Legalche Royer (Migration)

Legalche Royer (Migration) [2022] AATA 1110 (4 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Teddy LEGALCHE-ROYER
CASE NUMBER:  2117444
HOME AFFAIRS REFERENCE(S):          BCC2020/2706179
MEMBER:Nathan Goetz
DATE:4 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 04 February 2022 at 10:12am
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – applicant had provided incorrect answers in visa application – there was non-compliance in the way described in the notice –applicant did not undertake specified work in regional Australia – refusal to take responsibility for the provision of incorrect information – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 99, 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2, cl 417.211
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant arrived in Australia on 21 November 2019 holding a (first) working holiday visa which had been granted offshore on 15 August 2019. That visa expired on 21 November 2020.
On 12 October 2020 the applicant applied for the second working holiday visa. That same day, the second working holiday visa was granted and was due to expire on 21 November 2021.
On 4 November 2021 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of the second working holiday visa on the basis that the applicant did not comply with s 101(b) of the Act. The applicant was invited to respond to the information in the NOICC and to provide information about why the visa should not be cancelled. The applicant responded to the NOICC. On 18 November 2021 the delegate cancelled the second working holiday visa under s 109(1) of the Act on the basis that the applicant did not comply with s 101(b) of the Act and after considering the discretion whether to cancel the visa. On 24 November 2021 the applicant applied to the Tribunal for review of the decision to cancel the second working holiday visa.
On 10 December 2021 the Tribunal wrote to the applicant under s 360(1) of the Act and invited him to appear at a Tribunal hearing commencing at 10:00am on 25 January 2022. The Tribunal was required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review because it had considered the information it had and was unable to make a decision favourable to the applicant on the basis of the material.
On 25 January 2022 the applicant appeared at the Tribunal hearing by telephone. The Tribunal was satisfied that a telephone hearing was appropriate given the COVID-19 pandemic and current health orders. The Tribunal hearing was conducted with the assistance of an interpreter in the English and French languages.
THE STATUTORY REGIME FOR CANCELLATION OF A VISA
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Visa application form
The second working holiday visa application form of 12 October 2020 indicates that the applicant is a 23-year-old male citizen of France who was born in Ryan town/city, Charente Maritime state/province, France. His relationship status is ‘never married’ and he is presently located in Australia. His usual occupation is ‘head chef’ and he intends to work during his time in Australia. The industry he intends to seek employment in Australia is ‘accommodation and food services.’ His highest qualification is a bachelor’s degree.
He detailed that he had undertaken specified work while on his first working holiday visa with Quenby Viticultural Services which is both the legal registered and trading name of a business which holds Australian Business Number 49457432242. He provided the contact information for his employer. He detailed that this business was located at an address in Mount Barker, Western Australia but that the work was undertaken at a vineyard in Western Australia. He detailed the work conditions as ‘plant and animal cultivation’ in the agricultural, forestry and fishing’ industry and that this was ‘direct employment.’ He described the duties as ‘horticulture – vineyard. Pruning vines in order to prepare for next growth season for commercial selling. He was employed there from 16 March 2020 to 5 July 2020 and completed 750 hours of work over 90 days. He was paid $AUD28.04 per hour. He detailed his living arrangements during that time as renting a share house near the farm with workmate. He travelled to work by car and this journey took about 20 minutes.
He declared that he had completed three months of specified work as the holder of his first working holiday visa, that he had been renumerated in accordance with the relevant Australian legislation and Awards, that he had read and understood the information provided by himself in the application, and the information was correct in every detail on this form, understood that if information was found to be incorrect after the grant of the visa, the visa was liable to be cancelled.
Attached to the visa application form was the applicant’s French passport. He detailed that he would not be providing any other attachments prior to lodging the visa application due to the COVID-19 pandemic and lockdowns.
The NOICC and the applicant’s response
The delegate issued a NOICC on 4 November 2021 because the delegate considered that the applicant had not complied with s 101(b) of the Act, which meant that the applicant was liable to have the second working holiday visa cancelled under s 109 of the Act.
The delegate noted the relevant statutory provisions as follows:
Section 98 - Completion 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.
Section 99 - 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.
Section 100 - Incorrect 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.
Section 101 - Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(b) no incorrect answers are given.
The delegate detailed that on 12 October 2020 the applicant applied for a second working holiday visa online, where he claimed that he had undertaken three months of specified work as the holder of a first working holiday visa, provided the details of this specified work, and declared that he had completed three months of specified work as the holder of the first working holiday visa. The delegate detailed that based on that information, as well as other meeting other relevant criteria, the applicant was granted the second working holiday visa on 12 October 2020.
The delegate wrote that the department subsequently initiated employment verification checks with Quenby Viticultural Services. That business advised the department that the applicant never worked for that business. The delegate considered there had been possible non-compliance with s 101(b) of the Act because:
·     The applicant answered ‘Yes’ to the question about whether he had undertaken three months of specified work as the holder of a first working holiday visa.
·     The applicant claimed employment with Quenby Viticultural Services
·     The applicant answered ‘Yes’ to the declaration about whether the applicant was applying for the second working holiday visa and had completed three months of specified work as the holder of a first working holiday visa.
Based on the above, it appeared that the applicant provided incorrect information in contravention of s 101(b) of the Act and was liable for his visa to be cancelled under s 109 of the Act. The delegate invited the applicant to comment on the possible non-compliance and to give written reasons explaining why the visa should not be cancelled.
On 5 November 2021 the applicant responded to the NOICC with an email stating:
“I’m sure that I’ve done my 88 days of farm work but not on the farm you’ve listed . I did my farm work with ecoline solutions and found them threw the website that advertise farm work in Australia . I have my payslips and even paid tax on it . I will send you my payslips below and even can provide pictures I’ve made during working there if you request them . I don’t think it should be cancelled cause I’ve work hard to stay here completed everything you have ask for and also already applied for a student visa . I’m a skilled carpentry and was ready to study management here to hopefully build my own company here . You can call the farm of course and even get bank statements if needed .”
He also provided the delegate with the following twelve payslips for work with Eco Line Solution Installations Pty Ltd as follows:
·     15 April 2020 for the period between 6 April 2020 and 12 April 2020
·     22 April 2020 for the period between 13 April 2020 and 19 April 2020
·     29 April 2020 for the period between 20 April 2020 and 16 April 2020
·     6 May 2020 for the period between 27 April 2020 and 3 May 2020
·     13 May 2020 for the period between 4 May 2020 and 10 May 2020
·     20 May 2020 for the period between 11 May 2020 and 17 May 2020
·     27 May 2020 for the period between 18 May 2020 and 24 May 2020
·     3 June 2020 for the period between 25 May 2020 and 31 May 2020
·     10 June 2020 for the period between 1 June 2020 and 7 June 2020
·     17 June 2020 for the period between 8 June 2020 to 14 June 2020
·     24 June 2020 for the period between 15 June 2020 and 21 June 2020
·     1 July 2020 for the period between 22 June 2020 and 28 June 2020
The following day, the applicant sent to the delegate a screenshot of the applicant’s online immigration account where he appeared to have entered ‘details of specified work.’ The applicant provided the details of the business as Eco Line Solution Installations Pty Ltd, with Australian Business Number (ABN) 89608731371. This business is based in North Sydney, New South Wales and the employer contact was Andrew Hawkins, who was identified as a director of the business. The applicant wrote that these were the contact details of the employer.
On 8 November 2021 the delegate wrote to the applicant acknowledging receipt of the emails and asked the applicant to provide a copy of the payment receipt for his visa application, to identify whether he lodged the visa application himself or had someone else do this for him, and to provide any additional evidence of the farm work he had undertaken, with the delegate noting that a search of Eco Line Solution Installations Pty Ltd” indicted that it provided civil engineering services, geosynthetics and surveying services.”
That same day, the applicant responded and advised that the visa application form was completed by someone that he lived with at a hostel because his English was poor, and he had some problems understanding the questions. He said that he did ‘geosynthetics’ at Ecoline and showed a payment receipt form the visa application.
On 16 November 2021 the applicant wrote to the delegate and indicated he wished the matter to progress quickly because he has a student application ready to go and is awaiting on a response before submitting.
Delegate decision record
The delegate decision record indicated that the material provided by the applicant subsequently to the NOICC had been considered by the delegate. The delegate repeated the contents of the NOICC concerning the incorrect information given by the applicant, and found that the applicant provided incorrect information in the application for his second working holiday visa in breach of s 101(b) of the Act and his visa was therefore liable to cancellation under s 109 of the Act.
The delegate provided a summary of what the delegate considered to be the applicant’s reasons as to why the visa should not be cancelled. After assessing the reasons provided by the applicant, and an analysis of the requirements provided by reg 2.41 of the Regulations which are to be considered in the exercise of the discretion, the delegate determined that the visa should be cancelled.
Discussion at Tribunal and subsequent material provided to the Tribunal
The applicant told the Tribunal that he applied for his first working holiday visa online while he was in France. He had assistance from his brother who was in Australia to complete the form. His brother translated questions for the applicant over the telephone. His brother did not help the applicant with the second visa application because they were not on good terms at that time. When asked whether that remained the case, the applicant said they had reconciled. When asked when the reconciliation occurred, the applicant said it was when the applicant was in Sydney and around July 2020. He also suggested it was about five or six months after he arrived in Sydney. The Tribunal asked when the applicant fell out with his brother. The applicant said they had done everything together since the applicant arrived in Australia and started to talk about his desire to travel around Australia, and his brother had a job that required travel. The applicant said that had not seen much of each other which is why they decided to reconcile. He had nothing further to add, but later confirmed that his brother remains in Australia and they both work at the same company, namely All Grade Services.
The applicant gave evidence consistent with what he had written in his response to the NOICC about the second working holiday visa application form. Namely, that he obtained assistance from a person who he met while he was staying at a backpackers hostel. He identified this person as a male named Max from a hostel in Bondi Beach, New South Wales. He said that Max asked him the visa application questions and the application was filed online. The applicant said that the first few questions were simple and the applicant filled them out by himself but as it got more complicated Max assisted him. The applicant said that it got complicated when he tried to attach the payslips to the online form. The Tribunal found this odd because no payslips were attached to the online application form and given the applicant had claimed in the online form that he worked for Quenby Viticultural Services, the Tribunal wondered whether the applicant was suggesting that false payslips had been created. However, that was not the case, as the applicant told the Tribunal that the payslips they sought to attach were for his work from Eco Line Solution Installations Pty Ltd. He identified this company as based in North Sydney, but that it operates all around New South Wales. He identified his work as putting down tarps or sheets in the context of rubbish disposal.
As the applicant claimed he had difficulty attaching the payslips to the form, the Tribunal found it odd that the applicant was able to attach a copy of his passport to the form. The applicant confirmed he had been able done so. The applicant said he was unable to explain why he was able to do that when the payslips could not attach.
Noting the applicant indicated difficulty attaching the payslips to his online visa application, the Tribunal asked how he thought he was going to submit the payslips to the department. The applicant said that he and Max waited one day and that he expected Max attach those payslips to the application. Max indicated to the applicant that he had done so and everything was good. The applicant said he was not with Max at the time he was successful submitting those payslips. He received notification that the visa had been granted and did nothing further.
The Tribunal asked why the applicant why he did not declare his work for Eco Line Solution Installations Pty Ltd in the visa application form. He said he had but that Max had changed this information. The applicant confirmed he had never worked for Quenby Viticultural Services. The applicant said that the first time he became aware that his visa application form detailed that he worked for Quenby Viticultural Services was when he received the NOICC and the applicant indicated that it was odd that it had been claimed that the applicant worked there because he had never been to Western Australia.
The applicant said that he did not have any contact details for Max. All he had is name and email address. The Tribunal was curious why the applicant would have Max’s email address given he claimed to have completed the form with the applicant. The applicant said that he inferred that the email address put on the visa application form was Max’s email address.
The Tribunal asked the applicant why the visa should not be cancelled given he had not completed the specified work with Quenby Viticultural Services as claimed in the visa application form. The applicant’s response is summarised below.
First, he said that he was an honest and transparent person who has previously had no dealings with the justice or legal system. The Tribunal understands this to mean that the applicant has an otherwise good record with the Australian government and community, and that the false information was put into his form by another person and without the applicant’s instruction to do so.
Second, the applicant said that coming to Australia was a fantastic opportunity and provided a better situation than in France. The applicant could see that his studies and previous professional experience being a cabinetmaker in France would serve him better in Australia, because employers are looking for carpenters/joiners here.
Third, the applicant hoped to set up a business while holding a second working holiday visa so he could use his talents and abilities. He noted that he had used savings to enrol in studies and to pay for ‘OHS requirements’ for his business in anticipation of being able to lodge a student visa, but he had to forgo his school feels and cancel the OHS insurance because he could not lodge a student visa as his second year working holiday visa had been cancelled.
Fourth, the applicant claimed that it would be a disaster if the cancellation was upheld because he saw his future in Australia and he would be depressed. He was distraught that he had trusted somebody who he did not really know to lodge the visa application on his behalf. The applicant was unable to explain why Max did this. He had paid him $300.00 and suggested that perhaps Max wanted to steal his personal information.

Fifth, the applicant said that his work for Eco Line Solution Installations Pty Ltd would qualify as specified work for the purpose of the second working holiday visa application. When asked how he knew this, the applicant said that when he went to that business on the first day, Andrew Hawkins told him that was the case.
Sixth, he noted that there was the global COVID-19 pandemic at this time and he really wanted to stay in Australia.
The Tribunal wanted to know whether the applicant’s payslips from Eco Line Solution Installations Pty Ltd were legitimate and thought the best way for the applicant to prove this was for the applicant to show the Tribunal the deposits of his pay into his bank account. The applicant said that he would do so and after the Tribunal hearing provided the Tribunal with a copy of his Commonwealth Bank account, which demonstrated that his pay had been deposited in accordance with the payslips.
FINDINGS AND REASONS
The issue in the present case is whether the ground for cancellation is made out, namely whether incorrect information was provided, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Was there non-compliance as described in the s 107 notice?
The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act. The NOICC makes it quite clear that the incorrect information was that made by the applicant when he declared that he had undertaken specified work for a specified period with the employer he claimed in the visa application form.
The Tribunal makes this finding on the basis that questions relating to specified work, and the duration of that work with the specific employer provided in the visa application form. That is to say, if the Tribunal was to accept that the applicant’s claimed work with Eco Line Solution Installation Pty Ltd was ‘specified work’ as he claimed to the delegate and at the Tribunal hearing, that would not lead to a finding that that the applicant had not provided incorrect information when he answered ‘Yes’ to the questions about whether he had undertaken three months of specified work as the holder of a first working holiday visa (assuming that the applicant had undertaken at least three months of that work). The ‘specified work,’ and duration of that work as required by the visa application form clearly refers to the specific employer provided in the visa application form. It could not be good policy to provide for any other interpretation.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) of the Act by the applicant in the way described in the s 107 notice. That is to say, the applicant incorrectly claimed to have completed three months of specified work with Quenby Viticultural Services as the holder of his first working holiday visa.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the 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, and includes issues such as:
·     whether there would be consequential cancellations under s 140
·     if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28])
·     whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations
·     whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
·     Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
Regarding the applicant’s reasons he provided as to why the visa should not be cancelled, the Tribunal is not persuaded that the visa should not be cancelled because of those reasons.
The applicant claims that he will be depressed if the cancellation decision is upheld because he planned to make his life in Australia. While the applicant may be disappointed and depressed in the event that the visa cancellation remains in place, requiring his departure from Australia, this does not provide a sufficient basis to set aside the decision to cancel the visa.
The applicant also claims that he is a law-abiding person and that he is not responsible for the incorrect information (in so far as he did not direct a person to provide the incorrect information). The fact that there is no evidence that the applicant has not previously provided incorrect information, or otherwise breached his obligations under the Act, or engaged in any criminal activity is not a sufficient reason to set aside the decision to cancel the visa. If that was the case, then there would be no consequences for breaches of the working holiday visa programme.
Insofar as the applicant claims that he did not direct ‘Max’ to provide incorrect information, the Tribunal is not persuaded that the applicant’s explanation about how incorrect information came to be provided in the visa application is the truth. The Tribunal comes to this conclusion for the following reasons.
First, the applicant told the Tribunal that his brother assisted him to complete the first working holiday visa and explained that he did not get his brother to assist him with the second working holiday visa because they were not on good terms at the time he applied for the second working holiday visa. Yet when asked to detail why they were not on good terms, the applicant provided very little information and spoke in broad terms. Likewise when the applicant was asked about the reconciliation with his brother, he provided an equally broad explanation. The Tribunal’s assessment was that there was a lack of detail because the applicant fabricated that his brother and he had a falling out to explain why his brother did not help him complete the visa application. The Tribunal assesses that this was done to provide a basis for the applicant to seek help from a person named ‘Max.’
Obviously, the Tribunal does not accept that the person named ‘Max’ assisted the applicant to lodge the visa application. The Tribunal does not accept that the applicant utilised another person to lodge the visa application because he could provide no explanation as to why ‘Max’ would make up that the applicant worked for Quenby Viticultural Services when the applicant claimed he had told Max that he worked for Eco Line Solution Installations Pty Ltd, and was apparently attempting to lodge payslips from that employer in the visa application form. It is also extremely curious that it was possible for the applicant’s passport to be attached to the online visa application form when his payslips could not be attached.
The Tribunal assesses that the applicant was employed with Eco Line Solution Installations Pty Ltd on the basis of the payslips and the bank statement transaction history which shows that the applicant was paid by that employer. However, the Tribunal is satisfied that the applicant became aware that his work for Eco Line Solution Installations Pty Ltd would not qualify as ‘specified work’ for the purpose of the second working holiday visa, and the applicant then fabricated his work with Quenby Viticultural Services in order to be granted the second working holiday visa. The Tribunal is not satisfied that the applicant had no idea that a false claim for work would not be made in the visa application form. The Tribunal assess the applicant to be very culpable in providing the incorrect information and that this weighs heavily in favour of upholding the decision to cancel the visa.
Second, the Tribunal does not accept that it is a sufficient basis to set aside the cancellation decision because the applicant desires to lodge a student visa. In the Tribunal’s judgement, it is inappropriate to set aside a decision to cancel the visa in order to assist a person with the lodgement of another visa. Those facts weigh in favour of upholding the decision to cancel the visa.
Third, the Tribunal is not persuaded that the current global pandemic is a sufficient reason to set aside the decision to cancel the visa. The Tribunal notes that it is general public knowledge that the international travel is starting to resume, and the Tribunal is not aware of anything that would prohibit the applicant returning to France. The Tribunal does not assess that a pandemic is a sufficient reason to set aside a decision to cancel a visa. Those factors weigh in favour fo cancelling the visa.
Fourth, while the Tribunal would accept that completion of specified work while the applicant held his first working holiday visa that was not detailed in the visa application form would be something that the Tribunal would take into account as a reason to not cancel the visa, the Tribunal does not accept that the applicant’s work with Eco Line Solution Installations Pty Ltd could be considered specified work. The only evidence that the applicant provided that it was specified work for the purpose of the working holiday visa was him repeating what someone else had told him. The Tribunal gives no weight to that suggestion, and the applicant provided no other evidence, such as the applicable Legislative Instrument, to demonstrate that the geosynthetic work the applicant claimed to have undertaken was ‘specified work.’ Those factors weigh in favour of cancelling the visa.
The Tribunal then turns its mind to the considerations required by 2.41 of the Regulations.
The correct information is that the applicant did not work for Quenby Viticultural Services despite the claim made in the visa application form. The Tribunal acknowledges that the applicant did not provide any fraudulent documents in support of this claim, such as a false employment letter or false payslips, meaning that there is no ‘genuine document’ to consider. The Tribunal also assesses that the decision to grant the second working holiday visa was based on the fact that the applicant had completed specified work with Quenby Viticultural Services and meeting other relevant criteria. The Tribunal is satisfied that if the applicant had not claimed to have worked for Quenby Viticultural Services, he would not have been granted the visa. Those factors weigh in favour of upholding the decision to cancel the visa.
The Tribunal gives no weight to the circumstances claimed by the applicant in which the non-compliance occurred. As noted previously, the Tribunal does not accept that the applicant was the victim of ‘Max’ putting incorrect information in the visa application form despite the applicant providing the correct information that he worked for Eco Line Solution Installations Pty Ltd. The Tribunal finds the circumstances of the non-compliance to be those as previously discussed. The Tribunal finds this to weigh heavily in favour of upholding the decision to cancel the visa.
The applicant provided the Tribunal with limited information about his present circumstances as a reason to set aside the decision to cancel the visa. All the applicant could tell the Tribunal was that he was presently working and that his future had more promise in Australia than France. He detailed no contributions to the community, other than the fact that the applicant works in Australia. These reasons were not compelling. This weighs in favour of upholding the decision to cancel the visa.
The applicant’s refusal to take responsibility for the provision of incorrect information is also a reason to uphold the decision to cancel the visa. This demonstrates that the applicant has no remorse for his conduct, and this subsequent behaviour concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act is a good reason to not set aside the cancellation decision. The Tribunal makes this finding while also accepting that there is no other instance of non-compliance by the applicant known to the Minister, and nor are there any known breaches of the law since the non-compliance became known. The non-compliance occurred on 12 October 2020 when the applicant lodged his visa application. While this non-compliance occurred 16 months ago, there is no evidence that the delegate became aware of the non-compliance and delayed doing anything about it. It appears that the delegate actioned the cancellation process quickly following the employment verification check. The fact that the employment verification check occurred towards the end of the applicant’s second working holiday visa does not mean that the applicant should benefit from the timing of the cancellation process when it appears that the delegate acted efficiently.
In terms of the other considerations provided under policy, the Tribunal notes that no person holds a visa by virtue of the applicant holding a visa. Therefore, there are no cancellations under s 140 of the Act. Likewise, the applicant has not claimed that he has children that would be affected by a decision to uphold the cancellation decision. This weighs in favour of upholding the decision to cancel the visa.
The applicant did not claim that the decision to uphold the cancellation decision would result in Australia breaching its non-refoulement or family unit obligations. The absence of Australia breaching its international obligations weighs in favour of upholding the decision to cancel the visa.
The Tribunal also considers the mandatory legal consequences that may result from upholding the decision to cancel the visa, namely that the applicant would lose the right to remain in Australia after the expiration of the bridging visa that was granted in connection with the review application, and that he would be liable to immigration detention as an unlawful non-citizen pending his departure from Australia. The Tribunal also accepts that immigration detention may be a real risk for the applicant as he may not be granted a bridging visa on departure grounds given the reasons why his working holiday visa was cancelled, and that his time in immigration detention may be prolonged given that international travel is not resumed to the same levels as prior to the pandemic. The applicant will also be prohibited from applying for the student visa he desires to lodge while he remains in Australia.
As devastating as those consequences may be for the applicant, the Tribunal’s assessment is that the applicant’s conduct in falsely claiming to work for Quenby Viticultural Services and being granted the visa because of this false claim necessitate the upholding of the decision to cancel the applicant’s visa. The Tribunal’s assessment is that setting aside the decision to cancel the visa based on the facts as the Tribunal has found them would undermine the integrity of the working holiday visa programme and make a mockery of Australia’s migration laws. It is reasonable to expect that the applicant would provide the correct information in the visa application form. It is because of actions of people like the applicant that the department is required to undertake employment verification checks and use precious resources that could otherwise be deployed to other areas of the department.
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 the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Nathan Goetz

Member
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 1110

4 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction