O'Mahony (Migration)

O'Mahony (Migration) [2022] AATA 3142 (3 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Shauna Margaret O'Mahony
CASE NUMBER:  2119339
HOME AFFAIRS REFERENCE(S):          BCC2020/2706207
MEMBER:Mark Bishop
DATE:3 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 03 August 2022 at 2:58pm
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record of applicant – lockdown travel restrictions – impact of the COVID19 pandemic – employer’s offer of sponsorship withdrawn – family illness – labour shortage in the financial sector – mental health treatment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, Schedule 2 cl 417.221; Schedule 4, Public Interest Criterion 4013; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information in the Working Holiday (Extension) visa application as she did not work at the named employer. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 3 August 2022 to give evidence and present arguments. The applicant provided a copy of the decision record to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 the following section 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.
·The applicant provided employer detail, employer business and address, work conditions and period of employment.
The Department initiated employment verification checks with Quenby Viticultural Services, the business registered under ABN 49457432242, to verify the visa holder’s employment claims. On 12 November 2020, Quenby Viticultural Services contacted the Department and advised the visa holder had never worked at the business. Therefore the visa holder has not undertaken six months specified work in regional Australia.
For these reasons, the Tribunal finds that there was non-compliance with s 101 of the Act 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 reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
In response to the NOICC (Doc ID number 9270438 ) the applicant provided a written response (Doc ID number 9270439). In summary the applicant advised as follows:
·She does not dispute the non-compliance, and states she did not undertake specific work in regional Australia for a total six months, nor was she ever employed by Quenby Viticultural;
·She does not want to shift the blame for the incorrect information provided to ‘Lee Hansol’ in its entirety, but states she would not have been in this situation if she had received correct advice and information;
·She should have performed due diligence and sought advice or a second opinion from different agents and lawyers – however she is not a migration agent or lawyer, and therefore could not make an informed legal reasoning and decision;
·She is a victim of fraudulent conduct on behalf of ‘Lee Hansol’, who presented himself as a migration agent. She was referred to him by a friend;
·She had failed to secure regional work because of a fragile psychological state she was in after her mother’s diagnosis with COVID-19, and her father’s heart attack. She wished to seek regional employment, but her mental state prevented her from doing so;
·She subsequently lost her job, for which she had previously been offered sponsorship;
·In mid-October 2020, her home country of Ireland had recorded over 60,000 COVID-19 cases, and she felt anxious and unsafe about the prospect of returning;
·Returning to Ireland was daunting because of her parents’ health situation, the fact Ireland did not have hotel quarantine, and a lack of employment opportunities in Ireland;
·She felt as though she was ‘out of time’ and acted from desperation.
In response giving reasons as to why the visa should not be cancelled the applicant advised (in addition to the summary provided in paragraph 13 above) as follows:
·At the time of the non-compliance, she was surrounded by people who had also used the services of ‘Lee Hansol’ – she was referred to him by a friend. Her judgement lapse was heightened due to being in an environment where her actions were the norm and encouraged as being acceptable;
·She was misled regarding her situation at the time of non-compliance by the people around her. She was not aware she would have been eligible for a COVID-19 Pandemic Event (subclass 408) visa, which would have cost less and granted her year-long work rights;
·Since July 2021, she has been working with the Commonwealth Bank as a Financial Crimes Analyst, ‘surveilling’ financial crimes and preventing future financial crimes. She monitors high risk customers, screens new customers, and analyses transaction activity for suspicious behaviour;
·The industry is facing a major shortage in financial crimes analysts, which puts many major Australian banks at risk of financial crimes and money laundering;
·If she is forced to leave her current role, her employer will have little notice to prepare for her departure and find someone to replace her, especially given the labour shortage in the sector;
·Her uncle lives in Brisbane, and they have a particularly close relationship, having grown up together in Ireland. She has visited him and her cousins frequently since arriving in Australia. She hopes to remain in Australia to allow all members of the family to enjoy their bond in person again when the border closures are lifted. If her visa is cancelled, she will be unable to return to Australia to see her uncle and cousins due to the operation of Public Interest Criteria 4013;
·The Smart Traveller website advises people to exercise a high degree of caution before travelling to Ireland. In addition, it would be financially burdensome for her to travel to Ireland given the high prices of flight tickets, and the expenses she has in relation to her immigration issues;
·The delegate is requested to exercise their discretion not to cancel her visa to allow her to travel back to Ireland when it is less risky and expensive to do so. It would also give her employer more time to prepare for the loss of an employee by allowing them time to find a suitable replacement;
·Since she has been made aware of the non-compliance with the Act and the provision of incorrect answers, she has been cooperative and fully disclosed the circumstances in which her non-compliance occurred, and her friends have provided testimonials in support of her;
·She has fulfilled her obligations under s105 of the Act by acknowledging the incorrect information she provided, and requests this be taken into consideration in favour of the discretion not to cancel her visa;
·She has not breached the law or engaged in any other instances of non-compliance since the non-compliance in relation to the application for her 417 visa;
·Since the non-compliance, her circumstances have greatly changed – she now understands the severity of what she has done, and will never allow herself to be placed in a similar situation again. She has placed great focus on accumulating skills and knowledge in the financial industry to help progress her career. She has also sought out a psychologist to help manage the mental health issues that led to her engaging the services of ‘Lee Hansol’;
·She has already been punished sufficiently for her actions through the steep expenses she has had to pay in legal bills, and by the fact there is now a permanent record on her migration history. If the visa is cancelled, she will no longer be able to apply for any other substantive visa because she will be unable to meet Public Interest Criteria 4020;
·She will not appeal any decision that is made as it would be an exercise in futility, given the processing times of the AAT; if her visa is re-instated it would only be operational for a short period of time;
·If the visa is cancelled, she will be subject to a section 48 bar, as well as Public Interest Criterion 4013, 4014 and 4020;
·The effect her actions have had on her future migration prospects is a sufficiently heavy punishment for a single oversight. She is not requesting to remain in Australia permanently, but wishes to have the opportunity to depart Australia under less stressful circumstances
In addition to the detailed submissions as outlined above the applicant provided comprehensive documentary support material that addressed identity documents, personal statements, employment references, police check detail, correspondence with Lee Hansol and employment detail.
On 31 July 2022 and 1 August 2022 the application provided a further written statement prepared by her solicitors plus a bundle of supporting documentation. The written submission advised as follows:
·Relevant circumstances are set out in r.2.41 of the Migration regulations.
·The applicant has been resident in Australia since 8 January 2019. For visa history see paragraph 9 of the written submission.
·The correct information is that the applicant was not employed by Quenby Viticultural Services.
·It is conceded that the grant of the Working Holiday Visa (Extension) was based on the incorrect information provided.
·Circumstances of non-compliance were as follows:
o   Onset of Covid-19
o   Declining mental health of the applicant.
o   Fear of returning to Ireland.
o   Poor health of applicant’s parents.
o   Financial hardship.
·Applicant suffers from psychological issues including depressive episodes, social anxiety and trauma related to upbringing.
·Referral to a person name Lee Hansol, form of engagement with Mr Hansol and subsequent provision of non-genuine information to the department. Applicant admits to naivety.
·Present circumstances of the applicant being employment as a financial crimes analyst involving high risk fraud, money laundering and similar illegal behaviour. Applicant has been employee of the month. Applicant’s work is in high demand and she is skilled in this work.
·Cancellation of visa will result in significant hardship and disruption to employment and personal relationships in Australia. She may face difficulties in gaining employment in the home country.
·Applicants poor decision making arose from intense fear of returning to her home country.
·Applicant sought mental health treatment.
·No further behaviour of concern and no further breaches of the law.
·The applicant contributes to the community by way of employment and blood donations.
·The applicant provided a number of character and employment references from family, friends, colleagues and workmates.
The Tribunal notes the applicant arrived in Australia on 8 January 2019. The applicant applied for her Working Holiday (Extension) visa on 16 October 2020. On 12 November 2020 Quenby Viticultural Services contacted the Department and advised the visa holder had never worked at the business. On 9 November 2021 the applicant was notified of the intention of the department to consider cancelling her visa.
The applicant provided a copy of a letter from Dr Rosemary Allen of ‘equilibrium psychology’ dated 22 July 2022 that stated she had seen the applicant on 11 occasions since October 2021 (in evidence the applicant advised she had now seen Dr Rosemary Allen on 13 occasions and continued to see her at least monthly and fortnightly if finances permitted), that the applicant presented with “symptoms of a depressive episode, subclinical social anxiety and ongoing trauma symptoms in the context of a complex and challenging upbringing and childhood trauma” The letter went onto state “She is progressing well through her treatment, however her treatment is ongoing. Ms O'Mahony has built herself a positive and healthy life in Australia away from the challenging circumstances in her hometown, with a meaningful career and strong social support network. A return to Ireland may have a detrimental impact on the progress she has made to date and her overall mental state, particularly noting the ongoing tensions in her family of origin.”
The Tribunal notes Dr Rosemary Allen use of the word ‘may’. The Tribunal notes Dr Rosemary Allen did not draw a conclusion that the applicant should not return to her country of origin or elsewhere The Tribunal understands psychology treatment is readily available in Ireland. The Tribunal notes Dr Rosemary Allen did not state the applicant would not be able to settle into a similarly supportive lifestyle remote from her hometown. In evidence the applicant accepted there were competent psychologists in both Ireland and Scotland (place of residence of her sister).
As to her mental health the applicant advised the Tribunal as follows:
·Excepting as a school student she did not receive any mental health treatment or counselling in her home country. She commenced mental health counselling in Australia and at time of decision is still undergoing such treatment.
The Tribunal notes there is no requirement on the part of the applicant to return to her hometown, stay in her hometown, reside in her hometown or seek employment her hometown. The Tribunal understands the applicant is a high skilled worker employed in complex work in growing industries. The applicant has not provided any detail as to the availability of suitable work in Ireland. The Tribunal understands psychology treatment is readily available in Ireland. The Tribunal also understands that Ireland is part of the European community and the applicant will have full work and travel rights to member states of the EC.
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 Tribunal is also required to consider both the prescribed matters, where relevant or indicate where not relevant; any matters raised by the applicant in response to the s 107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:
·whether there would be consequential cancellations under s 140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal now turns to consider the above as follows:
(a) the correct information
As set out in the decision record the correct information is as follows:
·In response to the NOICC, the visa holder confirmed she provided incorrect information in the Working Holiday (Extension) visa application as she did not work at Quenby Viticultural Services.
·The visa holder states the application was lodged on her behalf by ‘Lee Hansol’ who provided help to people who had not completed the requisite regional work, and was recommended by her friends. I accept it is possible this other person provided the incorrect answers on the visa holder’s behalf; however, the emails provided between the visa holder and ‘Lee Hansol’ indicate the visa holder was complicit in the provision of incorrect information. I also consider sections 98, 99 and 100 of the Act, as detailed in Part B of this document, apply to her circumstances. No agent or authorised contact/recipient was declared in the application.
·The correct information is the visa holder did not undertake specified work in regional Australia for a period of six months; she did not work in the agriculture, construction or mining industry, bushfire recovery, or critical COVID-19 work in the healthcare and medical sectors; and she did not work for Quenby Viticultural Services (ABN 49457432242) between 2 March 2020 and 23 August 2020. The correct information is significantly different from the information provided by the visa holder with her visa application.

The Tribunal gives this consideration weight in favour of cancelling the visa.
(b) the content of the genuine document (if any)
No genuine document is being considered
(c) 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 Tribunal is of the view if the delegate had been aware the visa holder had provided incorrect information in claiming to have completed the six months of regional work with Quenby Viticultural Services, this may have affected their assessment of whether the visa holder met the requirements of Regulations 417.221(2) and 417.221(6)
The visa holder’s employment details related to her regional work experience were central to the grant of her Working Holiday (Extension) visa. As the visa holder has confirmed she provided incorrect information regarding her employment at Quenby Viticultural Services in her application for the Working Holiday (Extension) visa, the Tribunal considers the delegate made the decision to grant the visa based, in part, on this incorrect information, and the visa holder may have received an immigration benefit to which she may not have been entitled.
The Tribunal gives this consideration weight in favour of cancelling the visa.
(d) the circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred are set out above.
In evidence to the Tribunal the visa holder advised concerning the circumstances of ‘non- compliance’ were that she was recommended to Mr Hansell by a friend, contacted Mr Hansell by email, after some weeks and many emails from Mr Hansell retained Mr Hansell, gave him only basic personal information, paid a fee of around $2,000 by bank transfer, Mr Hansell lodged the application and the applicant never sighted the application prior to it being lodged.
The Tribunal notes the reference to Covid-19. The Tribunal is aware that state governments imposed varying restrictions as to mobility of persons, time limits and the ability to carry out routine tasks. These decisions varied from state to state. There was considerable publicity at the time in various media platforms in addition to websites of state and Commonwealth governments inclusive of departmental websites. The onus is at all times on visa holders to maintain adherence to conditions attached to visas. The applicant had many and varied opportunities to avail himself of freely available public information. The applicant provided little detail as to the extent, timing and time-lines of government mandated restrictions in Sydney during the period of Covid-19
The Tribunal notes that information as to visa information and visa conditions is readily available. The Tribunal has detailed these website addresses in previous decisions. See for example the following:
·>
The Tribunal does not expect an applicant to be uptodate with website addresses at all times. The Tribunal does expect an application for a Working Holiday (Extension) visa to make herself aware of applicable rules and regulations. This information was readily available at all time during the period of Covid. Similarly reputable migration agents and competent solicitors were and are readily available to give advice.
The Tribunal considers the provision of incorrect information in an application for a visa to be a very serious matter. The Tribunal considers the non-recourse to a registered migration agent who might have provided lawful advice to the visa holder as a serious matter. The Tribunal considers the non-recourse to freely available and readily accessible public information as to visa holder obligations and Working Holiday (Extension) Visa conditions to be a serious matter.
The Tribunal gives this consideration weight in favour of cancelling the visa.
(e) the present circumstances of the visa holder
There is information before the Tribunal to indicate the visa holder has family in Queensland and maintains contact with them. Passport detail and citizenship detail was provided to the Tribunal. The applicant provided a number of references as outlined above that demonstrate she has established a circle or network of friends, colleagues and workmates in Australia. Cancellation of her Working Holiday (Extension) visa may have some temporary impact on those persons. The applicant works in financial crimes analysis with a major bank work construction and nets about $2,975 per week. She is currently a contract worker. She has an offer of permanent employment from the Commonwealth bank. This offer is subject to background checks in Ireland. The offer of employment contains a sponsorship offer for a skilled worker in a niche field of demand. The Commonwealth bank is aware of current Tribunal proceedings and the status of her visa. A remit decision will enable the sponsorship clauses to proceed leading to permanent residence after a defined period of time. She is involved in some community activity and does donate blood. Family circumstances in the home country are difficult. The applicant is not married. She is not in a de facto relationship. She does not have any dependants in Australia. She has close family in Queensland and provides them with counselling support as they progress through difficult family matters. The applicant is a skilled worker with a university level education in an area where there is a shortage of skilled labour. The applicant is held in high regard by her employer.
The Tribunal notes the absence of immediate personal relationships of dependency such as a marriage or de facto relationship.
The Tribunal notes the incongruity of working in financial crimes analysis where honesty is at a premium and the consequences of breach of honesty are serious and the applicant’s own less than acceptable role in being complicit in the provision of non-genuine information to the department where residency rights and work rights were the ultimate benefit.
The Tribunal gives this consideration significant weight in favour of not cancelling the visa.
(f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
There is no information before the Tribunal to indicate the visa holder attempted to contact the Department to inform them of the incorrect information. There is no information before the Tribunal to indicate the visa holder at any time sought to obtain correct information.
In evidence the visa holder advised the Tribunal as follows:
·There are no other like instances.
The Tribunal gives this aspect neutral weight.
(g) any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance by the visa holder.
Temporary visa holders are expected to comply with visa conditions at all times.
The Tribunal give this consideration neutral weight concerning possible cancellation of the visa.
(h) the time that has elapsed since the non-compliance
Relevant time details are set out in paragraph 17 above.
The Tribunal gives this consideration neutral weight.
(Note: there is no consideration (i) in the current legislation)
(j) any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal to indicate the visa holder has breached any laws since the non-compliance. Temporary visa holders are expected to conform to the law at all times.
The Tribunal gives this consideration neutral weight.
(k) any contribution made by the holder to the community
See paragraphs 44 to 47 of the applicant’s written submission.
The applicant is employed in a responsible position and is well regarded by her employer. Her friends, family work, colleagues have provided character references. The applicant gives blood and participates in raising awareness and funds for various charitable organisations.
The Tribunal gives this aspect minor weight in favour of not cancelling the visa.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
There are no other persons whose visas might be cancelled.
The Tribunal is not aware of any person’s visa who would, or may, be consequentially cancelled under section 140 of the Act.
As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
The visa holder has not applied for protection nor made any claims that returning to her home country would result in him suffering significant fear or harm. There is no information before the Tribunal to indicate Australia would be in breach of its international non-refoulement obligations if the visa were to be cancelled and the visa holder had to return to his home country. The applicant advised the Tribunal he does not have any children.
Furthermore, there is no information before the Tribunal to suggest the visa holder has any children in Australia who may be affected by a decision to cancel the visa. The Tribunal is satisfied that should the visa be cancelled, this would not breach Australia’s obligations in respect to the International Convention on the Rights of the Child.
As such the Tribunal is unable to give any weight for or against a decision to cancel the visa for this consideration.
Whether there are mandatory legal consequences to a cancellation decision.
If the visa is cancelled, the visa holder will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia, as he would no longer hold a valid visa.
A bar under section 48 of the Act will also be imposed, limiting the visa holder’s options to apply for further visas from within Australia. Furthermore, she will also be affected by Public Interest Criterion 4013, where she may be prevented from being granted certain types of visas for a period of three years from the date of visa cancellation.
The Tribunal notes the consequences of a visa cancellation are serious. Those consequences were set out by the parliament. Those consequences are not the act of a capricious government, department or Tribunal. Those consequences are deliberate and in part reflect the seriousness of providing non-genuine information in support of a particular visa application. In this case the grant of a Working Holiday Visa and possible extensions is a reflection of the part of government to ensure an increase in supply of labour to rural or regional Australia. It is not appropriate on the part of the applicant to engage in behaviour to circumvents that policy purpose. The government and department and various state governments during the period of Covid-19 made it clear that assistance was readily available to visa holders and those affected by government restrictions. The Tribunal accepts that cancellation of the visa will cause disruption to her present employment and personal relationships. That is the necessary consequence of cancellation of the visa.
Any other relevant matters.
In evidence the applicant advised the Tribunal of developments in her workplace. That detail is set out in paragraph 40 above. The applicant has escaped a difficult home life, completed a university degree in a town remote from her home, was employed for 2 years in Ireland post completion of her university degree, arranged a loan which she is still repaying to get passage to Australia, mostly adhered to visa conditions, was a participant in a scam in her application for a 3^rd Working Holiday (Extension) visa, has experienced severe mental health problems whose genesis is in her upbringing, is receiving treatment in Australia and continues to receive treatment, has gained worthwhile employment with a major employer in Australia, fully disclosed her visa complications to that employer and is currently the subject of a sponsorship offer from the Commonwealth bank that will lead to permanent residence in this country.
In these circumstances the Tribunal gives significant weight to the sponsorship offer leading to permanent residence.
CONCLUDING PARAGRAPHS
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 not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Mark Bishop
Senior 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 3142

3 August 2022

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