Hughes (Migration)

Hughes (Migration) [2022] AATA 928 (28 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Peter Iain Hughes
CASE NUMBER:  2108517
HOME AFFAIRS REFERENCE(S):          BCC2020/2361574
MEMBER:Jane Marquard
DATE:28 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 28 January 2022 at 11:36am
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – there was non-compliance in the way described in the notice – applicant had provided incorrect answers in his visa application –applicant did not undertake specified work in regional Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 98, 101, 107, 109
Migration Regulations 1994, 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 (the Act).
The applicant is a 26-year-old man from Belfast, Northern Ireland in the United Kingdom. He applied for a first Subclass 417 (Working Holiday) visa on 31 July 2019 and the visa was granted on 7 August 2019. The applicant arrived in Australia on 30 September 2019.
On 29 August 2020 the applicant was granted a second Subclass 417 (Working Holiday) visa. A delegate of the Department cancelled this visa on 24 June 2021 on the basis that the applicant had provided incorrect answers in his visa application (pursuant to s 101 of the Act).
The issue for determination in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was invited to appear before the Tribunal on 29 November 2021 to give evidence and present arguments. The applicant requested an adjournment and the matter was adjourned until 24 January 2022, on which day the applicant appeared before the Tribunal by video, due to restrictions imposed by the COVID-19 pandemic. The Tribunal determined that it was reasonable to hold a hearing in this manner to prevent undue delay as it is an objective of the Tribunal to provide a mechanism of review that is fair, just, economical and quick. The Tribunal was satisfied that the applicant had a real opportunity to be heard, using this method, as he confirmed he could see and hear well, and was provided with an opportunity to answer questions and provide evidence.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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 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.
Section 101 provides (in paraphrase) that:
- 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.
Validity of the s 107 notice
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 of the Act and that the notice issued under s 107 complied with the statutory requirements.
The first issue for the Tribunal: 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. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act. Section 101 provides that a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided.
The non-compliance as described in the s 107 notice
The details of incorrect information particularised in the s 107 notice dated 24 May 2021 are as follows:
On 29 August 2020, you lodged an online application for a second Working Holiday. On page 1 of the online application form, under the heading “Application Type”, you answered “Yes” to the following question:
Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa (subclass 417)?
On page 5-6 of the online application form, under the heading “Details of specified work undertaken”, you answered the following questions, in part:
Employer details
Legal registered name: Core Traffic Control Pty Ltd
Trading Name: Core Traffic Control Pty Ltd
Australian Business Number (ABN): 84155689508
Is the employer a labour hire company?: No
Employer business address
Country: AUSTRALIA
Address: 2 Aristos Place
Suburb / Town: Winnellie
State / Territory: Northern Territory
Postcode: 0820
Is the work address the same as the employer business address? Yes
Work conditions
Employment type: Direct employment
Industry type: Construction
Industry type sub-group: Construction
Description of duties: Providing traffic management for construction
sites and work zones.
Date from: 09 Mar 2020
Date to: 12 Jul 2020
Total hours worked: 760
Total days worked: 90
Was the applicant employed under a piece rate agreement? No
Hourly rate of pay: 28.04AUD
On page 9 of the online application form, under the heading “Working holiday declarations”, you answered “Yes” to the following questions:
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.
And;
All claimed specified work has been remunerated in accordance with relevant Australian legislation and Awards or voluntary bushfire recovery work.
The Department stated in the s 107 notice that based on the answers provided in the above information, the applicant was granted a second Working Holiday visa on 29 August 2020. However, on 17 September 2020, the Department conducted verification checks by contacting Core Traffic Control Pty Ltd – ABN 84155689508 regarding the applicant’s claims to have completed three months of specified work. The company representative confirmed that the applicant did not complete specified work with the company at all and was not recorded in its systems.
The Department found that there was non-compliance as follows:
On page 1 of the online application form, under the heading “Application Type”, 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)?”, you answered “Yes”. I consider this answer to be incorrect because Core Traffic Control Pty Ltd – ABN 84155689508, confirmed that you were not employed by the company, and did not complete any specified work with the company.
On page 5-6 of the online application form, under the heading “Details of specified work undertaken”, you declared you had undertaken specified work in the construction industry, with Core Traffic Control Pty Ltd – ABN 84155689508, working by direct employment between 09 March 2020 and 12 July 2020. I consider this answer to be incorrect because Core Traffic Control Pty Ltd, confirmed that you were not employed by the company, and did not complete any specified work with the company.
On page 9 of the online application form, in response to the questions “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.” and All claimed specified work has been remunerated in accordance with relevant Australian legislation and Awards or voluntary bushfire recovery work.”, you answered “Yes”. I consider this answer to be incorrect because Core Traffic Control Pty confirmed that you were not employed by the company and did not complete any specified work with the company.
Submissions to the Department in response to the s 107 notice
The applicant responded to the s 107 notice issued by the Department as follows. He said that he travelled to Australia with the dream of getting ‘world recognised work experience’ and exploring Australia. He complied with all visa conditions but could not find work due to COVID-19 lockdown restrictions and unavailability of work in regional areas at the particular time. He became depressed and stayed at home because he could not concentrate. His family and friends counselled him to improve his health. Out of desperation and ‘reasons beyond his control’, he ‘fell prey to an unauthorised migration agent’ who used his situation to his benefit by ‘providing him with wrong information and guiding me misappropriately to lodge and submit incorrect information on my behalf’.
The applicant submitted that he was willing to work anywhere to fulfil any requirements.
The applicant provided screenshots of text messages and email communications with employers demonstrating that he had sought employment at various places of employment.
He also provided email correspondence with Lee Hansol dated 24 July 2020, who lodged his second Working Holiday visa application form. The correspondence included the following paragraph:
please read all checklist carefully and send me all of them. Once you fill out all questionnaire i will forward to farm owner so they start to organise apply your 2nd working holiday visa. (Limited Applicant per certain period). What they do is that they are making your paperwork in order to lodge your visa.
you were supposed to work specific area for 88 days so they put you on their profile as you have been working for them during certain time.
Further email correspondence from Lee Hansol on 24 September 2020 stated that:
As long as you hold these documents you will be fine no matter where you want to go. However, do not disclose to anyone even your boyfriend, girlfriend.
The reason why is that few years ago, couple got a 2nd visa from us but when they broke up guy reported to the immigration so his girl friend kick out of the Australia for 3 years. As you can see there is 1263 form.
You don't really have to print them out to carry on but if you need to go oversea just print out and sign on the last page.
You worked 7 days as a farm hand.(for 2nd visa holders working to achieve the 88 days asap) 6 on 3 off roster. •Split shifts 4.30am-11am, 2.30pm-7pm. •Only 3 double shifts per 9 days.
You can claim the tax return if you want. Even your payslip appeal you were paid in after tax, it has got nothing to do with your tax return.
Do not show off people that you got the 2nd visa without working in specific area also do not share this farm information as it may cause cancellation of your approved visa but if your friend seek a help like you simply pass on my email then we will make sure look after carefully.
We do the 2nd and 3rd visa but price is different 3rd is twice as expensive.
Again, thanks for choosing us hope you gonna enjoy your life without any hassle.
Findings of the Tribunal in regard to whether there was non-compliance as described in the s 107 notice
Further submissions were provided from the applicant to the Tribunal on 30 June 2021. The applicant confirmed the submissions made to the Department. He also said that he was ‘misguided by the agent’ and was a victim of migration fraud.
The Tribunal is satisfied that the applicant provided incorrect answers as set out in the s 107 notice. He stated that he had worked for three months in specified work as the holder of a first Working Holiday visa (Subclass 417) and that he had worked for Core Traffic Control Pty Ltd – ABN 84155689508. However, the Department undertook verification checks on this employment following which Core Traffic confirmed that he was not employed by the company at any time and did not complete any specified work with the company.
The Tribunal is satisfied that the applicant gave or provided incorrect answers. The applicant submitted that ‘out of desperation’ and ‘reasons beyond his control’, he ‘fell prey to an unauthorised migration agent who used his situation to his benefit by providing him with wrong information and guiding him misappropriately to lodge and submit incorrect information on his behalf’. He submitted at the Tribunal hearing that the application was not done by him and he did not meet the person who provided the application on his behalf. After seeing what was submitted to the Department, he agrees that he did not work at the employer whose name was provided and he did not know that the documents were falsified.
As discussed with the applicant at the Tribunal hearing, s 98 of the Act provides as follows:
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 100 of the Act provides that:
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 111 of the Act provides that:
To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.
As confirmed by both the employer and in the applicant’s response, this specified work did not take place. It is not relevant whether the agent filled in the forms as the applicant caused the application to be filled in and/or the application was filled in on the applicant’s behalf (s 98 of the Act). The applicant had engaged Lee Hansol and paid for his services. It is also not relevant that the applicant did not know a question was incorrect (s 100 of the Act) or the non-compliance was inadvertent (s 111 of the Act). The Tribunal is satisfied therefore that the applicant did not complete three months of regional specified work as declared in his second Working Holiday visa application.
For these reasons, the Tribunal finds that there was non-compliance with s 101 of the Act by the applicant in the way described in the s 107 notice.
The second issue for the Tribunal: 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 Migration Regulations 1994 (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.
Correct information
The correct information is that the applicant did not complete three months of specified work with Core Traffic Control Pty Ltd – ABN 84155689508, working between 9 March 2020 and 12 July 2020, prior to the lodgement of his second Working Holiday visa application.
This factor is given significant weight in favour of cancelling the visa as it is a central requirement of the visa that the applicant complete three months of specified work in a regional area.
The content of the genuine document (if any)
This is not a relevant consideration in this matter.
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 Tribunal is satisfied that the decision to grant the visa on 29 August 2020 was based partly on the incorrect information. It is a requirement for the grant of a second Working Holiday visa that the applicant had completed the requisite work in a regional area.
This is given consideration in favour of cancelling the visa. The applicant was never legally entitled to the second Working Holiday visa which is the subject of cancellation and the Tribunal has attributed significant adverse weight to this factor.
The circumstances in which the non-compliance occurred
Further submissions were provided from the applicant to the Tribunal on 30 June 2021. The applicant repeated the submissions made to the Department that he could not find work due to the COVID-19 lockdown. He also said that he was ‘misguided by the agent’ and was a victim of migration fraud.
At the Tribunal hearing he provided background to the circumstances of the non-compliance. He said that he decided to apply for a Working Holiday visa because he loves travelling and he had friends from high school who had travelled on Working Holiday visas. He first came to Australia on a holiday and travelled up the coast, and he wanted to return. He did not use an agent in Northern Ireland to apply for the visa but applied online, using the Department website and setting up an ‘Immi Account’. When he applied he was aware that he could extend his visa for a second year if he worked for three months in a regional area. He confirmed that he had spoken to other travellers about this.
In March and April 2020 he sought out regional work, speaking to as many people as he could and travelling to Queensland to seek work. He had been told that the Gold Coast was a regional area (as it was a regional area for the purposes of soccer) so he worked there for three months, only to find out that it was not a specified regional area. He also organised work in Adelaide but it fell through. He provided a copy of an email to FAO Aisla dated 25 March 2020 seeking farm work, an email to Premier Construct on 3 April 2020 trying to make arrangements to cross the border into South Australia for work and a number of other texts to various parties seeking work. He explained that he was turned down due to interstate border closures and restrictions on workers from Sydney. He said that he became stuck as he had tried so many employers.
He stated that he was also stressed due to the outbreak of COVID-19 and border closures in Ireland. He came across Lee Hansol from a friend of a friend, whose name he cannot remember. He was told that Lee Hansol was an agent who could sort things out and secure a second Working Holiday visa for a fee. He said that he did not know if this meant that he would make special arrangements because of the pandemic. He said that he was not told how Lee Hansol made the arrangements. The Tribunal asked him if he spoke to his friends about how they were granted second Working Holiday visas without completing 88 days of specified work in a regional area. He said that he did not as he was just so happy to get it done and he does not know ‘where his head was’. He said that it was a difficult time as his country was in complete lockdown. He said that he felt that it was the only option he had. He contacted Lee Hansol in around August. He was given a questionnaire to fill in and there was a fee involved.

He said that he only found out later that Lee Hansol was not legitimate. The Tribunal asked him why he agreed to use Lee Hansol when he still had more time to find work. He said that no matter what he set up it fell through. At times employers would tell him there were possible opportunities in four weeks’ time, but it was not definite. He could not make use of the time. He told the Tribunal that it did not occur to him to contact the Department to request assistance as he could not find work, and in hindsight that would have been a good thing. The friend said Lee Hansol had helped a friend of theirs, but did not say how.
The Tribunal put to the applicant that email correspondence between with Lee Hansol clarified that the agent would be submitting to the Department false information from an employer that the applicant had worked for 88 days in a regional area when in fact he had not. The Tribunal put to him that the correspondence suggests that he was aware of the nature of the fraud. The Tribunal in particular questioned the applicant about the following paragraph contained in the email correspondence:
please read all checklist carefully and send me all of them. Once you fill out all questionnaire i will forward to farm owner so they start to organise apply your 2nd working holiday visa. (Limited Applicant per certain period). What they do is that they are making your paperwork in order to lodge your visa.
you were supposed to work specific area for 88 days so they put you on their profile as you have been working for them during certain time.
The applicant said that he just filled in the questionnaire, which looked ‘pretty right’ and sent it, and after this he just did not think about it. He was just thankful that someone was helping him and he did not pay much attention to the emails. He said that he is a person who is compliant with laws and the pandemic hit, and he just thought this was a way of sorting things out through the pandemic. The Tribunal asked the applicant if he was concerned that Lee Hansol asked him to create a second email address. He said that there was no face-to-face contact with Mr Hansol, and he assumed it was to do with securing payment. He said that he was just trying to help himself at the time.
The Tribunal queried the applicant about the following paragraph in the email correspondence between himself and Lee Hansol:
As long as you hold these documents you will be fine no matter where you want to go. However, do not disclose to anyone even your boyfriend, girlfriend.
The reason why is that few years ago, couple got a 2nd visa from us but when they broke up guy reported to the immigration so his girl friend kick out of the Australia for 3 years. ..
You worked 7 days as a farm hand.(for 2nd visa holders working to achieve the 88 days asap) 6 on 3 off roster. •Split shifts 4.30am-11am, 2.30pm-7pm. •Only 3 double shifts per 9 days…
Do not show off people that you got the 2nd visa without working in specific area also do not share this farm information as it may cause cancellation of your approved visa but if your friend seek a help like you simply pass on my email then we will make sure look after carefully.
The Tribunal put to the applicant that it was clear from the email that Mr Hansol’s method was to tell the Department that an applicant had worked for 88 days in a specified regional area, when he or she had not done so, information which could lead to a visa cancellation. He said it was not really clear for him and at the time it appeared reasonable.
He was asked if he agreed that ultimately it was his responsibility to provide honest answers to questions asked by government departments. He said ‘yes, in general terms, if
I had written it myself’. He said that at the time he lodged the application he thought that he was using an official agent so put his trust in him. He said that he had no interest in having a brush with the law and just wants to lead a simple life and ‘not have to deal with certain things’. He said that he has no criminal record and gets on with his life. He just wants it not on his record.
The Tribunal is satisfied that the applicant did not complete the required period of specified work in order to meet the requirements for the grant of a second Working Holiday visa. The Tribunal accepts his submissions that the impact of COVID-19 meant that there was very little availability of regional work and that he did try and seek work from numerous employers and wanted to comply with the law, as he has always done in the past. The Tribunal is satisfied that this made him desperate and depressed. Although the applicant submitted that he was a victim of a fraudulent agent, the email correspondence between the applicant and Lee Hansol confirms that the applicant was aware of the nature of the fraud, and that information would be submitted which indicated that the applicant had done three months’ specified work in a regional area when in fact he had not done so. For example, in an email from Lee Hansol dated 24 September 2020 it was stated, ‘Do not show off people that you got the 2nd visa without working in specific area’ indicating clearly that he knew of the fraud. The Tribunal also finds it highly unlikely that the applicant would not have discussed how Mr Hansol operated with other travellers who had engaged his services.
Even though the applicant did not physically fill in the forms and provide the incorrect information about working for an employer he did not in fact work for, the Tribunal considers that the applicant was indifferent to the circumvention of the law by allowing false information to be provided on his behalf which stated that he completed work with a company that had never employed him. In reaching these conclusions the Tribunal notes that the applicant speaks English and has had some tertiary education, that he was aware of the visa criteria, that he had spoken to other travellers and that he had used the Department website. The Tribunal does accept that he was ‘guided’ by this fraudulent agent when he was in a depressed and desperate state, in the sense that he left it to the agent to make arrangements for him.
The Tribunal has given consideration to the applicant’s claims that he could not find work in regional areas due to the lockdown in relation to COVID-19. This does not explain why the applicant did not immediately turn to the Department of Home Affairs to state that he had concerns that he would not be able to fulfil the requirements of the Working Holiday visa (the first) to undertake specified work as required by the Regulations, for reasons beyond his control, despite efforts to do so. The applicant did not dispute that he did not go to the Department, instead he worked outside the Subclass 417 visa framework.
There is no doubt that when COVID-19 first emerged across the globe, it caused significant confusion and chaos and the Tribunal gives this weight in favour of exercising the discretion not to cancel the visa, as it is clear from his evidence that he did try and get work in regional areas. The Tribunal also gives weight in favour of not cancelling the visa to his depressed and desperate mental state at the time, exacerbated by news of the prolific spread o COVID-19 in his home region. However the Tribunal gives significant weight in favour of cancelling the visa due to the fact that the applicant was made aware of the nature of the fraud, but was indifferent to it, even if ‘guided’ by the fraudulent agent.
The present circumstances of the visa holder
The applicant has taken into consideration the present circumstances of the applicant.
The applicant comes from Northern Ireland. He completed high school and a diploma in Sport and Exercise in Belfast. He also started a degree in Sport and Exercise which he did not complete ‘for personal reasons’. He worked as a store manager at McDonald’s from the age of 16 and did some construction work on the side. His parents and a younger brother live in Northern Ireland. In January 2022, sadly his grandfather passed away and he feels that it is time to go home, and particularly to see his mother, who has lost her father. Although he wishes to return to Belfast in February 2022, he does not want to go home with a cancelled visa, as it does not sit well with him, as he has always been law-abiding. He said that he had decided to remain in Australia and seek review of the decision to cancel his visa because he did not like having the visa cancellation on his record, as he was misled and he did not realise what was going on was incorrect. He said that he has no criminal record and it dwells on his mind. He does not want it to deter further applications. If it was not for the review, he would have gone home as there are family things going on. He said that he does not want to stay in Australia but he wants to leave with the issue clarified. He has ‘had a few bereavements’ in the last few weeks and he wants to go home.
Asked about his relationship with an Australian citizen for the last 14 months, he said that he does not think ‘it is going to go too far’. However two of his best friends from high school live in Australia so he would like to return within three years.
He told the Department that if his visa was cancelled he would have enormous pressure from his family returning to his country with a cancelled visa. He said this would have a bad impact on his mother who suffers from depression. Asked to discuss this further at the Tribunal hearing, he said that he is from a good family. They want the best for him and ‘it is not nice’ for them to know that his visa was cancelled. He said that he does not know how they would take it. His family travels to the USA frequently and he is concerned they would want to go and he could not accompany them, due to the cancellation. The applicant said that he has always travelled a lot and has never overstayed a visa and does not want the adverse record. He said he has not been able to sleep as he has been so worried about this. He does not like breaking the laws and does not want people to have that perception of him and it has made him very anxious. He said that he would like to leave it in the past.
The Tribunal has given the emotional hardship the applicant, his partner and mother would suffer some weight against cancelling the visa. The Tribunal acknowledges that the adverse finding by the Department is weighing heavily on the applicant’s mind, and that he does not want to have it on ‘his record’ or for others to know of it, including his family. This does demonstrate that the applicant is generally of good character and it is totally understandable that he does not want this on his record. This is given weight in favour of exercising the discretion not to cancel the visa.
There does not seem to be a pressing need for the applicant to remain in Australia as he has emphasised that he wishes to return to Belfast, and his relationship in Australia does not have a future, and travel appears to be easier than it once was. He has told the Tribunal that he wishes to go home to his family, who he has not seen for three years, and because his grandfather passed away recently. The fact that he presently has no need to stay in Australia is taken into account in favour of cancelling the 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 did not inform the Department about the incorrect information and has continued to maintain that he had no knowledge of the fraudulent behaviour of Lee Hansol. As set out above, the Tribunal is of the view that he was aware and indifferent to this fraudulent behaviour. The fact of his omission to tell the Department and the insistence that he did not know about the fraud is taken into consideration in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant submitted that his past and present behaviour had been good, and he had never breached any visa condition. He said that he had always been law-abiding. Clearly he is extremely disturbed that the cancellation will be a blemish on an otherwise good record.
This consideration is given weight in favour of exercising the discretion not to cancel the visa.
The time that has elapsed since the non-compliance
Eighteen months have passed since the granting of the visa, but this factor is not given any particular weight.
In fact, the time that has passed has provided some benefit to the applicant in that due to delays in the review process, he has been able to remain in Australia for a longer period, notwithstanding the fact that his second Working Holiday visa was cancelled.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant has emphasised that he is law-abiding and has not breached any laws since non-compliance. He said that he wants to put his point across that he did as much as he could. He said that he is ‘not a bad guy, it was just a bad set of circumstances’. The Tribunal accepts that he is otherwise of good character which is taken into consideration in favour of exercising the discretion not to cancel the visa.
Any contribution made by the holder to the community
The applicant submitted that he is an ‘honest and genuine person who is always willing support Australian community in need’. The applicant provided an email to the Bondi Surf Club Bushfire Appeal in January 2020 that demonstrated his willingness to assist with transport for those who required it. At the Tribunal hearing he said that one Saturday he had taken water to one of the fire stations impacted by the bushfire. He said he had also done some charity work at home in Northern Ireland.
The Tribunal has taken into account in favour of not cancelling the visa this contribution to the bushfire appeals as it is admirable, although it is not given signifcant weight as his community contribution is not significant.
Other factors
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has also considered whether there would be consequential cancellations under s 140
There is no evidence of consequential cancellations.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
There is no evidence before the Tribunal to suggest that the circumstances of the cancellation would lead to a breach of any international obligations.
The United Kingdom has a democratic and legal system similar to that of Australia and there is no indication that the applicant would be refouled to a country where there would be any breach of international obligations impacting on him.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
In this case, the applicant would become an unlawful non-citizen once his bridging visa expires and could be liable for detention under s 189 of the Act, and removal under s 198 of the Act if he does not voluntarily depart. However the applicant told the Tribunal that he wishes to leave Australia in February 2022 so this is not applicable.
The cancellation would also place a limitation under s 48 of the Act, such that he would have limited options to apply for further visas. This limitation only applies if the applicant remains in the migration zone and lifts once the applicant leaves Australia. He may also be impacted by Public Interest Criterion 4013 which limits the grant of further temporary visas for a specified period.
He said that he is in the process of planning a transfer certificate for skills as a carpenter. He thinks that if he came back this would be a good route to go down as a carpenter. He said that his visa may be cancelled and then it may impact on his ability to do carpentry. He is also concerned about his ability to travel to the USA.
The Tribunal has taken this into consideration against cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
As discussed earlier the applicant has claimed that he would be distressed if his visa was cancelled. He also submitted that his mother would be upset if his visa was cancelled. This is given some weight against cancelling the visa.
Findings
The Tribunal is satisfied that there was non-compliance in the way described in the s 107 notice.
The Tribunal acknowledges that the emergence of the COVID-19 pandemic in early 2020 was an unprecedented and difficult time, and this impacted adversely on the ability of the applicant to make good decisions, especially considering his youth and naivety. The Tribunal has given weight to the fact that the applicant has always been of good character and that his migration record would be tainted by a visa cancellation and it would cause distress to him and his family and limit his travel options for a few years. However, the gravity of the action of providing incorrect answers with disregard for the integrity of the migration system (particularly considering the applicant speaks English, is educated and has familiarity with the Department website) outweighs the factors in favour of exercising the discretion not to cancel the visa.
Having regard to all the relevant circumstances as discussed, the Tribunal concludes that the visa should be cancelled.
CONCLUDING PARAGRAPH
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 be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Jane Marquard
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 928

28 January 2022

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