Murphy (Migration)

Murphy (Migration) [2022] AATA 109 (11 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shaun Murphy
CASE NUMBER:  2108682
HOME AFFAIRS REFERENCE(S):          BCC2020/2272819
MEMBER:Melissa McAdam
DATE:11 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 11 January 2022 at 10:36am
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect answers given in extension application – 3 months of specified work in regional Australia while holding first visa – verification checks showed applicant never worked at claimed business – discretion to cancel visa – COVID-19 restrictions – continuing non-specified work and value to employer – partner’s work and permanent residency application – skills shortages – minimal efforts to find specified work and complicity in giving of incorrect answers – agent’s advice not to respond to department’s notice – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 417.211(5)
CASE
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with obligations under s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Section 107 Notice (NOICC)
On 4 May 2021 the Delegate issued a Notice of Intention to Consider Cancellation of the applicant’s Working Holiday Visa (NOICC) under s.107 of the Act. In the NOICC the Delegate set out the following:
I consider that there has been non-compliance with the following section(s) of the Act:
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 or provided.
…
Particulars of grounds for cancellation
Information provided in your visa application
On 21 August 2020 you lodged an application for a Working Holiday (Extension) (subclass
417) visa using the Department’s online lodgement facility, providing the following answers
on the electronic visa form:
In response to the question ‘Has the applicant undertaken 3 months of specified work as the
holder of a first Working Holiday visa (subclass 417)?’ you answered ‘Yes’.
Under the heading ‘Details of specified work undertaken’, you provided the following answers
(in part):
Employer Details
Legal registered name: Pearl Recruitment Group
Trading name: Pearl Recruitment Group (WA) Pty Ltd
Australian Business Number (ABN): 75145084046
Employer business address
Address: Level 1 Melville Prade
Suburb / Town: South Perth
State / Territory Western Australia
Postcode: 6151
Work address
Business name at this location: Gumala Aboriginal corporation
Address: Yandicoogina
Suburb / Town: Newman
State / Territory: Western Australia
Postcode 6753
Work conditions
Employment type: Direct employment
Industry type: Construction
Industry type sub-group: Construction
Description of duties Land Development and Site Preparation Services
Date from: 02 March 2020
Date to: 05 July 2020
Total days worked: 90
Under the heading ‘Working holiday declarations’, in response to the question ‘Are applying
for their second Working Holiday visa (subclass 417) and have completed 3 months of
specified work as the holder of a first working holiday visa’, you answered ‘Yes’.
Subsequent information received by the Department
The Department initiated employment verification checks with Pearl Recruitment Group (WA)
Pty Ltd, the business registered under ABN 75145084046, to verify your employment claims.
On 03 September 2020, Pearl Recruitment Group (WA) Pty Ltd contacted the Department
and advised that you never worked at their business.
Possible non-compliance with section 101(b)
I consider that you provided incorrect information in your application for a Working Holiday
(Extension) visa when you:
● answered ‘Yes’ to the question ‘Has the applicant undertaken 3 months of specified
work as the holder of a first Working Holiday visa (subclass 417)?’;
● provided details of claimed employment with Pearl Recruitment Group (WA) Pty Ltd, at
the section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Are applying for their second Working Holiday visa
(subclass 417) and have completed 3 months of specified work as the holder of a first
working holiday visa’.
I consider the above information is incorrect, as verification checks undertaken by the
Department have concluded that you never worked at the business, Pearl Recruitment
Group (WA) Pty Ltd. Therefore you have not undertaken three months specified work in
regional Australia.
Based on the above information, it appears you provided incorrect answers in support of
your Working Holiday (Extension) visa application. I consider therefore, that you have not
complied with sections 101(b), and accordingly your Working Holiday (Extension) visa may
be liable for cancellation under section 109 of the Act.
What you can do
Before a decision can be taken on whether to cancel your visa, the Act gives you the
opportunity to comment on the possible non-compliance and to give a written response why
your visa should not be cancelled. Your response should provide reasons:
● why you think you have complied, or why you have not complied, with section 101(b);and
● why you think your visa should not be cancelled (you should provide reasons why you
think your visa should not be cancelled, even if you think you have complied, as the
delegate may disagree with you); and
● provide any supporting evidence.
Response to NOICC
According to the Delegate’s decision record, submitted by the applicant to the Tribunal, the applicant did not respond to the NOICC.
Information to the Tribunal
Pre-Hearing Submission
On 8 October 2021 the Tribunal wrote to the applicant asking him to provide further information in regard to whether or not he had provided incorrect information in his visa application and why his visa should not be cancelled.
On 25 October 2021 the applicant provided a written response and attached the following documents:
-A letter from the applicant
-A letter from the applicant’s partner
-A letter from the applicant’s employer
-A letter from the applicant’s partner’s employer
In the applicant’s letter he writes:
… I am writing this letter to plead my case against a decision to cancel my working holiday visa. I really hope you take everything into consideration while making a decision on my visa. Getting caught in this trap to pay money for a visa has really effected my mental health. I was only in Australia for three months when COVID struck, I tried multiple farms and regional areas to try find some regional work to complete my 88 days of regional work to earn my second year working holiday visa. I have messages of proof that I was in contact with farms in regional NSW and left my name on a waiting list for two which never got back to me.
While speaking with another Irish guy on a construction site he gave me the email for Golden Fish and said this guy can get you a legitimate visa if you can’t get regional work because of COVID. I was naive and panicking because I was running out of time to do my regional work. I am also willing to sign a NSW state declaration to prove that I was not aware that this was a scam and I thought it was a legitimate way of earning my next working holiday visa.
Since coming to Australia I have grown so much and made a brilliant life working in the construction industry. I have worked on tier 1 projects such as the Crown Casino for over a year and it is a privilege to be able to use my skills to contribute to the growth of Sydney and moreover Australia. I have been with the same company Top Knot Carpentry for Almost two years. I’ve earned my role as a leading carpenter within the company. I have asked one of our top project managers to write me a reference to show how much I mean to the company. I have attached the letter with this and I’ve also attached two other project managers numbers who said they are more than happy to take a call to give me a reference if needed.
A year ago, I then met my partner Ciara. Ciara is a leading nurse in The Northern Beaches hospital in Sydney. She has worked in the COVID ward since the virus first struck. Me and Ciara have supported each other through this whole pandemic. Ciara has been nominated by her hospital for her Permanent Residency, our plan before my visa was cancelled was to join Ciara as a defacto partner on her visa so we could both stay here together and enjoy our lives here in Australia. I would really appreciate if my visa could be reinstated so that we can go back to this plan and so that I don’t effect Ciara’s decisions of leaving Australia too.
I really understand how hard your decision is and I now understand that I should have researched Golden fish more before jumping in too it. I deeply ask that you take everything into consideration when making your decision, I really don’t want mine and Ciara’s Australian adventure too end now. Thanks so much for reading this and I hope you have a great day
In the applicant’s partner’s letter she writes:
I’m writing this letter in regards to Shaun Murphy, who is my boyfriend/partner. I’m a Registered Nurse currently working in Northern Beaches Hospital on a 36 bed COVID/ Medical ward. I’m currently sponsored with the hospital and they have put me forward for Permanent Residency. I’m a senior staff nurse whose role often includes being the Nurse in Charge during shifts and supporting student and new graduate nurses.
During the past year working on a Covid ward has been quite challenging and isolating, but thankfully I’ve had Shaun with me to support me and be my rock during this difficult time. We started dating in January and have been living together since the end of May and it’s been exciting finally getting back to normality post lockdown.
I understand the gravity of the situation Shaun is in, but it would be greatly appreciated if his visa could be reinstated so that we can go on together as De Facto partners and continue setting up our lives together here in Sydney. We’ve built a good life here and would love to possibly stay here long term. If Shaun were to be sent home, I would find it very difficult to stay here on my own. Given the current circumstances, my employer has already expressed their concerns if I were to leave to follow him home and especially when I will have Permanent Residency through them. I would be a big loss to them as there is a huge nursing shortage across NSW.
I honestly haven’t met anyone like Shaun and can’t imagine my life here in Sydney without him. He naively made a mistake before we even met and I dread to think that a silly mistake could cost us our future here and the life we have started to build together. I would be eternally grateful if you were to consider his appeal and reinstate his visa.
In the applicant’s employer’s letter he writes:
I am writing to you to confirm that Shaun Murphy has been an employee at Top Knot Carpentry from January 2020.
We are a highly reputable construction company based out of Botany and employing over 500
people across Australia. Our projects have greatly contributed to the rapidly growing needs of
Sydney and Shaun has played a pivotal role within several of these contracts. Working for Top Knot for nearly two years, Shaun has cemented himself as a crucial employee within our team.
Shaun is a diligent and generous worker and over the past two years has worked hard to become a team leader.
With his experience across a vast number of projects and his abundance of skill, Shaun is truly an invaluable asset to our company. Due to the construction boom in Sydney and a shortage of skilled workers across Australia we need quality tradesmen just like Shaun.
The current COVID situation has brought many difficulties to our industry, most prominently the
recruitment of great tradesmen. As such we kindly ask that you reinstate Shaun’s visa so we can keep him on the team.
In the applicant’s partner’s employer’s letter she writes:
I am writing this letter regarding RN Ciara Lyons commenced fulltime employment as a
Registered Nurse Division 1 at Northern Beaches Hospital on the 16 November 2020 and is still
currently holding that position on 4C/Acute Stroke Unit (ASU)/ COVID Assessment Pod (CAP)
and MAU.
4C/ASU/MAU/CAP is a 36 bed acute medical and stroke unit with continuous cardiac
monitoring. Ciara is a valued senior staff nurse, who is clinical sound and provides excellent
support for other staff and is a competent Registered Nurse.
This letter was produced to for Ms. Lyons intention to support her boyfriend's/partner's visa.
On 16 November 2021 the applicant provided another copy of the letters he had submitted on 25 October 2021. He also provided a copy of screen shots of messages dated 1 February 2020 between himself and “Chloe” regarding work in the country. He writes that he would like to work on a farm in May 2020. He also asks Chloe questions about her farm work in messages dated in December 2019.
Tribunal Hearing
The applicant appeared before the Tribunal on 24 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Ciara Lyons.
The following is a summary of the information provided by the applicant at the hearing:
a.He did not reply to the department’s NOICC because he sought advice from an Irish Migration Agent, based in Sydney, who advised him not to reply to the NOICC and to just appeal the cancellation.   After the cancellation he contacted a lawyer from Melbourne who told him he had received bad advice from the Agent.
b.He did not work for the Pearl Recruitment Group and did not complete specified work or any work in regional Australia before the grant of his second Working Holiday visa.
c.He came to Australia in November 2019 with a friend. They both planned to do regional work in Australia as the applicant had a great deal of experience in construction work. However the COVID pandemic hit and the applicant was unable to find regional work. He sent messages to farms where his friend worked and also contacted the Griffiths Workers’ Hostel but could not obtain regional work in time. He went to see a lawyer who told him he could apply for a Student visa but he didn’t want to do this as he didn’t want to study. Then the opportunity arose with ‘goldenfish’ and he panicked and took this opportunity. An Irish friend, Jamie, on a construction site told the applicant about ‘goldenfish’. Jamie had used goldenfish previously to get a second visa but has since returned to Ireland.
d.Jamie told the applicant it was a legitimate visa and the applicant fell for this. What the applicant means is that a ‘legitimate visa’ would result.   The ‘goldenfish’ contact used the name ‘Lee Hansol’. The applicant still has copies of the email correspondence between himself and Lee Hansol which he can submit to the Tribunal.
e.The applicant did not ever travel to regional Australia to try to find work. He contacted an immigration lawyer but she did not give him any advice about applying for a Covid visa.
f.He did not return to Ireland because he had built such a good life in Australia. His carpentry skills had taken off. Life is much better in Australia than in Ireland. There is not much work in Ireland. He has made something better of himself here.
g.He could not find regional work because of reasons to do with Covid. He tried with his friend Chloe on two occasions. He knew her from Ireland. She worked on a farm for five or six months. She is now engaged to the farmer’s relative. He also tried to find work through the Griffith Working Hostel and through a Bundaberg contact. He telephoned them.
h.He met his partner Ciara and things went well. She is in charge of a Covid ward. She is gold for them. Her hospital is sponsoring her permanent residency application.
i.Covid is skyrocketing in Ireland. There are 6,000 cases a day still. He did not want to go back as there is more opportunity and things are better in Australia. His work has grown so much. He has made so many friends and became a lead carpenter on a Tier 1 site.   He is contributing his skills a lot more. There is a skill shortage in Australia, especially with carpenters.
j.In Ireland he lives with his mother, grandmother and sister. They have moved to a three bedroom house so there is no room for him anymore. He will be an extra burden for them. Also if he goes to work he could bring the virus home. His grandmother is vaccinated but his mother doesn’t believe in it. He is double vaccinated.
k.He sends money to his sister on a monthly basis. The rents are very high in Ireland. His sister is 18 and works part time. His mother works part time in a petrol station. His father is also in Ireland but the applicant does not have much to do with him.
l.There have been no other instances of non-compliance by the applicant.
m.He has not breached any laws in Australia.
The following is a summary of the information provided by the applicant’s partner Ciara Lyons at the hearing:
a.She is in the process of obtaining permanent residence here. She would love the applicant to be able to stay with her and continue their lives here. She has family here. She is looking to stay long term. She has been in charge at the hospital and has a chance of higher roles. The opportunities are much better in Australia.
b.Her hospital is organising her permanent residence visa application.
c.She met Shaun in January this year and did not know him at the time he was being investigated. She was quite upset when she found out about this. They had made their relationship official and she hoped to lodge their visa applications for permanent residency together. Now she has to go ahead with her application without him. She was surprised by what he did. It was not in his character.
Post-Hearing Submission
After the hearing on 24 November 2021 the applicant submitted copies of email correspondence between himself and Lee Hansol. In one message Lee Hansol includes the following:
… once you fill out all questionnaire i will forward to farm owner so they start to organise apply your 2nd working holiday visa.(Limited Applicant per certain period)
what they do is that they are making your paperwork in order to lodge your visa.
you were supposed to work specific area for 88 days so they put you on their profile as you have been working for them during certain time
In another message Lee Hansol congratulates the applicant on being granted the second Working Holiday visa and tells the applicant to pay $1,000 into Lee Hansol’s bank account and to describe the payment as ‘Rent’.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act in the following respects:
That the applicant provided incorrect information in his application for a Working Holiday (Extension) visa when he:
● answered ‘Yes’ to the question ‘Has the applicant undertaken 3 months of specified
work as the holder of a first Working Holiday visa (subclass 417)?’;
● provided details of claimed employment with Pearl Recruitment Group (WA) Pty Ltd, at the section of the application form titled ‘Details of Specified Work Undertaken’; and
● answered ‘Yes’ to the declaration ‘Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first working holiday visa’.
The above information was considered incorrect, as verification checks undertaken by the Department concluded that the applicant never worked at the business, Pearl Recruitment Group (WA) Pty Ltd. Therefore he had not undertaken three months specified work in regional Australia.
The applicant has confirmed that he did not work for Pearl Recruitment or complete three months of specified work in regional Australia. On the evidence before it the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa 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.
The correct information
The correct information is that the applicant had not completed three months, or any, specified work in regional Australia at the time of his second subclass 417 visa application.
The correct information was of critical relevance to the assessment of the visa application and should have been provided.
The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.
The content of the genuine document (if any)
This is not a relevant consideration in this case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information
Clause 417.211(5) of Schedule 2 to the Regulations requires the applicant to have carried out (whether on a full-time, part-time or casual basis) a period or periods, equivalent to at least three months full-time work, of specified work in regional Australia as the holder of a subclass 417 visa.
This was a substantive criteria and a central requirement for the grant of the visa. If the requirement was not fulfilled the visa could not be granted.
The Tribunal therefore considers that the grant of the second subclass 417 visa was based, in large part, on the incorrect information given in the visa application.
The Tribunal considers this a significant matter which weighs in favour of cancellation of the visa.
The circumstances in which the non-compliance occurred
The applicant gave evidence that the incorrect information was provided because he could not find regional specified work, and life in Australia was much better for him than life in Ireland. His carpentry career was thriving and he was in a committed relationship in Australia. He was ‘panicking’ about not being eligible for a second working holiday visa so he obtained contact details for a person known to be able to obtain second working holiday visas for people who had not completed the required specified work.
The applicant initially stated that he believed he was obtaining the visa in a ‘legitimate way’. When the Tribunal put to the applicant at hearing the numerous indications that Lee Hansol’s methods were not legitimate the applicant then conceded that he meant the resulting visa was legitimate, not the methods used to obtain it.
The email correspondence between the applicant and Lee Hansol, as submitted by the applicant, states Lee Hansol’s intention to provide the applicant’s name to a farm which would include him as a person who worked there despite the fact he had not worked there. The Tribunal therefore considers that the applicant was aware that Lee Hansol was intending to use incorrect information in the visa application on his behalf. Lee Hansol’s direction to describe payment to him as ‘rent’ also indicated a lack of honesty in the arrangement. Further, there is no indication given by Lee Hansol to the applicant that he or she is a migration agent or otherwise qualified to provide immigration advice and assistance.
The circumstances demonstrate a collusion or at best acquiescence by the applicant in the provision of incorrect information in the visa application.
The applicant stated he was panicked at the time about not having completed the regional specified work requirement for the grant of the second working holiday visa, and not wanting to leave Australia. The Tribunal accepts this. However in the Tribunal’s view it does not excuse or justify his attempts to obtain a visa he was aware he did not meet a central criteria for, through the provision of incorrect information.
The applicant also gave evidence of attempting unsuccessfully to find regional farm work. He identified COVID-19 restrictions as a reason for his inability to find specified work in regional Australia. The Tribunal accepts that the restrictions would have partially impacted his opportunities at times, but considers that his actual efforts were less than optimal in overcoming the difficulties. The Tribunal considers that the efforts made by the applicant to find specified work in regional Australia were quite minimal.
The Tribunal considers that the applicant’s fears of not obtaining a further visa to be able to stay in Australia do not reasonably explain or excuse his seeking out and relying upon Lee Hansol to lodge a visa application, using incorrect information, for a visa he did not meet the criteria for.
The Tribunal considers the circumstances in which the non-compliance occurred weigh in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant gave evidence that he is in a partner relationship with an Irish citizen who is likely to gain permanent residence in Australia. He is also employed in the construction industry and is a highly valued employee.
The Tribunal accepts that the applicant’s current circumstances show a level of establishment in, and commitment to, Australia. The cancellation of his visa will be highly disruptive to his current circumstances. The Tribunal gives this factor weight against the cancellation of his 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
There is no adverse information before the Tribunal regarding the applicant's subsequent behaviour concerning his obligations. This factor weighs against the cancellation of his visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of any other instances of non-compliance by the applicant. The Tribunal gives this factor weight against the cancellation of his visa.
The time that has elapsed since the non-compliance
It has been about 16 months since the non-compliance. The Tribunal does not consider this to be a significant amount of time and accordingly considers this factor neutrally.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence or indication before the Tribunal that the applicant has breached the law in Australia since the non-compliance was determined. The Tribunal gives this factor weight against the cancellation of his visa.
Any contribution made by the holder to the community
The applicant gave evidence that he has donated money to charity and participated in charity runs. He stated that this was the extent of his contributions to the community.
While not extensive the Tribunal accepts that the applicant has made some contribution to the community and gives this factor weight against the cancellation of his visa.
Whether there would be consequential cancellations under s.140
There is no evidence of any persons in Australia whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention
The Tribunal notes that the cancellation of the applicant’s visa could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 if he chooses to remain in Australia without a valid visa. He may also face difficulties in being granted further visas in Australia and could be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion (PIC 4013).
While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if his visa is cancelled, he has benefited from holding a visa with respect to which he did not meet the central requirements.
The Tribunal acknowledges the difficulty the legal consequences of the visa cancellation will and may cause the applicant but they are intended consequences. The Tribunal does not view them as unduly harsh or otherwise concerning in the circumstances. The Tribunal does not view the mandatory consequences as a factor that weighs against the cancellation of the applicant’s visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is nothing to suggest that Australia's international obligations would be breached as a result of the cancellation. The Tribunal therefore views this factor neutrally.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member
The applicant has presented evidence of wanting to stay in Australia to continue to work and be with his partner who is applying for permanent residence.
The Tribunal accepts it will be emotionally hard upon the applicant and his partner and disruptive to their lives for his visa to remain cancelled and to possibly be required to depart Australia.
The applicant’s employer stated that the applicant’s work skills are needed in Australia and by their company. The Tribunal accepts that the applicant’s skills are of value to his employer and the industry in Australia. The Tribunal also accepts that it will cause hardship to the applicant’s employer to lose the valued services of the applicant. The Tribunal also accepts that the applicant’s partners employment skills are critically valued and of service in Australia.
The applicant stated that his presence in Ireland will be a burden and a risk to his family there as they live in a three bedroom house and he may also expose them to the COVID virus. The Tribunal considers that both the burden and the risk the applicant presents are relatively low. He has demonstrated that he has highly employable skills and also stated that he would obtain work in Ireland. There is no need for him to become a burden upon his family. He also stated that both his sister and mother work so it is difficult to understand how his presence would add substantially to their risk of infection. The Tribunal accepts however that there may be a small and temporary amount of disturbance to their lives if the applicant returns to Ireland.
The applicant has stated that COVID levels are high in Ireland. However he also stated that he is double vaccinated. Given the rapidly fluctuating rates of infection around the world, including in Australia, the Tribunal considers that a COVID related risk to the applicant exists in both Australia and in Ireland.
The applicant has stated work opportunities are less in Ireland than in Australia. The Tribunal accepts that there is a possibility the applicant may obtain work that is less advantageous to him in Ireland than his work in Australia.
Overall, the Tribunal gives this factor weight against the cancellation of the visa.
Conclusion on the exercise of the discretion
The Tribunal has considered the totality of the applicant's circumstances.
The Tribunal acknowledges that cancellation of the applicant’s visa will result in disruption to his and his partner’s life, and some hardship for his employer. It may also cause hardship to the applicant’s partner’s employer if she was to choose to leave Australia. The Tribunal also accepts that restrictions imposed due to the COVID pandemic increased the difficulty for him to find regional specified work. However problems meeting a central criteria for the grant of a visa do not justify falsifying information to unlawfully overcome a legal and purposeful requirement.
As found above there are factors in the applicant’s favour which weigh against the cancellation of his visa. However the Tribunal places greater weight on the fact that the decision to grant the visa was based upon incorrect answers to substantive and critical questions, and that the applicant was not entitled to the visa, having not met a central requirement for it. His actions were deliberate with the intent to obtain a visa based upon false information. In the Tribunal's view, the fact that the decision was based on the incorrect answers and the circumstances of the non-compliance outweigh the other considerations.
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.
Melissa McAdam
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 109

11 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice