Knipe (Migration)

Knipe (Migration) [2021] AATA 5430 (7 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Rachel Knipe
CASE NUMBER:  2107489
HOME AFFAIRS REFERENCE(S):          BCC2020/2294446
MEMBER:Alan McMurran
DATE:7 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 07 December 2021 at 11:58am

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 false information – applicant did not undertake specified regional work in Australia –applicant is a qualified professional in the healthcare industry – has made a considerable contribution to Australian adults and children with disabilities – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 8 June 2021 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s second Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).
On 1 June 2021, the delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act, by providing incorrect information in relation to a second Subclass TZ 417 Working Holiday (extension) visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 2 December 2021 to give evidence and present arguments. The applicant was unrepresented and unassisted. The hearing was conducted virtually by MS Teams video, in accordance with the Tribunal’s COVID-19 Practice Direction and protocol, and to assist the Tribunal to meet its statutory objective of providing a mechanism of review which is fair, just, economical, informal, and quick. The applicant indicated that she did not object to the format for the hearing to proceed virtually, and when asked, did not seek an adjournment.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Regulatory framework
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 (“notice”), 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.
Consideration of cancellation follows once a valid notice exists. Extracts of the Act referred to in this decision and relevant to this case are attached to this decision. In particular, s.109 provides:
109        Cancellation 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.
S. 109(2) provides that 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. Currently, there are no prescribed circumstances declared by the Regulations to be circumstances in which a visa must be cancelled.
There are, however, 10 prescribed circumstances[1] which apply in considering cancellation under s.109, and which must be considered, and which are set out below.
[1] r.2.41
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.
The Tribunal has available for consideration the Department’s file[2], the s.107 notice of intention to consider cancellation (NOICC), the s.109 notice of cancellation, the applicant’s visa history and movement record, and the Tribunal’s file. The Tribunal file contains multiple submissions from the applicant which include letters of support, letters from the applicant’s employment, NDIS authorisations, CV with full work history, current employment details and contract, personal submission statement, skills assessment, and other documents. The Tribunal has also access to Department Policy and relevant internet and media content, as well as the oral evidence from the applicant at hearing.
[2] BCC 2020/2294446
The Tribunal explained the Tribunal’s role and the process of review and again asked if the applicant required any further time to submit information, which the applicant declined.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is firstly to consider whether there was non-compliance in the way described in the s.107 notice, as particularised, and if so, secondly, whether the visa should be cancelled.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
·the applicant provided incorrect answers concerning having undertaken 3 months of specified work;
·the details of the work(employment activity) undertaken;
·and in answering affirmatively the declaration that the applicant has completed 3 months of specified work.
The notice specified the following:
Information provided in your visa application
On 1 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 ‘Has the applicant undertaken 3 months of specified work as the holder of a 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: AAG Labour Services PTY LTD
Trading name: AAG Labour Services PTY LTD
Australian Business Number (ABN): 21126217294
Employer business address
Address: Lot 1, Fouracres Road
Suburb / Town: Scotts River East
State / Territory Western Australia
Postcode: 6275
Work conditions
Employment type: Direct employment
Industry type: Agriculture, forestry and fishing
Industry type sub-group: Plant and animal cultivation
Description of duties I was a dairy farm hand. I assisted in
milking 1400 cows twice a day. I also fed
cattle, mustered cattle and reared calves
while on the farm.
Date from: 2 Mar 2020
Date to: 5 Jul 2020
Total days worked: 90 days
Under the heading ‘Working holiday declarations’, in response to the question ‘Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa’, you answered ‘Yes’.
The notice then states:
The Department initiated employment verification checks with AAG Labour Services PTY LTD, the business registered under ABN 21126217294, to verify your employment claims. On 8 September 2020, AAG Labour Services PTY LTD contacted the Department and advised that you never worked at their business.
The notice set out the delegate’s concerns on non-compliance with s.101(b) as follows:
I consider that you provided incorrect information in your application for a Working Holiday
(Extension) visa when you:
● answered ‘Yes’ to the question ‘Has the applicant undertaken 3 months of specified
work as the holder of a first Working Holiday visa (subclass 417)?’;
● provided details of claimed employment with AAG Labour Services PTY LTD, at the
section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Are applying for their second Working Holiday visa
(subclass 417) and have completed 3 months of specified work as the holder of a first
working holiday visa’.
I consider the above information is incorrect, as verification checks undertaken by the
Department have concluded that you never worked at the business, AAG Labour Services
PTY LTD. Therefore you have not undertaken three months specified work in regional
Australia.
Based on the above information, it appears you provided incorrect answers in support of
your Working Holiday (Extension) visa application. I 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.
The notice then invites the applicant to respond to the Department within 14 calendar days and sets out the requirements of r.2.41 which must be considered. The applicant did not respond to the notice and told the Tribunal that she did not do so as she had received advice from a migration agent not to respond to the notice, but to prepare to leave Australia.
At the hearing, the Tribunal asked the applicant questions about the above contents of the notice, whether she understood its significance, and whether the particulars were correct. The applicant confirmed she had read and understood the contents of the notice, that she had never worked for the employer as stated, and that the information provided in the application about employment was not correct.
The Tribunal asked the applicant how she came to lodge the application for the extension. The applicant gave short evidence about her history in Australia. She said she arrived on 4 September 2019 in Melbourne with 2 friends, and then spent several weeks holidaying and travelling up the East coast. On return to Melbourne, the applicant applied for accreditation as an Occupational Therapist through the Australian Allied Health Professionals Regulation Authority (AHPRA). As it took some weeks for the accreditation to come through after lodgment of her documentary evidence, she sought temporary work in hospitality. Once registered, in about January 2020, the applicant was able to seek employment as an occupational therapist. She said that happened very quickly. She was employed by Spot4you and Spot4kids providing health and family support services for the NDIS scheme for both adults and children, wherein she has a paediatric specialty. She was aware in January 2020 of the need to complete 3 months working in a specified occupation in a regional area, and which her employer agreed to support, anticipating she would continue employment with them on return from completing her regional employment requirement. The applicant explained by February 2020, following the arrival of the pandemic, opportunities for regional work were minimal. She said she spent considerable time applying for regional positions and making enquiries in that regard, only to be told that regional employers were concerned not to engage overseas tourists who had been in the city, for fear of spreading COVID. She said she engaged with the local Irish community who were also unable to assist in locating regional employment. She said a message appeared in her Facebook profile from a person offering to ‘assist’ persons having difficulties meeting their visa requirement, and by making application on their behalf. She said she assumed the person was a migration agent and responded. She then provided an email with all her personal information and agreed to payment of a sum of $1500 in total for the “agent” to make application for her. She said she knew at that time she had not completed her regional work commitment and was unable to do so because of COVID restrictions including the Melbourne lockdown. She said her friends had returned to Ireland, but she intended to remain in Australia to continue working. She said she did not really think about what she was doing consciously, other than in anticipation of being assisted to obtain the visa. She said she now realises it was a mistake on her part which she deeply regrets.
The Tribunal asked whether she saw the application before it was lodged. She said she did not. The applicant was candid and forthcoming in respect of her admissions concerning the non-compliance, for which she apologised and said she now sincerely regrets. The applicant when asked did not dispute any of the contents of the s.107 notice or the facts upon which it relied.
For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the 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.
As the applicant had not responded to the notice, the Tribunal has considered the submissions and documentary information provided by the applicant and her oral evidence. The Tribunal has also taken into account other, non-mandatory, considerations as outlined below. Where the Tribunal has not specifically mentioned one of the multiple documents submitted, that does not mean it has not been considered and generally that such information is either uncontroversial, of a general nature and accepted by the Tribunal. In that regard, the Tribunal notes the personal references as to the applicant’s good character and her work skills, which are accepted.
It is also relevant to note that in this case, no mandatory cancellations would follow under s.140, no children are involved or affected by a cancellation decision, there would be no removal in breach of Australia's non-refoulement or family unity obligations, and no mandatory detention would follow for the applicant as a consequence, so long as the applicant complied with any arrangements with the Department for her departure.
The Tribunal, in considering whether the visa should be cancelled, was initially focussed on the mandatory considerations which it dealt with as follows:
2.41 (a)
The Tribunal put to the applicant that the correct information is that the applicant had not worked on a dairy farm for the required 3 months in regional Australia, as claimed in the visa extension application. The applicant agreed. The applicant said in response that her grandfather had settled in Australia as a farmer, that she had some rural background herself in Ireland, loved farm work and would have taken that opportunity but for COVID. The Tribunal places some weight on this consideration that the visa should be cancelled, as the applicant was aware she had not completed the work as stated and the information was not correct.
2.41 (b)
This is not a case involving the content of a genuine document or provision of a bogus document. The Tribunal places no weight upon this consideration.
2.41 (c)
The Tribunal finds it is satisfied that the decision to grant the Working Holiday (Extension) Subclass 417 visa was based, wholly or partly, on incorrect information, provided for and on behalf of the applicant and as conceded by the applicant as set out above. The applicant agreed at the hearing that she understood the incorrect information was the basis upon which the extension visa was approved by the Department. The Tribunal places considerable weight on this finding, that the visa should be cancelled.
2.41 (d)
The Tribunal explored the circumstances of the non-compliance at hearing with the applicant. The Tribunal found the applicant gave her answers honestly and truthfully concerning those circumstances. The Tribunal asked questions as to how and why she chose to use an anonymous person who she assumed was an “agent” without further inquiry. The applicant said she was not influenced by any other friends on social media in making her decision to use the agent and had not been looking for someone who might act on her behalf. She said she was trying via the internet to find suitable and available farm work outside Melbourne, which was all but impossible because of the pandemic restrictions. She said an email had arrived via her Facebook page, unsolicited, and offering to assist to obtain the visa. She said in hindsight it was a serious error of judgment on her part for which she is truly regretful but said at the time she recalls she was “desperate” to find work to meet the condition but could not do so.
In a lengthy written submission to the Tribunal, the applicant explains (in part):
”I would like to sincerely apologise for my non-compliance regarding the circumstances in which my visa was cancelled. This was a significant error on my behalf and was a panic response because of the circumstances I found myself in. I am truly sorry and have deep regret for what has happened.
The applicant continued:
My initial plan was to work to secure my skills assessment as an Occupational Therapist and then leave Melbourne to complete my regional farm work around April of 2020, allowing me enough time to complete my regional work and apply for my second year. I commenced a job with Spot4you, Spot4kids on the 13th of January 2020.
On the 27th of February 2020, Australia declared that coronavirus had become a national pandemic and shortly thereafter much of Victoria went into lockdown for a total of 243 days. I felt returning to the UK or Ireland was not a possibility for me, the situation there was much worse with cases rising and deaths increasing. Remaining in Australia seemed to be a wise and safer decision than returning home, I was worried for my health and the risk I posed to my family if I did travel back. I was not in a position financially to leave, due to a reduction in my income because of the pandemic and the increasing cost of flights at that time. In many ways, these circumstances were beyond my control, and I had extremely limited options. In truth, I was scared of what was happening in the world and the thought of travelling all that way filled me with dread. I made the decision that I would make every effort to remain safe in Australia until things improved. I was concerned that I was running out of time to complete my regional work and began searching for a farm to go to in March, I searched online, through Facebook groups and reached out to people for recommendations as I had heard some negative reviews from others about their farm work experience. As the friend I travelled to Australia with left, I was alone and knew I would need to complete my farm work on my own, so I wanted to secure a place that had positive reviews. My searches did not yield any results, people living in regional Victoria and working on farms were afraid to hire workers from the city given the outbreak of Covid-19, the situation in Victoria was getting worse, and the area I was living in which was St Kilda had introduced a curfew of 9pm and a 5km restriction on travel. I was afraid to leave. I started to lose hope, until I came across a Facebook post recommending someone who I believed to be a migration agent. I reached out over email and he advised me that I would be able to secure a second year Working Holiday Visa through sources I believed at that time to legitimate. I had told him my background and he assured me that he could help. I now realise it was an extremely poor decision and I should have researched this more. I understand the extent of the false information which was lodged on my behalf. However, I was not informed fully of what was involved in the process.”

The statement goes on to acknowledge the seriousness of the action she took for authorising someone to provide false information, the applicant’s personal shame and that of her family as a consequence, and her genuine regret. She also explains her work experience and submissions about her contribution to date, which is referred to below. The Tribunal places some weight on the submission that the visa should not be cancelled.
2.41 (e)
The Tribunal discussed the applicant’s present circumstances and her current employment and what will happen if she returns home.
The applicant made a lengthy submission for the hearing supporting her current employment circumstances. The submission says in part:
“ I am writing this letter in support of my application [1] my application to remain living and working as an occupational therapist in Australia with Everyday Independence and as a home support assessor within the regional assessment service for Yelad Labour and administration services T/as Allied Assessment Services.
According to the Allied Health Professions Australia: “ Occupational therapists focus on promoting health and wellbeing by enabling people to participate in the everyday occupations of life, such as self-care activities including showering, dressing, preparing food; productive activities such as education, work, volunteering and caring for others; and leisure/social activities, such as being part of a community group, engaging in a hobby, and being part of a friendship group. Occupational therapists play a particularly crucial role in enabling people experiencing disabilities to identify and implement methods that support their participation in occupations. This may include modifying an activity or an environment”. [1]
Occupational therapy is the fastest-growing field within allied health in Australia. [2] Despite this growth there is a national shortage of qualified occupational therapists and the profession remains on the skilled shortage list [3]. The need for therapists has significantly increased due to the Covid-19 pandemic, the rollout of the National Disability Insurance Scheme (NDIS) and the increased demand for the Commonwealth Home Support Programme (CHSP) services. Occupational therapists are regarded as critical care workers as they maintain the supply of essential services to Australians [4]. In attempts to meet the increasing demand during the pandemic, the government introduced a sub-register in April 2020 to help fast track the return of experienced and qualified occupational therapists to the workforce [5].”
The Tribunal accepts the applicant is a qualified professional in the healthcare industry and that there is a skill shortage. The applicant is fully able to support herself, has a good income and long-term career prospects in the occupation. This is so, whether the applicant were to remain in Australia or return home. The applicant confirmed she believes she would have no difficulty resuming her employment in Scotland. The applicant has no family ties in Australia, no partner commitments, and there is no obvious reason why her departure would impact any other individual.
The applicant’s current employer, Everyday Independence, has provided a letter of support for the applicant to the Tribunal. That letter says in part:
“Rachel began with the team on the 3rd of November and works predominately within the Early Childhood Intervention (ECI) space with children between the ages of 0 – 7. These participants and families must have an occupational therapist with a great degree of knowledge and experience to support them on their journey. It is at this stage of development that families start to have concerns about their child’s development and seek support and reassurance from health care professionals in helping them come to terms with their diagnosis and identifying possibilities for the future. Rachel has a broad range of experience and I have witnessed first-hand her positive and calm approach with families and children. An important part of our role as therapists is to develop rapport with young children and their families and make intervention a fun and engaging experience for all those involved and this is what Rachel provides to them. She is diligent and hard-working and has adapted quickly to her new role.”
The Tribunal places some considerable weight on these considerations that the visa should not be cancelled. The applicant is not reliant in any way on the Australian community and is financially independent, resourceful, and currently working in critical care.
2.41 (f)
The applicant did not communicate with the Department. The only attempt made to inquire about options for her visa status was with a licenced agent who advised her not to communicate and to prepare to leave. The applicant has now engaged with the Tribunal and provided explanations and attended the hearing. The applicant has candidly admitted the incorrect information provided and has been consistent as to the circumstances arising and how it occurred and has presented her submissions and evidence openly and without equivocation. The Tribunal gives some weight to this consideration that, nonetheless, the visa should be cancelled.
2.41 (g)
There is no information before the Tribunal of any other concerns arising as to the behaviour of the applicant since the lodgment of the application with the incorrect information in August 2020. The Tribunal has no information of any other non-compliance by the applicant. The Tribunal gives some weight to this consideration that the visa should not be cancelled.
2.41 (h)
The applicant was granted the second Working Holiday ( Extension) visa on 1 August 2020 and 15 months has elapsed since the non-compliance by the applicant. The Tribunal considers the lapse of time as relatively recent and given that the applicant has been on notice since the NOICC on 10 May 2021, and later on 1 June 2021 when the visa was formally cancelled, the Tribunal considers the time that has elapsed since non-compliance to be inconsequential. The Tribunal gives little weight to this consideration that the visa should be cancelled.
2.41 (j)
The Tribunal is not aware of any breaches of the law by the applicant since non-compliance and has no information before it in that regard.
The Tribunal accepts that the applicant provided information herself for the first visa application and wherein the information was true and correct. The Tribunal accepts that but for the incorrect answers in the second application, as to the specified work performed and her declaration, the applicant has not provided any other incorrect answers or misinformation and has otherwise been a compliant visa holder. The Tribunal gives a little weight to this consideration that the visa should not be cancelled.
2.41 (k)
The Tribunal asked the applicant about any contribution to the Australian community since her arrival in September 2019. The applicant outlined her work history since January 2020.
The applicant’s personal submission statement includes the following:
“I moved to Australia in 2019 and secured a job working as a paediatric occupational therapist in the community in Melbourne[4]. The waitlist for occupational therapy in the company was extensive and they had been struggling to fill the position for many months, within the company I was the only qualified occupational therapist working in Melbourne. When I began, families were relieved that I was able to replace their previous therapist as they had been waiting for over 8 months for the position to be filled. My caseload consisted of 35 participants that requested to be seen weekly to make the best out of their remaining NDIS budget, which was often not all utilised due to the position of an occupational therapist being vacant for so long. Many of the families I was working with attempted to secure therapists from other companies but were unable to due to the waitlists and unavailability of staff. I worked over and above often finishing late in the evening so I could see clients after school and arranging appointments over the weekend via teletherapy. Without my involvement, these children and families would have not been able to receive the intervention they so desperately required to enhance the development of their child.”
The applicant has included references from parents, and her employers and evidence of that employment, which the Tribunal accepts.
The applicant told the Tribunal at the hearing that in her spare time she has also gained experience cutting hair, which skill she seeks to utilise by assisting the homeless on a volunteer basis. She said she has approached the Australian Red Cross to put her in touch with the appropriate community support and is anticipating that will be available as the pandemic restrictions are lifted.
In summary, in terms of the contributions made by the applicant to the community, the Tribunal accepts the work history and qualifications provided with the application. The available evidence before the Tribunal is that the applicant is highly skilled, independent, and self-supporting and able to make a valuable community contribution in the aged care, disability, child care and health sectors. The Tribunal gives some considerable weight to this consideration that the visa should not be cancelled.
Other relevant factors
The prescribed circumstances as listed under Reg 2.41 are considered above. However, case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case.[3] The Department’s procedural guide also requires its delegates to take into account other factors, such as Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. As already noted, neither of these considerations apply in this instance.
[3] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at
The Tribunal has considered the following additional factors, which are not prescriptive but which may be considered, in addition to those required under Reg 2.41. The available evidence discloses that the applicant:
·Tried to find suitable farm work in a designated regional area
·Was affected by the impact of COVID and general restrictions on movement caused by lockdowns, which affected all residents and temporary visa holders
·Failed to contact the Department about its responses to temporary visa holders affected by the pandemic
·Could have worked anywhere in Australia in her specialist occupation (backdated to January 2020), had she known, following a government COVID-specific exemption (August 2020), announced shortly after the applicant had lodged her application
·Worked for the whole period from January 2020 to August 2020, but not in a designated regional area
·Has a good work ethic – 2 jobs, with highly sought after expertise
·Has helped a very vulnerable part of the Australian community, including children
·Is part of an essential service, as Government reports indicate
·Has confirmed work prospects for needing her skills – confirmed by the Australian government’s Job outlook
·Is unlikely to again provide misleading information or incorrect answers in terms of her migration status and in dealing with the Department
·Is a person otherwise of good character, but for these circumstances
The Tribunal has also had regard to government policy concerning the pandemic and its effect on temporary visa holders. On 4 April 2020, the Minister for Population, Cities and Urban Infrastructure Acting Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs,[4] produced a media statement which included the following:
[4] Minister The Hon Alan Tudge MP 4 April 2020 - Coronavirus and Temporary Visa Holders
“Working holiday makers supporting critical sectors
There are about 118,000 people in Australia on a Working Holiday visa (or backpacker visa)
- a visa which provides conditional work rights.
To support the critical sectors of heath, aged and disability care, agriculture and food
processing, and childcare, some limited flexibility will be provided.
In particular, working holiday makers who are working in these critical sectors will be
exempt from the six month work limitation with the one employer and eligible for a further visa to keep working in these critical sectors if their current visa is due to expire in the next
six months.
In general, working holiday makers that do not have the confidence to sustain themselves
over the next six months should make arrangements to leave the country.”
The Australian government’s response to the pandemic has been varied as it affects temporary visa holders. Those working in recognised critical sectors such as agriculture, food processing, healthcare, aged care, disability care, child care and tourism and hospitality may be eligible for a pandemic event visa, which enables the visa holder to remain in Australia for an additional period of 12 months, and subject to certain conditions. Those eligible for consideration must have evidence of employment, adequate healthcare, and be able to support themselves. There is also now the possibility of exemptions under s.48 for Skilled Visa applicants.
The clear intention for this response is to enable the Australian workforce to retain for specified periods those visa holders who are making a contribution to the community in what are regarded as critical sectors with existing skill shortages.
It is not the case that in every circumstance where a visa has been cancelled by the Department that the decision will be affirmed. Each case must be considered on its merits by the Tribunal, which has the advantage of seeing and hearing from the applicant and is able to form a reasonable view about the applicant’s circumstances, cumulatively, with regard to the prescribed matters and the likely circumstances which may flow from its decision. Equally, the Tribunal does not lightly set aside a decision to cancel a visa properly made, and must remain conscious of the need to support the integrity of the visa programme and not encourage unscrupulous and unlawful behaviour, whether by the applicant or by a third party authorised by the applicant (as here).
In considering how the discretion should be exercised, the Tribunal finds in this instance that the evidence, when put in context and cumulatively, is not compelling in favour of cancelling the visa. The applicant has demonstrated that she is otherwise a person of good character, hard-working, a law-abiding citizen, and importantly, but for the pandemic and factors beyond her control, would have met the visa condition. She has made a considerable contribution to Australian adults and children with disabilities and continues to do so. She is fully employed with good work prospects in a sought after and skilled occupation and in respect of which there is a genuine skill shortage in Australia, and where the applicant has demonstrated a strong work ethic to perform over a lengthy period, while making an important contribution to the Australian community.
These are not reasons to exculpate what was clearly conduct by the applicant intended to mislead and misinform the decision maker and to obtain the benefit of a visa to which the applicant was not otherwise entitled. The Tribunal acknowledges that cancellation entails some very serious consequences including upsetting established community and family ties, physical dislocation and hardship, personal anxiety, and cost. Such outcomes are predictable and in some few instances may not be warranted, depending upon the particular circumstances giving rise to the decision to cancel. Presumably, that is why the statutory context does provide for the exercise of discretion, applied favourably to an applicant usually in a very small number of cases where the decision-maker, acting impartially and fairly, comes to the view that the discretion should be so exercised and in accordance with the statutory objective.[5]
[5] For general discussion on the correct approach see 2019 article from the Ombudsman Western Australia, “Exercise of discretion in administrative decision making” as illustrative of some of the difficulties involved.
The proper exercise of discretion is a balancing act, where the facts found against the applicant must be weighed against those facts which are supportive. The Tribunal has had regard to the prescribed circumstances, as well as other factors not prescribed, but which the Tribunal has considered relevant and summarised above, such as the applicant’s work and personal circumstances, the pandemic, her otherwise good character, and importantly the effect of cancellation in this case both on the applicant and on the Australian workforce, which presently requires workers with the applicant’s skills.
The Tribunal finds in this application, there is sufficient objective material available to tip the balance in the applicant’s favour, such that the exercise of discretion should be applied favourably. For all those reasons, the Tribunal is of the view that the discretion as to whether the visa should be cancelled, should be exercised in favour of not cancelling the visa.
Conclusion
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 in the exercise of discretion whether the visa should be cancelled, the correct and preferable answer is “no”.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Alan McMurran
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.

[2021] AATA 5430

7 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice