Hughes (Migration)

Hughes (Migration) [2022] AATA 1464 (4 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:Miss Eleanor Elizabeth Hughes
REPRESENTATIVE: Mr James Shin (MARN: 1912363)
CASE NUMBER: 2113114

HOME AFFAIRS REFERENCE(S): BCC2020/2430014
MEMBER:Andrew McLean Williams
DATE:4 April 2022
PLACE OF DECISION: Brisbane
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 04 April 2022 at 12:31pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – employer reported no record of applicant – relationship ceased – medical conditions and treatment – contribution to the Australian community – employment prospects – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 101, 107, 109, 189, 198
Migration Regulations 1994, r 2.41; Schedule 2 cl 417.211; Schedule 4, PIC 4013
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 thereby cancelling the Applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (Cth) (‘the Act’).
The Delegate cancelled the visa after concluding that the Applicant had breached s.101(b) of the Act by her having provided incorrect information when completing her visa application. Specifically, the Delegate found that the Applicant had untruthfully answered ‘yes’ in response to the question ‘They have carried out at least six months of specified work’, (in the form of agricultural work), in circumstances where that was investigated and found to be untrue. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled, noting that the question of visa cancellation under s.109(1) is discretionary, and in circumstances in which there are no mandatory cancellation circumstances now prescribed, by s.109(2).
The Applicant appeared before the Tribunal by audio-visual link on 23 November 2021 to give evidence and make submissions.
The Applicant was represented in relation to the review by Mr James Shin (MARN 1912363) of Agape Henry Crux, lawyers. Mr Shin did not accompany the Applicant during the actual Tribunal hearing, however had arranged for the prior filing of written submissions (those dated 16 November 2021), together with supporting documentary evidence.
At the conclusion of the 23 November hearing, the Applicant was given further leave by the Tribunal to file additional evidence and/or submissions. In consequence further materials were received by the Tribunal from Mr Shin on 29 November 2021.
For the following reasons, the Tribunal has determined that the decision to cancel the Applicant’s visa should now be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with any of ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these provisions require non-citizens to provide correct information in their visa applications and on their passenger cards; not to provide bogus documents in support thereof; and to notify the Department in relation to either any incorrect information of which they subsequently become aware; or of any relevant changes to their 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 that are relevant to this case are now attached to this decision.
The Applicant was given notice under s.107 on 10 August 2021, given to her in the form of a Notice of Intention to Consider Cancellation (‘NOICC’). In the present matter, the Applicant does not seek to challenge the validity of the NOICC, and the Tribunal is now also independently satisfied that the Delegate had reached the necessary state of mind to engage s.107; and that the NOICC issued under s.107 did comply with the relevant statutory requirements.
Was there non-compliance in the manner described in the NOICC?
The issue before the Tribunal is whether there was non-compliance by the Applicant in the way described in the NOICC, and if so, whether the visa should be cancelled, noting again that the decision to cancel is a discretion, now vesting in the Tribunal.
The non-compliance identified and particularised in the NOICC was non-compliance with s.101(b) of the Act, which is said to have arisen in consequence of the Applicant having falsely declared that she had undertaken at least six months of specified (agricultural) work, thereby qualifying her for a Working Holiday (Subclass 417) visa extension.
The factual background to of this case are as follows:
·The Applicant is a citizen of the United Kingdom, and is now 26 years of age;
·On 15 February 2018 the Applicant first arrived in Australia on a Subclass 417 (working holiday) visa;
·On 16 April 2019 the Applicant was granted a second Subclass 417 visa;
·On 9 September 2020 the Applicant applied online for (and was granted) a third Subclass 417 visa, which came into effect immediately upon the expiration of the second Subclass 417 visa, on 5 October 2020.
·In the third visa application, the Applicant answered ‘Yes’ to a question asking whether she had carried out at least six months of specified work, thus entitling her to seek a third working holiday visa. Elsewhere in the application the Applicant specified that she had worked for a [named] viticultural company in Western Australia between 9 March 2020 and 30 August 2020, and had engaged in pruning work in vineyards associated with the wine industry.
·Checks were conducted by the Department with the nominated vineyard. These revealed that the Applicant had not ever worked for that employer.
·On 10 August 2021 the Applicant was issued with the NOICC, inviting her to make response to the allegation that she was in breach of the requirements of s.101(b).
·On 27 August 2021 the Applicant submitted a response to the NOICC.
·On 27 September 2021 the Delegate made the decision now under review, cancelling the Applicant’s third Subclass 417 working holiday (extension) visa pursuant to s.109(1) because of the breach of s.101(b).
On the hearing of this Application for Review the Applicant candidly concedes the fact of her breach of s.101(b) having arisen in the manner contended in the NOICC, yet now submits that her visa ought not be cancelled, on the basis of an exercise of the discretion in her favour. Accordingly, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the Applicant in the manner described in the NOICC.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the manner described in the NOICC 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).
In exercising this discretion, 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 regulation 2.41 of the Regulations. Briefly, these 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 as 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 Applicant’s response to the NOICC
In her 27 August 2021 response to the NOICC, and again now when before the Tribunal, the Applicant candidly admits to her breach of s.101(b) of the Act. The Applicant informed the Tribunal that she had been in Australia on a working holiday visa since 15 February 2018 and had intended to undertake agricultural work in order to become eligible for a third working holiday visa. However, in early 2020, the Applicant’s former de facto partner became eligible to apply for a Subclass 482 visa and he invited the Applicant to instead join the Subclass 482 visa application as the secondary applicant on the basis of the Applicant being his de facto partner. The Applicant did this, and thus did not take up the offer of six months agricultural employment.
Unfortunately the Applicant then experienced a relationship breakdown in mid-2020, and in consequence found herself no longer eligible to continue as the secondary applicant on her former partner’s Subclass 482 visa application. By that stage the Applicant had also missed the six month window within which she could undertake agricultural work in order to become eligible to make application for a third Subclass 417 working holiday visa.
At around this time the Applicant was also suffering from a number of personal issues including emotional heartache in the aftermath of her relationship breakdown, a significant [medical condition 1] in the shadow of a strong family history of [medical condition 1]; an abnormal [testing] result; [medical condition 2]; a [specified] injury, and ongoing family conflict in the United Kingdom. In consequence of all these things the Applicant says that she fell into a state of anxiety and depression and considerably worried about her visa status. The Applicant was referred to see an individual who assured her that he could help her to get a longer-term visa, with work rights. Not thinking either rationally or even properly at that stage the Applicant agreed, and the third Subclass 417 visa application was then prepared and submitted on her behalf, specifying the incorrect information now identified in the NOICC.
Even in her original NOICC response, and again now when before the Tribunal the Applicant admits her breach of s.101(b) of the Act, and expresses her regret and considerable remorse in relation to that.
As well as providing an extensive array of positive character references and medical records/reports to corroborate matters regarding her adverse health conditions, the Applicant submits that her visa should not be cancelled because:
·At the time of the making of the third Subclass 417 visa application the Applicant was suffering from anxiety and depression and was not thinking rationally and had rashly agreed to the submission of the visa application containing incorrect information.
·The Applicant has since admitted her breach of s.101(b) and has expressed remorse and has been fully cooperative with the Department.
·The Applicant is currently undergoing [specified treatment] in Sydney and [this has assisted her recovery]. The Applicant’s [recovery] is at risk of being further set back in the event that she is required to leave Australia at this point and return to the United Kingdom.
·The Applicant is currently on a waiting list for [specified] surgery in Australia and raises the concern that in the event that she is required to return to the United Kingdom she will be required to “start again” and join a new waiting list for surgery, in circumstances wherein delays in the public health care system in the United Kingdom are sores than they are here in Australia
·The Applicant has had a very good and consistent employment history in Australia, including her working as a production assistant in the television industry, a critical skills shortage sector. The Applicant has far more limited employment prospects in the event that she were to be required to return to the United Kingdom.
·The Applicant has become heavily enmeshed in her local community in Sydney and is very active in undertaking a variety of charity and community volunteer work.
·The Applicant is a law-abiding citizen, with no criminal record.
The correct information
The correct information is that the Applicant did not undertake qualifying agricultural work in Western Australia as a viticultural worker in the manner contended in her third Subclass 417 visa application. Significant weight must attach to that as a factor in favour of visa cancellation.
The content of the genuine document (if any)
This criteria is not relevant in the present matter, such that neutral weight is attached to this consideration.
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
Applications for third extensions to working holiday (Subclass 417) visas are considered in light of sub-regulation 417.211(6), which requires six months ‘specified work’ (ie: agricultural, etc), in regional Australia. As such, the false assertion that the Applicant had performed the specified work became integral to her apparent entitlement for a third Subclass 417 visa. Significant weight must attach to this as a factor in favour of visa cancellation.
The circumstances in which the non-compliance occurred
The Tribunal accepts the Applicant’s explanation that at the time of the provision of the false information she was suffering from anxiety and depression and was not thinking rationally. There is ample extrinsic evidence that has been produced before the Tribunal to support that conclusion. The Tribunal formed a favourable impression of the Applicant’s candour and remorse, and concludes that the Applicant’s provision of incorrect information arose during a situational crisis in the life of a young woman, whereby a number of stressors and uncertainties coalesced and led to the Applicant behaving uncharacteristically and agreeing with poor advice from an unscrupulous migration industry advisor. The Tribunal gives these considerations very considerable weight in favour of non-cancellation.
The present circumstances of the visa holder
The Applicant remains gainfully employed in Sydney presently working for a real estate company. The applicant’s work in that role is the subject of very favourable reporting by the employer. The Applicant has not been able to continue working as a production assistant in the television industry at the moment, due to the uncertainty regarding her current visa status. Yet, there is good evidence before the Tribunal to indicate that the Applicant will be offered immediate future employment as a production assistant in the television industry once the uncertainties regarding her visa status have been resolved. The Applicant has also produced recent evidence (25 November 2021) to show that she now has sound prospects for securing a sponsored (Subclass 482) employment position as a video producer (ANZSCO 212 314) once her visa status has been clarified. The Tribunal notes this to be a ‘critical skills shortage’ industry.
The Applicant also continues to remain very involved in community volunteering and charitable work in Sydne,y and there are several testimonials and character references now before the Tribunal attesting to same, and there is absolutely no evidence to the contrary.
In an overall sense the Tribunal concludes that the Applicant is a making a very worthwhile and desirable contribution to the Australian community, both economically and socially, such that the Tribunal determines that the Applicants current circumstances lend themselves very strongly in support of non-cancellation of 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
The Applicant responded to the NOICC within the prescribed timeframe and has been fully cooperative with, and has made full admissions to the Department, and again now, when before the Tribunal. The Tribunal is prepared to attach further weight to the fact of the Applicant’s cooperativeness as a further matter in favour of non-cancellation.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of any other non-compliance by the Applicant. Some additional weight in favour of the Applicant and non-cancellation now attaches to this consideration.
The time that has elapsed since the non-compliance
The non-compliance with s.101(b) occurred upon the lodgement of the third Subclass 417 visa application, which was submitted on 9 September 2020, some 17 months ago now. In the intervening period, and no matter the cloud of uncertainty still overhanging her, the Applicant has continued to develop social and economic ties in the Australian community and has continued to engage as a productive and law-abiding member of society and is still commendably engaged in community volunteer work. The Tribunal concludes that a sound measure of weight must now attach to this consideration as a factor in support of non-cancellation.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence of the Applicant having committed any breaches of the law since the non-compliance. Neutral weight attaches to this consideration.
Any contribution made by the holder to the community
There is considerable evidence before the Tribunal of the Applicant undertaking community volunteer and charitable work. As indicated already in these reasons the Tribunal attaches a strong measure of weight to this factor in further support of the non-cancellation of the Applicant’s visa.
Other matters:
There is no evidence to show that there would be any consequential visa cancellations for other persons in the event that the Tribunal were to affirm the cancellation of the Applicant’s visa.
The Applicant has not applied for protection or made any claims of her now fearing the risk of significant harm in the event that she were to be required to return to the United Kingdom as the relevant receiving country.
There is no evidence of the Applicant having any children in Australia or of the rights of any child being adversely impacted by a decision to cancel the Applicant’s visa.
In the event that the Applicant’s visa were to be cancelled, the Applicant would then become subject to detention under s.189 of the Act, and forcible removal under s.198, in the event that the Applicant does not then depart voluntarily. The Applicant would also become subject to the bar under s.48 and Public Interest Criteria (‘PIC’) 4013, such that her capacity to return to Australia in the future will become problematic. The Tribunal notes all of these to be onerous deleterious consequences for the Applicant, such that weight in favour on non-cancellation is attached to these by the Tribunal.

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.
Andrew McLean Williams
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 1464

4 April 2022

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