Fahy (Migration)

Fahy (Migration) [2022] AATA 1112 (1 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Olivia Mary FAHY
CASE NUMBER:  2117390
HOME AFFAIRS REFERENCE(S):          BCC2020/2877533
MEMBER:Nathan Goetz
DATE:1 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 01 February 2022 at 4:57pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 –applicant used another person to lodge her visa application form – there was non-compliance in the way described in the notice –applicant did not undertake specified work in regional Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 101, 107, 109, 359, 360, 363
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).
BACKGROUND
The applicant identifies as a 29-year-old female citizen of Ireland presently located in Australia.
On 12 February 2019 the applicant arrived in Australia holding a working holiday visa that had been granted on 7 January 2019. That visa was valid until 12 February 2020.
On 16 March 2020 the applicant was granted another working holiday visa. That visa was valid until 24 November 2020.
On 26 November 2020 the applicant was granted another working holiday visa. That visa was to be valid until 12 February 2022.
On 11 October 2021 the delegate wrote to the applicant under s 107 if the Act and advised that consideration was being given to cancellation of the working holiday visa granted on 26 November 2020 on the basis that there was possible non-compliance with s 101(b) of the Act. This section of the Act requires that no incorrect answers are to be given or provided in visa applications. The delegate advised the applicant that before any decision would be made to cancel the visa, the applicant had the opportunity to comment on the possible non-compliance and to give a written response explaining why the visa should not be cancelled. The applicant provided a response on 22 October 2021.
On 23 November 2021 after considering the applicant’s response, the delegate cancelled the working holiday visa under s 109 of the Act. The delegate was satisfied that the applicant had not complied with s 101(b) of the Act and that the visa should be cancelled. As a result of the applicant’s working holiday visa being cancelled, she became an unlawful non-citizen liable to immigration detention and removal from Australia.
On 23 November 2021 the applicant applied to the Tribunal for review of the decision to cancel the working holiday visa. On 26 November 2021 she was granted a bridging visa to regularise her migration status in Australia until a decision was made by the Tribunal on the review application.
On 10 December 2021 the Tribunal wrote to the applicant for two reasons.
The first reason was to invite her under s 360(1) of the Act to appear at a Tribunal hearing so she could give evidence and present arguments relating to the issues arising in relation to the decision under review. The hearing was scheduled for 10:00am on 24 January 2021. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because it had considered the material it had and was unable to make a decision favourable to the applicant. The hearing invitation included a document titled ‘Response to hearing invitation’ that the applicant was requested to complete and return to the Tribunal within 7 days.
The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information. The invitation noted various administrative matters, but importantly it advised the applicant if she did not provide the information requested by 24 December 2021, the Tribunal hearing would be cancelled and the Tribunal would make a decision without taking any further steps to allow or enable the applicant to appear at a Tribunal hearing. This was because the Tribunal cannot hold a Tribunal hearing where an applicant has not complied with a request for information under s 359(2) per ss 360(3), 363A of the Act.
The applicant failed to provide the information requested by 24 December 2021. She provided the information requested after that date. The Tribunal advised the applicant that the Tribunal hearing was cancelled and the basis for the hearing cancellation. The applicant submitted that the Tribunal hearing should not have been cancelled. There was no merit in her argument as the relevant sections of the Act make it clear that where information has not been provided in accordance with a s 359(2) invitation, the Tribunal cannot hold a hearing. The Tribunal did, however, agree to the applicant’s request for more time for her to provide reasons why the visa should not be cancelled. The Tribunal advised the applicant that a decision would not be made before 4:00pm 21 January 2022 so the applicant would have additional time to provide anything she wished the Tribunal to consider.
THE STATUTORY REGIME FOR CANCELLATION UNDER THE ACT
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 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.
CONSIDERATION OF EVIDENCE
The visa application form
The applicant was born in San Francisco, California state, United States of America. She holds a Republic of Ireland passport and identifies her nationality as Irish. She holds no other citizenship apart from her Irish citizenship. Her relationship status is ‘never married.’
Her usual occupation is a primary school teacher. She intends to work during her time in Australia in the education and training sector.
The applicant detailed in the visa application form that she was applying for her third working holiday visa. She had carried out at least six months of specified work while she held the second working holiday visa, and this was carried out on or after 1 July 2019.
She detailed the specified work undertaken as “Berry Sweet Strawberry Farm” which she identified as both the legal registered name and trading name of a business that held Australian Business Number (ABN) 78597340065. She identified the owner as Lee-Anne Yewers and provided the owner’s telephone number and email address. She provided the business’ address in Bullsbrook, Western Australia.
The work conditions were detailed as ‘direct employment’ in the ‘agriculture, forestry and fishing’ industry subtype which is in the ‘plant and animal cultivation’ subgroup. She detailed the duties as “picking of ripe strawberries into 250g punnets making sure all the strawberries are the correct size and weight for each punnet. Organising trays of strawberries once picked and distributing the trays to a nearby truck for weighing.” She claimed that she worked a total of 1500 hours over 190 days between 23 March 2020 and 13 September 2020. She was paid $AUD23.66 per hour. Her living arrangements during this time were a rental property in Nollamara, Western Australia. She declared she had carried out at least six months of specified work and that all work was carried out after 1 July 2019 and that all of that work was carried out while she held a second working holiday visa. She declared that she had been renumerated in accordance with the relevant Australian legislation and Awards. She declared that she had understood all the information she provided in the form and that the information she provided was complete and correct in every detail. She declared that she understood that that if the information was found to be incorrect after the grant of the visa that the visa may be cancelled.
The Notice of Intention to Consider Cancellation (NOICC) of the visa – s 107
The NOICC detailed that the delegate considered that the applicant had not complied with s 101(b) of the Act and that the applicant was liable to have the visa cancelled under s 109 of the Act.
Section 98 Completion 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.
Section 99 Information 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.
Section 100 Incorrect 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.
Section 101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(b) no incorrect answers are given or provided.
The delegate detailed that on 24 November 2020 the applicant lodged the application for the third working holiday visa and that she had declared that she had carried out at least six months of specified work, that all of that work was carried out while she held the second working holiday visa and that she provided the details of the employer as Berry Sweet Strawberry Farm, together with that dates of her employment and a description of her duties.
The delegate wrote that based on the above information provided by the applicant, as well as meeting other relevant criteria, the applicant was granted the third working holiday visa.
The NOICC detailed that the department received subsequent information which suggested that the applicant had not complied with s 101(b) of the Act. The information was that the department had contacted the employer to verify the employment claims. On 18 December 2020 Berry Sweet Strawberry Farm advised the department that the applicant never worked at the business.
The delegate detailed that the possible non-compliance with s 101(b) of the Act was constituted by:
·     The applicant answering ‘Yes’ to the question ‘they have carried out at least six months of specified work’
·     The applicant answering ‘Yes’ to the question ‘all of that work was carried out while the applicant held the second working holiday visa’
·     The applicant providing details of claimed employment with Berry Sweet Strawberry Farm
·     The applicant answering ‘Yes’ to the declaration ‘Have carried out at least six months of specified work; and all of that work was carried out after 1 July 2019; and all of that work was carried out while the applicant held the second working holiday visa.’
The delegate invited the applicant to comment on the possible non-compliance and to give a written response about why the visa should not be cancelled.
On 22 October 2021 the applicant responded to the NOICC by written statement and attached her Curriculum Vitae and an Employer Reference. The written statement read as follows:
“I hope you are well and keeping safe during these uncertain times. It is with great regret that I am writing to you in response to the NOICC I have received from the DOHA.
In this response I will give you all the information regarding my time here in Australia, information in relation to the application of my visa, my reasons for being in Australia and the many reasons I want to stay and pursue the life and career that has opened up for me here.
I originally came to Australia to seek teaching and childcare career opportunities that were not as available to me in Ireland. My sisters were living out here and urged me to come out and advance my career prospects. When I arrived in Australia I was astounded by the job opportunities available to me as a Primary school teacher. I immediately joined a Teaching agency called ANZ UK Australia. They were incredibly helpful and encouraged me to teach in the elite schools of Sydney such as Cranbrook Junior School, Kincoppal Junior School and many others as a casual teacher.
In conjunction with casual teaching I also took the opportunity to join a Nannying agency called Lullaby Nanny Share. The wonderful girls at Lullaby introduced me to a wonderful and very prestigious family who interviewed me and immediately wanted to employ me. They offered me a wonderful contract and full time employment for many months until they moved back to London. Immediately after that I went to the farm for my 2nd year WHV (subclass 417) to secure a second year in this amazing country. I worked in a very rural part of NSW called Rankins Springs for 3 months of very intense and laborious work as I was determined to continue to stay here and continue this incredible life I was building.
When I returned to Sydney in January 2020 I returned to casual teaching and nannying. In March of 2020 I was then contacted by Lullaby to interview for another prestigious Australian family based in Woollahra. They were extremely impressed by my experience and my professionalism and offered me a full time contract on the spot. I have been working with this family ever since and have been an outstanding employer particularly throughout COVID-19. With almost 7 years of experience as a Primary School teacher I was able to provide an exceptional service of care and education to the children in the many months that they were schooling online.
Due to my excellent work for this family, they began to help me to find work as a teacher once again so that I could be sponsored and could continue the life that I have built over here. In this email I will attach the glowing reference that they gave me as part of my CV. I began to apply for teaching jobs across Sydney and was very hopeful that I would secure work and sponsorship.
One school that I applied for were extremely impressed by my experience and references and assured me of a position and sponsorship with them as one of their employees had intentions of returning to her home country of England. With this in mind I felt assured that my sponsorship was secure and I did not have to worry about securing farmwork. However, in these unprecedented times of COVID-19, the teacher who had intended to leave Australia was unable to with no flights leaving the country and no sign of international travel opening up, she decided to stay in her position at the school. I received this information with very little time to organise regional work. I rigorously searched for regional work opportunities for weeks and weeks but with travel prohibited throughout the state and the necessity to isolate for two weeks if I travelled outside of NSW, my chances of completing the regional work before my 2nd WHV ran out was very slim. As the date of my visa expiration was drawing closer I was in panic mode and felt completely helpless.
It was then that I heard of a company that sorts out visas for people and immediately sent an email to explain my situation and to see if they could be of assistance. I was told in the responding email that it was fine and no problem and that they were an established body, helping people in these situations since 2009.
They asked for minor details such as my employment history, passport details, current visa details etc. They said that they would process my details and get back to me within the coming weeks. Within a few days I was contacted and informed that my 3rd year WHV had been granted. They sent me my IMMI grant number and I checked the VEVO to double check if it had been granted and it was. I truly believed it was legitimate but now knowing that this was indeed a scam I feel foolish and extremely ashamed.
I am truly and utterly sorry for believing it could be legitimate and I hugely regret sending the email in the first place as I should have seen sense that this could not have been this straightforward. Unfortunately, I cannot take back my actions. I would never have gone through a non-government body knowingly, it is a huge regret of mine.
Since I have arrived in Australia I have been compliant in every other way with regards to the law, my visa conditions and with COVID rules and restrictions put in place to keep the community safe.
I plead with you to consider not cancelling my visa. I am willing to take the consequences associated with this sort of situation but please don't take this life away from me and separate me from my partner. As a Primary School teacher and childcare provider I am proud to help educate the future of Australia and want to continue to do so. I am currently striving towards gaining PR in this country with the Permanent Residence Skilled Shortage Visa (190) and have taken all the necessary steps to achieve this. Cancelling my visa when I am so close to achieving this lifetime goal would be devastating to me, I don't think I would be able to cope. I have had several interviews with schools across Sydney and am hopeful to return to my passion of teaching in 2022 to assist in the massive shortage of teachers in Australia.
Please let me continue my life and work here in Australia so I can repay this country for giving me the life I could only have dreamt of. Thank you for taking this time to read my email Alan and I hope to be in contact with you soon.”
The Curriculum Vitae detailed that the applicant was a qualified primary school teacher and has seven years’ experience teaching in both Ireland and Australia. She detailed her education and professional skills. She provided professional experience highlights as:
·     Governess, prominent Sydney families (December 2019 – to date)
·     Primary school teacher (maternity leave cover), Cranbrook primary school, August 2019 to December 2019
·     Primary school teacher, Scoil Bhride National School, Straffan, June 2015 to December 2019
·     Primary school teacher (resource), Allenwood Boys National School, January 2015 to May 2015
For each of these roles, she detailed her duties. She discussed sport, music and language in the section of her Curriculum Vitae which addressed her skills and strengths. She provided a personal profile as a person who was highly motivated, enthusiastic, positive and had a natural aptitude for working with children.
The ‘Employer Reference’ was from a person named Louisa addressed to a person named Dee. It related to the recipient considering the applicant’s applicant for a permanent teaching position.
Delegate decision record – s 109
The delegate decision record details that the delegate considered the applicant’s response to the NOICC and determined that the applicant did not comply with s 101(b) of the Act. The delegate then went on to consider the discretion about whether to cancel the visa. The delegate detailed the relevant section of the Act as follows:
Section 109 Cancellation 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.

The delegate indicated that the delegate had considered the response to the NOICC and the information held by the department, the relevant legislation and regulations, and the guidelines set out in Procedural Instruction General visa cancellation powers (s109, s116, s128, s134B and s140) on visa cancellation. The delegate indicated that after considering all the information, the delegate determined to cancel the visa.
Review application
The Tribunal considered the information it had but wanted to know more about the applicant’s claim concerning the company she used to lodge the third working holiday visa application. The Tribunal wrote to the applicant under s 359(2) of the Act to request information as follows:
In your response to the delegate’s notice of intention to consider cancellation of your visa, you wrote:
“It was then that I heard of a company that sorts out visas for people and immediately sent an email to explain my situation and to see if they could be of assistance. I was told in the responding email that it was fine and no problem and that they were an established body, helping people in these situations since 2009.”
You are requested to provide information about:
The name and contact information of the company you referred to in your response.
That demonstrates that emails were sent by you and received by you as claimed in your response.
The applicant was advised this information needed to be received by 24 December 2021. The applicant did not provide this information by 24 December 2021.
On 29 December 2021, the applicant provided the following:
“My sincerely of apologies for only responding to this email now. I think it must have ended up in my spam emails as I am only seeing this now as I searched my emails checking if I had been summoned. I have some evidence that I would like to put forward such as character references and charity/community work I have taken part in in Australia. I see that I have missed the deadline to submit this evidence but I plead with you to allow me time to gather this information and to put it forward as soon as I have it all.
As it is the Christmas period and people are away on holiday I plead with you to allow me another week to source al of my evidence for my case. This was an honest mistake and I do take the courts seriously as I have never been in a situation like this before. Please give me a little more time to submit my evidence and perhaps push back the date of my hearing.”
That same day, she forwarded a chain of emails for the period 21 November to 3 December 2020. In summary, the emails show that:
On 21 November 2020 the applicant sent an unsolicited email to the email address [email protected] stating she received that contact information from a friend who indicated the recipient could assist her obtain a third year working holiday visa. The applicant indicated she wanted this visa because she wished to remain in Australia.
A person who identified himself as Lee Hansol responded to that email the same day. Lee Hansol detailed he has specialised in regional work for second and third year visas since 2009. He attached a visa grant notice to demonstrate his expertise. The email also included a request for the applicant to provide information in response to thirty-one questions, a direction the applicant pay a lodgement fee of $491.79 for the visa application, and that once the visa had been approved, she pay $2,000.00. The email noted that once the applicant sent the information her details would be forwarded to the farm. The email noted that the farm would make the paperwork for visa lodgement and that the applicant was ‘supposed to work specific area for 6 months so they put you on their profile as you have been working for them during certain time.’
The applicant duly responded to the email and provided answers to the thirty-one questions. There was also correspondence about payments. The final email that was provided was from Lee Hansol attaching the applicant’s third year working holiday visa grant notice.
Noting that the applicant provided this information after the period provided under s 359(2) of the Act, the Tribunal was unable to act on her request for an extension of time to provide information or to reschedule the Tribunal hearing. This was because the Act provides that unless the applicant asked for an extension of time to provide information, the applicant must do so before the expiration of the time to provide the information. As the applicant had not requested an extension of time before 24 December 2021, there was no power to grant an extension of time, which consequently meant that the Tribunal could no longer hold a Tribunal hearing due to ss 360(3), 363A of the Act. However, the Tribunal did write to the applicant and invited her to provide any information she wished the Tribunal to consider and told her it would not make a decision prior to 4pm 21 January 2022.
The applicant took the opportunity to provide the Tribunal with a letter dated 20 January 2022 from a person named Aoife Cahill, who identified as the general manager of Lullaby Nanny Care. The letter detailed that the applicant has worked for that organisation since March 2019 in a number of temporary and permanent roles. The letter identifies that the applicant is an excellent childcare worker. The applicant’s most recent role is from March 2022 and has been full time with a family in Woollahra where she cares for two children aged 5 and 2 years. The letter detailed her duties caring for those children. As well as listing the applicant’s professional qualities, the letter detailed that the author had gotten to know the applicant and that she is a person of very good moral character, operates with integrity and is very hard working and dedicated.
FINDINGS AND REASONS
The Tribunal has considered all the information and has ultimately concluded that the decision to cancel the applicant’s visa must be affirmed.
Was there non-compliance as described in the s 107 notice?
The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b). The non-compliance was identified by the delegate as a false claim by the applicant that she had carried out at least six months of specified work, a false claim that this work was carried out while she held a second working holiday visa, that she had worked at Berry Sweet Strawberry Farm and making a false declaration that all of that was true.
The applicant did not claim that she had worked at Berry Sweet Strawberry Farm. Nor did the applicant claim that she carried out at least six months of specified work, or that the specified work was undertaken while she held a second working holiday visa. She did not claim that her declaration as to the genuineness of these claims was true. From the material provided by the applicant, it appears that she used another person to lodge her visa application form and make the false claims on her behalf. 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.
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. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters. The Tribunal has done so.
The correct information is that the applicant did not do the work she claimed to have done with Berry Sweet Strawberry Farm. This distinguishes the applicant from a person who provided only partly incorrect information, such as a person who is a few hours short of the specified work requirement. The fact is that the applicant did not work for Berry Sweet Strawberry Farm as she claimed. It is clear that the decision to grant the visa was based entirely on the claimed worked with Berry Sweet Strawberry Farm because if the applicant had not claimed to have done this work, she would not have been granted the visa.
While the Tribunal accepts that the applicant did not provide a ‘bogus document’ such as fake payslips or employment letters to lend credibility to her false employment, that merely means that her fraudulently claim to have undertaken work was not supported by false documents. It does not, in the Tribunal’s judgment, mean that her fraudulent conduct is any less serious because it was not accompanied by false documents.
The Tribunal notes that the non-compliance appears to have occurred because the applicant was unable to secure specified work because of the pandemic and she has used another person to assist her to obtain the working holiday visa because of her inability to obtain the specified work. However, the Tribunal notes the contents of the emails between the applicant and the person identified as Lee Hansol where Lee Hansol wrote that the farm would put the applicant on their profile that she had been working for them during a certain time. It was clear that the applicant was party to this dishonesty and was aware that a claim would be made that she had undertaken specified work that she had not done. The Tribunal notes that the applicant had a choice to lodge other visas to remain in Australia, such as a visitor visa in the event that she could not find employment, or alternatively, return to her home country or contact the department to arrange a bridging visa on grounds that she would depart Australia once a flight became available to return to her home country. The applicant had many choices other than engage in dishonest conduct by claiming she had completed work that she had not done.
The Tribunal notes that the applicant is presently in Australia and working in the childcare industry. The Tribunal wonders whether the applicant’s employer is aware of what she has done, given that the employer letter made no reference to the visa cancellation and the basis of the cancellation. The Tribunal pauses to make clear that whether the applicant works for ‘prominent Sydney families’ (whatever that is supposed to imply or mean) or works for the care of children from lower socio-economic families makes no difference to the Tribunal’s judgment. In any event, the Tribunal accepts that the applicant is working. The Tribunal notes that the applicant claimed that she did not want to be separated from her ‘partner’ in the response to the NOICC but did not repeat this claim to the Tribunal. For all the Tribunal knows, the applicant is no longer in that relationship or if she is still in that relationship, the Tribunal is unaware of whether the relationship is with an Australian citizen or Australian permanent visa holder. The Tribunal is unable to give any weight to her claimed relationship as a reason to not cancel the visa for these reasons. The Tribunal notes that the applicant has not claimed significant or any property holdings in Australia, or any other ongoing commitments in Australia save for her employment in the material she provided to the Tribunal. While the decision to uphold the cancellation would have the obvious effect of requiring the applicant to cease employment in Australia due to the requirement for her to leave Australia, the fact is that the applicant’s working holiday visa is temporary in nature and there should be no expectation that the work the applicant completes while holding that visa should be considered permanent employment or a basis to remain in Australia permanently.
Concerning the applicant’s subsequent behaviour towards her obligations under Subdivision C of Division 3 of Part 3 of the Act (ss 97 to 115), the Tribunal accepts that the applicant did not continue to claim that she had undertaken the work with Berry Sweet Strawberry Farm in response to the NOICC, nor did she attempt to resume her fraudulent claim in her correspondence with the Tribunal. However, the Tribunal is concerned that if the applicant had not been caught out by the employment verification checks undertaken by the department, she would not have sought to correct the incorrect information by way of contacting the department and admitting what she did. The applicant’s case can be distinguished from a person who has an attack of their conscience and seeks to remedy their behaviour with the department by lodging the appropriate documentation to correct their previously given answers. The Tribunal accepts that there is no information that the applicant has engaged in any other instances of non-compliance with her obligations under the Act, or that she has breached any other Australian laws.
The incorrect information was provided in November 2020 when the applicant applied for her third working holiday visa. This is some 15 months ago. While the Tribunal must consider the time that has elapsed since the incorrect information was provided, the Tribunal considers this in the context of the applicant remaining in Australia for a period of 15 months when she really should not have been in Australia, as she had not done the work that would have entitled her to another working holiday visa. It is unfair to assess that because the department issued a NOICC 11 months later upon undertaking employment verification checks that the applicant should benefit from this. After all, it is not as if that the department was aware that the applicant had not undertaken this work and did nothing about it. The evidence suggests that the department acted as quickly as reasonably possible to raise the applicant’s conduct with her and then take prompt steps to cancel the visa after considering her response. It is worthwhile to remember that the type of conduct that the applicant has engaged in necessitates employment checks from the department, utilising resources that could be better directed at other department responsibilities.
There is no evidence that any other person holds a visa as a dependent on the applicant’s working holiday visa. Therefore, there would be no consequential cancellations of visas under s 140 of the Act as a result of upholding the visa cancellation. The applicant is not the mother of a child who has a right to reside in Australia and that child’s interest would be affected by the cancellation. It has not been claimed that the cancellation of the applicant’s visa would put Australia in breach of any protection obligations under s 36(2) of the Act.
The Tribunal accepts that there are very real consequences for the applicant in upholding the visa cancellation.
While the applicant did not raise this with the Tribunal, the Tribunal is aware that the applicant would become an unlawful non-citizen in the event that it upholds the cancellation of the working holiday visa (following the expiration of the bridging visa granted in connection with the review application) and that she would be liable to immigration detention in the event that she was not able to depart Australia within the 35 days provided by the bridging visa following the cancellation decision. The Tribunal also accepts that the department may be disinclined to grant the applicant a further bridging visa to allow the applicant to remain in Australia for a period greater than 35 days on departure grounds in the event that she could not arrange a flight back to the Ireland during that time given her fraudulent conduct, leading to the very real risk that the applicant would be detained in an immigration detention centre pending her removal from Australia. Such a period of detention may be for a significant period of time if no flight to the Ireland can be arranged in the near future. While this will necessarily result in the deprivation of liberty of the applicant, the Tribunal reminds itself that immigration detention is not a punitive measure but rather an administrative action to ensure the orderly management of unlawful non-citizens.
The Tribunal also accepts that the applicant would be subject to a ban on returning to Australia for three years as she would presumably fail to satisfy Public Interest Criteria 4013(1A)(a) of Schedule 4 of the Regulations because her visa had been cancelled. The Tribunal also accepts that even if that ban did not apply, the applicant may experience ongoing difficulty ever returning to Australia, as the department and Tribunal on review will always look at her past conduct in Australia when determining whether she would comply with any future visa conditions.
CONCLUSION
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 be cancelled.
The applicant has engaged in very serious dishonest conduct by claiming work that she has not done. This demonstrates to the Tribunal a sense of entitlement by the applicant and a willingness to ignore her obligations in order to achieve a desired outcome, namely remaining in Australia when she had no entitlement to do so under a third working holiday visa. It is because of people like the applicant engaging in dishonest conduct that the department regrettably needs to undertake employment verification checks, wasting the time and resources of the department. While there will be consequences for the applicant because of her fraudulent conduct, those are consequences that she has brought upon herself. If the Tribunal was to do anything other than uphold the decision to cancel the applicant’s working holiday visa, it would make a mockery of Australia’s migration system and the integrity of the working holiday visa programme.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Nathan Goetz
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 1112

1 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal