Jordan (Migration)

Jordan (Migration) [2022] AATA 111 (11 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Simone Jordan
CASE NUMBER:  2108744
HOME AFFAIRS REFERENCE(S):          BCC2020/2361568
MEMBER:Melissa McAdam
DATE:11 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 11 January 2022 at 11:12am
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in second extension application – 6 months of specified work in regional Australia while holding first extension – verification checks showed applicant never worked at claimed business – discretion to cancel visa – COVID-19 restrictions and contacts with relevant employers – no approach to department – deliberate attempt to obtain visa on false information – ongoing non-specified work and value to employer – partner’s work and application for skilled working visa in progress – disruption and hardship if visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(6)
CASE
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 delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
NOICC, s.107 Notice
On 20 May 2021 the Delegate sent the applicant a s.107 notice, Notice of Intention to Consider Cancellation of Working Holiday (Temporary) (class TZ) Working Holiday (subclass 417) visa under s.109 of the Act (the ‘NOICC’), setting out the following:
I consider that there has been non-compliance with the following section(s) of the Act:
Section 101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(b) no incorrect answers are given or provided.
…
Particulars of grounds for cancellation
Information provided in your visa application
On 29 August 2020 you 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 ‘They have carried out at least six months of specified work’ you answered ‘Yes’.
In response to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’ you answered ‘Yes’.
Under the heading ‘Details of specified work undertaken’, you provided the following answers (in part):
Employer Details
Legal registered name: Core Traffic Control Pty Ltd
Trading name: Core Traffic Control Pty Ltd
Australian Business Number (ABN): 84155689508
Employer business address
Address: 2 Aristos Place
Suburb / Town: Winnellie
State / Territory Northern Territory
Postcode: 0820
Work address
Business name at this location: Core Traffic Control Pty Ltd
Address: 2 Aristos Place
Suburb / Town: Winnellie
State / Territory: Northern Territory
Postcode 0820
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: 27 Jan 2020
Date to: 16 Aug 2020
Total days worked: 190 days
Under the heading ‘Working holiday declarations’, in response to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’, you answered ‘Yes’.
Based on the above information, as well as meeting other relevant criteria, you were granted your Working Holiday (Extension) visa on 29 August 2020.
Subsequent information received by the Department The Department initiated employment verification checks with Core Traffic Control Pty Ltd, the business registered under ABN 84155689508, to verify your employment claims.
On 17 September 2020, Core Traffic Control Pty Ltd contacted the Department and advised that you never worked at their business.
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 ‘They have carried out at least six months of specified work’;
● answered ‘Yes’ to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’;
● provided details of claimed employment with Core Traffic Control Pty Ltd, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Working holiday declarations’, to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’.
I consider the above information is incorrect, as verification checks undertaken by the
Department have concluded that you never worked at the business, Core Traffic Control Pty Ltd. Therefore you have not undertaken six 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 consider therefore, 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.
Response to NOICC
In a response by email to the Department on 1 June 2021 the applicant wrote:
I can confirm that the information given is incorrect. But I had reasons to do so stay in Australia. I felt this was my only option at this time. Below are my reasons I have submitted this information:
·At the time I submitted this visa I had tried to secure regional work. I had contacted numerous farmers for work but as we were in the middle of a global pandemic and with borders being closed I couldn’t not secure any this time.
·Also I had lost my job at this time in traffic control due to lack of work. My mental health was in a very bad place at this time.
·Ireland isn’t an option to go home as I don’t have security either with work or a support network. I don’t have any close family at home to depend on and I would not fear to return there at the minute with the COVID rates increasing.
·I have secured work here and have an opportunity to go on my partners visa at the minute.
·I acknowledge that sending this false information is serious and I sincerely apologise. I would be truly grateful if my visa was not cancelled until I can arrange living arrangements and work arrangements in Ireland.
Delegate’s Decision
On July 2021 the Delegate determined there had been non-compliance with s.101(b) by the applicant in her visa application and that the ground for cancellation existed. The Delegate weighed up the discretionary factors and decided to cancel the applicant’s visa.
Information to the Tribunal
Pre-Hearing Submissions
On 26 November 2021 the applicant provided a written submission to the Tribunal containing the following:
-A written submission by the applicant’s Agent.
-The applicant’s Irish passport.
-The applicant’s NSW Driver’s Licence.
-A typed Statutory Declaration by the applicant.
-A letter/Statutory Declaration by the applicant’s partner in which he describes the applicant and their relationship, and the difficulties for them both, and for his employer, if the applicant’s visa is cancelled and they have to leave Australia.
-A letter from the applicant’s partner’s employer, a construction labour hire company.
-A receipt in the applicant’s name for $5,599 for payment to the applicant’s representative.
-Email messages between the applicant and Lee Hansol regarding her visa application.
In her Statutory Declaration the applicant writes the following:
I first arrived in Australia October 10^th 2018 with my partner Sean. We have been together 9 years. We moved to Australia to set up a new life for ourselves and intended on staying for 5+ years. If I had to leave Australia it would leave Sean in a very difficult situation as he feels he has a responsibility to stay in Australia because his employer has sponsored him but he would find it incredibly difficult without me here. We are best friends as well as partners and we are very close. Being the other side of the world we rely on each other for everything, whether it be financial or emotional support. For us to be separated would be devastating for us both as we plan to have our future together not apart.
I completed my Traffic Control course in October and started working in Traffic Control in November with ETM Traffic. I went to do my regional work for my second year WHV in may 2019 in Moxey Farms in Gooloogong, a dairy farm working 5 days a week for 3 months. I completed my regional work here in August 2019. I then went back to work in Traffic Control and I am currently still working in this role.
I am currently working 10 hours daily 6 days a week on a Construction site in Parramatta. It is on a Meriton job site, and one of their biggest projects to date. There is another two years of work before the finish the project. I am a very valued employee here, as I am very experienced at what I do. I help to train new employees and take on the responsibility of running all daily activities. At this time it is very difficult to find people with experience to do my role. And with such a big project my project manager puts a lot of trust in me to help in any way I can. I have recently been helping with Covid checks and take on the responsibility of checking 600+ people a day to make sure everyone is vaccinated, tested and doing all the relevant procedures to secure our workplace is safe and covid free. I am also going ahead to do a first aid course and would have like to do a course to become a safety officer if I was given the time in Australia to do so.
My partner Sean is currently on a Bridging Visa awaiting a decision on a 482 visa. He works in Construction operating excavators mainly but other machinery also. Ideally if I were to stay in Australia I would go de facto on his visa. He is relied upon a lot in his job and works very long hours including weekends. His employer relies on him heavily and it would greatly impact him if I were to leave as he would leave with me. We have both worked for all of our time in Australia while paying taxes
We are currently renting a one bed apartment in Zetland which we have been living in since August 2020. We have signed another lease on this apartment until February 2022. We have made so many friends in Australia who we would consider family and to leave them would be terribly saddening. I have recently applied to volunteer to make visits at a retirement home and I am just waiting for my police check to come back to get the go ahead to begin this.
In June 2020 I contacted Lee Hansol. I had heard of him from some people talking in work. Covid had hit and it was already very bad in Ireland. At this time I couldn't travel back to Ireland and I was really struggling with money, I had just secured a job where I was getting a lot of work and my partner Sean had started with his new company who were talking about sponsorship.
If I were to have to leave Australia I would have a difficult time in Ireland as I am not close with my family back home. I would have no financial support and I don't even know where I would live. I would also find it difficult to get work at home as there are not many jobs due to Covid hitting Ireland so bad and I don't hold any qualifications.
I can honestly say as I look back on the decision now I realise it was such a bad and ridiculous idea. I felt as though I could not travel back to Ireland and I thought I could go de facto once Sean got sponsored. I didn’t see any documents or proof before my visa was lodged, I feel if I had seen his documents I would not have gone ahead with it. I paid Lee Hansol 2000 dollars and gave him a lot of personal details. I feel as though I was not in the right frame of mind with everything going on in the world with Covid everything just seemed so uncertain and scary and it just seemed like easy option at the time to have some security to stay in Australia. I now realise how reckless and dangerous this was. I deeply regret ever contacting Lee Hansol and wish I had never done any of this. I realise how serious this action was and how serious the consequences are for my actions. I understand I provided false and misleading information and I apologise sincerely.
I would like to ask for forgiveness and some compassion in this situation, and hopefully you can understand why I made this decision. I deeply regret going about things the way I have and I have certainly learned from my actions and would never do such a thing again. I am deeply sorry.
On 1 December 2021 the applicant provided a further written submission to the Tribunal containing the following:
–Two reference letters from friends of the applicant.
–A letter of employment to the applicant’s partner.
–The applicant’s partner’s cv.
–Email messages to the applicant regarding her application to volunteer as an Aged Care visitor.
–A tax invoice to the applicant’s partner for his subclass 482 visa application.
–A letter from the applicant’s employer regarding the applicant’s employment.
Hearing
The applicant appeared before the Tribunal on 3 December 2021 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.She provided incorrect information in her visa application regarding the work she completed.
b.She knew a lot of people she worked with who used Lee Hansol. A work colleague gave her Lee Hansol’s contact. At the time she was aware it was trouble and not lawful. There was COVID and she had obtained a job with better hours. There was so much uncertainty. She knew people who tried to do farm work and could not get it and some people had their offered work cancelled. She panicked and did the wrong thing. She should have got legal advice. The consequences are very heavy.
c.The Tribunal asked if she made any checks about Lee Hansol’s credentials at the time and she responded that she didn’t. She thinks she panicked at the time.
d.She did not return to Ireland instead because there is COVID at home and no support.
e.She tried to find regional specified work by looking up some places, but her friends got farm work and could not do it because of COVID.
f.She did not make any efforts to contact the Department regarding her difficulties and possible visa options. She wishes she had. She made no effort to correct the information with the department before she received her NOICC.
g.She realises now how serious the consequences are. She has provided Lee Hansol’s contact details to her lawyer. She knows what she did was the wrong thing. She wants to try to make it as right as she can and is trying to help.
h.To obtain her second Working Holiday visa she completed regional work on Moxey Farms in Gooloogong for three months. This information is correct.
i.Her partner is applying for a temporary visa. She can go de facto on his application. It is a two year visa. When it finishes they will just go home. It will not be ideal if her visa is cancelled. Her partner would like to stay as he has an obligation to his employer. But she thinks if she had to leave he would go with her, she hopes. Maybe it is an option he would stay for two years. She doesn’t know if that would work.
j.If she had obtained legal advice she would have had other options.
k.If her visa is cancelled she will have to leave her partner and her friends here. She doesn’t have great support at home. She feels security here. It would be very distressing as she does not know where she would stay in Ireland. A lot of her friends have moved to Australia. The COVID case numbers are going up in Ireland. She doesn’t know where she would work. She doesn’t have much relationship with her family. Her siblings are married with children. She is not so close to them.
l.In December 2019 the applicant went home for Christmas to see friends in Ireland. The friends are now in Australia.
m.When she was in Ireland she worked in a pharmaceutical company as a factory line worker. She has a good job in Australia. She works six days a week at Meriton sites. She is a leading hand and a COVID marshal. She oversees things through the day.
n.She has savings but not enough to re-establish herself in Ireland. She doesn’t know if she will find work in Ireland as she does not hold any qualifications. A person needs to be in Ireland for a year before they can receive welfare.
o.She feels like she is in a more stable condition and has a better job now. She has learnt from her actions. She has not breached any laws in Australia.
p.She recently applied to be a visitor at a residential aged care home but needs to wait for her police check to come back. She applied a few weeks ago. She saw a television program and thought she would like to do something like that. She feels sorry for people who are lonely and don’t have visitors.
q.She has not formed any relationships with children in Australia.
r.When her visa expires, she knows she has to go home.
s.She has been in a relationship with her partner for 9 years. She feels that if he leaves with her she will feel very guilty. Her friends here are like her family.
t.She met her partner through a friend of a friend in Ireland. The people she knew in Ireland will now be married and have started a family while she has been gone for three years. Her employer and her partner’s employer will find it hard to get people in their line of work so it will be hard for the employers if they have to leave.
u.The applicant’s lawyer submitted that the applicant didn’t know who to go to at the time. She did ask Lee Hansol what would happen if the visa was refused and Lee Hansol provided wrong advice to her. It is her dream to be with her partner for the next two years. There are PIC 4020 consequences but it will be less stressful for her if her visa is not cancelled as she will not be s.48 barred. She is trying her best and to contribute to the community. The applicant’s lawyer thinks of her as a victim of Lee Hansol’s organised crime. Lee Hansol has manipulated and taken advantage of people because of their lack of knowledge.
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.
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. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act in the following respects:
The applicant was considered to have provided incorrect information in her application for a Working Holiday (Extension) visa when she:
● answered ‘Yes’ to the question ‘They have carried out at least six months of specified work’;
● answered ‘Yes’ to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’;
● provided details of claimed employment with Core Traffic Control Pty Ltd, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Working holiday declarations’, to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’.
The Delegate considered the above information incorrect, as verification checks undertaken by the Department concluded that the applicant never worked at the business, Core Traffic Control Pty Ltd. Therefore she had not undertaken six months specified work in regional Australia. Based on the above information, it appeared the applicant provided incorrect answers in support of her Working Holiday (Extension) visa application, and had therefore not complied with sections 101(b).
The applicant has confirmed that she did not complete the six months of specified work in regional Australia as detailed in her visa application. On the evidence before it 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 r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The correct information is that the applicant had not completed six months, or any, specified work in regional Australia at the time of her third subclass 417 visa application.
The correct information was of critical relevance to the assessment of the visa application and should have been provided.
The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.
The content of the genuine document (if any)
This is not a relevant consideration in this case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information
Clause 417.211(6) of Schedule 2 to the Regulations requires the applicant to have carried out (whether on a full-time, part-time or casual basis) a period or periods, equivalent to at least six months full-time work, of specified work in regional Australia as the holder of a second subclass 417 visa.
This was a substantive criteria and a central requirement for the grant of the visa. If the requirement was not fulfilled the visa could not be granted.
The Tribunal therefore considers that the grant of the second subclass 417 visa was based, in large part, on the incorrect information given in the visa application.
The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.
The circumstances in which the non-compliance occurred
The applicant gave evidence that the incorrect information was provided because she did not believe she would be able to find regional work during the COVID pandemic, had secured a good job with a lot of work, did not want to return to Ireland, her partner had the possibility of being sponsored for a visa, she panicked, and so used the services of someone known to obtain visas for people who had not completed regional specified work. She gave evidence at hearing that she was aware at the time it was the wrong thing to do.
The Tribunal considers that the applicant’s circumstances do not reasonably explain or excuse her seeking out and relying upon a third party to lodge a visa application, using incorrect information, for a visa she did not meet the criteria for.
The Tribunal considers the circumstances in which the non-compliance occurred weigh in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant gave evidence that she is in a relationship with an Irish citizen who is likely to gain a two year temporary visa in Australia. She is also employed in the traffic control sector and is a valued employee.
The Tribunal accepts that the applicant’s current circumstances show a level of establishment in, and connection to, Australia. The cancellation of her visa will be disruptive to her current circumstances. The Tribunal gives this factor some weight against the cancellation of his 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
There is no adverse information before the Tribunal regarding the applicant's subsequent behaviour concerning her obligations. This factor weighs against the cancellation of her visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of any other instances of non-compliance by the applicant. The Tribunal gives this factor weight against the cancellation of her visa.
The time that has elapsed since the non-compliance
It has been almost 16 months since the non-compliance. The Tribunal does not consider this to be a significant amount of time and accordingly considers this factor neutrally.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence or indication before the Tribunal that the applicant has breached the law in Australia since the non-compliance was determined. The Tribunal gives this factor weight against the cancellation of her visa.
Any contribution made by the holder to the community
The applicant gave evidence that she has applied to be a volunteer visitor at aged care centres.
While her efforts have not been extensive the Tribunal accepts that the applicant is attempting to make some contribution to the community and gives this factor some weight against the cancellation of her visa.
Whether there would be consequential cancellations under s.140
There is no evidence of any persons in Australia whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention
The Tribunal notes that the cancellation of the applicant’s visa could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 if he chooses to remain in Australia without a valid visa. She may also face difficulties in being granted further visas in Australia and could be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion (PIC 4013).
While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if her visa is cancelled, she has benefited from holding a visa with respect to which she did not meet the central requirements.
The Tribunal acknowledges the difficulty the legal consequences of the visa cancellation will and may cause the applicant but they are intended consequences. The Tribunal does not view them as unduly harsh or otherwise concerning in the circumstances. The Tribunal does not view the mandatory consequences as a factor that weighs against the cancellation of the applicant’s visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is nothing to suggest that Australia's international obligations would be breached as a result of the cancellation. The Tribunal therefore views this factor neutrally.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member
The applicant has presented evidence of wanting to stay in Australia to continue to work and be with her partner who is applying for a two year visa.
The Tribunal accepts it will be emotionally hard upon the applicant and her partner and disruptive to their lives for her visa to be cancelled and to possibly be required to depart Australia. The Tribunal accepts that the applicant and her partner will have a difficult decision to make regarding whether or not her partner departs or remains in Australia.
The Tribunal also accepts that it will cause hardship to the applicant’s employer to lose the valued services of the applicant. Similarly it will be difficult for her partner’s employer if he also decides to depart Australia.
The applicant stated that she has no support in Ireland and does not have a good relationship with her family there. She believes she has no good work prospects in Ireland. She also stated that COVID levels are high in Ireland
Given the hardships identified the Tribunal gives this factor weight against the cancellation of the applicant’s visa.
Conclusion on the exercise of the discretion
The Tribunal has considered the totality of the applicant's circumstances.
The Tribunal acknowledges that cancellation of the applicant’s visa will result in disruption to her and her partner’s life, and some hardship for both of their employers. The Tribunal also accepts that restrictions imposed due to the COVID pandemic increased the difficulty for the applicant to find regional specified work. However problems meeting a central criteria for the grant of a visa do not justify falsifying information to unlawfully overcome a legal and purposeful requirement.
As found above there are factors in the applicant’s favour which weigh against the cancellation of her visa. However the Tribunal places greater weight on the fact that the decision to grant the visa was based upon incorrect answers to substantive and critical questions, and that the applicant was not entitled to the visa, having not met a central requirement for it. Despite her remorse her actions were deliberate with the intent to obtain a visa based upon false information.
The Tribunal places significant weight on the fact that the decision to grant the visa was based upon incorrect answers, and that the applicant was not entitled to the visa, having not met a central requirement for it. In the Tribunal's view, the fact that the decision was based on the incorrect answers and the circumstances of the non-compliance outweigh the other considerations.
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.
Melissa McAdam
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 111

11 January 2022

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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