which prevented him from going to Orange.
The Tribunal has given significant weight to the fact that the applicant has expressed remorse for his behaviour and admitted to his mistakes. The Tribunal also gives significant weight in favour of exercising the discretion not to cancel his visa to the fact that he has regretted his mistake to such an extent that he has tried to remedy the situation by doing the required regional work since his visa was granted.
Any other instances of non-compliance
As far as the Tribunal is aware there have been no other instances of non-compliance. This is taken into account in favour of exercising the discretion not to cancel the visa but is given minimal weight, as it is an expectation of all visa-holders.
The time that has elapsed since non-compliance
About 18 months has passed since the non-compliance. This is sufficient time to become attached to the Australian community and country, which the applicant claims to be. However it is not sufficient to lay down significant ties. The applicants’ primary family members are in Ireland.
This factor is not given significant weight either in favour of or against cancelling the visa.
Any breaches of the law since non-compliance
The applicant told the Tribunal that since the cancellation of his visa he has not breached any laws or migration rules. There is no evidence before the Tribunal to suggest that he has breached the law since non-compliance.
This is taken into consideration in favour of exercising the discretion not to cancel the visa.
Any contribution made by the visa holder to the community
The applicant’s employer has provided an outstanding reference in which he states that there are significant job shortages in the industry. Other references also point to his work ethic and diligence.
The applicant also volunteers for the Young Ireland Gaelic Football Club, umpiring and doing linesmen work. A representative of the club told the Tribunal that he volunteered for unpopular jobs and has been invaluable to the club.
He has also volunteered to help with renovations at Penrith GA club as attested to by a previous employer who had asked his workers for help. Volunteering for this kind of unpaid activity does demonstrate that the applicant is a generous individual prepared to contribute to the community.
Other factors
While the above 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 Procedures 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.
There do not appear to be any consequential cancellations under s.140 and there are no children whose interests would be affected. There is no evidence to suggest that the cancellation would lead to a breach of Australia’s non-refoulment or family unity obligations.
If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention if he does not depart Australia. He will be subject to a statutory bar which would restrict the visas he could apply for in Australia, and Public Interest Criterion 4013 under Schedule 4 to the Regulations may prevent him from being granted certain types of visas for a period of three years from the date of cancellation. However recent amendments to the Regulations[1] allow applicants whose visas have been refused or cancelled to apply for three specific visas: that is, skilled nominated; skilled work regional and skilled employer sponsored regional visas.
[1] Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021
With respect to other relevant matters, the Tribunal notes that the provision of the incorrect information was not just an error or careless. Although the applicant did not know the name of the employer Hansol inserted on his application form, he did know that it would be claimed that he had worked for three months specified work in a regional area when in fact he had not done so. On the other hand, the references provided for the applicant portray a hard-working, honest, reliable and considerate individual, suggesting that this action was entirely out of character. The extreme remorse articulated by the applicant, and expressed by him through deciding to undertake the regional work once his visa was granted, does correlate with the finding that this was an action that was a very poor choice, perhaps emanating from concern that he would not be able to find any other work.
Findings on whether the visa should be cancelled
The integrity of the migration system depends on honesty. It is a serious matter to be complicit in the giving or providing of incorrect information to the Australian government in order to be eligible for a visa. Usually such conduct would outweigh other considerations in a decision as to whether a visa should be cancelled. The applicant would not have been granted a visa but for the incorrect information. He has a job, some family and a girlfriend, but otherwise no significant ties in Australia. However, in this case, the Tribunal is persuaded by the applicant’s testimony and references from employers and others that his conduct was entirely out of character. The emergence of the COVID-19 pandemic was an extraordinary and unprecedented time which created uncertainty about employment and the future. While this in no way justifies the provision of incorrect information to the Department, it does provide some context for it in that the applicant said that he felt extremely anxious and stressed when he took the decision to use the agent Lee Hansol. He used the words ‘desperate’ and ‘panicked’ to describe how he felt. The Tribunal has also taken into consideration his youth in that he had little life experience as to how to act in these circumstances. The Tribunal is also satisfied that the applicant is genuinely extremely remorseful about his actions. He has owned up to his actions and been forthright, open and honest with the Tribunal rather than attempting to blame the agent. Rather than just expressing remorse, he also decided to make up for his actions by undertaking the regional work which he had been required to do as a condition of being granted his second working holiday visa. He said that he felt very guilty and this way he felt that he could make it up to the country. This demonstrates real contrition as well as accountability and respect for the visa criteria. The applicant’s employer has also pointed to the critical shortage of workers in the industry and the value of the applicant to the work. When considering this fact as well as attempts to rectify his mistake by doing regional work, as well as some volunteer work, along with his character, and the impact on him of the three year bar considering he has family, a girlfriend and a job in Australia, the Tribunal concludes, on a very fine margin, that the visa should not be cancelled.
CONCLUDING PARAGRAPH
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. 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.
Jane Marquard
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 142

18 January 2022

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