Morton (Migration)

[2022] AATA 2938

Morton (Migration) [2022] AATA 2938 (24 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kaan Morton

REPRESENTATIVE:  Mr Khan Adeel

CASE NUMBER:  2118780

HOME AFFAIRS REFERENCE(S):          BCC2021/732850

MEMBER:Anne Grant

DATE:24 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 24 August 2022 at 11:29am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information and bogus documents provided with second extension application – six months of specified work in regional area while holding first extension and payslips – department’s verification checks – discretion to cancel visa – non-compliance conceded – frank and credible evidence and genuine remorse – COVID restrictions, uncertainty and prevalence in home country – physical injuries – no contact with agent or department – continuing work in city and possibility of sponsorship – relationship with Australian citizen and possibility of applying for partner visa – visa would have ceased in any case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 103, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASES
Chardronnet (Migration) [2021] AATA 1335
Donohoe (Migration) [2021] AATA 738
Gormley (Migration) [2021] AATA 4341
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).

2. The delegate cancelled the visa on the basis that the applicant did not comply with sections 101(b) and 103 of the Migration Act and, after considering the applicant’s response to a notice about the non-compliance and the prescribed circumstances, the delegate decided that the applicant’s visa should be cancelled. 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 appeared before the Tribunal on 16 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Ms Amelia Marni Plummer.  The applicant’s current employer was available to speak with the Tribunal but the content of his written letter in support of the applicant was accepted by the Tribunal.  In those circumstances, it was deemed not to be necessary to take evidence from him. The applicant was represented in relation to the review.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.  This means that the application for review is not successful.   

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

7. On 17 September 2021, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his Working Holiday (Extension) (Onshore) Class TZ (Subclass 417 visa. This visa had been granted on 10 February 2021. The NOICC advised the applicant that it was considered that he had failed to comply with sections 101 and 103 of the Migration Act. The NOICC outlined the following information about the alleged non-compliance:

   Information provided in the Working Holiday (Extension) visa application

   On 16 November 2020 the visa holder 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 application form:

   ·In response to the question ‘They have carried out at least six months of specified work’, the visa holder answered ‘Yes’.

   ·In response to the question ‘All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa’, the visa holder answered ‘Yes’.

   ·Under the heading ‘Details of specified work undertaken’, the visa holder provided the following answers:

Employer Details
Legal registered name:				NERADA SERVICES PTY LTD
Trading name:				nerada services t/a Wadda plantation
Australian Business Number (ABN):				27169077758
Employer business address
Address:		WADDA plantation
Suburb / Town:		Innisfail
State / Territory		Queensland
Postcode:		4860
Work conditions
Employment type:			Direct employment
Industry type:			Agriculture, forestry and fishing
Industry type sub-group:			Other
Description of duties			Humping banannas Deleafing Dieseling Driving tractor Tidying
Date from:			04 Nov 2019
Date to:			02 Mar 2020
Total days worked:			75
Employer Details
Legal registered name:					POGGIOLI FARMING PTY LTD
Trading name:					GOLDEN TRIANGLE AVOCADO
Australian Business Number (ABN):					65624747404
Employer business address
Address:	MEHMET ROAD
Suburb / Town:	TOLGA
State / Territory	Queensland
Postcode:	4882
Work conditions
Employment type:			Direct employment
Industry type:			Agriculture, forestry and fishing
Industry type sub-group:			Other
Description of duties						Development of avocado trees and vines Water irrigation Preparation for upcoming season Cleaning Packing
Date from:						16 Apr 2020
Date to:						15 Jul 2020
Total days worked:						65

·Under the heading ‘Working holiday declarations’, in response to the question ‘Have carried out at least six months of specified work; AND all of that work was carried out after 1 July 2019; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417) or another eligible visa.’, the visa holder answered ‘Yes’.

In support of the application, the visa holder uploaded copies of the following documents relating to his claimed employment:

·Pay slip from Nerada Services Pty Ltd dated 11 November 2019, 18 November 2019, 25 November 2019, 02 December 2019, 09 December 2019, 16 December 2019, 23 December 2019, 20 January 2020, 27 January 2020, 03 February 2020, 10 February 2020, 17 February 2020, 24 February 2020, 02 March 2020 and 09 March 2020.

·Payslip from Poggioli Farming Pty Ltd dated 23 April 2020, 30 April 2020, 07 May 2020, 14 May 2020, 21 May 2020, 28 May 2020, 04 June 2020, 11 June 2020, 18 June 2020, 25 June 2020, 02 July 2020, 09 July 2020 and 16 July 2020.

Based on the above information, as well as meeting other relevant criteria, the visa holder was granted a Working Holiday (Extension) visa on 10 February 2021.

Subsequent information received by the Department
The Department initiated employment verification checks with NERADA SERVICES PTY LTD, the business registered under ABN 27169077758, to verify the visa holder’s employment claims. On 10 March 2021, NERADA SERVICES PTY LTD contacted the Department and advised that the visa holder had never worked at the business.

The Department initiated employment verification checks with POGGIOLI FARMING PTY LTD the business registered under ABN 65624747404, to verify the visa holder’s employment claims. On 10 March 2021, POGGIOLI FARMING PTY LTD contacted the Department and advised that the visa holder had never worked at their business.

1. The NOICC went on to outline how the visa holder had failed to comply with s.101 because he had completed information in his application for a visa which was false, and s.103 by providing payslips which were bogus documents.

2. 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?

3. In response to the NOICC, the applicant wrote to the Department, including the following information:

   Firstly, I would like to openly and honestly admit my wrongdoing in this situation. I did not carry out the farm work and I did obtain fake payslips to make it look as if I did. I have absolutely no intention of adding fuel to the fire, and everything from this point forward is genuine. In this letter I plan to explain my justifications for my actions for doing what I did and for it to please be taken into consideration before cancelling my visa.

   1.Last year when the coronavirus pandemic first started there was quite clearly mass panic. It was a horrible time of uncertainty and no one really knew what was going to happen. Many people flocked home as soon as the trouble started, however I struggled to part company with my new found home. I was advised by my employer at the time that I should try get a flight home to the uk while I could as they feared I would end up stuck here with no work and no access to government help due to being on a working holiday visa. I decided against leaving for various reasons. I believed I had a better chance of supporting myself here and trying to find whatever work I could than flying home to a total lockdown with no chance of getting employment or being able to support myself.

   Outcome - I stayed and didn’t give up and managed to maintain consistent steady work over the eighteen month period covid 19 has lasted so far.

   2. Both bad luck and little options had a part to play in me not doing my framework, in December 2019 I was in hospital suffering with ‘bursitis’ this was a muscular inflammation in my back meaning I was signed off work, this injury happened in a work place accident and left me resting at home for 7 weeks as I could barely carry my own bodyweight. July 2020 I then broke two of my toe’s, again bad luck which meant I was sat at home for 8 weeks while they recovered. Further reducing the time I had left to complete my 6 months regional. Farm work was incredibly hard to come by last year when I should have carried out the work. Borders were constantly closing and there was a real reluctance for various farms I contacted to accept me as I was residing in Sydney. If I was relocating for 6 months regional work, I wanted to feel secure and confident that I was going somewhere where I was going to be provided consistent work, none of the farms I spoke to could ensure this. Hostels were either closing due to little work available or refusing to accept workers from Sydney. The few positions I made contact with in NSW were taking anyone for the timeframe I needed or required things such as a driving licence that I do not hold. Farms also looked for me to be in a relationship with a girlfriend that would be accompanying me to the farm as their needs were suited to a couple rather than an individual. Outcome - I was faced with extreme difficulty in finding farm work, again not an excuse. Between injuries and lack of options this was a further reason for me to panic and pushed me into obtaining false payslips.

   4. I was diagnosed with Androgenic Alopecia last year soon after the pandemic started. This is a chronic condition which effects the male hormone system brought on through the emotional strain involved in last years events. Due to constant stress my hair started falling out which caused further depression. This became a further incentive in my mind to look for a way to stay in Sydney and work to support myself and save up money to undergo a hair transplant procedure. During my first year working holiday visa I carried out the three months farm work in Innisfail humping bananas, in this time I averaged a weekly wage of $500 a week, $200 of which was spent on rent money to the hostel. Although I didn’t expect to be paid generously for the regional work, I knew that if I were to spend 6 months on such low wages I had little to no hope of building up my financial stability, something I was very determined to do due to the uncertainty of the pandemic and my newly diagnosed condition I so desperately wanted to control. The money I was able to generate through remaining in work throughout last year allowed me to undergo a FUE hair transplant procedure with Hair Doctors surgery in Leppington. This cost $13 000, an amount I would have never been able to gather had I went home or went to one of the few farm work options available at the time that all refused to guarantee full time work or work for the 6 month period required.

   Outcome - I worked hard and saved enough money that allowed me to undergo FUE hair follicle surgery, a major step for me and something I didn’t think would be possible. I’m now in the rehabilitation process and enrolled in everyday medication, I am now hopeful of achieving results that will give me some sort of confidence back.

   5. The situation back home in the UK was not ideal. Whilst living in the UK I have never had my own property and always stayed at home with my mother. My mum suffers from various health illnesses such as diabetes. This placed her under the category of high risk which in turn made me hesitant to return home and put her safety in jeopardy. It may seem far fetched but this was a massive reason for my decision to stay here and avoid going home. I was worried about things such as contracting coronavirus on the journey home and passing it on to family members less capable of battling it or contracting at home and bringing it into the family home. Coronavirus was rife in the UK, suffering much worse case numbers and deaths than us here in Australia. The decision for me to avoid returning home at all costs meant in my mind I was also reducing the risk of my families safety.

   Outcome - The UK situation overtime has improved massively now, however in this time my affection for Australia has also grown massively. My family have thankfully stayed safe there whilst I have stayed safe and been vaccinated in Australia.

   6. For me, Australia as a country in general, over the course of my working holiday visa which has spanned 34 months I’ve began to feel very much at home here and have harboured ambitions to create a lasting life for myself in this country. The time I’ve spent here I have always worked, mainly in the construction industry and contributed my share to the economy through tax. I humped bananas for 3 months in Innisfail in my first year which to this date I still class as the hardest most gruelling thing I have ever done in my life. 3 months of being spoken to like the lowest of the low living in over crowded and overpriced hostels that took advantage of your desperation to obtain the farm work and secure the visa. Do I regret it? no. Why? Because I love this country and I was prepared to do whatever it took to stay here. Had the circumstances been different last year and coronavirus did not occur I can honestly say I would have returned in my second year and done the six months farm work, due to the desire to stay here legit. At the end of my current working holiday visa I had plans to study carpentry at college over a two year period, this was a course that would cost a total of $28 000. I was prepared to do this as I wanted to better myself and gain an Australian trade qualification that gave me a genuine chance of committing my future to Australia and applying for permanent residency.

   Outcome - If you allow me to stay I will be forever in your debt. This all may sound theatrical, but I wanted it to be personal and from the heart rather than use a lawyer to provide the same generic letter a thousand others will use. I wanted to write this personally as it’s only me that can show how sorry I am, and how far I’m willing to go to earn my visa. As stated above, I fully provide my services to NSW, whether that means working for free rurally, working for free in the community, working with homeless shelters, food kitchen, charity shops. These are just some options that would help back to the community and be productive solutions rather than cancelling my visa.

   7. Finally, I’d like to again apologise for the wrong I have done. I know I’m in the wrong and I’m not trying to dispute that. My intent in this letter was to explain to you why I done what I done. This was not done through malice or because I’m a bad person, it was done through desperation to stay in a country I’ve become extremely fond of and the thought of leaving is petrifying. I’m not looking for sympathy, I know there’s many others in the same situation, some far worse off. I’m just looking for a second chance to right my wrongs and prove that I am someone worth allowing to stay and that I will do almost anything to avoid having my visa cancelled. I’m willing to offer my services to the community of NSW whether this is through unpaid voluntary work that may be deemed acceptable or any alternative options you may suggest. If you decide not to cancel my visa I would be happy to start this straight away, at the same time I would also look to secure a space on a genuine student visa as detailed above to study for a carpentry trade qualification. This would further benefit the economy and show a genuine interest from my part to better myself. Feel free to ask for any further supporting evidence such as doctors notes / character reference statements / work references and so on. I would be more than happy to provide them.

4. In his response to the NOICC and in his evidence before the Tribunal, the applicant has conceded that he provided information in his application for a visa which was incorrect by claiming that he had performed rural work which he had not undertaken.  He has also conceded that he provided payslips which were bogus documents in support of the application for a visa.   As confirmed with the applicant at hearing, there is no issue in this case about the validity of the NOICC or that the applicant gave incorrect information and bogus documents to the Department. 

5. The Tribunal finds that there was non-compliance with sections 101 and 103 by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

6. 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).

7. In exercising this power, the Tribunal must consider the applicant’s response 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.

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

   The correct information

2. The correct information was that the applicant had not completed the required work hours in a regional postcode in the period he claimed.  His evidence is that during that period he worked in construction work in Sydney. The correct information therefore weighs towards cancelling the visa.

   The content of the genuine document (if any)

3. There is no genuine document before the Tribunal, because the applicant did not partially complete the required work in the period required.  No weight will be given to this factor.

   Whether the decision to grant a visa was based, wholly or partly, on incorrect information or a bogus document

4. The visa could not have been granted in the applicant’s actual circumstances.  The decision to grant a visa was based wholly on the incorrect information and bogus documents. The provision of the false information and bogus documents resulted in the applicant being granted a visa for which he was not qualified.  Consideration of this factor weighs strongly towards cancelling the visa.  

   The circumstances in which the non-compliance occurred

5. The applicant in his response to the NOICC acknowledged his wrongdoing and apologised for it.  As will be noted from the information in his response, included above, he described a number of circumstances which led to him making the application with the incorrect and false information. 

6. The applicant stated that when the coronavirus pandemic first started there was panic and uncertainty. He had the option to depart and was in fact advised to do so by his then employer lest he get stuck in Australia without work, but decided against leaving because he believed he had a better chance of supporting himself in Australia, and because he feared there would be no work in the UK due to lockdowns. In fact, the applicant’s decision was justified because he continued to have consistent steady work over the entire period of the pandemic. The applicant also referred to concerns about his mother’s health and a desire to keep her safe as another reason why he did not want to return home.

7. In December 2019 he sustained a muscular inflammation injury to his back and had an overnight stay in hospital.  He also broke two toes in July 2020.  The applicant claimed that due to losing around 15 weeks incapacitated for work, the period he had available to ‘do his six months regional work’ was reduced.  However, as was noted at hearing (and confirmed by the applicant) he had regular work in the Sydney area and never really intended doing six months rural work, so the injuries did not really prevent him from undertaking rural work. The applicant agreed with this proposition but said if things had been different (that is, no pandemic) he believes he would still have undertaken the work because he wanted to do what he needed to do to stay in Australia. 

8. The applicant also stated in his written application that farms had specific requirements that he could not satisfy, such as requiring a driving licence; or a preference for couples or pairs of workers.   He confirmed this at hearing, though it was evident from his evidence that he made only a cursory enquiry of a few rural job agents and on his own evidence ‘could have tried harder’ to find rural work. He preferred to remain in full time employment in the city.  Whilst this is of course understandable, and particularly during the time of the pandemic, it was a decision the applicant made in full knowledge that it would mean he would not be qualified for an extension to his working holiday visa. The Tribunal considers that the applicant made a sensible and understandable decision to stay living and working in the Sydney region and not to move to a rural region and undertake the required work.

9. Another circumstance referred to by the applicant was his development of Androgenic Alopecia soon after the pandemic started. The Tribunal accepts that he was additionally motivated by this condition to stay in Sydney, because he could earn more and save up for treatment he needed.  The Tribunal accepts the applicant’s assessment that he could not have earned sufficient wages in rural employment to achieve that outcome.  Again, this helps to explain why the applicant stayed in Sydney – and even that he made the best decision for his own personal health and financial security – it does not explain or excuse the provision of incorrect information or false documents in the visa application.   

10. The applicant confirmed at hearing that he did not contact a migration agent or the Department of Immigration to enquire about his visa rights or possible legitimate visa pathways. During this period, many temporary visa holders were reluctant to travel and struggled to find work (including in rural areas) during the pandemic.  Special visa arrangements were put in place to address these issues but the applicant did not make any effort to discuss same with an agent or the Department or to apply for a visa for which he was qualified.

11. The applicant impresses as genuinely remorseful about the provision of incorrect information and false documents.  He has eloquently explained the various factors and circumstances which were operating in his life and which he believes, when considered overall, were the reason why he made the decision to provide incorrect information and false documents to the Department.    

12. The Tribunal considers that whilst the circumstances outlined by the applicant clearly explain why he chose not to undertake rural employment and to remain living and working in Sydney throughout the period he could have been undertaking rural employment, (or could have departed Australia)  they do not really explain (and do not provide any level of justification of) the falsifying of documents or giving incorrect information to the Australian Government in his application, particularly given his failure to make enquiries about other legitimate visa possibilities. 

13. As noted above, many temporary visa holders were in a similar position to the applicant during the pandemic but managed to negotiate the visa system without providing false or misleading information and documents.  The circumstances in which the non-compliance occurred include matters which weigh both for and against cancelling the visa. After careful consideration, the Tribunal gives the circumstances described by the applicant in which the non-compliance occurred a little weight against cancelling the visa.

    The present circumstances of the visa holder

14. The applicant described a desire and hope to continue living and working in Australia.  He is working on a large building project in Sydney.  His employer has written an excellent reference for the applicant, noting that he is an excellent employee who operates well under pressure, and expressed a desire to continue the applicant’s employment and possibly sponsor him if the cancellation is set aside.  The Tribunal accepts the employer’s report and desire to continue employing the applicant as genuine.  The Tribunal also accepts that labour shortages in the construction industry referred to by his employer suggest that the applicant could meaningfully contribute to Australia’s economy in the event he could remain in Australia.

15. The applicant also expressed a desire to study in a trade in Australia before returning to Ireland. The Tribunal accepts this evidence. The applicant is in a relationship with an Australian citizen, Ms Plummer.  The Tribunal accepts that their relationship is genuine and ongoing, though still relatively new.  They live together. The applicant gave evidence that he is contributing to Australia’s economy and wishes to continue to do so. He volunteers at Barnados fundraising.  He gave evidence that he will continue to do so as he believes in their stated objects of protecting children who need housing support due to poverty or abuse.

16. The applicant and his partner have both given evidence about their genuine desire to stay together and that they rely very heavily on each other for emotional support. The Tribunal accepts that evidence. Ms Plummer has explained that she was in an abusive earlier relationship and that since they commenced their relationship, the applicant has shown her what a healthy relationship is.  She stated that she is an only child and very close to her mother and runs a successful online promotional business.  Her family and life are here in Australia and she would not consider moving permanently to the United Kingdom. She gave evidence that she would be devastated if she and the applicant were unable to be together because of this mistake he made before he met her.  She gave evidence that she had not given any thought to a long distance relationship.  The applicant and his partner gave evidence that they have started to explore and discuss the possibility of applying for a partner visa.  They have been waiting to see the applicant’s visa status after this review is finalised.  The applicant and his partner noted that long-distance relationships are difficult and travelling to the United Kingdom expensive. They have leased a home together and would very much like to continue their life and relationship together in Sydney.

17. The Tribunal gives the current circumstances (the applicant’s ongoing contribution to the community and economy, his employment and his personal relationship) some weight against cancellation of the 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

18. The applicant did not prolong the lie once his false information and bogus documents were discovered.  He admitted his wrongdoing and has not sought to justify it since.  In those circumstances, the Tribunal gives this consideration a little weight against cancelling the visa.

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

19. There are no other instances of non-compliance by the applicant known.  This can be given a little weight against cancelling the visa.

    The time that has elapsed since the non-compliance

20. The applicant has continued to live and work in Australia since he provided the incorrect information and bogus documents.  The visa the subject of this review was to expire on 30 December 2021. On one view, therefore, the applicant has in fact remained in Australia already for a period longer than would have been permitted under the visa which is the subject of review.  The applicant has gained valuable work experience in that time, been financially secure, formed meaningful relationships with his partner and employer and has been able to obtain treatment for his alopecia over the period since the non-compliance.  The Tribunal considers these positive experiences and gains since the non-compliance should be given some weight towards cancelling the visa because in effect, the applicant has achieved these personal gains despite not being qualified for the visa which was granted.  Put another way, his personal gains and experiences since the non-compliance were achieved as a direct result of the provision of incorrect information and false documents.   

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

21. There are no breaches of the law since non-compliance which have been disclosed or discovered in this review. This can be given a little weight against cancelling the visa.

    Any contribution made by the holder to the community.

22. As noted above, the applicant has worked throughout the pandemic and has therefore contributed to the Australian economy by his work and the payment of taxes and has also contributed to the community by his charity work.  Consideration of this factor weighs lightly against cancelling the visa, but these contributions have already been given some weight in his favour when considering his current circumstances.  

23. The factors in reg 2.41 considered above do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    The consequences of cancelling the visa

24. If the visa is cancelled, the applicant will be ineligible to apply for various visas whilst in Australia due to the operation of s.48 of the Act.  In addition, it is likely that the applicant will be subject to a three year period of ineligibility for the grant of certain types visas under Public Interest Criterion 4013. 

25. If the visa is cancelled, the applicant would (after his bridging visa ceases) become an unlawful non-citizen and be expected to make arrangements to depart the country.  Potentially, he could be subject to detention and removal, though in the applicant’s case the Tribunal assesses that this would be unlikely. 

26. At hearing, the Tribunal noted that the provision of incorrect information and bogus documents in support of a visa application is a very serious matter and must be given significant weight towards cancelling a visa – because the integrity of the visa system relies on truthful and correct information being provided by visa applicants so that qualification for visas can be properly assessed. It was noted that on one view, if the visa was not cancelled, the applicant would have faced no consequences for the provision of false information and bogus documents to the Department. On the contrary, he has gained significant personal advantages from doing so. He has spent additional time in Australia with ongoing employment, and enjoyed financial security and valuable work experience during a time of global economic contraction as a result of his actions.  In response, the applicant said that he has suffered anxiety and constant worry about what he had done and the possibility that he will have to return to the United Kingdom, and believes he has therefore suffered consequences due to his mistake.  He has put at risk his potential future as a permanent resident of Australia and he submitted that this is a significant consequence. 

27. The applicant’s representative expressed a concern that the Tribunal was placing too much emphasis on there being some consequences for the provision of incorrect information and bogus documents – submitting that the Tribunal appeared to be seeking to ‘punish’ the applicant for the mistake he made and that this was not the purpose of the cancellation provisions. With respect to the applicant’s representative,  what the Tribunal is considering here is whether the legislated and usual consequences of providing incorrect information and bogus documents to the Department should apply to the applicant.  The Tribunal considers (as observed in response to the representative’s submission) that it could also be argued that the applicant’s representative was seeking to place too little emphasis on the seriousness of the applicant’s conduct and the potential lack of any consequences for that conduct if the visa is not cancelled. The potential and actual consequences of cancellation due to failure to comply with sections 101 and 103 are the intended consequences of the legislation.

28. On the other hand, it is accepted that the applicant will face the disruption of his relationship and his planned  employment trajectory and will likely be required to make an unwilling departure from Australia. These factors will be given some weight against cancelling the visa.  However overall, consideration of the consequences of cancelling the visa actually weighs slightly towards cancellation.

29. As far as the Tribunal is aware, no person’s visa will be consequentially affected if the applicant’s visa is cancelled.  There are no children or Australian citizens affected by the cancellation apart from Ms Plummer and the Tribunal has already taken his relationship and the potential impact on that relationship into consideration above.

30. There are no circumstance in this case which suggest that the cancellation of the visa would lead to the applicant’s removal in breach of any non-refoulment or family unity obligations or be in breach of any international obligations.

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

31. The Tribunal is not bound by decisions made by other members of the Tribunal because each case must be determined on its’ own facts and circumstances.  The applicant submitted three cases where members of the Tribunal decided not to cancel a working holiday visa, said to be analogous to the applicant’s situation.  In two of those cases, (Chardronnet[1] and Gormley[2] ) the applicants had provided incorrect information (claiming they had worked more days of required work than they had actually worked or had worked when they had not worked) but had not provided bogus documents. In both of those cases, the pandemic operated to impact their actual capacity to work in rural employment. In the third case, (Donohue[3]) the applicant had also provided false documents obtained from an acquaintance, similar to the applicant. However, in that case, and according to the decision statement, the member accepted evidence that the applicant had actually started rural work twice but then encountered some distressing personal circumstances on each occasion after commencing work which interfered with his capacity to complete the work as required.  In all three cases, the applicants also provided evidence of personal circumstances unique to themselves which were given consideration by the Tribunal member as necessary.

    [1] Review 2017201, Member Flood, 12 March 2021.

    [2] Review 2112968, Member Hardy, 27 October 2021

    [3] Review 2013302 Member Hardy, 18 March 2021

32. The Tribunal has considered and has had regard to the cases referenced by the applicant’s representative in written submissions.   Ultimately, the Tribunal must make a decision based on its’ own assessment of the applicant’s unique facts and circumstances.  

33. If the applicant is required to depart Australia, his partner will be without his financial contribution to the jointly leased home and his emotional support.  The Tribunal heard that Ms Plummer is employed in her own successful business. It is accepted that the applicant will suffer some emotional hardship in having to live separately from his partner and that Ms Plummer will also suffer the effects of separation. The written submissions argued that the applicant would be a burden to his family in the United Kingdom and that there is no work available in the small fishing village where they live.  As discussed with him at hearing, the Tribunal does not accept that the applicant would necessarily return to a small rural village or that he would have difficulty finding work given his now extensive work experience, (wherever he chose to reside throughout the United Kingdom) and well publicised labour shortages worldwide.  The Tribunal does not accept that the applicant would be a financial or emotional burden to his family in the United Kingdom.   After reviewing these other relevant matters, they will be given a little weight against cancelling the visa.

    Conclusion

34. The Tribunal found the applicant (and his partner) to be frank and credible.  The Tribunal accepts that the applicant is genuinely remorseful for providing incorrect information and bogus documents.  Nonetheless, the Tribunal considers that it gives greater weight to those factors which weigh towards cancelling the visa than those which weigh against cancelling the visa.  In particular, significant weight is given to the fact that the applicant knowingly lodged an application based on false information and bogus documents and gained a visa for which he was not qualified, and the fact that the visa would not have been granted without the incorrect information and bogus documents (and that the applicant was aware of this).  In addition, although the unpredictable and stressful situation of the pandemic provided a particularly difficult situation for temporary visa holders in Australia, the Tribunal considers that it had very little impact on the applicant’s decision to provide incorrect information and false documents.  As noted earlier, the Tribunal has also placed weight in favour of cancelling the visa on the consequences of doing so, and because the applicant made no investigation of the Department or a Migration agent about extending his time in Australia legally, but instead chose to provide incorrect information and bogus document in support of a visa for which he knew he was not qualified.

1. The matters and considerations that weigh towards cancelling the visa outweigh those that weigh against doing so. 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

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

   Anne Grant
   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.

   103Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

   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.