Downes (Migration)

Downes (Migration) [2022] AATA 3652 (23 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Rhona Downes
REPRESENTATIVE:  Mr Adeel Khan
CASE NUMBER:  2201220
HOME AFFAIRS REFERENCE(S):          BCC2021/611395
MEMBER:Louise Nicholls
DATE:23 September 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 23 September 2022 at 4:40pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – there was non-compliance in the way described in the notice –– applicant had provided false information – applicant did not undertake specified regional work in Australia – evidence of steps taken to obtain specified work in a regional area - evidence of the applicant’s mental illness – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant came to Australia as the holder of a Subclass 417 (Working Holiday) visa on 30 January 2020. While in Australia she obtained her second working holiday visa which was granted on 18 December 2020 and cancelled by the delegate on 28 January 2022.
The delegate issued a Notice to Consider Cancellation (NOICC) pursuant to s.107 of the Act on 14 September 2021. The applicant responded to the NOICC with written submissions and supporting documents.
On 28 January 2022 the delegate cancelled the visa on the basis that the applicant provided incorrect answers in her Working Holiday (Extension) visa application. The delegate found the visa holder had not complied with section s.101(b) of the Act. The delegate considered the circumstances relevant to the discretion whether to cancel the visa. After consideration the delegate concluded the visa should be cancelled.
The applicant sought review on 31 January 2022. She provided several documents with her application for review.
The applicant appeared before the Tribunal on 12 May 2022 to give evidence and present arguments. She gave evidence about her background and circumstances in Australia.
The Tribunal exercised its discretion to hold the hearing by MS Teams video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Evidentiary material
The applicant provided the following material to the Department.
·Applicant’s statement addressing the matters raised in the NOICC.
·Screenshots of text message correspondence with John, Walkabout Backpackers Hostel.
·St Vincent’s Hospital Discharge Summary Referral for Rhona Downes dated 24 May 2020.
·Screenshot of Airbnb reservation confirmation.
·Queensland Entry Pass, dated 24 May 2020.
·Various photographs of Queensland hostel x 6.
·Payslip from Casale Farm for pay period 15 June 2020.
·Screenshots of email correspondence with Lee Hansol, dated 10 December 2020.
·Screenshot of bank transfer to Lee Hansol dated 24 December 2020.
·Screenshot of immunisation history statement dated 24 October 2021.
·Reference from employer dated 15 September 2021.
The applicant provided written submissions and the following material to the Tribunal as well as other material previously provided to the Department.
·Applicant’s statement dated 7 March 2022.
·Applicant’s identity documents.
·Character references from employers, friends and colleagues.
·Letter from the applicant’s Reiki practitioner and meditation teacher.
·Employment contract and other employment related documents.
·Bond lodgement advice.
·Enquiries regarding farm work in Queensland.
·Documents relating to contributions made to various charities.
·Documents relating to Mental Awareness Training.
consideration
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Section 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.
Particulars of non-compliance identified in the NOICC?
The non-compliance identified and particularised in the s 107 notice (NOICC) was non-compliance with s.101(b) of the Act as set out below.
On 18 December 2020 the applicant lodged an application for a Working Holiday (Extension)(subclass 417) visa using the Department’s online lodgement facility and gave 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) or another eligible visa?’ the applicant answered ‘Yes’.
Under the heading ‘Details of specified work undertaken’, she provided the following answers (in part):
Employer Details
Legal registered name:   ObjectPro Information Systems Pty Ltd
Trading name:   FarmPro Labour
Australian Business Number (ABN):   93065578663
Employer business address
Address:  20 Princess Street
Suburb / Town:   Bundaberg
State / Territory   Queensland
Postcode:  4670
Work conditions
Employment type:   Direct employment
Industry type:   Agriculture, forestry and fishing
Industry type sub-group:   Plant and animal cultivation
Description of duties   Picking grown sweet potatoes, planting
sweet potatoes, picking vines off sweet potatoes.
Date from:   09 March 2020
Date to:   05 July 2020
Total days worked:   90
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 or another eligible visa.’, she answered ‘Yes’.
Based on the above information, as well as meeting other relevant criteria, she was granted a Working Holiday (Extension) visa on 18 December 2020.
The Department initiated employment verification checks with ObjectPro Information Systems Pty Ltd, the business registered under ABN 93065578663, to verify her employment claims. On 23 February 2021, ObjectPro Information Systems Pty Ltd contacted the Department and advised that she had never worked at their business and had not worked there from 09 March 2020 to 05 July 2020.
In the NOICC the delegate put the following to the applicant for comment
“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) or another eligible visa?’;
● provided details of claimed employment with ObjectPro Information Systems 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 or another eligible visa.”
The delegate advised the applicant that
“I consider the above information is incorrect, as verification checks undertaken by the Department have concluded that you never worked at the business, ObjectPro Information Systems Pty Ltd. Therefore you have not undertaken three months of specified subclass 417 work.”
The applicant responded to the NOICC on 16 September 2021. She acknowledged that incorrect information had been given but stated that she had not been aware that false information was going to be submitted on her behalf. Her response also covered those matters which relate to the exercise of discretion, if the Tribunal found there were grounds for cancellation.
Conclusion on non-compliance.
The Tribunal finds that the applicant provided incorrect information, in order to facilitate the grant of her Working Holiday (Extension) visa.
The applicant was required to undertake specified work in regional Australia, as defined in the legislative instrument in effect at the time of visa application, for a period of three months as part of the eligibility criteria for the grant of the Working Holiday (Extension) visa.
In the Working Holiday (Extension) visa application dated 18 December 2020, the applicant stated that she worked at ObjectPro Information Systems Pty Ltd for a period of 90 days. The Department received correspondence on 23 February 2021 from ObjectPro Information Systems Pty Ltd advising that the applicant had never worked at their business.
The Tribunal has considered the particulars of non-compliance set out in the NOICC, the information in the delegate’s decision record and the applicant’s written statements and oral evidence.
The applicant provided a long and detailed statement about the circumstances which led her to apply for a working holiday in December 2020 through a person who identified himself on Facebook as “Lee Hansol”.
She stated that initially she and her partner, Glenn found Lee Hansol through an “Irish around Sydney Facebook” group which was an Irish community group tying to assist each other during their stay in Sydney. She claimed that they understood from this Facebook group that Lee Hansol was a qualified agent who could assist them despite their circumstances.
The applicant and Glenn emailed Lee Hansol regarding their situation. Lee Hansol told them that she and Glenn could apply for another visa as an alternative to farming and there were options in place due to the COVID situation in Australia. The applicant provided Lee Hansol with the information he needed to make the application on her behalf. The applicant and her partner were promised documents and further information once their visas were approved. After the visa application was approved no further documents were provided and the applicant and her partner were not able to contact Lee Hansol because his contact telephone numbers had been disconnected.
The applicant acknowledges in writing and in oral evidence that incorrect information was provided and that she was responsible for providing that information even though Lee Hansol had prepared and lodged the application.
The Tribunal finds that the applicant’s declaration, as well as her answers, in her Working Holiday (Extension) visa application, of having worked for ObjectPro Information Systems Pty Ltd for a period of three months while the applicant held a Working Holiday visa (subclass 417); or while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) are incorrect answers as described by s.101(b).
In these circumstances the Tribunal is satisfied that there was relevant non-compliance as set out in the NOICC, that is, that the applicant provided incorrect information in the application for the Working Holiday (Extension) visa application lodged on 18 December 2020.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. They are, as set out below:
The correct information. The applicant admitted that the information provided in her application and particularised in the NOICC was incorrect. That is, that the applicant did not work for ObjectPro Information Systems Pty Ltd 9 between 9 March and 5 July 2020. The Tribunal finds that the applicant did not undertake specified work in regional Australia as defined in the legislative instrument in effect at the time, for a period of three months.
The content of the genuine document (if any). The cancellation was based on answers given in the application form. There was no evidence of the existence of a bogus document.
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 second working holiday visa on the basis that she had completed specified work in regional Australia, 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 a second working holiday visa. If the applicant did not meet this requirement she would not have been entitled to the grant of the visa and the delegate made the decision to grant the second working holiday visa in part on the incorrect information given by the applicant regarding her employment at ObjectPro Information Systems Pty Ltd.
The circumstances in which the non-compliance occurred. The applicant has provided a comprehensive statement regarding her circumstances supported by documents and other material. She has also given oral evidence consistent with her statement.
She stated
I have suffered greatly since my arrival to Australia as stated below. Psychologically, I have not been in a good place and I have struggled to cope against the impacts of COVID 19. I have struggled with anxiety for years and am still on my journey to overcoming this. Please see enclosed letter from my mother, Mary Downes. I understand COVID-19 has been hard on everyone but being in a foreign country and separated from my friends and family back home in a time of global panic has been particularly hard. I have faced many challenges, financially, psychologically and mentally. I am doing my best to get my life back on track.
The applicant and her partner arrived in Australia in January 2020 with the intention they would complete 3 months of regional work and apply for a second working holiday visa.
The applicant stated that
“in March 2020 came the first mention of lockdowns not only in Australia but in countries across the world. Borders were shut and flights were cancelled making travelling back home almost impossible. I became aware of the devastating impacts of COVID-19 across Ireland, the UK and the US. At the time it seemed the safer option to continue with our plans as intended in Australia. Glenn and I discussed completing our regional work together with the aim of obtaining a further 12 month visa.”
The applicant gave a comprehensive account of how her mental health had deteriorated after her arrival in Australia due to the uncertainties and health warnings related to the COVID 19 pandemic and the consequential difficulties they experienced in trying to get regional farm work.
Eventually the applicant’s partner found work for the applicant, himself and another friend in Innisfail, Queensland.
Even after making these arrangements, the pandemic continued to remain widespread with increased restrictions. Being separated from my friends and family at this scary time took an immense toll on me and my feelings of anxiety and panic continued to increase. The risk of COVID-19 remained high and I was extremely afraid of staying at a hostel that was shared between 10 people in a dormitory. I became aware that the conditions of Ned's Banana Farm were not ideal, being extremely cramped and I was told that the Walkabout Backpackers hostel was known for not adhering to the public health orders
As a result of her increasing anxiety she was admitted to St Vincent’s Hospital Emergency after a panic attack in May 2020.
I was prescribed anti-anxiety medication to assist me with coping and explained how to deal with a panic attack and techniques on what to do if I felt this again. Please find enclosed a copy of my medical certificate. I believe that this also increased Glenn and Shauna's feelings of anxiety as we all felt stuck. It was clear that travelling to Queensland during this time was a risk however we would otherwise risk not complying with our visa conditions. In addition, as our lease was expiring we had no alternate means of accommodation in Sydney. The three of us had also put in our resignation notices at our jobs. Due to this and noting that we were leaving the next morning Glenn, Shauna and I decided to proceed with the plans to travel to Queensland. We all hoped and prayed that the conditions would not be so bad and my mental health would improve particularly as I had now been provided with medication to assist me.
On 24 May the applicant and her partner travelled to Queensland. The restrictions in place at the time required them to quarantine for 2 weeks before travelling to the farm and for this purpose they booked an Airbnb. The applicant provided a copy of their border pass, Airbnb booking and communications with Walkabout Backpackers.
The applicant stated that
On 8 June 2020 we made our way to the Walkabout Backpackers hostel via bus after completing our quarantine. I was horrified at the conditions we were met with (please refer to enclosed photographs) including but not limited to:
·Being placed in a 10 person unisex room and having to share a top bunk bed with Glenn.
·Mould on the pillows we were provided (pillows were provided only at a fee).
·Dirty and unhygienic bathrooms.
·Showers that only had cold water and minimal water pressure.
·Broken fridges and appliances resulting in food becoming rotten.
·Insect infestations in the bedrooms and kitchen.
We were required to pay rent in the amount of $220 per person each week. The living conditions were depressing and only caused my mental health to decline further and even had a psychological effect on Glenn and Shauna. It became difficult to even sleep at night in the unsanitary and cramped conditions. I felt constantly anxious, feeling tight in my chest and spent so many of my nights crying. We remained updated with the news and increasing COVID-19 cases which only made us more fearful in remaining in these conditions.
In the week commencing 15 June 2020 I was allocated one and a half days work on the farm. I earned $320 from this work. From this, $220 was being given back to rent, leaving me with $100 for living expenses for the week. I also have a student loan in Ireland which requires payment of 44EU (approximately $80 per week) leaving me with only $20 to live off for the week. Please see attached payslip.
….
I suffered from several more panic attacks and continued to take the medication that had been prescribed to me by St Vincent's Hospital. I found it impossible to sleep and spent my time isolating myself and upset at the thoughts of waking up to relive the same situation the following day. The thoughts of being in such conditions and my mental state for a 3-month period was terrifying to me and I saw no end to this awful situation.
Although we tried to push through for the sake of completing our required regional work, I ultimately reached breaking point and could not bear it any longer. Glenn watched my mental health deteriorate and this all had an impact on Glenn watching his partner struggle so badly. This was one of the worst experiences of my entire life. We decided that it was best if we left this farm. Although I proposed that I leave on my own, I was unsure if I would be able to cope. However, I felt extremely guilty if Glenn would be unable to complete his required days because of me. Glenn reassured me that he loved me and would stay by my side and we would figure something out. This gave me some sense of relief as I do not know what I would do without him and thought I would most likely end up back in hospital.
We made the final decision to leave Ned's Banana Farm and also tried to find regional work elsewhere in Queensland in hope that we could still comply with our visa conditions. We found however that vacancies were full due to the influx of people searching for opportunities during the COVID-19 climate.

On 19 June 2020 they left the farm and hostel for the sake of the applicant’s health and travelled back to Sydney. Glenn was able to find a job with his previous employer however in a lower position. The applicant stated that
On 29 July 2020 I suffered from another severe panic attack and was taken to hospital again and admitted. On this day I felt like I had reached rock bottom. I could not breathe and felt the world was collapsing around me. Following my discharge from hospital Glenn continued to care for me and provide me with additional support. Although we had planned to try and travel out again and secure further regional work, this seemed impossible at the time. Glenn told me that he felt he could not leave me for even a few days because my condition was so frail so he could not complete his required work even without me. It felt as though we were both continuing to suffer from the effects of the traumatic experience in Queensland and I continued to suffer through many sleepless nights, night terrors, constant panic, anxiety, heart palpitations and constricted breathing. This was only increased by the continuing pandemic.
Both the applicant and her partner kept in touch with their respective families in Ireland and were told of a declining economy, high unemployment and high numbers of COVID cases and hospitalisations. Ireland was worse off in comparison to Australia. If the applicant had returned to Ireland, her parents would struggle to support her.
She stated
Contracting COVID-19 at the time seemed like a terrifying ordeal and all of these circumstances together with my already frail mental health severely impacted my judgment and ability to make decisions. I felt immense psychological pressure to the point that I was becoming physically ill. I was fearful that my condition would only worsen if I returned to Ireland and I would still remain separated from my family and friends whilst also finding myself to be unemployed.
….At the time of lodging the application however I believe I was at my worst mental state and my judgment was severely impaired. I felt completely isolated and out of options. I just wanted the issue resolved without having to think about it or asking too many questions. I wanted someone to miraculously find me a way out of our predicament.
As set out earlier in this decision the applicant’s partner engaged a person known as Lee Hansol to apply for visas on the couple’s behalf. The applicant claimed they thought this person was a qualified agent who could help them attain a visa despite their circumstances.
Glenn emailed Mr. Hansol explaining to him our situation. To the best of my understanding we were advised that we were able to apply for a further visa in alternative to farming as the government was making exceptions at the time due to the COVID-19 pandemic. We provided Mr. Hansol with the information that he asked and trusted him to make the application on our behalf. I transferred an amount of$2000 into the requested account along with an application fee. Please see attached screenshot. Mr. Hansol presented himself as a qualified agent who has been operating since 2009 and therefore we willingly handed over our personal information to assist in the lodgement of the application. It has now become apparent that Mr. Hansol was not the person who we believed him to be. We also found him to be unresponsive following receipt of payment and lodgement of the application.
In hindsight it is clear that we should have investigated further into this person's qualifications and intentions however at the time after everything that we had been through and noting my continuing struggles with my mental health it was just such a relief to hear what appeared to be finally some good news. Unfortunately, our judgement was impaired and the thought that this individual could be a fraud did not cross our minds. I completely accept that it was my error not to question this man further or even view the application before it was lodged. I wrongfully placed my trust in this person however I understand that I am responsible for the contents of the application even if they were lodged by another individual including a purported agent. It has come to my knowledge following this that Mr. Hansol has been operating a scam praying on vulnerable people like myself and Glenn who are desperate to find a way out of their situation.
At the Tribunal the applicant gave evidence that initially she thought that Lee Hansol was an agent. She believed that given the circumstances of the COVID pandemic, that the Department had legitimate alternatives for people such as the applicant who had found it impossible to travel to regional areas and to find farm work.
The present circumstances of the visa holder
The applicant is in a committed long-term relationship with her partner, and he has provided the applicant with emotional and financial support during her mental health struggles. The couple are living together in a leased property in Sydney. The applicant has a Bachelor’s degree in Advertising and Marketing from an Irish university. She provided a copy of her degree and transcript.
After leaving Queensland, the applicant was employed temporarily with a superannuation company called Link Group, working on behalf of the Australia Post Superannuation Scheme. She worked here from 6 July to 22 July 2020. She then found work with a customer service company and is now a supervisor and has taken on a leadership role in the office as her manager works remotely from Queensland. The applicant provided a copy of her employment contract,a letter from her employer and letters of support from her workplace colleagues. The applicant was advised that her company is willing to sponsor her for a Subclass 482 visa in a marketing role for many well-known clothing brands.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act. Although the applicant has acknowledged the non-compliance the applicant did not contact the Department to correct the incorrect information prior to being issued with the NOICC. However, the applicant claimed that she was not aware that incorrect information had been provided on her behalf until she received the NOICC.
Any other instances of non-compliance by the visa holder known to the Minister. There is no evidence before the Tribunal of any other instances of non-compliance by the applicant.
The time that has elapsed since the non-compliance. The application for the visa was made on 18 December 2020. Eighteen months have elapsed since the non-compliance took place.
Any breaches of the law since the non-compliance and the seriousness of those breaches. There is no information before the Tribunal to indicate that the applicant has breached any laws since the non-compliance.
Any contribution made by the holder to the community. The applicant has participated as a volunteer in a local clean-up campaign and as a tutor to indigenous students and provided documents to support those claims. She has also made donations to several charities and provided copies of receipts for those donations.
The applicant stated she was eager to become a part of the community and give back as much as she could. She believes she can assist the local community both personally and professionally.
The applicant recently commenced mental health awareness training so that she can use her personal experiences to help those in similar situations. She provided a training certificate to support this evidence.
Other factors considered
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.
There is no evidence that there would be any consequential cancellations under s.140 of the Act or that there are children whose interests would be affected by cancellation. There is no information that suggests that returning to the applicant’s home country, that is, the Republic of Ireland, would result in the applicant suffering serious or significant harm. There is also no suggestion that the applicant’s removal would result in a breach of family unity obligations.
If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention if she does not depart Australia. She will also be subject to a statutory bar which would restrict the visas she could apply for in Australia as Public Interest Criterion 4013 may prevent her 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, in effect lifting the bar.
[1] Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021
The Tribunal has considered the prescribed circumstances and other relevant matters to determine whether the applicant’s visa should be cancelled.
With respect to other relevant matters, the Tribunal notes that the provision of incorrect information by the applicant as particularised above does not appear to be a simple error or omission which has occurred through inadvertence or even carelessness. The Tribunal considers that the provision of the specific employment information appears to have been a considered and deliberate action taken on behalf of the applicant to overcome the applicant’s ineligibility for the visa.
However, the applicant asserts that she was not aware that Lee Hansol was intending to provide incorrect information. The applicant provided a copy of the email correspondence from Lee Hansol. While it does not explicitly state that false employment information would be provided on behalf of the applicant there were a number of “red flags” which should have alerted the applicant to ask further questions about how Lee Hansol proposed to obtain a second working holiday visa on her behalf. For example, Lee Hansol stated “when we lodge your application immigration contact farm owner and check your detail after that most of cases would be approved but sometimes immigration request further information. We will respond on their request so there is nothing to worry about from you.” The Tribunal considers that the applicant would have been aware that the action proposed by Lee Hansol was questionable but her desire for a solution to her visa problem overcame the scrutiny she should have given to this arrangement.
The Tribunal accepts that if the visa is cancelled the applicant may, subject to the effect of recent changes in the Regulations, face the prospect of restrictions on her eligibility for the grant of a number of visa classes for some years. It also accepts that the applicant’s wish to remain in Australia and apply for a temporary work visa may not be possible and that she will suffer considerable disappointment on this basis. The Tribunal considers the applicant was honest and straightforward with the Tribunal and showed high levels of contrition. The Tribunal notes that the applicant realises that the actions taken on her behalf may have had a large impact on her future life plans.
The applicant has provided evidence that she is held in high regard by her employer, friends and colleagues. She has given evidence, supported by her employer, that she is a valued employee and that should her cancellation be overturned they will apply to sponsor her for a skilled or temporary work visa.
The Tribunal accepts the applicant’s evidence that she and her partner had made arrangements to undertake regional work in Queensland. This included giving notice to their Sydney employers, terminating their Sydney lease, obtaining a Queensland border pass and undertaking 14 days of quarantine when they first arrived in Queensland. The applicant and her partner commenced living in the hostel in Innisfail and she worked for a short time on a local banana farm. However the applicant’s mental health was declining, and the couple thought they could not continue to stay and work in Innisfail in these circumstances.
The Tribunal accepts the applicant’s evidence that the couple continued to seek regional work but were unsuccessful due to lockdowns and pandemic restrictions. Further the applicant had a further admission to hospital for a panic attack when the couple returned to Sydney from Innisfail.
Conclusion
Overall the Tribunal considers that the visa should not be cancelled. In no way does it condone the provision of false information to obtain a migration outcome and it views this conduct very seriously. However, it accepts that the applicant and her partner had intended to undertake specified work in a regional area and had taken all the necessary steps to complete that work. The applicant developed serious mental health issues during the pandemic. The applicant explained how she came into contact with Lee Hansol and her state of mind at that time. She claimed that she did not know that Lee Hansol was going to provide false information to the Department together with her application for a visa. The Tribunal has some doubts about this evidence, but it does accept that the circumstances the applicant and her partner found themselves in at the time of application resulted in the applicant and her partner making a poor choice in the engagement of Lee Hansol. The Tribunal considers that the applicant did not scrutinise or question the arrangement adequately.
The Tribunal accepts that the applicant has not been involved in any breaches of the law and that she is held in high regard by her employer, colleagues, and friends. She has made a small but notable contribution to the community in her volunteer work and donations to several charities. The Tribunal accepts that the applicant has developed serious mental health problems which were exacerbated by the restrictions imposed during the COVID pandemic.
The Tribunal considers that these factors, particularly the evidence of steps taken to obtain specified work in a regional area, evidence of the conditions of her accommodation and work together with evidence of the applicant’s mental illness and admissions to hospital outweighs other factors which might indicate the visa should be cancelled. Those factors being, the provision of false information on her behalf through Lee Hansol, and the fact that she would not have been eligible for the grant of the second working holiday visa if she had given correct answers in her application form.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Louise Nicholls
Senior 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 3652

23 September 2022

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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