Linnie (Migration)

[2022] AATA 117

Linnie (Migration) [2022] AATA 117 (16 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gary Linnie

CASE NUMBER:  2111566

HOME AFFAIRS REFERENCE(S):          BCC2020/2401559

MEMBER:Christine Cody

DATE:16 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 16 January 2022 at 1:29pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – specified work in regional Australia – employer reported no record of applicant – lockdown travel restrictions – impact of the COVID19 pandemic – family illness – impact on the applicant’s employer – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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). The applicant is a 28-year-old man from the Republic of Ireland, who came to Australia with his first working holiday visa in February 2018. He was subsequently granted 2 further working holiday visas, with the most recent being granted on 7 September 2020. It is the third visa that is the subject of the cancellation proceedings.

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his third application for a Subclass 417 (Working Holiday) visa, thus not complying with s 101 of the Act, and having considered the prescribed circumstances under reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant lodged an application for review with the Tribunal and provided a copy of the delegate’s decision record dated 31 August 2021 as well as the notification of cancellation of his visa. Prior to the hearing the applicant sent further documents in support.

4. The Tribunal exercised its discretion to hold the hearing by MS Teams given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely.

5. The applicant was invited to a hearing on 24 November 2021 by way of letter dated 3 November 2021. The applicant was given a choice to dial in by telephone or to join by video. The applicant was advised in that letter and the accompanying Fact Sheet that if he was not available or would experience difficulty in participating in the hearing as arranged, or if he wanted to make any comment on the suitability of the proposed hearing, he should let the Tribunal know as soon as possible. The applicant appeared before the Tribunal on 24 November 2021 to give evidence and present arguments remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. 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

7. 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.

8. 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.

   Notice of intention to consider cancellation under s 107

9. A notice of intention to consider cancellation (“NOICC”) of the applicant’s third working holiday visa granted 7 September 2020 was sent to the applicant on 19 July 2021. The notice indicated that the delegate reached a state of mind that the applicant had not complied with the Act by giving incorrect information about the details of specified work undertaken while the holder of a second working holiday visa (Subclass 417) in the application for a third working holiday visa (Extension) (Subclass 417) lodged and granted on 7 September 2020.

10. The NOICC provided particulars of the allegedly incorrect information given by the applicant being the reference to employment with Banana Exchange Pty Ltd, ABN 86052441139, in Tully, Queensland (postcode 4854) in the period 9 March 2020 to 30 August 2020 for 190 days; and his declaration that he had completed at least 6 months of specified work as the holder of a second working holiday visa after 1 July 2019.

11. The NOICC (and delegate’s decision record) stated that the applicant had claimed in his application:

    Employment type: Direct employment
    Industry type: Agriculture, forestry and fishing
    Industry type sub-group: Plant and animal cultivation
    Description of duties Generally we could get to the farm at
    6.30am. Then throughout the day i was generally in the factory
    where I would undertake a variety of different roles ranging from
    hanging, clustering, sorting and packing Bananas until 3.30pm with 2
    x 15 minute cigarette breaks and 1 x 30 lunch break.
    Date from: 09 Mar 2020
    Date to: 30 Aug 2020
    Total days worked: 190

12. The NOICC advised that, subsequently, the Department conducted employment verification checks by contacting Banana Exchange Pty Ltd, the business registered under ABN 86052441139, to verify the employment claims. The Department was informed that the applicant never worked at their business (and therefore did not complete the specified work with the business as claimed).

13. The delegate considered on the basis of this information that the applicant had provided incorrect answers in support of his third working holiday visa application and did not comply with s 101(b).

14. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

    Was there non-compliance as described in the s 107 notice?

15. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects: that the applicant provided incorrect information in the application for a third working holiday visa when he:

    ·answered ‘Yes’ to the question ‘They have carried out at least six months of specified work’;

    ·answered ‘Yes’ to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)’;

    ·provided details of claimed employment with Banana Exchange Pty Ltd under the section of the application form titled ‘Details of Specified Work Undertaken’; and

    ·answered ‘Yes’ to the declaration under ‘Working holiday declarations’ stating ‘Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’.

16. There was no evidence that the applicant had responded to the NOICC. When asked at hearing, he said this was correct, he gets a lot of spam email about banks/visas and he didn’t take too much time to go through it and then after a while it was nearly too late.

17. On 31 August 2021 the delegate found that there was non-compliance as described in the s 107 notice.

    Evidence before the Tribunal as to the non-compliance as described in the s 107 notice

18. At hearing the applicant agreed that he did not comply with the requirement to give correct information because it is true he didn’t work for Banana Exchange nor did he carry out any second working holiday visa regional work at all. He said that he made a rash decision and paid a person called Hans Lee at Golden Fish who completed the application for him. He was aware however that in order to obtain a visa he had to have done 6 months regional work, which he had not undertaken at all. He said that he didn’t complete the application responses; the Tribunal put to him that the law provides that he is responsible even if he doesn’t know what was submitted on his behalf. The Tribunal notes that ss 98, 99 and 100 of the Act specify that an applicant who does not complete their application form is still responsible for its contents if he causes it to be filled in or it is otherwise filled in on his behalf, and is responsible even if the applicant did not know at the time that a particular answer was incorrect. The applicant did not disagree with this.

19. On the basis of the evidence of the verification undertaken by the Department with Banana Exchange Pty Ltd and the applicant’s acknowledgement of the incorrect information, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

20. 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?

21. 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).

    The prescribed circumstances: reg 2.41 of the Regulations

22. 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: ss 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 visa holder to the community.

    The correct information

23. The applicant conceded that he was not employed by Banana Exchange Pty Ltd as stated in the application during his second working holiday visa, and that he had not undertaken 6 months of specified work as indicated in the application. The correct information is that he did no regional work, instead he worked in construction for a company located in Sydney. The Tribunal put to him that this was a significant concern.

24. The Tribunal gives this matter considerable weight in favour of affirming the decision to cancel the applicant’s visa.

    The content of the genuine document (if any)

25. There is no allegation relating to a genuine document. Therefore, this factor is not relevant in 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

26. As set out in the delegate’s decision record, the applicant has held 2 Subclass 417 visas and, in applying for an extension, the delegate was required to be satisfied that the applicant had carried out the specified work in regional Australia as claimed. The work claimed was central to the grant of the extension to the working holiday visa, that information was incorrect, and the delegate made the decision to grant the visa. The delegate was of the view that the applicant may have received an immigration benefit to which he was not entitled.[1] The applicant agreed that the visa was granted because this incorrect information was provided.

    [1] Delegate’s decision record provided to the Tribunal by the applicant

27. The Tribunal finds the incorrect information was relied on by the delegate to grant him the visa. It finds that if the correct information was provided, he would not have met this criterion and the visa would have been refused. The Tribunal considers this is a significant matter and weighs in favour of affirming the decision to cancel the applicant’s visa.

    The circumstances in which the non-compliance occurred

28. As noted above, the applicant did not respond to the NOICC, and thus he did not offer an explanation of the circumstances in which the incorrect information was give,n to the Department.

29. The applicant provided an explanation to the Tribunal. He said that he applied for his third working holiday visa on 7 September 2020, and a few months previously, during the first lockdown, he and his partner tried to find regional work but they would not let anyone cross the border. It was hard to find regional work in NSW, it was mostly in Queensland and Victoria. He provided to the Tribunal correspondence between he and his girlfriend Olivia and various recruiters/agencies, indicating that they were seeking regional work between March and May 2020. The Tribunal accepts that the applicant and his girlfriend made efforts to obtain regional work during this times, which was after the pandemic started.

30. He said that it took them 4 to 4 and a half months to do 3 months of farm work – to do 6 months it would take 7-8 months and at that time they could not get the necessary farm work in time.

31. He said that while he and his girlfriend were trying to find farm work, the flights back to UK were inconsistent, and they could not afford them and the deaths back at home were very high and they had a lease agreement in Sydney which he couldn’t break. He said that he has anxiety attacks and he was in emotional turmoil. He was experiencing financial hardship; his partner was not working so he was supporting her. He could not afford a student visa. His sister back home has bad issues with asthma and she had to isolate from their whole family for a number of months. He said that he could not possibly have gone home at the time, and he was just in a panic, and in and out of depression. He said that there were no guidelines for visa holders in trouble and no government payments to temporary visa holders during the first lockdown and a lot of people, including his friends, had to go home. A lot of people caught COVID on the plane when they flew home. He was panicking and so he made the wrong choice which he regrets. When asked if he saw a counsellor for his anxiety attacks he said no; he said he couldn’t afford to pay for a counsellor.

32. When it was put to him that it is difficult to understand his claim that he would not have been able to return to his home, he then admitted he could have returned home but he said he would not have had anywhere to quarantine.

33. The Tribunal noted that a reason for not returning home was that he would have to break his lease, but that he would have had to break the lease if he had got farm work. In response he said that they would have got someone to come in and take their place. The Tribunal put to him that he could have done that if he went back home; in response he said that no one was working.

34. The Tribunal asked whether he called the Department to discuss his situation, and he said no. The Tribunal put to him that he could have done that, and in response he said that he didn’t think of that.

35. The Tribunal has considered all of the factors raised by the applicant as to why he provided the false information. The Tribunal accepts that the applicant was open about the provision of false information at hearing, and that he is sorry that he did so. The Tribunal notes that this was the third application that the applicant was making and that he was aware of the requirements.

36. The Tribunal accepts that the circumstances in Australia in 2020 were unusual with the COVID-19 pandemic and lockdowns and that this made it challenging to find regional employment. The Tribunal also accepts that the situation in Ireland as a result of the COVID-19 pandemic was difficult at the time, and that the applicant did not want to return to Ireland for that reason and for other personal reasons. However, it is of concern to the Tribunal that the applicant, who is capable and resourceful, who was able to organise a number of working holiday visas, to move to a foreign country and survive in a foreign country during a global pandemic, did not contact the Department to ascertain what options were available for temporary visa holders during the COVID-19 pandemic. The applicant had a long time to consider his options and to seek advice from the start of the pandemic in February/March 2020 until September 2020, when he chose instead to lodge a visa application based on false information. The Tribunal is prepared to accept that he was anxious, but he did not suggest that his anxiety prevented him from activities such as working, indeed he said that he continued to work.

37. Thus, while the Tribunal accepts the difficult circumstances in which he found himself, and gives these some weight in favour of setting aside the decision to cancel his visa, the Tribunal has found that the applicant knowingly caused the provision of false information in order to obtain a visa for which he knew he did not meet the criteria and it does not accept that this was the only available option open to the applicant. As discussed at hearing, there were other options to explore such as contacting the Department, and as put to the applicant, seeking migration/legal advice. The Tribunal is not satisfied that the applicant’s circumstances at the time justify his conduct.

38. On balance, these circumstances weigh in favour of affirming the decision to cancel the applicant’s visa.

    The present circumstances of the visa holder

39. The applicant said that he is now engaged to his partner Olivia who is from England and she has applied for a “COVID visa”; he is not too sure about the details of it other than to say it is a temporary visa. He then said that she had applied to the Tribunal and her visa had not been cancelled and she is now on a bridging visa. They have been together for 2 and a half to 3 years and were hoping to have their wedding here and then to stay here.

1. He has been working for O’Hara Brothers Services for the last 6 months and he provided a letter from them. He said that he started off labouring and he is now a pipe layer, telehandler, operator and supervisor. The letter from Adrian O'Hara, Managing Director, dated 18 November 2021 stated:

   I have known Gary Linnie for over 18 months. He is a very honest and hardworking individual, a caring and decent person.

   Our business was fortunate enough to have him come on board 6 months ago.

   Since Gary has started with our business, we have seen a remarkable professional growth, he has moved up 2 levels within the business, from laborer, to leading hand, to junior pipelayer/supervisor.

   Due to Gary’s positive attitude, dedication and work ethic within the business, we have spent over $9,500 on training for Gary, on various courses and training.

   Gary has become a vital member of the business; his hard work and can-do attitude has given us confidence to hand him responsibility for his role on each project. We simply could not work without him at this difficult time after the covid lockdown and the mass shortage of staff in Australia.

   To replace Gary would be at least a 6 to12 month process, if we were able to do so at all.

   As Managing Director, I would be happy to sponsor Gary at any stage. It would be detrimental loss to our business and also to Australia to see such a hard-working honest person have to leave.

   As a naturalized citizen of Australia (formally the UK) I know what the government seek when allowing new people visas to stay in Australia, I myself was once a backpacker, sponsored, permanent resident and now a citizen. I can honestly say that Gary holds the same values and respect that we all look for in new people to this country.

2. The Tribunal noted the reference to the applicant being honest and trustworthy, and asked whether they knew about the cancellation of his visa. He said he told them it was being cancelled and asked for a letter showing that he is a better person. He said that if his visa is cancelled, they will not be able to sponsor him.

3. The Tribunal accepts that if the applicant’s temporary working holiday visa is cancelled it would adversely impact the applicant’s employment and his plans to be sponsored, the business and proposals of his employers, his fiancée (who currently has a temporary right to stay in Australia with a bridging visa) and his social network that he has accumulated in Australia.

4. The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.

   The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

5. The delegate noted in the decision record that there is no evidence that the applicant contacted the Department to correct the incorrect information. At hearing the applicant agreed that he did not correct the information.

6. The Tribunal considers that his subsequent behaviour (of not correcting the incorrect information) concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act weighs in favour of affirming the decision to cancel the applicant’s visa.

   Any other instances of non-compliance by the visa holder known to the Minister

7. There is no evidence before the Tribunal to indicate that there are other instances of non-compliance by the applicant. The applicant confirmed this. While this is positive, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.

   The time that has elapsed since the non-compliance

8. The non-compliance occurred on 7 September 2020 when the applicant provided, or caused to be provided, incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa. It is about 16 months since then.

9. The applicant said that in that time he has been trained and working; it would take his employer 9-10 months to provide someone else the training he has already had. He said that he is helping to build the economy back within the building industry, which is a large part of Sydney’s economy. The Tribunal accepts that the applicant has built a friendship network and has felt settled in Australia with his fiancée. It accepts that his work is contributing to the NSW economy.

10. The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

11. There is no evidence before the Tribunal to indicate that the applicant has breached any laws since the non-compliance. The applicant said there have been no breaches of the law.

12. While this is positive, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.

    Any contribution made by the holder to the community

13. The applicant said that there are none other than his contribution to the economy. He has been looking to do some charitable work but at the moment it is hard because he works 10–11 hours 5–6 days a week.

14. The applicant’s (paid) contribution to the economy was considered above. Otherwise the applicant has not made a contribution to the community, on his evidence, and the Tribunal does not give this factor any weight in favour of setting aside the decision to cancel the applicant’s visa.

    Other matters for consideration

15. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140 of the Act

16. There is no evidence before the Tribunal to indicate that there would be consequential cancellations under s 140 of the Act if the applicant’s visa is cancelled; the applicant said there are no consequential cancellations. This factor is not relevant.

    Are there children whose interests would be affected by the cancellation of the visa?

17. The applicant said that he does send money back home to his sister for her children. The Tribunal suggested that he could do the same if he returned home and he agreed. The Tribunal considers that the applicant’s actions for the benefit of his sister’s children are a positive factor to be considered under “other relevant matters”; however, in the circumstances it finds that there are no children whose interest would be affected by the cancellation of his visa.

    Would the cancellation lead to the applicant’s removal in breach of Australia’s non-refoulement or family unity obligations?

18. The applicant said that these matters are not relevant apart from his partner in Australia. Insofar as the applicant has a partner who is also on a temporary visa, this has been considered above.

    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

19. If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, he will become an unlawful non-citizen and may be liable to be detained under s 189 of the Act and removed under s 198 of the Act unless he departs Australia voluntarily.[2] The applicant said that he would depart instead of being detained.

    [2] As set out in the delegate’s decision record

20. If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, he will be subject to s 48 of the Act which means he will have limited options when applying for further visas while in Australia. Further, he will be affected by public interest criterion 4013 under Schedule 4 to the Regulations where he may be prevented from being granted certain types of visas for a period of 3 years from the date of visa cancellation.[3]

    [3] As set out in the delegate’s decision record

21. The applicant said that he completely understands everything. He had raised concerns that if his visa is cancelled, this will affect his sponsorship options; his employer’s letter confirmed that they would like to sponsor him.

22. The Tribunal accepts that such consequences would be difficult for the applicant and it considers that this does weigh in favour of setting aside the decision to cancel the applicant’s visa. However, this is tempered by the fact that these are the intended legal consequences as set out in the legislation when a visa is cancelled as it reflects the seriousness of a breach of s 101(b) of the Act and consequent cancellation of a visa. The applicant has benefitted from providing the incorrect information in his working holiday visa application, and it is very likely that he would not have been granted that visa if he had provided correct or accurate information about the 6-month regional work requirement. Thus, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

23. The applicant says that his behaviour was extremely uncharacteristic. He has done his undergraduate BA with honours in Education with special needs children. He worked in the field for 3–4 years at St Paul’s High School and he taught children with special needs how to swim for about 1 year. Both roles were paid.

24. Further, he did comply with the 3-month regional work requirement with his first working holiday visa; he worked in labour in Redcliffs, Mildura, Victoria.

25. The applicant said that back home at the moment the situation with the COVID-19 pandemic remains bad and it is hard to get a job. If his visa was cancelled, he and his girlfriend would have to part ways as she wants to stay here and save up some money and maybe she would move back in 1 year. They had been planning to set up to stay in Australia forever, and back home is not a nice place when raining all the time and it does take its toll after a while. He said he is extremely sorry he made this decision, which he regrets a lot, and he apologises and it was breaking the law and if he could take it back he would.

26. The Tribunal gives this consideration some weight against affirming the decision to cancel the applicant’s visa.

    Conclusion on the exercise of the discretion

27. Having carefully considered all of the above, the Tribunal concludes the matters that weigh in favour of cancelling the visa in this case on balance outweigh the factors that weigh against cancellation. In its assessment, the Tribunal places significant weight on the fact that the visa would not have been granted had the correct information been provided, and the applicant's knowledge of this at the time he paid someone to lodge the visa application. It accepts that he is sorry about this, however the Tribunal considers that the migration system was undermined in a significant manner by the provision of incorrect information to the effect that he had undertaken 6 months regional work, when he had not even left Sydney. Further, he maintained this untruth until he was discovered, despite his positive obligation to correct any incorrect information he had given to the Department when seeking a visa. It accepts that the applicant experienced difficult circumstances arising out of the COVID-19 pandemic, including feeling anxious, and difficulties in securing specified work, and accepts that he made some attempt to obtain specified work in the relevant period. However, the Tribunal does not accept that this justified his decision to pay for and enable a person to provide incorrect information to secure a visa rather than approach the Department or seek professional advice.

28. The Tribunal acknowledges that the applicant is employed in an in-demand job and that his employer values his work and skill and would like to sponsor him in the future, and that it would have an adverse effect on them if they had to train someone else to take his place. It accepts that if his visa is cancelled this will have an effect on his future visa prospects and the sponsorship he seeks may not occur. Further, there will be consequences for his relationship if the applicant’s visa is cancelled. The applicant has established a network in Australia and has contributed to the economy by his ongoing skilled employment. The Tribunal also takes into account that there is no evidence of any other non-compliance or breaches of the law. Nevertheless, the Tribunal concludes the factors in favour of cancelling the visa outweigh those against cancellation and that the visa should be cancelled.

29. 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

30. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Christine Cody
    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.