Hoey (Migration)

Hoey (Migration) [2022] AATA 5066 (12 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Glenn Hoey
REPRESENTATIVE:  Mr Adeel Khan
CASE NUMBER:  2114596
HOME AFFAIRS REFERENCE(S):          BCC2021/611394
MEMBER:Louise Nicholls
DATE:12 August 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 12 August 2022 at 3:46pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – ground for cancellation – incorrect information in visa application – specified work in regional Australia – consideration of discretion – grant of visa based on incorrect information – circumstances giving rise to non-compliance – lockdowns and pandemic restrictions – unscrupulous agent – mental health issues – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
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 he obtained his second working holiday visa which was granted on 18 December 2020 and cancelled by the delegate on 14 October 2021.
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 14 October 2021 the delegate cancelled the visa on the basis that the applicant provided incorrect answers in his 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 but after consideration concluded the visa should be cancelled.
The applicant sought review on 19 October 2021. He provided several documents with his application for review.
The applicant appeared before the Tribunal on 14 March 2022 to give evidence and present arguments. He gave evidence about his background and his 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.
·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.
·Screenshots of email correspondence with Lee Hansol, dated 10 December 2020.
·Screenshot of bank transfer to Lee Hansol.
·Screenshot of immunisation history statement, dated 17 September 2021.
The applicant’s representative made written submissions and provided the following material to the Tribunal as well as other material previously provided to the Department.
·Copy of the delegate’s decision of 14 October 2021.
·Applicant’s statement dated 7 March 2022.
·Applicant’s identity documents. (Irish passport, driver’s licence, white card).
·Character references from employers and colleagues.
·Employment contract and other employment related documents.
·Air BNB Booking confirmation.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
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, providing the following answers on the electronic visa form.
In response to the question ‘Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?’ the applicant answered ‘Yes’.
Under the heading ‘Details of specified work undertaken’, he 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 St
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 Mar 2020
Date to:   05 Jul 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’, he answered ‘Yes’.
Based on the above information, as well as meeting other relevant criteria, the applicant was granted a Working Holiday (Extension) visa on 18 December 2020.
The Department later initiated employment verification checks with ObjectPro Information Systems Pty Ltd, the business registered under ABN 93065578663, to verify his employment claims. On 23 February 2021, ObjectPro Information Systems Pty Ltd contacted the Department and advised that the applicant had never worked at their business.
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)?
·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’.”
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 specified work in regional Australia.
Based on the above information, it appears you provided incorrect answers in support of your Working Holiday (Extension) visa application. I therefore consider that you have not complied with sections 101(b), and accordingly your Working Holiday (Extension) visa may be liable for cancellation under section 109 of the Act.’
The applicant responded to the NOICC on 20 September 2021. He acknowledged that incorrect information had been given but stated that he had not been aware that false information was going to be submitted on his behalf. His response also covered those matters which relate to the exercise of discretion, in the event that the Tribunal found there were grounds for non-compliance.
Conclusion on non-compliance.
The Tribunal finds that the applicant provided incorrect information, in order to facilitate the grant of his 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 he 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 him to apply for a working holiday in December 2020 through a person who identified himself on Facebook as “Lee Hansol”. He stated that initially he found Lee Hansol through an “Irish around Sydney Facebook” group. He thought that Lee Hansol was a qualified migration agent and the applicant emailed him regarding his situation. Lee Hansol told him that he 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 behalf of the applicant. The applicant was promised documents and further information once his visa was approved. After his visa application was approved no further documents were provided and he was not able to contact Lee Hansol because his contact telephone numbers had been disconnected.
He stated
“26. I accept that it was my mistake to not clarify Lee's qualifications, and how a visa would be obtained. I had been told that Lee would take care of my application through an alternate pathway, and I trusted what I had heard. I understand that I am responsible for the contents of what was lodged. My mental health, reasoning and judgement was extremely poor at this time and hearing that the problem would be taken care of was a tremendous relief for me. I am of the view Lee preyed on my situation and has been operating a scam that has similarly affected many others.
27. I am now aware that the process that was followed by Lee was not what I initially believed it to be, however I did apply with full confidence that this was a legitimate alternative to completing regional work due limitations of access to regional farms in Australia and otherwise believed this to be an option for those who wished to remain in Australia but could not fulfill the requirements at that time. Notwithstanding this, I understand it is my mistake in failing to check the contents of the application and supporting documents provided to the Department. My solicitor has now explained the provisions of section 98 of the Act, and the responsibility I am to take over what is lodged even if done by an agent. I have also been explained the exclusion period if my visa remains cancelled. Although I did not actively partake in the lodgement process, I accept full responsibility for my actions. I am so ashamed to find myself here today. I am deeply remorseful and saddened for the actions have led me here today.”
At the hearing the applicant stated that he accepted that incorrect information had been provided in the application form lodged on his behalf for a second working holiday visa and that it was his responsibility to ensure that the information given was correct. He explained he was in a difficult situation at the time he contacted Lee Hansol.
The Tribunal put it to him that he could have approached the Department for advice or obtained assistance from a reputable migration agent or lawyer if he had been concerned about his situation and the difficulties experienced in finding work to meet the 3-month required. He stated that as a result of his difficult personal circumstances he had not looked further into the grant or the qualifications of Lee Hansol. He stated that his judgment was poor during that period.
The Tribunal finds that the applicant’s declaration, as well as his answers, in his 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. The Tribunal has considered the circumstances as set out below.
The correct information. The applicant admitted that the information provided in his 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 9 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 he 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 he 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 his employment at ObjectPro Information Systems Pty Ltd.
The circumstances in which the non-compliance occurred. The applicant has provided a comprehensive statement regarding his circumstances supported by documents and material. He has also given oral evidence consistent with his statement.
In sum the applicant stated that he and his long-term partner came to Australia with the objective of working for at least two and possibly three years. Both wanted to work and travel in Australia during this period. The applicant’s first working holiday visa was granted on 14 July 2019 and he and his partner arrived in Australia on 30 January 2020. The couple had been together for 10 years and were looking forward to travelling and working in Australia.
Shortly after their arrival in Australia the COVID 19 pandemic became widespread and his plans to travel and work changed dramatically. Within weeks of arriving the borders shut and Australia entered its first lockdown. Initially he worked as an electrician with the majority of his work with St Vincent’s Hospital.
As a result of widespread restrictions and uncertainty, access to regional areas and state was limited and farm work was scarce. Towards the end of May 2020, he realised he would need to complete 3 months of regional work. He started searching websites, social media pages and speaking to as many people as possible to try to find information on obtaining regional farm work. He received little or no response to his enquiries and some farms only wanted male workers. He was travelling with his partner Rhona and another friend. His partner was experiencing significant anxiety and mental health concerns due to their uncertain circumstances. He felt he could not abandon her to complete regional work on his own.
In May 2020 he contacted the owner of Walkabout Backpackers in Innisfail Queensland. The owner agreed to allow the applicant, his partner, and their housemate to come to Queensland to live in his hostel and work on one of his contracted farms, Ned’s Banana Farm for three months. All communication prior to arriving at the farm was by telephone. The confirmation of their arrival into Queensland and intention to work at the farm was provided in writing and the applicant provided a copy of this correspondence to the Tribunal.
As the time to depart to Queensland drew closer, he became increasingly worried about the growing COVID 19 situation and the risk of living in a hostel in shared dormitories. There was also a media report that Walkabout Backpackers was not complying with COVID 19 health advice and restrictions. He did not have the option of obtaining alternative accommodation as the offer of work was conditional on staying in the backpacker accommodation. He was aware that working conditions on the farm were cramped and he would be restricted to a warehouse on a banana farm.

On the evening of 24 May 2020 the day before they were due to leave for mandatory quarantine in Queensland his partner was admitted to St Vincent’s Hospital with was ultimately diagnosed as a panic attack caused by distress and anxiety related to the prospective living conditions in Innisfail. She was given medications and advice on how to manage panic attacks. The applicant provided a copy of the discharge documents from St Vincent’s Hospital.
The applicant and his partner had given notice to their respective employers and had terminated their lease in Sydney. They decided to go ahead with the arrangements in Queensland including their travel to Queensland, their 14-day quarantine booking and border pass. Once they arrived in Cairns they were required to stay in quarantine. The applicant provided a copy of the confirmation of their AirB&B booking, border pass and correspondence with the owner of the backpacker hostel.
The applicant and his partner concluded their two weeks of quarantine in Cairns and then travelled to the Walkabout Backpackers hostel in Innisfail. The accommodation was “horrible”; they were assigned to a 10-person unisex dormitory where the bathrooms were unsanitary, the refrigerator was not working properly, the showers had cold water only, there was mould on pillows which were provided for a fee and there were infestations of cockroaches and rats. The applicant stated that the rent was $220 per person per week. The applicant provided photographs of the accommodation to support this evidence.
The applicant’s partners mental health declined drastically as a result of these conditions and fears exacerbated by the spread of COVID 19. After a short time the applicant’s partner could not bear the conditions any longer and the couple explored the idea of obtaining regional work elsewhere however there was limited availability. On 19 June 2020 the applicant advised the owner of the hostel that they needed to leave due to his partner’s poor mental health condition.
The applicant’s partner’s mental health continued to suffer when they returned to Sydney and on 29 July 2020 she was again admitted to hospital with a severe panic attack. The applicant cared and supported his partner and this limited his capacity to seek further regional work.
In December 2020 with the end of his visa approaching he was aware that the situation in Ireland was worse than Australia and he feared there was a greater risk he would contract COVID 19 if he returned. He did not wish to burden his family as his parents were in a high risk category. He stated that his anxieties and fears caused his decision-making ability to deteriorate as he felt trapped and out of options.
As set out above, the applicant was looking for other options and found information about Lee Hansol of Golden Fish. He contacted Lee Hansol and was told that he could apply for another visa as an alternative to farm work. Correspondence from Lee Hansol was provided to the Tribunal.
The present circumstances of the visa holder. The applicant has been in Australia for over two years and is working as an electrician for Technair Services. He has been offered the possibility of sponsorship and hopes to obtain his electrician’s licence in Australia. He has been working full time for over 10 months. He provided a letter from his employer who stated he was aware of the reason for the applicant’s visa cancellation, but he was still keen to sponsor him. He stated that he observed that the applicant is hardworking and a committed employee. His employer stated that the applicant has been trained in BMS[1] which is a niche market and it is very hard to find BMS technicians with data experience.
[1] Building Management Systems (BMS) are computer based controlled systems installed in buildings that controls and monitors the building’s mechanical and electrical equipment such as ventilation, lighting, fire power and security systems.
The applicant and his partner have a close long-term relationship and have plans for a future together. He believes he would be a significant benefit to the Australian community and if his cancellation was set aside he would like to stay in Australia with the ultimate goal of becoming a permanent resident.
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 he was not aware that incorrect information had been provided on his behalf until he received the NOICC.
Any other instances of non-compliance by the visa holder known to the Minister. There is no evidence of any other instances of non-compliance by the applicant before the Tribunal.
The time that has elapsed since the non-compliance. The application for the visa was made on 18 December 2020. Seventeen 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 joined a football club in Randwick. He provided a letter of support from the president of the club which noted that he had been told the reasons why the applicant’s visa had been cancelled. The author stated that he observed that the applicant was of good character and has contributed to the football club by assisting with coaching, training and has participated in community responsibilities such as raising money for Oz Harvest. The applicant has also participated in a Beach Clean up in Coogee. He has recently registered with the charity Weaves to provide tutoring to indigenous students and assist them with their schoolwork. He provided email correspondence to support this evidence.
While the prescribed 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 he does not depart Australia. He will also be subject to a statutory bar which would restrict the visas he could apply for in Australia and Public Interest Criterion 4013 may prevent him from being granted certain types of visas for a period of three years from the date of cancellation. However, recent amendments to the Regulations[2] 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.
[2] 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 he 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’s proposed to obtain a second working holiday visa on his 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 his desire for a solution to his visa problem overcame the scrutiny he 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 his 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 he 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 his behalf may have had a large impact on his future life plans.
The applicant has provided evidence that he is held in high regard by his employer, friends and colleagues. He has given evidence, supported by his employer, that he has an expertise in BMS systems which is a niche occupation and one in high demand in the construction industry.
The Tribunal accepts the applicant’s evidence that he and his 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 his partner commenced living in the hostel in Innisfail and were working for a short time on a banana farm. However the applicant’s partner’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 he continued to seek regional work but was unsuccessful due to lockdowns and pandemic restrictions. Further he felt a responsibility to care for his partner who 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 his partner had intended to undertake specified work in a regional area and had taken all the necessary steps to complete that work. The applicant’s partner developed serious mental health issues during the pandemic and the applicant was concerned to ensure that her health did not decline further. The applicant explained how he came into contact with Lee Hansol and his state of mind at that time. He claimed that he did not know that Lee Hansol was going to provide false information to the Department together with his application for a visa. The Tribunal has some doubts about this evidence, but it does accept that the circumstances the applicant and his partner found themselves in at the time of application resulted in the applicant making a poor choice in the engagement of Lee Hansol. The Tribunal considers that he 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 he is held in high regard by his employer, colleagues and friends. He has made a small but notable contribution to the community in his charitable work and in volunteer work with his football club. He is working in an occupation where there is a shortage of labour and is working towards becoming a licensed electrician in Australia with an expertise in BMS systems. The Tribunal accepts that he feels a strong responsibility to care for his long term partner and safeguard her mental health.
The Tribunal considers that these factors, particularly the evidence of steps taken to obtain specified work in a regional area and evidence of his partner’s mental illness and admission to hospital outweighs other factors which might indicate the visa should be cancelled, that is the provision of false information through Lee Hansol and the fact that he would have been ineligible for the grant of the second working holiday visa if he had given correct answers in his 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 5066

12 August 2022

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