Eustace (Migration)

[2022] AATA 131

Eustace (Migration) [2022] AATA 131 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Zoe Marese Eustace

CASE NUMBER:  2108158

HOME AFFAIRS REFERENCE(S):          BCC2020/2361579

MEMBER:Christine Cody

DATE:17 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 17 January 2022 at 5:11pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in second extension application – 6 months of specified work in regional area while holding first extension – verification checks – discretion to cancel visa – completed 3 months of specified work while on first visa – other work while on first extension until COVID-19 restrictions – discussions with employers about sponsorship – mental health – no approach to department – paid third party to complete and lodge application – non-compliance conceded – re-employment by previous employer – employment and character references – significant volunteer community work – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 98, 99, 100, 101(b), 107, 109(1), (3)

Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(5)

CASE

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act). The applicant is a 28-year-old woman born in Reading, the United Kingdom, who came to Australia with her first working holiday visa in September 2018. She was subsequently granted a second working holiday visa on 16 October 2019, and she applied for and was granted her third working holiday visa on 28 August 2020. It is the third visa that is the subject of the cancellation proceedings.

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in her third application for a Subclass 417 (Working Holiday) visa thus not complying with s 101 of the Act, and having considered the prescribed circumstances under reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations) and other matters. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant lodged an application for review with the Tribunal. She provided to the Tribunal a copy of the delegate’s notification of cancellation of her visa as well as the decision record setting out the reasons for the cancellation dated 21 June 2021, as well as a number of supporting documents.

4. The Tribunal exercised its discretion to hold the hearing by video hearing given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the 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 remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 17 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Anthony Taylor, CEO of Liquid Learning, the applicant’s current employer.

6. 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

7. 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.

8. 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.

   Notice of intention to consider cancellation under s 107

9. A notice of intention to consider cancellation (NOICC) of the applicant’s third working holiday visa was sent to the applicant on 21 May 2021.  The notice indicated that the delegate reached a state of mind that the applicant has not complied with the Act by giving incorrect information about the details of specified work undertaken while the holder of a second Working Holiday visa (Subclass 417) in the application for a third Working Holiday visa (Extension) (Subclass 417) lodged and granted on 28 August 2020.

10. The NOICC provided particulars of the allegedly incorrect information given by the applicant being the reference to employment with Core Traffic Control Pty Ltd in Winnellie, Northern Territory (postcode 0820) in the period 18 November 2019 to 7 June 2020 for 190 days; and her declaration that she had completed at least 6 months of specified work as the holder of a second working holiday visa after 1 July 2019.

11. The NOICC advised that subsequently the Department conducted employment verification checks by contacting Core Traffic Control Pty Ltd, the business registered under ABN 84155689508, to verify the employment claims. The company representative confirmed that the applicant did not complete specified work with the company and was not recorded in their systems.

12. The delegate considered, on the basis of this information, that the applicant had provided incorrect answers in support of her third Working Holiday (Extension) visa application and did not comply with s 101(b).

13. 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?

14. 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) as the applicant provided incorrect information in the application for a third Working Holiday visa when she:

    ·Answered yes in response to the question “The applicant declares that they have carried out at least six months of specified work”;

    ·Answered yes in response to the question, “All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR 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) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)”;

    ·Answered yes in response to the question, “All of that work was carried out on or after 1 July 2019”, and provided details of claimed employment between 18 November 2019 and 07 June 2020 with Core Traffic Control Pty Ltd – ABN 84155689508, at the section of the application form titled ‘Details of Specified Work Undertaken’; and

    ·Answered yes in response to the questions: “Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second 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) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019” and “All claimed specified work has been remunerated in accordance with relevant Australian legislation and Awards or voluntary bushfire recovery work.”

15. On 21 May 2021 the applicant requested more time to respond to the NOICC; the delegate responded by stating that the delegate could not grant an extension but would take into account any information provided prior to the decision being made.

16. On 3 June 2021 the applicant provided a response to the NOICC attaching supporting documents. In her response she said that the circumstances of her non-compliance were not performed from a place of ill-intention or willing disregard for the rules. She took steps to try and legitimately stay in Australia beforehand and her non-compliance came from a place of desperation. Her explanation was that after having done her farm work for 3 months in 2019, she then had other jobs, including between January to March 2020, when she was involved in discussions with an employer to be sponsored. Unfortunately, on 30 March 2020 she lost this job as a result of the COVID-19 pandemic. She managed to find a new position with McCorkell, with the option of sponsorship in April 2020. However, in August 2020 she was informed by her employer that they could not sponsor her due to the pandemic.

17. She only had one month left before her visa expired in September 2020, but she could not find an employer who would sponsor her. She felt desperate about going back to the UK, knowing that they have a lot of COVID-19 cases and deaths and that everyone she knew who had returned to the UK was struggling to find work, and the uncertainty seem to have a toll on people’s mental health. She suffers from depression, which she manages with medication, but loss of stability and routine has a huge impact on her depression and causes it to get worse.

18. She then heard about a company who would apply for a further working holiday visa for a fee. She filled in the datasheet and was informed that the company would sort all of the documentation; she was not given any declarations or paperwork so she did not know that the application would state that she had worked for Core Traffic Control, but in hindsight she should have asked more questions before proceeding. At the time she was in an increasingly panicked state, not sleeping well and starting to feel like she was slipping into another depressive episode. She is genuinely sorry for what she did, and she knows it was not the right thing to do.  

19. On 21 June 2021 the delegate found that there was non-compliance as described in the s 107 notice.  

    Evidence before the Tribunal as to the non-compliance described in the s 107 notice

20. At hearing the applicant said that through the recommendation of a friend she heard of an email address, which was something like: [email protected]. She wrote to them; she was advised of the fee of $2,000 plus the cost of the visa and she had to complete data sheets with her name and other details. She agrees that the application form was incorrect and that she turned a blind eye to the contents of the application form. She knew that it was a requirement to obtain a third working holiday visa to have undertaken 6 months of regional specified work and that she had not undertaken this work.

21. The Tribunal notes that ss 98, 99 and 100 of the Act specify that an applicant who does not complete their application form is still responsible for its contents if he or she causes it to be filled in or it is otherwise filled in on his or her behalf, even if the applicant did not know at the time that a particular answer was incorrect.

22. On the basis of the evidence of the verification undertaken by the Department with Core Traffic Control Pty Ltd and the applicant’s acknowledgement of the incorrect information, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

23. For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

24. 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).

    The prescribed circumstances: reg 2.41 of the Regulations

25. 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. 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.

    The correct information

26. The applicant conceded that she was not employed by Core Traffic Control Pty Ltd as stated in the application, that she has never travelled to the Northern Territory and that she has not undertaken 6 months of specified work as indicated in the application.

27. The correct information, according to her NOICC response and evidence at hearing, is that she had not left Sydney during her second working holiday visa.

28. The Tribunal gives this matter considerable weight in favour of affirming the decision to cancel the applicant’s visa.

    The content of the genuine document (if any)

29. There is no allegation relating to a genuine document. Therefore, this factor is not relevant.

    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

30. The applicant was granted a Subclass 417 (Working Holiday) (Extension) visa on 28 August 2020 on the basis that she satisfied the criteria for the visa. One of the criteria is cl 417.211(5), which requires the Minister to be satisfied of matters including that, if the applicant held only one Subclass 417 visa in Australia, she 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 6 months.

31. The applicant relied on incorrect answers that she was employed by Core Traffic Control Pty Ltd, in a specified job, in regional Australia and undertook this work for 6 months whilst the holder of a Subclass 417 (Working Holiday) visa, to satisfy the criterion in cl 417.211(5). The delegate’s decision record provided to the Tribunal by the applicant notes that the delegate relied on these incorrect answers (as well as meeting other relevant criteria) to grant her, on 28 August 2020, the Subclass 417 (Working Holiday) (Extension) visa.

32. When discussing this with the applicant at hearing, she agreed that the visa was granted on the basis of the incorrect information given on her behalf.

33. The Tribunal finds the incorrect information was relied on by the delegate to grant her the visa. It finds that if the correct information was provided, she would not have met this criterion and the visa would have been refused. The Tribunal considers this is a significant matter and weighs in favour of affirming the decision to cancel the applicant’s visa.

    The circumstances in which the non-compliance occurred

34. The circumstances in which the non-compliance occurred were that the applicant applied for a Subclass 417 (Working Holiday) (Extension) visa on 28 August 2020 and provided incorrect answers in her visa application.

35. The Tribunal noted that it had considered all the material provided, and asked the applicant to explain. Essentially, she confirmed that she had twice been on the pathway to sponsorship but on both occasions due to the COVID-19 pandemic these plans had been scuttled; the last one was when her job finished unexpectedly in August 2020. When the pandemic hit, she had been working for MindMechaniq at another company, Liquid Learning, an events company, which was hit hard by the pandemic and with whom she lost her job and the chance of sponsorship in March 2020. She worked at McCorkell and Associates from May to December 2020, also with a view to sponsorship, but this opportunity was lost in August 2020. The applicant’s versions of these events are confirmed by a number of supporting letters, including:

    ·Mr Andrew Wood, Director, MindMechaniq who confirmed that the applicant is proficient, hardworking, an asset to the business, and they would like to sponsor her. The oral evidence from Mr Taylor (referred to further below) confirmed that she was hired and considered an asset to the team before they had to let her go during the early stages of the pandemic.

    ·Ms Becky Miller, Senior Team Leader at McCorkell who “highly recommends the applicant as an employee and team member” and given the option she would hire her again to work as part of her team, noting that she is highly motivated and diligent and has skills to adapt and is an asset on the team.

36. The applicant said that she panicked because of the COVID-19 pandemic and was fearful of returning to the UK, where they were continuously in and out of lockdown and the COVID-19 rates were high.

37. The Tribunal had concerns with the applicant’s failure to consult the Department, putting to her that this would have been the logical option. She admitted this, and said that she felt very depressed; she has suffered depression for the last 8 years. She accepts, however, that she did not call the Department.

38. Numerous character references have been provided for the applicant, from her employers, landlord, and friends, including a senior child protection worker and a clinical nurse consultant working in quarantine hotels. All attest to her character, motivation and integrity, and some of them specifically discuss the reason for the cancellation that she made. The Tribunal accepts that while feeling a significant amount of stress and pressure, and in the context of her depressive disorder, the applicant’s actions in providing incorrect information were out of character. The Tribunal accepts that, during her first working holiday visa, she had completed the requirement of 3 months’ regional work in order to obtain the second working holiday visa. The Tribunal accepts that she is motivated and ambitious and that she did not deliberately avoid doing the 6 months of specified work, but that she had confidence that she would be sponsored and would be able to move to a different visa which would not require the completion of the 6 months’ work.

39. The Tribunal accepts that that the circumstances in which the non-compliance occurred weigh in favour of setting aside the decision to cancel the applicant’s visa.

    The present circumstances of the visa holder

40. The applicant said that she had informed the human resources department and her direct manager of the cancellation of her visa. Her direct employer is MindMechaniq and they hire her to Liquid Learning (the events company for whom she was re-hired after being let go at the start of the pandemic).  As noted above Mr Anthony Taylor, the CEO of Liquid Learning, appeared on behalf of the applicant to give evidence.  His evidence included the following:

    ·The company has been in existence for 16 years; he has been with the company for 13 years and has been CEO for 3 years.

    ·They are an events business that was destroyed by COVID-19. They are in the rebuild stage which has been reliant on sales. When they re-opened, they only hired back 10 people, who they knew were good employees, who could work independently. The applicant was one of those staff they re-hired. She has always been an honest employee who has worked effectively and been trustworthy and reliable. Their revenue is driven by their business development representatives and from a business perspective it has been important to retain the applicant.

    ·Currently they have 30 staff. Pre-COVID-19 they had about 100 staff: 76 in Australia and 24 in NZ. They were extremely successful, in a big period of growth and they were constantly recruiting. The sales and business development team was the biggest part of the business.

    ·Prior to the pandemic they did face to face events; now a lot of their work is virtual and they do leadership events for the public sector.

    ·Since the COVID-19 set back they are trying to grow aggressively and they are doing very well and now a lot of opportunities are opening up; however they are unable to get enough sales people, which is their biggest barrier to growth.

    ·He wants to hire 2-3 sales reps per month and they always make efforts to recruit Australians; but it has been months since they have been able to recruit. They will definitely be considering sponsorship for the applicant.

    ·They don’t take their duty as business sponsors lightly; they would only do this for people who would contribute to the Australian economy.

    ·He understands that the applicant has problems with her visa as a result of regional work not undertaken. From his point of view, his dealings have been positive, and this is why they re-hired her.

1. The Tribunal accepts that the applicant’s employment with this company has been instrumental in the company getting back on its feet post-COVID-19, and that she is considered hard-working, level-headed and an asset by the CEO, who was prepared to attend the Tribunal hearing to support her. The Tribunal has also considered her evidence that she has built her life in Australia in the last 3 years, she has built a community around her, which is important to her and which forms part of her present circumstances. The Tribunal accepts that she has a strong sense of social justice (as evidenced by the supporting documents and discussed further when considering her contribution to the community below).

2. Although she has provided no evidence of her depressive disorder, the Tribunal is prepared, given the other supporting evidence provided which attests to various claims made, to accept that she has a longstanding depression and takes medication for this, and that it is not unlikely that a return to the UK would have some adverse effect on her mental health.

3. The Tribunal accepts that if the applicant’s temporary working holiday visa is cancelled it would adversely impact on her employment and her plans to be sponsored, the current work of her employers whose business is rebuilding after COVID-19, and her social network and her community contributions in Australia (discussed below), and her mental health.

4. The Tribunal gives these matters 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

5. The delegate noted in the decision record that there is no evidence that the applicant contacted the Department to correct the incorrect information. At hearing the applicant told the Tribunal that she did not correct the information.

6. The Tribunal considers that her subsequent behaviour (of not correcting the incorrect information) concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act weighs 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

7. There is no evidence before the Tribunal to indicate that there are other instances of non-compliance by the applicant. The applicant confirmed this. While this is positive, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.

   The time that has elapsed since the non-compliance

8. The non-compliance occurred when the visa holder provided incorrect information on her Working Holiday (Extension) visa application lodged in August 2020. Since then, the applicant has been permitted to remain in Australia.

9. The Tribunal observes the non-compliance occurred some 17 months ago and therefore not a significant amount of time has elapsed, although the applicant said it feels like a long time. The Tribunal accepts that the applicant has continued to become settled in her life in Australia in this time and it gives this factor a little weight in favour of setting aside the decision to cancel the applicant’s visa. 

   Any breaches of the law since the non-compliance and the seriousness of those breaches

10. The applicant’s written material indicated that she has never previously had an issue with the legal system, either in Australia or in the United Kingdom. She confirmed this at hearing.

11. While this is positive, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.

    Contribution to the community

12. The applicant said that she has undertaken charity work in Australia; she volunteered for The Food Pantry in Marrickville. She started in about October 2018; while looking for a job she used her free time to volunteer, and she worked for 2 months, until she got a job, 3-5 days per week (about 15-25 hours per week) in a shop in a community centre. The premise is similar to Oz Harvest; they get food from local farmers and sell it at reduced prices. She assisted in helping to run the shop to help reduce food waste and support lower income individuals in affording food.

13. She also volunteered at Vinnies Connect since August 2020, a service aimed at improving the quality of life and self-esteem of individuals who are isolated through connecting them with a volunteer. She has been working with one young person, mentoring every Saturday (3 hours). They meet, and she will take the young person to places, such as coffee or lunch venues, and help her to build her social skills. They will go for a walk or do any activity to make it easy to talk and work on conversational skills.

14. Her first job in Australia involved raising money for 2 Australian charities: Surf Life Saving and Canteen.

15. The applicant said that during lockdown she engaged in picking up litter, in places such as Centennial Park, and she encouraged others to do so. 

16. The clinical nurse manager who provided a reference stated that the applicant has a great sense of ethics, which she always puts into practice, introducing him to more environmental ways of cleaning, recycling and composting, and that at a time during COVID-19 when she saw that people were struggling she devoted her free time to helping those people through Vinnies Connect. He states that she is very supportive to him as a homosexual male and that she stands up for the rights of Aboriginals and Torres Strait Islanders. He was of the view that the community would be at a loss if she left. Another referee who became her friend after working with her stated that the applicant had encouraged her to litter-pick with her on several occasions and she had encouraged her to sign up to the St Vincent’s program, which the referee did.

17. The applicant’s letter states that even before she came to Australia she had been involved in a number of social causes: Amnesty International, various gender equality groups, youth sports programs, and she ran a Fair-Trade produce stall whilst at school.

18. The Tribunal accepts that many of the applicant’s charitable activities occurred before her visa was cancelled, and notes that her work at the Food Pantry was not just a minimal contribution; it was a significant amount of time spent volunteering to help Australians and others who were not coping and who had real worries about placing food on their tables. Similarly, her ongoing mentoring work, at such a young age, is a positive contribution to disaffected and disadvantaged youth. The Tribunal gives the applicant’s charitable contributions considerable weight in favour of setting aside the decision to cancel the applicant’s visa.

    Other matters for consideration

19. 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 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.

    Whether there would be consequential cancellations under s 140 of the Act

20. 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 applicant said there are no consequential cancellations. This factor is not relevant.

    Are there children whose interests would be affected by the cancellation of the visa?

21. The applicant said that there are no children whose interests would be affected by the cancellation of her visa. This factor is not relevant.

    Would the cancellation lead to the applicant’s removal in breach of Australia’s non-refoulement or family unity obligations?

22. The applicant said that these matters are not relevant.

    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

23. If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, she 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 she departs Australia voluntarily.[1]

    [1] As set out in the delegate’s decision record

24. If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, she will be subject to s 48 of the Act, which means she will have limited options when applying for further visas while in Australia. Further, she will be affected by Public Interest Criterion 4013, in accordance with which she may be prevented from being granted certain types of visas for a period of 3 years from the date of visa cancellation.[2]

    [2] As set out in the delegate’s decision record

25. The applicant said that if her visa is cancelled, she could return home to her family in the UK and get a job, but that this will affect her sponsorship options.

26. The Tribunal accepts that the consequences of cancellation would be difficult for the applicant and it considers that this does weigh in favour of setting aside the decision to cancel the applicant’s visa, although this is somewhat tempered by the fact that these are the intended legal consequences as set out in the legislation when a visa is cancelled, reflecting the seriousness of a breach of s 101(b) of the Act and consequent cancellation of a visa. The applicant has benefitted from providing the incorrect information in her Working Holiday visa application, and it is very likely that she would not have been granted that visa if she had provided correct or accurate information about the 6-month regional work requirement.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

27. The Tribunal is prepared to accept that during her first working holiday visa, the applicant did carry out her regional work. This was a requirement of that first visa and there is no evidence that she did not meet those requirements.

28. As discussed above, the Tribunal accepts that the visa cancellation will lead to a degree of hardship for the applicant. It is foreseeable that it will have a significant effect on the life she has established here. 

29. The Tribunal gives this consideration some weight against affirming the decision to cancel the applicant’s visa.

    Conclusion on the exercise of the discretion

30. Having carefully considered all of the above, the Tribunal concludes the matters that weigh against cancellation outweigh the factors in favour of cancelling the visa.

31. The Tribunal is prepared to accept that the applicant’s non-compliance was out of character and occurred in the context of the chaos of the COVID-19 pandemic, through which she lost 2 opportunities for sponsorship. The Tribunal found the evidence of the applicant to be forthright and it accepts that she is very contrite for this serious breach. The Tribunal found the evidence of the CEO to be measured, open and supportive of the applicant’s significant contribution to resurrecting his business post-lockdowns. The Tribunal also notes the applicant’s charitable actions, the majority of which occurred before she was informed that her visa was liable to be cancelled (May 2021), but which are ongoing. The Tribunal considers that her contributions to the community have been and are significant, and they weigh in favour of the applicant being given another opportunity.  These are the factors which have tipped the balance against the case for cancellation, which the Tribunal had given significant weight because of concerns that the applicant’s actions seriously undermined the migration system by relying upon incorrect information to obtain a visa. Nevertheless, it was an isolated breach, and the Tribunal is satisfied that the applicant will continue to make a valuable contribution to the Australian community if the cancellation is set aside, and for the reasons specified, the Tribunal has concluded that the discretion should be exercised.

32. 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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Christine Cody
    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.