Kim (Migration)

Kim (Migration) [2019] AATA 2879 (20 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Seonhwa Kim
CASE NUMBER:  1833245
DIBP REFERENCE(S):  BCC2018/2435039
MEMBER:Jennifer Cripps Watts
DATE:20 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 20 February 2019 at 2:41pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – incorrect answers in a previous working holiday visa application – specified work in regional Australia – impact on partner’s career aspirations in Australia – dismissal by regional employer – separation from partner – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 48, 97-105, 107-109, 140
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 Immigration (the delegate) to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant applied for the Subclass 457 visa, the cancellation of which is the subject of this matter, on 11 October 2017 on the basis of being a member of the family unit of the primary visa holder, Mr Nicolas Van de Walle. On 7 March 2018, the applicant was granted the 457 visa.
The Department received information indicating that the applicant may have provided incorrect information in a previous visa application, that was granted – a Subclass 417 Working Holiday visa. The applicant applied for the (second) Subclass 417 visa referred to on 28 March 2016 and it was granted about a week later, on 5 April 2016.
On 4 October 2018, the Department sent the applicant a letter of Notification of Intention to Consider Cancellation (NOICC) of the Subclass 457 visa, setting out the matters indicating non-compliance and inviting the applicant to comment or respond, which she did, through her representative. The delegate considered the response and documents provided and decided to cancel the applicant’s Subclass 457 visa on the basis that she had provided incorrect information in her March 2016 Working Holiday visa application.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should not be cancelled.
The applicant’s visa was cancelled on 12 November 2018 and she applied for review by the Tribunal on the same day. The applicant provided the Tribunal with a copy of the notification and delegate’s decision to cancel the visa.
The applicant appeared before the Tribunal on 5 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Mr Nicolas Van de Walle. At the request of the applicant, the Tribunal hearing was conducted with the assistance interpreters in the Korean and Spanish languages for the applicant and witness respectively.
The applicant was represented in relation to the review by her registered migration agent.
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.
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 by providing particulars of the alleged non-compliance.
When referring to the regional work requirement in the working holiday visa application, the Tribunal has described it as 13 weeks or three months. They are taken to be the same amount of time.
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:
Section 101:
Visa applications to be correct
A non-citizen must fill in his or her application form in such a way that:
(a)all questions on it are answered; and
(b)No incorrect answers are given.
The breach of s.101(b) relates to a Subclass 417 Working Holiday visa (the working holiday visa) that the applicant previously held that was granted on 5 April 2016 and ceased on 28 April 2017. Section 107A of the Act allows for cancellation of a current visa if there has been a non-compliance with a previous visa.
Section 107A:
Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non-compliances that:
(a)may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b)if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
By operation of s.99 of the Act:
Information is answer
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
The working holiday visa application (lodged by the applicant online and dated 28 March 2016) included the following questions and answers:
Q:Have you undertaken specified work in regional Australia for a total of 3 months?
A:       Yes
Q:       If Yes, in which industry did this mainly occur?
A:        Agriculture, Forestry and Fishing
Q:Do you have approved evidence that you have undertaken specified work in regional Australia for a total of 3 months?
A:        Yes
Q:       I declare that the information in this form is complete, correct and up-to-date.
A:        Yes
On 4 June 2018, the Department was advised by GR8 that they had not employed the applicant and the delegate was of the view that the applicant had fabricated information that she worked there for the period 6 July 2015 to 29 October 2015 to facilitate the grant of a Working Holiday (Subclass 417) visa.
The above matters were particularised in the s.107 notice. On 4 October 2018, the Department sent the applicant a NOICC of her Subclass 457 visa.
In the response to the NOICC from the applicant’s representative, it is stated that the applicant ‘does not dispute that there was non-compliance as reduced down in the NOICC.’ Essentially that information was that the applicant claimed to have worked for GR8 Pty Ltd (ABN 95122907199) from 6 July 2015 to 29 October 2015, in a regional area of Australia for 13 weeks to satisfy the requirement for the grant of the working holiday visa in 2016. On the basis of this information, at least in part, the working holiday visa was granted on 5 April 2016.
The applicant confirmed in her oral evidence at the hearing that she did not know the company GR8 and said that she had never worked for GR8. She said that while she was in Cairns in around February 2016 searching for farm jobs on the internet, she came across a post saying that it was possible to extend her working holiday visa for a second year by paying $850. She said that she received help from the person who made the post and that that person told her they would take care of the three months regional work requirement and lodge the application for her. The applicant was asked who the migration agent was and said she could not remember the person’s name, but said she sent paperwork to them, including a copy of her passport and paid the $850. The applicant said the method of contact was via Messenger. She said she never met the person who lodged the application face to face. The applicant said at the hearing that during the period July to October 2015, which in her working visa application indicated she had worked at GR8 in regional Queensland, she was actually living on the Gold Coast and working in retail, at Billabong.
On the basis of the information that has been provided by the applicant, in the written response to the NOICC and written submissions and oral evidence given at the hearing, the Tribunal is satisfied that the applicant provided incorrect answers in the working holiday visa application. On the evidence, it is not in dispute.
For these reasons, the Tribunal finds that there was non-compliance with s.101 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 to 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 applicant was informed at the beginning of the hearing that each of the r.2.41 prescribed circumstances would be considered by the Tribunal and also any other relevant facts and matters. The Tribunal has had regard to the documentary evidence the applicant provided and also to the oral evidence given by the applicant and witness at the hearing, and the oral submissions made by the representative at the end of the hearing.
The applicant was a co-operative witness, as was her partner Mr Van de Walle. They were both considered to have given credible evidence that was largely consistent when they were asked about the same matters. There was a short adjournment during the hearing. This was because about halfway through the hearing the applicant became visibly upset and she was offered a 10 minute adjournment, which was accepted.
The applicant says she is very remorseful for the trouble she has caused her partner because it may affect his career aspirations. Mr Van de Walle also wishes to apply for permanent residency in 2021 so they can build their future in Australia together. Both the applicant and her partner say that the applicant deserves a second chance. They both said that they have no other options if the visa is cancelled. The Tribunal, with respect, considers this claim to be overstated. It may be difficult, inconvenient, or even cause some level of hardship if the applicant’s visa was cancelled. However, the applicant and her partner have lived in Australia for about four years and are both educated and capable, with significant and valuable work experience between them and they both speak at least two languages. They both speak English. Just because one does not speak Spanish and the other does not speak Korean does not convince the Tribunal that they have no options other than to live in Australia. They could, for example, live in another country where English is the first language if they were able to be granted visas to do so.
The applicant’s representative provided written and oral submissions saying, essentially, that the applicant is deeply remorseful and, looking back, she knows it was a stupid decision to make, but that at the time of non-compliance she had only been in Australia for less than a year. She said that the applicant is devastated.
The Tribunal has sympathy for the position the applicant is in, and even though she was able to competently participate in the hearing, she was undoubtedly and visibly very upset at times. She said that she knows that Mr Van de Walle dreams about his career, that he has been working hard to stay in Australia and that she is sad that ‘history has been broken’ because of her situation.
The Tribunal has taken these matters into account when considering the discretion. The Tribunal has also taken into account that had the incorrect information not been provided – and the correct information had been – relating to the regional work requirement, the working holiday visa would not have been granted in 2016.
The correct information
The applicant was asked at the hearing what the correct information was relating to her work in a regional area at the relevant time when she was lodging the working holiday visa application. She said she did not work in a regional area during the period July to October 2015 as she had indicated in her application. She was asked, if she had provided the correct information at the time of application for the working holiday visa, would that information have been that she had not worked for three months in a regional area. The applicant said that was correct – she worked for about five, not 13, weeks in a regional area. As mentioned earlier, the applicant does not dispute that she did not work at GR8 Pty Ltd or that the breach occurred.
The correct information is that the applicant was not employed at GR8 Pty Ltd from July to October 2015, for 13 weeks, as indicated on her working holiday visa application.
The content of the genuine document (if any)
This is not a relevant consideration in the circumstances of this case.
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
One of the requirements for the grant of a working holiday visa is that the applicant has worked for a total of 13 weeks/three months in a regional area. On the evidence, the applicant worked in a regional area for about five weeks in January and February 2016. She did not provide this ‘correct’ information, but provided ‘incorrect’ information indicating she had worked for three months in 2015, which she hadn’t.
The applicant provided bank statements showing salary payments during the January/February 2016 period from farms in Innisfail. The Tribunal accepts the applicant worked during January and February 2016 for about five weeks in a regional area.
The Tribunal finds that the decision to grant the working holiday visa was made, at least in part, on incorrect information relating to the applicant’s employment in regional Australia. The requirements for the grant of a second working holiday visa for people who are 18-30 years of age is granted, essentially, on the basis that the applicant has a passport from an eligible country and that they must have completed three months of specified work (in a regional area) while holding the first Subclass 417 visa.
It is the Tribunal’s view that if the applicant had not included the information that she had worked for three months in regional Australia, she would in all likelihood not have been granted the visa. This is a significant matter that does not weigh in favour of not cancelling the visa. It is difficult to see how the visa would have been granted without the incorrect information, that is, if the applicant had said in her working holiday visa application that she had only worked for five weeks.
The circumstances in which the non-compliance occurred
The applicant decided she wanted to apply for a second working holiday visa that requires 13 weeks work in a regional area. She departed the Gold Coast for Innisfail in early January 2016, with the intention of working for the last 13 or so weeks of her first working holiday visa, which was due to cease on 5 April 2016. The Tribunal has consulted a calendar and can see that from 6 January 2016 (when the applicant planned to and did commence doing regional work) to 5 April 2016 (when her visas ceased) is three months, or 13 weeks.
Reasons have been provided by the applicant as to why she knowingly provided incorrect information in her working holiday visa application. They include, relevantly, that after claiming to have been unfairly dismissed from three farm jobs in the Innisfail area over a period of about five weeks in January and February 2016, and claiming that the hostel she was staying at provided her with misinformation about having to work at the same farm for the entire 13 weeks, and the hostel asking her to leave, the applicant was desperate and felt she had no choice but to provide the incorrect information in the visa application about having worked for 13 weeks in regional Australia because she wanted to stay in Australia. She had by then, around the same time, met her partner, Mr Van de Walle. He was also in Innisfail fruit picking. Both the applicant and Mr Van de Walle gave oral evidence at the hearing that they were aware the applicant had not worked for three months in a regional area and that both knew she provided incorrect information in the working holiday visa application.
The Tribunal has had regard to the evidence and is not convinced the applicant had no choice other than to provide incorrect information in her visa application if she wanted to remain residing in Australia on a temporary visa. She could, for example, have travelled offshore and lodged a valid visa application for whatever visa she felt she satisfied the criteria for at that time. There appears to be no reason why she could not have applied for a student visa, for example. It is relevant that the applicant did apply for, and was granted, a student visa after the working holiday visa ceased in 2017, a year later. She could have done this when her first working holiday visa was still valid, but instead chose – as the Tribunal does not accept that she had no other option – to lodge another working holiday visa providing incorrect information to obtain the visa and thereby benefitting from the grant of that visa.

The applicant’s plan to work in a regional area before applying for the working holiday visa started when she left the Gold Coast, where she had been living and working at Billabong in retail, at the beginning of 2016 and travelled to Innisfail to complete 13 weeks of work in a regional area. She commenced work on 6 January 2016. Documentary evidence, referring specifically to her Commonwealth Bank statements during the relevant period in January and February 2016, supports that the applicant worked for three different farms during the 12 months she held her first 417 visa, Nerada, Cane Growers and Fiorito. Salary payments can be seen going into the applicant’s account from 6 January 2016 to 11 February 2016, indicating she worked in regional Australia for about five weeks during that period.
From 6 January 2016, when the applicant commenced farm work in Innisfail, to 5 April 2016, is 13 weeks. 5 April 2016 is the date on which the applicant’s first working holiday visa ceased. This indicates to the Tribunal that the applicant was aware that she had 13 consecutive weeks that she needed to work in a regional area or she would not be able to satisfy the criteria for the grant of a second working holiday visa. Put simply, unless she worked all the weeks from 6 January 2016 to the date he first visa ceased, the applicant would not have had enough time to complete the requirement.
The applicant has said that when she was experiencing trouble with being dismissed from various farm jobs, she was told by the hostel that she had to work 13 consecutive weeks at the same farm. She says she was misinformed by the hostel. This may be the case, although no verifiable evidence has been provided. The Tribunal accepts that she may have been told this. The applicant says that she was ignorant of the requirements relating to the regional work and that she felt helpless and vulnerable when her first working holiday visa was going to expire (on 5 April 2016). However, it was open to her to obtain and rely on whatever information she chose to relating to her work requirements. The applicant has provided references from friends who were in Australia holding working holiday visas, for example, or she could have sought migration advice. The applicant says the last day she worked for Cane Growers was 9 February 2016, when she was dismissed. Unfortunately for the applicant, she had left the timeframe within which she could complete 13 weeks of regional work until she had no more than 13 weeks left on her visa by commencing the regional work on 6 January 2016. Even a few days, for example, between being dismissed and travelling to Cairns to look for more work may have potentially eroded the limited time she had left to satisfy the 13 weeks requirement. The Tribunal’s view is that it became apparent to her that she could not satisfy the 13 weeks because she could not work for 13 consecutive weeks up to 5 April 2016.
The Tribunal is not convinced that the applicant could not have availed herself of reliable migration advice regarding her visa situation either before she left the Gold Coast or while she was in Innisfail. She could have and should have done so if she wanted to apply for a second working holiday visa, ensuring she complied with the conditions of the visa.
The applicant has provided press articles about mistreatment of backpackers and poor work conditions. They have been considered. The Tribunal is willing to accept that backpackers are sometimes mistreated and exploited. It is in the news from time to time. However, this does not, in the Tribunal’s view, justify the applicant providing incorrect information in a visa application. If the applicant felt she personally was mistreated, this also did not, in the Tribunal’s view, entitle her to provide incorrect information in a visa application.
The applicant has provided supporting statements from friends who say she worked hard and it was unfair that she was dismissed from the three farm jobs with Nerada, Cane Growers and Fiorito. These statements have been considered. There is no reason to doubt the applicant worked hard during the five weeks she was in Innisfail in January/February 2016. The Tribunal is prepared to accept that the applicant worked hard and that she and her friends held the view that it was unfair that she was dismissed from her employment in Innisfail in January and February 2016.
It is accepted, as the applicant claims, that after being dismissed in February 2016, she went to Cairns and that while she was there she looked for work but was unsuccessful. While looking for jobs, the applicant says she came across a post from a person she describes as a migration agent offering help with working holiday visa applications for $850. The applicant said she could not remember the migration agent’s name, but said she ‘blindly trusted’ the person and gave him the documents and paid him the $850 to lodge the working holiday visa application. It is the Tribunal’s view that the applicant was aware at this time that the agent she was entrusting the application to was most likely going to provide incorrect information about her working in a regional area.
The applicant said that she decided she had no option but to provide incorrect information in her working visa application so she could continue to reside in Australia. She was asked what options she considered in early 2016 (in reaching this conclusion) when she realised she probably could not meet the visa requirements relating to regional work. She said the only two options she had were to leave Australia or apply for the visa in the way she did. She indicated she did not consider leaving Australia to be a real option. In short, the applicant appears to have convinced herself she had no option, without having genuinely considered any other ways to obtain another visa.
At the time (in early 2016) she said that she had been in a relationship with Mr Van de Walle for about two months and they both wanted to stay in Australia and build a future together. Mr Van de Walle also said they considered the applicant providing the incorrect information about working for 13 weeks in regional Australia to obtain another working holiday visa was the only way they could be together. As stated earlier, the Tribunal considers this claim to be without merit. Even with a short or temporary separation while the applicant travelled offshore to lodge a visa application, they could eventually have still been together.
The Tribunal does not accept these matters as being a satisfactory reason for providing incorrect information in a visa application. It was not the only way the applicant and her partner could be together. The applicant wanted to stay living in Australia and was prepared to provide incorrect information in her working holiday visa application. It was information that, wholly or partly, was the reason the visa was granted.
The applicant was asked if she consulted with anyone else about her plans regarding the working holiday visa application in early 2016 (and the provision of incorrect information) and she said she talked to her best friend in Korea who was worried about it because ‘it was risky’. The Tribunal is satisfied that the applicant was aware that applying for a visa in this way was risky, in terms of the possible consequences of it being discovered, and that the applicant was willing to take that risk.
It is accepted that the applicant admits the breach and that she provided incorrect information in the working holiday visa application. However, the Tribunal’s view is that she did so knowingly, in wilful disregard of Australia’s migration laws and regulations, seeking to benefit from providing inaccurate and untruthful information in her working holiday visa application.
It is accepted that the applicant is remorseful now. But the fact remains that if the applicant had provided correct information in her application, the visa would almost certainly not have been granted. The circumstances in which the non-compliance occurred, including being sacked from jobs in Innisfail, not wanting to leave Australia and feeling that she had no other option but to provide incorrect information so she could stay with her partner who she had only been in a relationship for two months and who was also a temporary visa holder, are not accepted as justifying the non-compliance.
The present circumstances of the visa holder
The applicant has been in a relationship with Mr Van de Walle for about three years now, on the evidence. This is accepted. Mr Van de Walle holds a Subclass 457 temporary visa that is valid until 2021. A few months after the applicant’s working holiday visa was granted in April 2016, they moved to Sydney together where they continue to reside. Mr Van de Walle works for SICE on the Westconnex project and has provided many references from work colleagues and superiors attesting to his value as an employee. The Tribunal accepts he works there and that he is highly regarded by some of his co-workers and superiors. The applicant has had a variety of jobs and currently works for an advertising firm. Many references from a current employer and past employers have been provided and the Tribunal accepts that the applicant has been and is employed and that she was and is a valued employee.
The applicant says that she and Mr Van de Walle cannot live anywhere other than Australia. She says she is deeply remorseful for her actions (relating to the incorrect information in the working visa application) resulting in them being in such a bad situation because it will adversely affect Mr Van de Walle’s career. Both the applicant and Mr Van de Walle said they feel they deserve a second chance.
The applicant claims that it is mainly because of language issues that they cannot live in each other’s home countries. This is because she says that neither speaks the other’s first language – Spanish and Korean. Both the applicant and Mr Van de Walle speak English which seems to indicate that they could, if they feel they need to live in an English speaking country, live in an English speaking country other than Australia. Mr Van de Walle gave evidence at the hearing that his company has offices in, for example, New Zealand and the USA. While he was not asked to provide evidence as to whether he had looked into possible transfer within the company, it is not unreasonable to think that he may be able to look into it if he needs or wants to.
The Tribunal received no evidence as to why, if they wanted to, either one could not learn the other’s language. The Tribunal does not accept that the applicants could not live the other’s country of origin if they wanted or needed to. It is accepted that they would prefer to live in Australia and that having to live in another country may cause them some level of inconvenience or hardship. However, the Tribunal does not consider it to be significant in the circumstances. That is, the Tribunal’s view is that the applicant and her partner could make other arrangements if they were motivated to do so.
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 information before the Tribunal that indicates the applicant has demonstrated any behaviour of concern.
Any other instances of non-compliance by the visa holder known to the Minister
There is no information before the Tribunal that the applicant has otherwise been non-compliant with visa conditions since the incorrect answers were given in her working holiday application in 2016. Evidence was provided that as soon as the applicant knew her visa would be cancelled in late 2018, she quit the job she had at that time to ensure she would be compliant with her visa conditions and did not recommence work until she had regained work rights on her current bridging visa. This is accepted.
The time that has elapsed since the non-compliance
The non-compliance occurred around three years ago. At the time the applicant and Mr Van de Walle were both working holiday visa holders. They have now spent three more years living in Australia where the applicant has benefited significantly from the grant of the working holiday visa. In March 2018, they were granted Subclass 457 visas (the applicant as a dependant of Mr Van de Walle). The applicant and her partner have both gone on since then to work in good jobs where they have both gained valuable experience and obtained many positive work references. The Tribunal does not, in the circumstances, consider three years to be a significant amount of time.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal that the applicant has breached any laws since the non-compliance.
Any contribution made by the holder to the community
The applicant has provided evidence that in the course of her work she has had clients working in areas that contribute to the community and that did charity work. Some references from former clients were provided confirming this. The applicant provided evidence that around the time she received the NOICC of her visa, she commenced volunteering as a yoga instructor for people with substance abuse problems and emotional or behavioural disorders, at Mood Active. A letter from Mood Active was provided and the Tribunal accepts that since around October 2018 the applicant has given yoga classes there, for about three or four months. The applicant says she intends to contribute to conversations online to educate and inform about the consequences of provide incorrect information in visa applications. The applicant made this claim in her NOICC response and has not yet started to do this. If she genuinely intended to do so, the Tribunal thinks she may have already commenced contributing to any online forums. She confirmed in her oral evidence that she has not started but intends to. As she has not started, the Tribunal can give no positive weight to this being a contribution to the community. The Tribunal gives minimal weight in favour of not cancelling the visa on the basis that the applicant does volunteer yoga work for a charitable organisation.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in r.2.41 where they are relevant or applicable in this case.
In addition to the prescribed matters in r.2.41, the Tribunal has had regard to matters under policy include the following.
Mandatory legal consequences
The Tribunal has considered whether cancellation would result in the applicant being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without Ministerial intervention.
Cancellation may result in the applicant being detained and removed from Australia if she did not depart under any conditions that may be imposed on her bridging visa. The applicant may be subject to s.48 of the Act which may prevent her from applying for further visas while in Australia.
The applicant may be affected by Public Interest Criterion 4013 which may limit the granting of a further temporary visa for a specified period.
Subdivision C of Division 3 of Part 2 of the Act was intended, among other things, to prevent non-citizens from benefiting from the failure to disclose or provide accurate and truthful information in a visa application. It places an onus on non-citizens to provide accurate information and to correct inaccurate information in relation to visa applications. Relevant in this case is that when a visa applicant fills in an application they must answer all questions and must give no incorrect answers. The applicant did provide incorrect answers and the Tribunal’s view is that the applicant has benefitted, significantly, from providing the incorrect answers. She was granted two more visas, a student visa and a Subclass 457 visa (dependant), and has had the benefit of residing in Australia since 2016, which is a country where she says she prefers to live.
While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if her visa is cancelled, she has benefited from providing the incorrect information in her working holiday visa application and would not have been granted that visa in 2016 if she had provided correct or accurate information about satisfying the work requirement.
Consequential cancellations under s.140
There would be no consequential cancellations under s.140 of the Act.
Breach of international obligations as a result of cancellation
There is no information before the Tribunal that indicates that cancellation of the visa would result in any breach of Australia’s international obligations.
Other relevant matters
The applicant and her partner, who gave evidence that they have been together as a couple for three years, said that they are planning a future together, including marriage and children, and that Mr Van de Walle plans to apply for permanent residency. Evidence has been provided from his employer indicating that the company he currently works for would support him applying for a Subclass 186 visa. Mr Nuno Pancorbo, OMCS M4E Westconnex Project Manager, in a letter dated 21 January 2019, says Mr Van de Walle and the applicant are planning to get married and have a family soon. He says that Mr Van de Walle has expressed an interest in applying for a Subclass 186 permanent visa once he meets the requirements, in 2021, and given his current performance it is expected that the company will express the intent to sponsor him.
The Tribunal has considered the desire of Mr Van de Walle to apply for permanent residency in about two to two and a half years and accepts that it is his wish and, at the time of this decision, that he intends for the applicant to be included in the application. However, it is quite a way into the future and it is considered by the Tribunal to be speculative at the time of this decision as to whether or not they will follow through with this plan and, if they do, whether the applicant will be sponsored by his current company and, if they do sponsor him, whether the permanent visa will be granted. Mr Van de Walle currently has no guaranteed pathway to permanent residency or any permanent visa applications on foot. Nor does the applicant. It is acknowledged that cancellation of the applicant’s visa may make it difficult for the plan to be realised in the easiest manner possible or at all, given that there would likely be a bar against the applicant applying for another visa for three years and she would in all likelihood be living offshore until such time as the bar was lifted.
The Tribunal gives some weight to Mr Van de Walle’s desire (and the applicant as his dependant) to pursue permanent residency in 2021 in favour of not cancelling the applicant’s visa.
The Tribunal was taken to what was submitted to be an earlier Tribunal decision with a similar set of circumstances. It has been considered. There are some similarities. There are also some significant differences. The Tribunal is not bound by earlier or other Tribunal decisions and does not therefore consider the decision to be relevant to this matter.
The Tribunal has decided that there was non-compliance by the applicant in the way described and particularised in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, considering all the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Jennifer Cripps Watts
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.

[2019] AATA 2879

20 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice