Prentice (Migration)

Prentice (Migration) [2022] AATA 141 (20 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Toni Prentice

CASE NUMBER:  2113556
HOME AFFAIRS REFERENCE(S):          BCC2020/2727641
MEMBER:Meena Sripathy
DATE:20 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 20 January 2022 at 12:06pm
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 area while holding first visa – verification checks – discretion to cancel visa – no response to department’s notice – supporting evidence and submissions to tribunal lodged one day out of time – discretion to conduct interview in lieu of hearing – 2 days of specified work – worksite harassment and unsafe conditions at hostel – no further attempts to find specified work – paid agent to complete and lodge application – non-compliance conceded – current work and long-term relationship – mental health and treatment – hardship if visa cancelled – partner’s application for permanent residence in progress – some onshore visa applications possible even if visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 98, 101(b), 107, 109, 359, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 2.41
CASES
Chardronnet (Migration) [2021] AATA 1335
Donohoe (Migration) [2021] AATA 738
Gromley (Migration) [2021] AATA 4341
Hasran v MIAC [2010] FCAFC 40
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 visa holder (the applicant) provided incorrect answers in his Working Holiday (Extension) visa application thereby not complying with s101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa 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.
On 10 November 2021 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide submissions and evidence addressing the Notice of Intention to Consider Cancellation sent to her on 15 September 2021 in writing.
The invitation was sent to the review applicant’s representative as indicated on the review application and advised that, if the information was not provided in writing by 24 November 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. On 21 November 2021, a request for an extension of time to respond to the Tribunal’s invitation was made by the applicant’s new representative. The Tribunal granted an extension and advised that the information must be provided by 8 December 2021, advising also that if not received by that date, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal received a response including submissions and supporting evidence on 9 December 2021, following a phone call by the Tribunal to follow up.
The review applicant did not provide the information by the extension date. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. Notwithstanding this, given a response was provided on 9 December, the Tribunal decided to give the applicant an opportunity to give evidence at an interview on the same date and time as the hearing that was previously scheduled.
The applicant appeared before the Tribunal on 13 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Shane Rae.
The applicant was represented in relation to the review and her representative was present at the interview.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Notice of intention to consider cancellation under s.107
A notice of intention to consider cancellation (NOICC) was sent to the applicant on 15 September 2021 to the email address provided by the applicant to the Department. The notice indicated that the delegate reached a state of mind that the applicant has not complied with the Act by giving incorrect information about the details of specified work undertaken while the holder of a first Working Holiday visa (subclass 417) in her application for a Working Holiday (Extension) (subclass 417) visa granted on 29 October 2020.
The notice provided particulars of the allegedly incorrect information given by the applicant being the reference to employment with Lincara Pty Ltd trading as Wandin Valley Farms Wandin North postcode 3139 Victoria in the period 16 March to 5 July 2020 for 90 days; and her declaration that she had completed 3 months of specified work as the holder of a first working holiday visa.
The NOICC advised that employment verification checks conducted by the Department with Lincara Pty Ltd, the business registered under ABN 56831787511, to verify the employment claims resulted in being advised by Lincara Pty Ltd on 19 November 2020 that the applicant never worked at their business.
The delegate considered on the basis of this information that the applicant had provided incorrect answers in support of her Working Holiday (Extension) visa application and did not comply with s101(b).
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.
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 s101(b) as follows: that the applicant provided incorrect information in the application for a Working Holiday (Extension) visa when she
·    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 Lincara 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 applicant provided no response to the NOICC sent to her on 15 September 2021.
On 30 September 2021 the delegate of the Minister made a decision to cancel the visa, having considered the matters relevant to exercising the discretion whether or not to cancel the visa.
The applicant appealed the decision to cancel her visa to the Tribunal on 5 October 2021.
Evidence before the Tribunal
On 10 November 2021 the Tribunal wrote to the applicant, noting that she had provided no response to the NOICC to the Department and inviting submissions and evidence addressing the NOICC and/or any other matters relevant to the review.
On 9 December 2021 the Tribunal received the following response and supporting evidence from the applicant’s representative:
·A Statement dated 27 November 2021 by the applicant, setting out her background and circumstances relating to her experience of attempting to undertake specified work and how she came to lodge the Working Holiday (Extension) application though an agent. She acknowledged her actions as ‘foolish, reckless and irresponsible’, regrets the decision she made and apologises for her mistake. She provides details of her current circumstances, including current employment and long term relationship with her partner and connection to his family and her family members in Australia. She wishes to remain in Australia with her long term partner and continue her employment.
·Written submissions on behalf of the applicant by applicant’s representative.
·Statements of Mr Shane Rae, Ms Karen Richardson (mother of Mr Rae), Ms Joanne Swords (cousin of the applicant) and Mr Stephen Daniels (friend of Mr Rae).
·Evidence of applicant’s travel from Sydney to Cairns and then to Innisfail on 8 January 2020.
·Applicant’s Australian and UK Police Checks.
·Patient Health Summary and referral letter to psychologist evidencing applicant’s history of mental health and treatment sought in Australia.
·Letter dated 8 December 2021 from Dr Caran Cheung, Mascot Medical confirming applicant’s attendance at the practice from 11 May 2020 in relation to mental health issues.
·Screen shots of applicant’s communications with her partner and cousin in January 2020 while at Innisfail, Queensland.
·Photographs of applicant and Mr Stephen Rae.
·Negative reviews posted online of accommodation applicant used in Innisfail, Queensland.
·References to AAT decisions in Chardronnet (Migration) [2021] AATA 1335, Donohoe (Migration) [2021] AATA 738, Gromley (Migration) [2021] AATA 4341
Although the applicant lost her entitlement to a hearing due to a failure to respond to an invitation to provide information within the prescribed period, the Tribunal exercised its discretion to offer her an interview to discuss the issues arising in her matter and she appeared in person before the Tribunal on 13 December 2021 where she provided the following information.
She lives in an apartment in Mascot with her partner. She is working for Jivaro, a recruitment agency since July 2021. It is a full time ongoing position. Prior to that she worked at a construction recruitment agency from April 2020 until June 2021, leaving that company voluntarily to take up her present employment. Prior to coming to Australia she worked as a buyer in an oil company for a period less than one year, to January 2019. She was a university student prior to that.
Regarding family in Australia the applicant said she has an uncle and his family and a godparent in Brisbane. In Scotland she has parents and a brother. Her parents are separated and she lived with her mother before she came to Australia.
She arrived in Australia in October 2019 on a Working Holiday visa. She was struggling at that time as a result of her parents’ separation and was encouraged by her cousin to come here for a fresh start. She stayed initially with her cousin and then moved into a share apartment with a close friend of her cousin, Reece. It was here that she met her current partner Shane, who was also a flatmate in this share house. Shane had also come to Australia form the UK, initially on a working holiday visa but he was then sponsored for an employment visa.
The applicant described her efforts to undertake regional work in Australia. She was told about this requirement by Reece and researched opportunities through google searches. She located a hostel in Queensland and made arrangements to travel there, flying up on 8 January 2021. She was assigned to work on a farm injecting diesel into trees. She was picked up from the hostel by bus with two other men. She started work on 9 January 2020 and did this work for 2 days. She told the man at the hostel who arranged the work that a man at the farm had made inappropriate comments to her and she felt uncomfortable and asked if she could change jobs. He told her there were no other options. She left the hostel about a week later and went to her godfather’s place in Brisbane. She stayed a couple of weeks with him and returned to Sydney. The Tribunal asked if she made any complaints to any official body relating to her experiences at the hostel or farm. She said she did not. She was very upset and traumatised but just wanted to put it to the back of her mind and not deal with it.
In February 2020 she returned to live at the same apartment with Reece and Shane. She felt comfortable there and spent time with her family. In this period she also visited the Medical Centre to renew her prescription for antidepressants she had recommenced taking because of the experience she had in Queensland. She worked casually at the café below the apartment for a few weeks and then in April 2020 she secured the job at Atom Payroll.
The applicant told the Tribunal she was aware of the requirement to do 3 months specified work to be eligible for her second working holiday visa, but she did not make any further efforts to seek regional work after this.
The Tribunal asked how she came to lodge the application for the extension visa. She said she was out with some friends and they asked her what she was going to do. The friends mentioned to her an email address she can contact and they will assist her to obtain a visa. She took the email address and made contact.
The Tribunal asked if she discussed her situation with any members of her family or her partner or flatmate. She said she did not. She confirmed that she provided all of her personal details in the response to the email and paid a sum of money as requested. She did not tell her partner Shane what she had done because she was embarrassed.
The Tribunal asked if she received the Notice of Intention to Consider Cancellation dated 15 September 2021. She confirmed she did. It asked her why she did not respond? She said she was advised by the representative she sought advice from then that it was better not to respond.
The applicant conceded to the Tribunal that she gave incorrect information in her visa application and there were non compliance as alleged in the NOICC.
The Tribunal discussed with the applicant the prescribed matters in r.2.41 relating to the discretion to cancel with the applicant, and noted her written statements and submissions submitted addressed these matters and this would be taken into account. Details of further relevant oral evidence she gave addressing these matters are included in the discussion below.
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 s101 of the Act as set out above.
The applicant acknowledged in her evidence to the Tribunal that incorrect information about undertaking specified work was provided in her Working Holiday extension application. On the basis of the evidence of the verification undertaken by the Department with and the applicant’s acknowledgement and concession of the incorrect information, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
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 Tribunal below discusses the prescribed circumstances set out in r.2.41 of the Regulations, taking into consideration the submissions and evidence put forward on behalf of the applicants.
· the correct information
The applicant conceded that she was not employed by Lincara Pty Ltd trading as Wandin Valley Farms between 16 March 2020 and 5 July 2020 as stated in the application, and that she has not undertaken three months of specified work as indicated in the application.
The Tribunal finds that this weighs in favour of cancellation in this matter.
· the content of the genuine document (if any)
There is no allegation relating to a genuine document. Therefore, this factor is not relevant in this case.
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The visa applicant was required to meet the criterion relating to specified work in regional Australia for a period of three months. The visa applicant confirmed at hearing that she did not undertake the specified work at the employer as stated for the period stated. She has conceded that she chose to use an agent to lodge her application as a means of securing her second year working holiday visa and recognises now that she made a ‘most foolish, reckless and irresponsible’ decision which she truly regrets.
The Tribunal finds the incorrect information was relied on by the delegate to grant her the visa. It finds that if the correct information was provided, she would not have met this criteria and the visa would have been refused.
The Tribunal considers this is a significant matter and weighs strongly in favour of cancelling the visa.
· the circumstances in which the non-compliance occurred
The applicant submitted to the Tribunal that she attempted to undertake relevant specified work in Queensland in January 2020. She described her experience of this in her written statement and during her interview with the Tribunal. Her evidence was that she travelled to Innisfail Queensland on 8 January and worked for approximately 2 days. She said she experienced harassment on the farm and asked for different work but was told there was no other option. She left the hostel after about a week because of the unsafe and unhealthy living conditions at the hostel and the experience of sexual harassment at the farm she was assigned to. She claimed the experience traumatised her and triggered symptoms of panic attacks and led her to start taking anti-depressant medication she had brought with her from the UK. She said she made no formal complaint about her experiences to any official body and took no further action about it because she just wanted to push it out of her mind. The Tribunal is prepared to accept her claims about this experience on the basis of her written and verbal accounts and the Tribunal’s observations of her as she recounted these at the interview. The Tribunal also takes note of documented reports of similar experiences[1] and accepts the applicant’s experience as plausible and credible. Given the circumstances she described, it finds her decision to abandon that regional work placement in January was understandable and not unreasonable.
[1] See for example, ’ #88daysaslave: backpackers share stories of farm work exploitation Backpackers reveal stories of sexual assault, exploitation while working on Australian farms type="1">
That applicant claimed that this experience triggered a pre-existing mental health vulnerability and she resumed taking her anti-depressant medication she had brought with her from the UK and in May 2020 visited a Medical Centre for a new prescription. When questioned more about her mental health circumstances, the applicant told the Tribunal that she didn’t see a doctor until May 2020 because she had her own medication until then. While the GP gave her a referral to see a psychologist in July, she did not follow up with this and has to date not been to see anyone for mental health treatment. When asked why not she said it was because she did not wish to talk more about the matter.
The applicant submits that her unsavoury and traumatic experience attempting to complete specified work in Queensland in January and the impact it had on her mental health should be taken into consideration in the context of the subsequent non compliance.
The Tribunal accepts the applicant attempted to complete her specified regional work in January in Queensland. It accepts that she abandoned it due to what she perceived were unhealthy and unsafe work and living conditions and unacceptable harassment she experienced. The Tribunal considers her actions in cutting short the placement in these circumstances was not unreasonable. However, this occurred in January 2020. On her own evidence she made no further attempt to seek specified work over the next 9 months. On the other hand she has successfully secured and held stable employment in two jobs in Sydney and otherwise described her experience and time in Australia as the happiest she has been.
The Tribunal has considered the applicant’s explanation that the trauma of the experience on the farm triggered a pre-existing mental health vulnerability and led her to recommence using anti depressant medication around this time. It accepts on the medical evidence provided that she obtained a further prescription for her medication in May 2020 and discussed her mental health with her GP. It also accepts as plausible and credible that because of this previous negative experience she was reluctant to try again to seek to do regional work. However the Tribunal does not accept that this entirely justifies or explains her actions months later when faced with the issue of lodging her extension Working Holiday visa applicant, of using an unauthorised person to lodge her application with incorrect information knowing she had not completed the required specified work. Her evidence indicates that she is, and has been throughout, well supported in Australia with a number of established Australian resident relatives, a flatmate and partner with recent experience of being on working holiday visas and yet despite access to this close support network she chose not to seek any advice or counsel from any of them regarding her situation. She made no further attempt to either complain or raise the issue of her experience with an official complaint body, the police, or the Department.
Nevertheless, the Tribunal will give the fact that she did travel to Queensland to do specified work and may well have completed this requirement had she not experienced harassment and poor conditions, and the triggering impact this experience had on her mental health and subsequent decision making capacity, some weight against cancellation of the visa.
· the present circumstances of the visa holder
The applicant is presently employed in a recruitment firm and describes this job as a ‘dream job’ that she has always aspired to. She describes her work as ‘assisting Australians into jobs around Australia and helps them build and create their dream careers’. The Tribunal acknowledges the applicant’s ongoing employment but observes that she obtained this job on a Working Holiday visa that was granted to her on the basis of incorrect information she gave and this visa, in any event, would have expired in October 2021. Therefore, her ongoing employment up to now is on the basis of the bridging visa granted for the present review process.
The applicant states that she in a long term, serious relationship in Australia with Shane Rae who is in the process of applying for permanent residence as a skilled migrant. The Tribunal heard evidence from Mr Rae and accepts that they are in a genuine and ongoing relationship and wish to remain living together. It accepts that Mr Rae has close family, including his mother and step father residing in Australia and the applicant also has other close family connections in Australian including an uncle, cousins and a god parent. It accepts on the basis of this evidence and supporting statements provided, that the applicant and her partner have close family and support networks in Australia.
It accepts that the applicant resigned from her employment in Scotland and lived with her mother prior to coming to Australia, and therefore has no job or independent accommodation to return to there at this time. It accepts on her evidence that she has a mother, father and and brother there. It accepts that she feels her mental wellbeing is better here than in Scotland because of her job, relationship and support networks here.
On balance the Tribunal accepts the applicant’s present circumstances, particularly relating to her relationship and support networks here compared to her situation in Scotland weigh 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
While the applicant has conceded the non compliance to the Tribunal, she only provided this response following the Tribunal’s invitation to comment on the NOICC and after the prescribed period permitted for response. She failed to respond to the NOICC originally issued to her by the Department and gave no satisfactory reason for this. She did not voluntarily come forward with the information about the non compliance to the Department which only discovered the non compliance because it undertook a verification of employment exercise.
While there is no other information to indicate that subsequent to the NOICC being issued, the visa holder has not complied with any of her obligations under subdivision C of the Act, the Tribunal considers in the circumstances of this case this factor weighs in favour of cancellation of the visa.
·any other instances of non-compliance by the visa holder known to the Minister
The applicant told the Tribunal no other allegations of non compliance have been made and there is no adverse information before the Tribunal to indicate other known instances of non compliance. This factor weighs against cancellation of the visa in this case.
·the time that has elapsed since the non-compliance
The Tribunal observes the visa was cancelled on 30 September 2021 and was granted on 29 October 2020. The time elapsed since the non compliance in this case is not significant and therefore this factor does not weigh in favour or against cancellation and the Tribunal considers it neutrally.
· any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant submits there are no other breaches of the law against her and there is no information before the Tribunal to suggest otherwise. The Tribunal gives this some weight against cancellation in this matter.
· any contribution made by the holder to the community.
The applicant submits her current employment as a recruiter as her contribution to the community together with payment of taxes from employment. No other submissions were made of other contributions to the community.
While the Tribunal acknowledges that the applicant has been gainfully employed in Australia and is presently in a job she values greatly, the Tribunal cannot overlook the fact that this employment was obtained on the basis of a visa she would not otherwise have been eligible for, but for the non compliance, and this detracts from any favourable weight the Tribunal could give this factor against cancellation of the visa.
Other matters
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 has considered the legal consequences of cancelling the visa, which will lead the applicant to become an unlawful non citizen and potentially subject to detention and removal unless granted a Bridging visa. The operation of s 48 of the Act would limit the kind of visas she can apply for in Australia and she may also be affected by PIC 4013 which may prevent her from being granted certain kinds of visas for three years since the date of cancellation.
Generally speaking the Tribunal acknowledges these consequences of cancellation are significant and weigh against cancelling the visa. However, it also notes the recent passage of the Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021, effective from 13 November 2021, amended r.2.12 of the Migration Regulations to include certain skilled visas among the limited applications that can be lodged by persons affected by s48 of the Migration Act.[2] The Tribunal observes that as a result of this recent amendment the applicant may yet have certain onshore visa options even if her visa is cancelled. The Tribunal also observes that a Working Holiday visa was always, and is, only a temporary visa. Even if she was eligible for it in the first place it would have expired by now. The outcome of any future visa application, whether onshore or offshore, is a matter of speculation and for this reason the Tribunal gives no weight in its consideration of the cancellation to the possibility of the applicant obtaining a further visa onshore.
[2] Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021
The applicant’s representative also sought to argue in his submissions that the application was filled out by her agent and she did not actively partake in this process and that this should be taken into account in the exercise of the discretion to cancel the visa. The Tribunal has considered but rejects this argument. In engaging the agent, the applicant has expressly authorised the agent to complete the form on her behalf and therefore is taken to have filled it in herself, as provided by s98 of the Act. The applicant in her evidence to the Tribunal clearly conceded this when she acknowledged that she engaged by email with the agent, paid him and provided the necessary personal information for the application to be lodged on her behalf in the full knowledge that she had not complied with the specified work requirement.
The Tribunal has considered the applicant’s submission that the past 18 months in Australia spent building her life with her partner in a country they love and being surrounded by family and friends has made her the happiest she has felt in her entire life. It acknowledges that she feels she is in a healthy mental space here and her strong desire to remain living here.
The Tribunal notes the applicant’s partner, also a UK national, is not as yet an Australian permanent resident or citizen, and himself is awaiting a permanent residency visa application recently lodged. Therefore he does not appear to be in a position at this time to sponsor the applicant for a Partner visa, regardless of the outcome of the cancellation decision. As a fellow UK national he would be able to visit the applicant were she to return to Scotland.
It has also considered her claim that her parents will suffer great hardship if she returns to Scotland because she has little savings and believes they are struggling financially. However she has provided no evidence to support this and, given the applicant is an adult, it is not clear to the Tribunal what legal obligation her parents would have to provide financial support to her upon return. She claims that unemployment is an issue in Scotland, especially given the COVID pandemic, however again no evidence to support this claim was provided. Independent information before the Tribunal indicates the unemployment rate in Scotland (4.1%) is marginally lower than in Australia (4.6%)[3], and there is no evidence before the Tribunal to indicate the applicant as a returning Scottish national faces any particular difficulties or barriers accessing employment there. While the applicant may be apprehensive about obtaining employment and accommodation back home after her absence for some years, the Tribunal considers, having regard to her age, qualifications and work experience gained from her time in Australia and the resilience she has demonstrated while here, there is no reason to believe she is not capable of supporting herself independently if she were to return to Scotland now.
[3] See for example Unemployment rate Scotland 2021 | Statista and Labour Force, Australia, November 2021 | Australian Bureau of Statistics (abs.gov.au)
Having carefully considered all of the above, the Tribunal concludes the factors in support of cancelling the visa in this case on balance outweigh the factors that weigh against cancellation. In its assessment, the Tribunal places significant weight on the basic fact that the visa would not have been granted had the correct information been provided, and the applicant’s knowledge of this when she engaged the agent to lodge her visa application. It also weighed in favour of cancellation the subsequent behaviour of the applicant concerning her obligations (failing to respond at all to the NOICC and then delayed response to the Tribunal) and that the visa which is the subject of the cancellation is a temporary one which has already expired. Against this, the Tribunal weighed the following matters against cancellation: that the applicant genuinely attempted to undertake the required specified regional work in Queensland in January 2020 and only abandoned it because of what she described was a traumatic and unsavory experience. For the purposes of this review, the Tribunal accepted her claims about this matter and accepted that it may have had some adverse impact on her mental health leading her to recommence taking antidepressant medication, although it was not satisfied on the evidence before it that her mental health was so impaired as to justify or explain her actions that led to the provision of incorrect information. The Tribunal also acknowledged and took into consideration the applicant’s employment in Australia, her current long term relationship and a strong family and friend network; the absence of any other non compliance or breaches of the law and the significance of the legal consequences of cancellation.
Ultimately, after carefully weighing all matters as set out in the discussion above, the Tribunal has decided to place greater significance on the factors in favour of cancelling in this case over those against it and the Tribunal concludes the visa should be cancelled.
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 first named applicant’s Subclass 417 (Working Holiday) visa.
Meena Sripathy
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 141

20 January 2022

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Immigration

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Judicial Review

Procedural Fairness

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