Stevenson (Migration)

Stevenson (Migration) [2021] AATA 4997 (12 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Conor Thomas William Stevenson
CASE NUMBER:  2108095
HOME AFFAIRS REFERENCE(S):          BCC2020/2294450
MEMBER:Christine Cody
DATE:12 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 12 December 2021 at 7:28pm

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 – financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198, 359
Migration Regulations 1994, Schedule 2 cl 417.211; Schedule 4, Public Interest Criterion 4013; r 2.41
CASES
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 applicant is a 24-year-old man born in Londonderry, United Kingdom (UK), who came to Australia with his first working holiday visa in October 2019. He was subsequently granted a second working holiday visa on 3 August 2020. It is the second visa that is subject of the cancellation proceedings.
The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his second application for a Subclass 417 (working Holiday) visa thus not complying with s 101 of the Act and having considered the prescribed circumstances under reg 2.41. 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 lodged an application for review with the Tribunal. He provided to the Tribunal a copy of the delegate’s notification of cancellation of his visa as well as the Decision Record setting out the reasons for the cancellation dated 15 June 2021.
On 19 October 2021 the Tribunal sent a letter to the applicant pursuant to s 359A of the Act. The applicant responded on 1 November 2021.
Also on 19 October 2021 the applicant was invited to a hearing on 17 November 2021 at 2 pm. The Tribunal exercised its discretion to hold the hearing by MS Teams given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely.
The applicant was offered to join the hearing either by video or by telephone. He was advised in the hearing invitation and the accompanying Fact Sheet that if he was not available or would experience difficulty in participating in the hearing as arranged, or if he wanted to make any comment on the suitability of the proposed hearing, he should let the Tribunal know as soon as possible.
On 10 November 2021 the applicant said he preferred to have the hearing by telephone. He also sought a postponement of the hearing on the grounds that he was having a long weekend away. The Tribunal agreed to postpone the hearing and rescheduled the hearing for 24 November 2021.
The applicant appeared before the Tribunal by telephone on 24 November 2021 to give evidence and present arguments. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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) of the applicant’s second working holiday visa granted 3 August 2020 was sent to the applicant on 17 May 2021. 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 second Working Holiday visa (subclass 417) in the application for a second Working Holiday visa (Extension) (subclass 417) lodged and granted on 3 August 2020.
The NOICC provided particulars of the allegedly incorrect information given by the applicant being the reference to employment with AAG Labour Services Pty Ltd, ABN 21126217294, in Western Australia (postcode 6275) in the period 2 March 2020 to 5 July 2020 for 90 days; and his declaration that he had completed at least 3 months of specified work as the holder of a working holiday visa.
The NOICC noted that in his application form he had provided the following answers to the form’s questions:
·     Work conditions: Direct employment
·     Industry type: Agriculture, forestry and fishing
·     Industry type sub-group: Plant and animal cultivation
·     Description of duties: I was a dairy farm hand. I assisted in milking 1400 cows twice a day. I also fed cattle, mustered cattle and reared calves while on the farm.
·     Date from: 02 Mar 2020
·     Date t: 05 Jul 2020
·     Total days worked: 90
The NOICC advised that after his application form was lodged, the Department conducted employment verification checks by contacting AAG Labour Services Pty Ltd, the business registered under ABN 21126217294, to verify the employment claims. The Department was informed that the applicant never worked at their business (and therefore did not complete the specified work with the business as claimed).
The delegate considered on the basis of this information that the applicant had provided incorrect answers in support of his second Working Holiday (Extension) visa application and did not comply with s 101(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.
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) in the following respects: that the applicant provided incorrect information in the application for a second Working Holiday 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 AAG Labour Services 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’.
There was no evidence that he had responded to the NOICC; when asked at hearing he said he was not sure if he responded. The Tribunal notes that the delegate’s decision record provided to the Tribunal by the applicant states that he did not respond to the NOICC. The applicant was not able to positively state that he had responded to the NOICC; in the circumstances the Tribunal is not satisfied that he did respond to the NOICC.
On 15 June 2021 the delegate found that there was non-compliance as described in the s 107 notice.
Evidence before the Tribunal as to the non-compliance as described in the s107 notice
In the applicant’s s 359A response, he stated that he made the regretful decision to reach out to an individual who through word of mouth, he, like many others in his desperation in the height of the pandemic, became aware was granting working holiday visas.
At hearing the applicant said that he hired someone to get the visa. He paid a few thousand dollars to a person, he cannot recall who the actual person was, that person used an alias “Gold something”. He was paying to get a second working holiday visa. He knew that it was a requirement to obtain a second working holiday visa that he must have completed the 3 months’ regional work during his first working holiday visa. He agrees that the information provided in the application form was wrong and that even if he was unaware of the exact information that had been provided, he accepts that he caused the information to be provided. He did not work for AAG Labour Services PTY LTD at all.
The Tribunal notes that ss 98, 99 and 100 of the Act specify that an applicant who does not complete their application form is still responsible for its contents if he causes it to be filled in or it is otherwise filled in on his behalf, and even if the applicant did not know at the time that a particular answer was incorrect.
On the basis of the evidence of the verification undertaken by the Department with AAG Labour Services PTY LTD and the applicant’s acknowledgement of the incorrect information, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.
For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
The prescribed circumstances: reg 2.41 of the Migration Regulations 1994
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
The correct information
The applicant said that he knew when he applied offshore in Northern Ireland for the working holiday visa that he would have to complete 88 days of farm work/regional work during that one year. He did not complete the farm work. Ever since he arrived in Sydney he has been working in construction in and around Sydney; he only ever stopped during certain COVID-19 lockdowns.
The correct information is, as conceded by the applicant, that he never worked in a specified job in regional Australia for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa. He was never employed by AAG Labour Services PTY LTD.
The Tribunal gives this matter considerable weight in favour of affirming the decision to cancel the applicant’s visa.
The content of the genuine document (if any)
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 applicant was granted a Subclass 417 (Working Holiday) (Extension) visa on 3 August 2020 on the basis that he satisfied the criteria for the visa. One of the criteria is cl 417.211(5) which requires the Minister to be satisfied of matters including that, if the applicant held only one Subclass 417 visa in Australia, he has carried out a period or periods of specified work in regional Australia as the holder of the visa and the total period of work carried out is at least 3 months.
The applicant relied on incorrect answers that he was employed by AAG Labour Services PTY LTD, in a specified job, in regional Australia and undertook this work for 3 months whilst the holder of a Subclass 417 (Working Holiday) visa, to satisfy the criterion in cl 417.211(5). The delegate’s decision record provided to the Tribunal by the applicant notes that the delegate relied on these incorrect answers to grant him the Subclass 417 (Working Holiday) (Extension) visa, considering that the information he gave was “central” to the grant of the visa and that as the delegate made the decision to grant the visa based in part on this incorrect information, the applicant may have received an immigration benefit to which he may not have been entitled.
When discussing with the applicant at hearing that it appeared that the visa was granted on the basis of the incorrect information he gave, he said that he cannot argue with that.
The Tribunal finds the incorrect information was relied on by the delegate to grant him the visa. It finds that if the correct information was provided, he would not have met this criterion and the visa would have been refused. The Tribunal considers this is a significant matter and weighs in favour of affirming the decision to cancel the applicant’s visa.
The circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred were that the applicant applied for a Subclass 417 (Working Holiday) (Extension) visa on 3 August 2020 and provided incorrect answers in his visa application.
In the applicant’s s 359A response he provided the following reason for not having complied with s 101(b):
I travelled to Australia on the 22nd of October 2019 on a Working Holiday Visa, (417) with the
intention of travelling and working throughout Australia and then returning home the following
October and pursuing a career in my degree, Construction, Engineering and Management. COVID 19 arrived in Australia in 2020 and therefore borders within Australia began to shut. I then knew it would not be possible for me to be able to travel to all the places in Australia which I came for and knew I would need to complete my 3 month regional work to secure a second 417 visa. My partner reached out to over 20 farms, including working hostels and private farms with no luck due to being in New South Wales and a large majority of farms being in Regional Queensland and even with offering to complete 14 days quarantine on our arrival, those who were currently in the state had priority. My anxiety was increased due a lot of farms only accepting girls or boys. Me and my partner were happy to work on two separate farms but I was cautious of her being a solo female traveller and having seen horror stories on the news and social media pages about backpackers and their experiences is a very daunting experience for anyone to be in, but being in the height of a pandemic worsened it. I put this to the back of my mind as I was so desperate to not return to the UK due to the current state they were in with the pandemic and also with the increase of flight costs due to the high demand so therefore continuing reaching out to farms, even those with awful reviews. After months of no success, it was then I made the regretful decision to reach out to an individual who through word of mouth I like many others in our desperation in the height of the pandemic became aware was granting working holiday visas. During Australia’s first lockdown I worked continuously whilst my partner lost her job due to the pandemic and had to support the two of us in Australia as the flights home to the UK were over 10,000 dollars per person and I had no one that I could ask for that money.
He also stated that his partner’s father was sick at the time and she would not have been able to live at home because of the risk of infection to her father; and further his own father’s company went into administration, so he lost his job and his mother did not work. He would have been returning to the UK with outstanding debts as his wage barely covers his rent and living expenses as he lives in Sydney.
The Tribunal was provided with extracts of text messages indicating that he and his partner had made enquiries in the period March–May 2020 with various organisations seeking regional work. At hearing, the applicant said that at the time, during the height of COVID, he didn’t have a choice; he made multiple attempts, they had booked flights in the hope of getting work (the flights were cancelled), he and his partner were going to have to go to separate farms, however the opportunities just started closing up.
The Tribunal asked whether he called the Department to discuss his situation, and he said no he didn’t because he didn’t think there was anything they would do for him and he thought they would tell him to get a flight to go home and he could not afford to. He agreed that he could have asked his parents to help with a flight home.
The Tribunal asked whether he sought immigration advice and he said he didn’t seek advice because he didn’t want to pay money for a lawyer at the time. The Tribunal asked how much he thought it would cost and he said that he didn’t know how much it would cost; he then said he was told it would cost thousands. The Tribunal put to him that he could have approached a migration agent or a lawyer himself. He said that he was under the impression that he could not just get advice from lawyers and he didn’t have the funds to hire a lawyer. The Tribunal asked him what research he did and he said that he did online research to the effect that he knew he had to do 3 months’ farm work and that was the only option. The Tribunal put to him that he could have spoken to a lawyer or to the Department noting that they issued bridging visas to people in difficult situations, which includes the COVID-19 pandemic. He said he didn’t know he could get a visa, so he didn’t approach the Department. He did acknowledge that there could have been other visa options; he said that he didn’t have experience with visas, and he didn’t know there were bridging visas back then and he was new to it all and he thought he had to do the farmwork or leave. The prices of flights had skyrocketed and if he went home to quarantine there was no bed to sleep on at home. The Tribunal put to the applicant that he must have had friends who could take him in and he agreed.

The Tribunal said that he could have sought advice, approached the Department, but he did not and instead he decided to provide false information to obtain a further visa. He agreed and said that with hindsight he would have done things differently.
The Tribunal has considered all of the factors raised by the applicant as to why he provided the false information. The Tribunal accepts that the applicant was forthright and open about the provision of false information in his letter to the Tribunal and at hearing, and that he is sorry that he did so. The Tribunal notes that the applicant arrived, and his one-year working holiday visa commenced, in October 2019. He had to have completed 3 months of regional work by October 2020. It appears that he and his partner only started contemplating undertaking this work after the COVID-19 pandemic started. The Tribunal accepts that, in the normal course of events, they would have had enough time to complete the regional work if they started looking in March 2020. The Tribunal is prepared to give the applicant the benefit of the doubt and to accept that it was his intention to complete the 3 months’ specified regional work. The Tribunal accepts that the circumstances in Australia in 2020 were unusual with the COVID-19 pandemic and lockdowns and that this made it challenging to find regional employment. The Tribunal also accepts that the situation in the UK as a result of the COVID-19 pandemic was difficult at the time, and that the applicant did not want to return to the UK for that reason and for other personal reasons. However, it is of concern to the Tribunal that the applicant, who is capable and resourceful (noting that he managed to complete a degree in Construction, Engineering and Management prior to coming to Australia, organised a working holiday visa to a foreign country and managed to maintain employment for the most part in this foreign country during the COVID-19 pandemic) did not seek immigration advice from a migration agent or lawyer in relation to his options, nor did he contact the Department to ascertain what options were available for temporary visa-holders during the COVID-19 pandemic. While the Tribunal acknowledges certain difficulties in his path, such as the fear that he may not be able to afford legal advice, or he was worried that if he contacted the Department, they would tell him to go home, he did not even make these concrete enquiries to find out if his worries were correct. The Tribunal notes he had 6 months to do so from March 2020 (when the pandemic had set in and the text messages indicate that attempts to obtain regional work were not successful). Instead, in August 2020, he took the option of paying a few thousand dollars to lodge a visa application based on false information.
Thus, while it accepts the difficult circumstances in which he found himself, and gives these some weight in favour of setting aside the decision to cancel his visa, the Tribunal has found that the applicant knowingly caused the provision of false information in order to obtain a visa for which he knew he did not meet the criteria and it does not accept that this was the only available option open to the applicant. As discussed at hearing, there were other options to explore such as contacting the Department or seeking professional advice, noting that he did have a few thousand dollars available (which he used to obtain the visa). The Tribunal is not satisfied that the applicant’s circumstances at the time justify his conduct.
On balance, these circumstances weigh in favour of affirming the decision to cancel the applicant’s visa.
The present circumstances of the visa holder
The applicant’s letter and evidence at hearing stated that he is from Northern Ireland and he is currently working full time as a roofer. The company for whom he works is keen for him to stay in Australia and would like to provide him with sponsorship. He said that roofing is an occupation in demand in Australia. He would like to gain his qualification here which is supported by his current bosses. The Tribunal asked at what stage the sponsorship considerations were at and the applicant said that they don’t really know the ins and outs of it. They know he has visa problems, but they don’t know any details. They have said they will sponsor him once this is cleared up.
The applicant also said that he has a support network now in Australia that he never had back home, and what started as a holiday has turned into an opportunity to live in Australia; he was not aware that he was putting this at risk when he made his regretful decision in 2020.
His partner is also on a bridging visa; her visa was cancelled for the same reason and she also has an application before the Tribunal. She is from Northern Ireland where they knew each other, they were together back home and have been together for quite a while. If his visa was cancelled, she would go back home with him because they are committed. If he went back, he would live with parents or with a friend. He has experience in work in construction in UK. He had not been able to use his engineering degree in the UK except for a one-year placement. He said it would also be financially difficult to go back home; there is not much work at home. He agreed that he would probably be able to get some work. His partner would also get work; and her father is now “on the mend”. He said that he enjoys the lifestyle in Australia, and he is happy here.
The Tribunal accepts that if the applicant’s temporary working holiday visa is cancelled it would adversely impact on the applicant’s employment and his plans to be sponsored, the proposals of his employers, and his social network that he has accumulated in Australia. If his temporary visa was cancelled and if his partner’s temporary visa was not cancelled, that would have an effect on her because the applicant said she would go back home with him.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The delegate noted in the decision record that the applicant did not contact the Department to correct the incorrect information. At hearing the applicant told the Tribunal that he did not correct the information and he does not have an excuse for this.
The Tribunal considers that his subsequent behaviour (of not correcting the incorrect information) concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act weighs in favour of affirming the decision to cancel the applicant’s visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal to indicate that there are other instances of non-compliance by the applicant. The applicant confirmed this. While this is positive, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.
The time that has elapsed since the non-compliance
The non-compliance occurred on 3 August 2020 when the applicant provided, or caused to be provided, incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa. It is about 16 months since then. The applicant has been working, except when unable to during the lockdown, and has built a friendship network and has felt settled in Australia with his partner. He enjoys the lifestyle here.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal to indicate that the applicant has breached any laws since the non-compliance. The applicant said there have been no breaches of the law.
While this is positive, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.
Any contribution made by the holder to the community
In his letter to the Tribunal, the applicant stated that he has been continuously working in Australia since November 2019 and therefore actively paying taxes. He has been a great asset to his job here in Australia as they have had a high turnover of staff and he is committed to helping them build their business as the company is a start up.
At hearing he said that he has done no charity work per se. He has joined local sports clubs and has started training in ju-jitsu. He is part of the local gym and he plays 5-a-side football.
The Tribunal gives these matters some weight in favour of setting aside the decision to cancel the applicant’s visa.
Other matters for consideration
While the above 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.
Whether there would be consequential cancellations under s 140 of the Act
There is no evidence before the Tribunal to indicate that there would be consequential cancellations under s 140 of the Act if the applicant’s visa is cancelled; the applicant said there are no consequential cancellations. This factor is not relevant.
Are there children whose interests would be affected by the cancellation of the visa?
The applicant said that there are no children whose interest would be affected by the cancellation of his visa. This factor is not relevant.
Would the cancellation lead to the applicant’s removal in breach of Australia’s non-refoulement or family unity obligations?
The applicant said that these matters are not relevant. Insofar as the applicant has a partner who is also on a temporary visa which has been cancelled (and is subject to review), this has been considered above.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, he will become an unlawful non-citizen and may be liable to be detained under s 189 of the Act and removed under s 198 of the Act unless he departs Australia voluntarily.[1] The applicant said that he would depart instead of being detained.
[1] As set out in the delegate’s decision record
If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, he will be subject to s 48 of the Act which means he will have limited options when applying for further visas while in Australia. Further, he will be affected by Public Interest Criteria 4013 where he may be prevented from being granted certain types of visas for a period of 3 years from the date of visa cancellation.[2]
[2] As set out in the delegate’s decision record
The applicant said that if his visa is cancelled, this will affect his sponsorship options. He would then contact the Department and a migration agent and explain skill shortages and see what can be done.
The Tribunal accepts that such consequences would be difficult for the applicant and it considers that this does weigh in favour of setting aside the decision to cancel the applicant’s visa. However, this is tempered by the fact that these are are the intended legal consequences as set out in the legislation when a visa is cancelled as it reflects the seriousness of a breach of s 101(b) of the Act and consequent cancellation of a visa. The applicant has benefitted from providing the incorrect information in his Working Holiday visa application, and it is very likely that he would not have been granted that visa if he had provided correct or accurate information about the 3 month regional work requirement. Thus, the Tribunal gives this little weight in favour of setting aside the decision to cancel the applicant’s visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
The applicant discussed the hardship that he would face in his letter and at hearing. As noted above he considered there would be some financial hardship to him; he said that the money over here is better than at home. Further, he said that he is used to the weather over here. His partner would have to go home too which would also cause her hardship. His bosses have struggled with getting staff so there is also hardship to them. He is sorry for what he did.
The Tribunal gives this consideration some weight against affirming the decision to cancel the applicant’s visa.
Conclusion on the exercise of the discretion
Having carefully considered all of the above, the Tribunal concludes the matters that weigh in favour of cancelling the visa in this case on balance outweigh the factors that weigh against cancellation. In its assessment, the Tribunal places significant weight on the fact that the visa would not have been granted had the correct information been provided, and the applicant's knowledge of this at the time he paid someone to lodge the visa application. It accepts that he is remorseful about this, however the Tribunal considers that the migration system was undermined in a significant manner by the provision of incorrect information. It accepts that the applicant experienced difficult circumstances stemming from the effects of the COVID-19 pandemic, including difficulties in securing specified work, and accepts that he made some attempt to obtain specified work in the relevant period. However, the Tribunal does not accept that this justified his decision to pay for and enable a person to provide incorrect information to secure a visa rather than approach the Department or seek professional advice.
The Tribunal acknowledges that the applicant is gainfully employed, his employers appreciate his work and skill and would like to sponsor him in the future. It accepts that if his visa is cancelled this will have an effect on his future visa prospects and the sponsorship he seeks may not occur. Further, if his partner’s visa is not cancelled, there will be consequences for her if the applicant’s visa is cancelled. The applicant has established a network in Australia, has makes contributions to the community by his ongoing skilled employment, and participating in sports, and it also takes into account that there is no evidence of any other non-compliance or breaches of the law. It also notes that he considers himself financially better off in Australia. Nevertheless, the Tribunal concludes the factors in favour of cancelling the visa outweigh those against cancellation and that 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 applicant’s Subclass 417 (Working Holiday) visa.
Christine Cody
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 4997

12 December 2021

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Jurisdiction