Wanless (Migration)

[2022] AATA 2312

Wanless (Migration) [2022] AATA 2312 (6 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samuel George Wanless

REPRESENTATIVE:  Mr Adeel Khan

CASE NUMBER:  2116981

HOME AFFAIRS REFERENCE(S):          BCC2020/2728223

MEMBER:K. Chapman

DATE:6 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 6 June 2022 at 2:53pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) visa – ground for cancellation – incorrect information in visa application – completion of specified work in a regional area – consideration of discretion – grant of visa based on incorrect information – knowingly deceptive course of conduct – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 101, 107, 109, 375A

Migration Regulations 1994 (Cth), r 2.41

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.109(1) of the Migration Act 1958 (Cth) (‘the Act’). This is the second Subclass 417 visa held by the applicant. He is a national of The United Kingdom.

2. The delegate cancelled the visa on the basis the applicant had not complied with sub-section 101(b) of the Act, in that he incorrectly declared in his visa application he had performed 3 months of specified work in a regional area, when integrity checks confirmed he had not done so. It is worth pausing to reflect that generally an applicant is not entitled to the grant of a second Subclass 417 visa without having performed 3 months of specified work, commonly required to be in a regional area.

3. On 11 October 2021, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 417 visa, on the basis that he failed to comply with sub-section 101(b) of the Act. On 24 October 2021, the applicant responded to the NOICC. On 12 November 2021, the delegate cancelled the applicant’s Subclass 417 visa.

4. On 18 November 2021, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with his application. He also submitted a statement and medical records at that time. Prior to the review hearing, the applicant also submitted material including, but not limited to, written submissions, a statement from him, a letter confirming his partner’s employment, and a ‘tender bundle’ (including third party statements, medical records, employment documentation, residential records, financial information, charitable information, UK Police check, Passport information, and a copy of decisions made by the Tribunal (differently constituted) in other matters). The Tribunal has duly considered all information submitted by the applicant.

5. The applicant appeared by video before the Tribunal on 19 May 2022 to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by video. The Tribunal also took evidence by telephone from Mr Sean Grant (the applicant’s employer) and Ms Ayla Meerveld (the applicant’s girlfriend/partner). The applicant participated in the hearing by video from Sydney, where he is presently residing. The Tribunal is satisfied that the video method of hearing was fair and appropriate. The applicant was represented by his solicitor (‘the representative’) who was permitted to make submissions at the review hearing. Following the review hearing, the applicant confirmed he had no further material to provide to the Tribunal.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   ISSUES AND LAW

7. The issues in the present case are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

8. Sub-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, 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.

9. 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.

10. For completeness, the Tribunal notes that an unsigned certificate dated 16 November 2021, purportedly made pursuant to s.375A of the Act, is contained in the Department file. It relates to the Department’s enquiries with the employer claimed in the applicant’s relevant visa application regarding specified regional work. Given that this certificate is unsigned, the Tribunal finds it to be a nullity. In any event, the applicant concedes he did not perform the specified work claimed in his relevant visa application and no access to information was denied to the applicant on any basis throughout the review process. On balance, the Tribunal considers that nothing turns on the presence of the defective certificate in the present review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence at the review hearing

11. The applicant’s evidence to the Tribunal at hearing may be summarised as follows. He agreed that he received the NOICC and responded to it, adding he made an honest response. The applicant indicated he had read and understood the delegate’s visa cancellation decision. He outlined his secondary school education in The United Kingdom, followed by employment in varied roles including performing sports coaching, holiday entertainment and as a sales representative. The applicant informed the Tribunal that he progressed in sales roles prior to travelling to Australia in 2019. In the year before his travel, he concluded a relationship and advised he was not in a healthy mental state. The applicant cited his concerns over workplace bullying at that time and indicated he suffered from anxiety and depression before coming to Australia.

12. The applicant wished to gain work experience in Australia and progress in the sales field. He travelled to Australia alone, meeting up with friends and fellow working holiday makers on the East Coast, where he engaged in tourist activities. The applicant advised that following his arrival in Australia his mental health improved. He intended to perform regional work, so as to obtain a second Working Holiday visa (Subclass 417). When the COVID-19 pandemic struck Australia, he was precluded from obtaining regional work and his mental health started to decline. The Tribunal canvassed with the applicant whether he sought any professional help in relation to his mental health in either The United Kingdom or in Australia. He confirmed that he had not done so, rather he obtained the assistance of friends and acquaintances to work through his mental health issues. The applicant also informed the Tribunal that he did not personally submit the second Subclass 417 visa application himself and he believes he was judged unfairly by the Department.

13. The Tribunal canvassed with the applicant the information contained in the delegate’s visa cancellation decision, regarding his alleged provision of incorrect information concerning regional employment with Thomson Forestry. Initially, the applicant sought to distance himself from the completion of the visa application, indicating he didn’t complete it himself. Upon further enquiry of the Tribunal, the applicant revealed that a friend of a friend put him in contact with a person using the email address containing ‘Goldenfish777’. In due course, following discussion of s.98 of the Act, pertaining to responsibility for information contained in visa applications, the applicant conceded that he is responsible for the information contained in his visa application in relation to the claimed specified work.

14. The applicant informed the Tribunal that at the time he contacted ‘Goldenfish’ he was in a bad place mentally. He was living in Sydney during the COVID-19 lockdown and could not obtain the regional work required to facilitate a second Subclass 417 visa. His flatmate departed Sydney unexpectedly at the time and the applicant was stuck with the financial burden of the rental property he then occupied. The applicant suffers Crohn’s disease and was scared to return to The United Kingdom given his condition and the high COVID-19 case numbers there at the time. The Tribunal notes the applicant has submitted medical evidence confirming he has Crohn’s disease and that evidence is accepted. The applicant also advised at the time he contacted ‘Goldenfish’ he was under stress, which also affects his Crohn’s disease. Further, the applicant advised he was desperate to remain in Australia at that time, he was isolated and he was not thinking clearly. He also advised he had attempted to obtain regional work but was told by the farms concerned he would have to wait several weeks at their location to see if work was available.

15. The Tribunal raised with the applicant that the evidence before it might tend to suggest that the ground for cancellation of his visa exists in that incorrect answers have been given or provided in the manner outlined by the delegate. He was invited to comment and conceded this matter. The applicant advised that he understood incorrect information was submitted on his behalf in the visa application. The Tribunal raised with the applicant that his failure to provide correct information in relation to his second Subclass 417 visa application might tend to weigh in favour of cancelling his visa. The applicant was invited to comment and indicated that he was desperate at the time and fearful for his own health and wellbeing. He was terrified at the height of the pandemic, with there being no vaccine rollout in Australia then and he wanted to stay away from The United Kingdom.

16. When asked by the Tribunal why he did not contact the Department to discuss his visa status during the height of the COVID-19 pandemic, the applicant advised that he felt he was a burden on people and he was scared. He had heard rumours of others being told to leave Australia and he felt using ‘Goldenfish’ was his only option. The applicant stated he wasn’t thinking straight at the time and he wished he could rewind and do things differently.

17. The Tribunal raised with the applicant that the failure to provide correct information in relation to his second Subclass 417 visa application might tend to suggest that the decision to grant him that visa was based wholly or partly on incorrect information and this might tend to weigh in favour of cancelling his visa. The applicant was invited to comment and he replied that he apologised for his actions. The applicant added that he fears for his future and that of his girlfriend and employer due to his actions. He advised that at the time he felt everything was out of his control.

18. The Tribunal canvassed the applicant’s present circumstances. He is employed by Talk Scoop Pty Ltd in Sydney and holds a sales role. The applicant is only permitted to work twenty hours per week due to the condition imposed on his Bridging Visa E. His employer is partnered with a large solar client. Between March 2020 and February 2021, the applicant resided in Brisbane and worked for Talk Scoop as the lead sales manager at their fledgling Brisbane office. At that time his employer was preparing to nominate him for a Subclass 482 visa, however, this plan ceased upon his Subclass 417 visa being cancelled. The applicant returned to Sydney in February 2021 to the Talk Scoop office in that location, where he works twenty hours per week. He occupies a managerial sales role which involves conducting sales, training new staff and demonstrating to clients how to convert to solar energy.

19. The applicant explained to the Tribunal that he is passionate about his current employment with Talk Scoop in Sydney, where he believes he is assisting the Australian economy and the world with climate change. He advised that he has lived with his girlfriend, Ms Ayla Meerveld (who is a national of The United Kingdom holding a temporary visa) for around eighteen months. They enjoy travelling to national parks and helping the community.     

20. The applicant told the Tribunal that following his visa cancellation and inability to work full time, the Brisbane Office of Talk Scoop closed for around three months and six staff lost their jobs. He also advised that Talk Scoop lost around $400,000 in revenue during this office closure. There is now a temporary manager in the Talk Scoop Brisbane office. The applicant would be happy to return to Brisbane to take over if he is permitted to remain in Australia, although his employer has not yet approached him in this regard. The applicant believes he will have a conversation with his employer if his visa cancellation is revoked.

21. The applicant hopes to remain in Australia with Ms Meerveld in the long term. She has been in Australia for around five years and she hopes to stay in Australia for the long term. The applicant wants to raise a family in Australia with her. He hopes they can reside in either Brisbane or Sydney. The applicant explained Ms Meerveld came to Australia in around 2017, she completed her regional work, studied Human Resources and is now working at a company in Sydney called IMED Radiology. She is currently employed in a medical recruitment role. During the pandemic she was recruiting nationally for a radiology clinic and she was recently promoted. According to the applicant, Ms Meerveld holds a Bridging Visa while she awaits the grant of a Subclass 408 Temporary Work Activity visa. The applicant believes that Ms Meerveld will be offered an employer sponsored visa later this year.

22. The applicant felt like he had turned the corner in his life until the visa cancellation occurred. He advised he is succeeding professionally, helping to train young people, generates significant income for his employer, assists the post-pandemic economy and is helping with climate issues. He wishes to remain in Australia and wants his visa matter resolved.

23. The applicant indicated he had not breached any Australian laws or other visa requirements. He advised the Tribunal that he has made a contribution to the Australian community through regular donations to charity, particularly regarding men’s mental health. He cited participating in the ‘Movember’ charity annually and detailed help he provided to an Indigenous charity sausage sizzle to raise funds for flood victims in Lismore. The applicant also helps a local homeless person, who frequents the vicinity of his office location, by purchasing him food and drink from time to time. When asked by the Tribunal, the applicant confirmed he had no children in his care.

24. The Tribunal canvassed the mandatory legal consequences of visa cancellation with the applicant. In response, he advised that he is in a scary situation whereby if the cancellation is overturned he should get an employer sponsored visa but if not then he will have to depart Australia. The Tribunal canvassed with the applicant whether Ms Meerveld would depart Australia with him if it is required. The applicant advised that he is not sure about the relationship regarding this matter and he is not sure if she would remain in Australia or depart with him. He cited that she has also struggled with mental health and took a break from study (the Tribunal accepts the submitted documentary material about this break in her studies). He feels his options would be limited if his Subclass 417 visa remains cancelled. The applicant also confirmed that no international obligations are relevant to his case.

25. The Tribunal canvassed issues of hardship with the applicant. He submitted that hardship would be faced by him and his family if his visa was cancelled. He advised that it would be a lot tougher for him in The United Kingdom than in Australia following the COVID-19 pandemic. He explained that his mother works as a nurse in The United Kingdom (the Tribunal notes written material suggests she is working with COVID-19 patients) and his father is unemployed. The applicant doesn’t want to be a burden on his family at home, who are still paying their mortgage. The applicant contended he would be without work for a time there which would be problematic. He added that his girlfriend would also struggle financially in The United Kingdom. The applicant also advised that his employer, Talk Scoop, would take a financial loss if he departs Australia as he generates a lot of revenue for the company. The applicant also indicated he feels settled in Australia, his mental health is better here and he is scared to return to The United Kingdom.

26. The Tribunal canvassed with the applicant whether there is any reason he cannot return to The United Kingdom. He indicated there was no such reason, however, he fears for his employment prospects and for his parents suffering hardship as a result of his return. The Tribunal raised with the applicant that given his education, training and work experience this might tend to suggest he can find work in his country of nationality if he returns there, inviting his comment. The applicant agreed that he could find work there but is not sure how long it would take to do so. The Tribunal also raised with the applicant that his citizenship of The United Kingdom might tend to suggest he can avail himself of the medical services in that nation in the manner any other national can, inviting his comment. The applicant agreed he could access such medical services, however, being under stress can see his Crohn’s disease flare up. He had such flare ups in the past in The United Kingdom when under stress, but not in Australia. When asked by the Tribunal if he and Ms Meerveld are vaccinated against COVID-19, the applicant confirmed they were. The applicant concluded his evidence by noting he was scared to return to The United Kingdom.

27. The Tribunal took evidence by telephone from Mr Sean Grant, who is the owner and director of Talk Scoop Pty Ltd in Sydney. Mr Grant advised the Tribunal that he recruited the applicant through a normal interview process in early 2020. He cited the importance of the applicant to the company, as he generates significant revenue and noted he was integral to the Brisbane office when he was there. When the applicant’s visa was cancelled he could not be easily replaced and the Brisbane office had to close for a time. Mr Grant explained that the company has since installed another manager in the Brisbane office and he has not thought about the applicant resuming in Brisbane at this point given his uncertain visa status. From a commercial stand point he wants the applicant to remain in Australia so he can be employed by the company.

28. Mr Grant explained it was a difficult recruitment market at the moment and he wants the applicant to remain employed in his sales role. Mr Grant confirmed it was unsettled whether the applicant would return to Brisbane if he was permitted to remain in Australia. Mr Grant indicated that the applicant was valuable to both the Sydney and Brisbane offices, with him working reduced hours in the Sydney office presently. Mr Grant told the Tribunal that the applicant advised him of his visa cancellation at the time it occurred. Mr Grant was unhappy with the applicant’s situation then and noted the visa cancellation cost the company significantly. Mr Grant confirmed that the applicant’s visa cancellation was the direct cause of the Brisbane office closing for a time. Mr Grant confirmed another manager, from Adelaide, was running the Brisbane office now. Mr Grant advised that the applicant has value to the company which is increased by the difficult recruitment market resulting from a lack of visa holders being in Australia and also as there is a heavy demand for solar (with the marketing company having clients in that sector). Following Mr Grant’s evidence, the applicant confirmed he had no additional points to raise.

1. The Tribunal took evidence by telephone from Ms Ayla Meerveld, who is the applicant’s girlfriend/partner. Ms Meerveld informed the Tribunal she met the applicant in March 2020 in Sydney. She has been in Australia around five years, having held two Subclass 417 visas and a Subclass 500 Student visa. Ms Meerveld now holds a Bridging Visa whilst awaiting a Subclass 408 visa application to be processed. She works as a recruiter for the healthcare industry in Sydney.

2. Ms Meerveld explained that she moved in with the applicant after knowing him for around six months. She knows that his visa was cancelled for providing incorrect information in relation to the completion of farm work. Ms Meerveld explained that she had properly completed eighty eight days of farm work in New South Wales herself when she held a Subclass 417 visa.

3. When asked by the Tribunal what impact the applicant’s visa cancellation would have upon her if he had to depart Australia, Ms Meerveld advised it would have an endless impact upon her. It would have financial, emotional and mental health consequences according to her. She noted that her employer wishes to nominate her for an employer sponsored visa and that she has spent a long time building a life in Australia. When asked by the Tribunal if she would depart Australia with the applicant if his visa was cancelled, Ms Meerveld advised she is undecided and they have not had a finalised conversation on the topic.

4. Ms Meerveld concluded her evidence by noting that the applicant has learned his lesson, he is very remorseful, and they always talk about his situation. She added that their relationship and future in Australia has been jeopardised by the visa cancellation. Ms Meerveld told the Tribunal that the applicant was an honest, hard working guy. Following this evidence, the applicant informed the Tribunal he is worried that his relationship will be jeopardised if his Subclass 417 visa is cancelled.

5. The applicant concluded his evidence by apologising for his actions. He noted he was in a difficult situation and the pandemic was unexpected. He wishes he could rewind time. The applicant cited his mental health as a reason he should be allowed to remain in Australia. He seeks a second chance and believes he has made a big contribution to the Australian economy. The applicant explained that other backpackers are working in Talk Scoop Pty Ltd and he is there training them and helping the company to grow. The applicant has a big concern for the company and how they might replace him if he departs, given the unemployment rate is low.

6. The representative was permitted to make submissions during the review hearing. He submitted that the applicant attempted to find regional work, however due to financial hardship at the time he found it difficult to leave his employment. It took some time to locate a new flat mate. The applicant was suffering depression and anxiety. The applicant was apparently quoted $15,000 to depart Australia by air, his father was unemployed and his mother the primary source of income, with a brother working part time then. The representative highlighted the applicant’s Crohn’s disease which gives him a weakened immune system. The applicant apparently feared for his life, noting his mother worked as a nurse with COVID-19 patients and there was no COVID-19 vaccine at the time he made application for the visa. He noted the applicant took the vaccine in 2021 and that The United Kingdom has had a high number of COVID-19 cases.

7. The representative contended the applicant took careful precautions against COVID-19 and mostly worked from home. His role has been critical to his employer. He generates a significant amount of revenue for his employer and he would have been nominated for an employer sponsored visa if his Subclass 47 visa was not cancelled. According to the representative, the applicant is scared for his health, he fears the three year exclusion period and Ms Meerveld wants to remain in Australia long term. Hardship will be caused to the applicant if he separates from Ms Meerveld and his mental health will decline.

8. The representative noted the applicant has raised money for charity including an indigenous charity and an organisational donation to koalas affected by the bush fires. The representative contends the applicant generates significant revenue for his employer. He also pays taxation in Australia.

9. The representative contended that the applicant’s mental illness should reduce any culpability for any wrongdoing. He contended that the applicant has had private counselling sessions with a colleague of his mother’s. The representative stated that the applicant’s mental health is ‘on the right path now.’

10. The Tribunal asked the applicant if he had any further evidence to submit in the review. The applicant advised he did not. He apologised for his actions and requested compassion in his matter. The representative asked for a further week to submit post-hearing material. This was granted by the Tribunal. However, it was subsequently confirmed in writing there was no further material to submit in this review.

    Did the notice comply with the requirements in s.107?

11. Section 107 of the Act is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

12. The Tribunal notes that the NOICC dated 11 October 2021 was properly despatched by the Department to the applicant. He responded to the NOICC with contentions and medical evidence that have been canvassed during the review hearing. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage the provisions of s.107 of the Act.

13. Therefore, in the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

14. The Tribunal must consider whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.

15. The s.107 notice particularises non-compliance with s.101(b) of the Act by the applicant in relation to his second Subclass 417 visa application. It indicates the applicant incorrectly answered questions in that visa application in relation to having performed 3 months specified work in a regional area.

16. It is not in dispute that the applicant’s visa application falsely declares the performance of 3 months specified work in a regional area. Whilst the applicant initially sought to distance himself from full responsibility for the contents of the application, by indicating it was completed on his behalf by ‘Goldenfish’, in due course, he accepted responsibility.

17. Following careful consideration, the Tribunal finds that the incorrect answers regarding the applicant’s performance of 3 months of specified work in a regional area constitute the provision of incorrect answers in the manner particularised in the s.107 notice. On balance, the Tribunal is satisfied that the answers provided by the applicant as particularised in the s.107 notice are incorrect.

18. Therefore, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

19. 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).

20. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information;

    ·     the content of the genuine document (if any);

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

    ·     the circumstances in which the non-compliance occurred;

    ·     the present circumstances of the visa holder;

    · the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

    ·     any other instances of non-compliance by the visa holder known to the Minister;

    ·     the time that has elapsed since the non-compliance;

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches; and

    ·     any contribution made by the holder to the community.

21. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

22. The Tribunal has duly considered the applicant’s response to the NOICC. This response covers material that has been canvassed in greater detail during the review hearing. On balance, the Tribunal finds that the response of the applicant to the NOICC weighs neither in favour, nor against, cancellation of his visa, given that more contemporary evidence is before the Tribunal.

23. The correct information in relation to the questions in the relevant visa application previously outlined is that the applicant did not perform 3 months specified work in a regional area. The false information submitted in his visa application regarding this topic is, in the view of the Tribunal, a very serious matter. This is particularly so given the applicant knew he was not entitled to be granted the second Subclass 417 visa without performing the relevant work, but chose to engage ‘Goldenfish’ to proceed with the visa application. These circumstances weigh strongly in favour of cancelling the applicant’s Subclass 417 visa, given the deceptive nature of the incorrect information submitted. For completeness, the Tribunal finds that there is no circumstance in the present matter regarding the content of a genuine document and therefore no weight is given to that prescribed circumstance.

24. The Tribunal forms the view that the decision regarding the applicant being granted the second Subclass 417 visa was based wholly or partly on incorrect information. That is, the applicant’s visa application untruthfully submitted that he performed 3 months specified work in a regional area. Given that this topic is central to the grant of a second Subclass 417 visa, had the true information been known to the Department the applicant would not have been granted the visa. Following careful consideration, the Tribunal finds that the circumstances in relation to the grant of the second Subclass 417 visa to the applicant weigh strongly in favour of cancelling his visa.

25. The Tribunal finds that the applicant engaged in a deliberate course of conduct to pursue a second Subclass 417 visa application in the knowledge that he had not performed 3 months specified work in a regional area. That he chose to engage ‘Goldenfish’ to lodge the application on his behalf reflects poorly upon him. The Tribunal understands that the applicant felt under pressure when the COVID-19 pandemic struck, he unsuccessfully attempted to secure farm work, his flat mate departed suddenly leaving him with a financial burden, he was concerned that his Crohn’s disease would place him at greater risk of COVID-19 should he return to The United Kingdom noting his family circumstances, and he felt his mental health was not good at that time. However, at no stage did he contact the Department during 2020 to discuss his options in light of the unfolding situation. Rather, he made the conscious decision to pursue a pathway that would submit incorrect information on his behalf in his second Subclass 417 visa application.

26. For completeness, in the absence of persuasive medical evidence, the Tribunal does not accept that the applicant’s informally treated mental health issues were of such gravity as to impair his decision making process when he engaged ‘Goldenfish’ to lodge the visa application for him. Indeed, the applicant concedes that he has never had formal professional treatment for any mental health issue. Whilst the Tribunal accepts that the applicant feels he suffers from anxiety and depression, it is not satisfied these matters have impacted his decision making ability in any significant manner.

27. It is also worth pausing to reflect that the incorrect information regarding specified work only came to light when the Department conducted integrity checks and the applicant never volunteered the true information to them. Following careful consideration, the Tribunal finds that the circumstances in which the non-compliance occurred weigh strongly in favour of cancelling the applicant’s Subclass 417 visa.

28. The applicant submits that his present circumstances weigh against the cancellation of his visa. He indicates his visa should not be cancelled as his mental health will decline, his relationship may end, his employment will cease, his employer will suffer, and he performs charitable work. The Tribunal accepts that the applicant feels his mental health will decline if he is forced to depart Australia, where he prefers to reside in comparison with his country of nationality. The Tribunal accepts that the applicant’s relationship with Ms Meerveld will be placed under pressure if his visa is cancelled. However, the Tribunal notes that it has not been decided whether she would depart Australia if the applicant’s visa is cancelled and, in any event, there is nothing preventing her from returning with him to The United Kingdom given her nationality. The Tribunal also accepts that the applicant is a significant asset to his employer and that the employer will suffer some inconvenience if the applicant must cease his employment. Additionally, the Tribunal accepts that the applicant will lose the opportunity to be nominated for an employer sponsored visa if his subclass 417 visa is cancelled. Further, the Tribunal accepts that the applicant has performed charitable work as outlined in his evidence at hearing and the documentary material submitted.

29. The applicant also indicates that his Crohn’s disease and family circumstances in The United Kingdom are other circumstances pointing against cancellation of his visa. Whilst the Tribunal accepts the applicant suffers from Crohn’s disease, it is satisfied that he can obtain medical treatment in his country of nationality commensurate with any other citizen there as is required. The Tribunal also notes that the applicant (and his partner) are vaccinated against COVID-19, which will mitigate the health risks to him if he returns to The United Kingdom. Additionally, the applicant contends his family in The United Kingdom has somewhat straitened means and his mother works as a nurse and may be exposed to COVID-19. However, given the applicant’s education, training and experience the Tribunal is satisfied he will be able to find suitable employment and accommodation if he returns to his country of nationality following a period of adjustment. Additionally, the Tribunal considers it reasonable for the applicant (and his partner) to fund their air travel to The United Kingdom given their employment history.

30. On balance, the Tribunal finds that the applicant’s present circumstances weigh moderately against cancellation of his visa, given that he aspires to remain in Australia, yet there is no persuasive reason why he cannot return to his country of nationality.

31. The Tribunal has carefully considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act and also whether there are any other instances of non-compliance by the visa holder. There are no adverse matters before the Tribunal with regard to these matters. Therefore, on balance, the Tribunal finds that these matters weigh moderately against the cancellation of the applicant’s Subclass 417 visa.

32. The time that has elapsed since the non-compliance with s.101(b) has been carefully considered by the Tribunal. The applicant made the application for the second Subclass 417 visa on 2 October 2020, approximately 20 months prior to the time of this decision. Given this period of time is not lengthy, on balance, the Tribunal finds that the time that has elapsed since the non-compliance weighs neither in favour, nor against, cancellation of his visa.

33. There is no evidence of any breaches of the law since the applicant’s non-compliance and the Tribunal affords this circumstance moderate weight against cancellation of his Subclass 417 visa. The applicant contends that he has made a contribution to the community through his charity work and employment which contributes to the Australian economy and renewable energy. Following careful consideration, the Tribunal finds that these matters weigh moderately against the cancellation of his Subclass 417 visa.

34. 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.

35. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention. As outlined above, the mandatory legal consequences of visa cancellation were canvassed with the applicant at the review hearing. If the applicant’s Subclass 417 visa is cancelled and he does not hold a valid visa he will become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act. He may also be subject to s.48 of the Act, which limits further specific onshore visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. Further, the applicant may be subject to an exclusion period regarding future visa applications. There is no evidence before the Tribunal to suggest that the applicant would be subject to indefinite detention and be unable to be removed to The United Kingdom. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s Subclass 417 visa given they are the intended consequences of the legislation.

1. The Tribunal has carefully considered all other relevant matters, including the degree of hardship that may be caused to the applicant (and partner and family) if his Subclass 417 visa is cancelled. As outlined above, the applicant contends he would face hardship in relation to his health, relationship, employment, aspiration to remain in Australia and in relation to his family circumstances. The Tribunal accepts that the applicant would suffer hardship in relation to having stress placed upon him from the perspective of his Crohn’s disease and his mental health if his visa is cancelled. However, the Tribunal is also satisfied that the applicant can avail himself of the medical services available in The United Kingdom commensurate with all other citizens of that nation. The Tribunal also notes that the applicant and his partner are vaccinated against COVID-19 which provides additional protection.

2. The Tribunal accepts that both the applicant and Ms Meerveld would experience hardship if the Subclass 417 visa is cancelled given it will place stress upon their relationship. However, of note, there is no evidence before the Tribunal confirming whether Ms Meerveld would accompany the applicant to The United Kingdom if his visa is cancelled, and there is nothing preventing them from travelling together if they wish to do so. The Tribunal accepts that if Ms Meerveld does depart Australia, she will also face hardship by losing her employment and the opportunity to be nominated for an employer sponsored visa. Additionally, the Tribunal accepts that Ms Meerveld will face hardship on emotional, financial and mental health bases if the applicant’s visa is cancelled. However, the Tribunal also notes that the applicant and Ms Meerveld can continue their relationship in different countries utilising modern electronic communications (noting the time difference) if they wish to do so.

3. The Tribunal accepts the applicant would suffer hardship on account of his employment ceasing as a result of visa cancellation. Further, the Tribunal accepts that the applicant would lose the ability to be nominated for an employer sponsored visa in the medium term. However, the Tribunal is satisfied the applicant will be able to secure suitable employment in The United Kingdom after a period of adjustment. The Tribunal also accepts that the applicant’s employer, Talk Scoop Pty Ltd, would suffer hardship in losing the applicant’s services if his visa is cancelled as he is a valued employee (Mr Grant’s evidence on this topic is accepted). However, the Tribunal notes that Talk Scoop Pty has been able to restore its Brisbane office without the applicant in location, which demonstrates the company has the resourcefulness to continue its operations without him if that is necessary.

4. The Tribunal accepts that some hardship would result for the applicant and his family if he has to depart Australia and return to The United Kingdom. However, the Tribunal is not satisfied that the presence of the applicant will be of significant detriment to his family, particularly given that after a period of adjustment he will be able to obtain suitable employment in The United Kingdom. Further, the applicant’s vaccination against COVID-19 will mitigate any health risk posed to him if he returns to live with his family, noting he is entitled to avail himself of all medical services, for his various health conditions, available to nationals of The United Kingdom in that country. The Tribunal also accepts that the applicant feels settled in Australia and that he is scared to return to live in The United Kingdom. However, the Tribunal is satisfied that the applicant has the education, training and experience to succeed in his endeavours in his country of nationality if he returns to reside there. On balance, the Tribunal finds that the applicant would face a moderate degree of hardship if his visa is cancelled and this weighs moderately against the cancellation of his Subclass 417 visa.

5. For reasons previously outlined, the Tribunal finds there is no persuasive evidence before it to suggest that any international obligations would be breached as a result of the cancellation of the applicant’s Subclass 417 visa, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. Accordingly, this consideration weighs neither in favour of, nor against, cancellation of the applicant’s Subclass 417 visa. The Tribunal records that it has duly considered all relevant matters in the applicant’s case.

6. For completeness, the Tribunal notes it has duly considered the decisions of the Tribunal (differently constituted) that were submitted by the representative, and his various submissions, on behalf of the applicant. However, the Tribunal notes that each review turns upon its own particular facts. In the present matter, the Tribunal has reached its conclusions based upon the particular facts pertinent to the applicant that are before it.

7. The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 417 visa. For reasons previously expressed, the Tribunal finds that the applicant engaged in a knowingly deceptive course of conduct to engage ‘Goldenfish’ to lodge his second Subclass 417 visa application, relying upon the false premise that he completed 3 months of specified work in a regional area. In doing so there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

8. On balance, following much consideration, the Tribunal finds that the circumstances in favour of cancelling the applicant’s visa outweigh those circumstances to the contrary.

   CONCLUSION

9. 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 outlined above, the Tribunal concludes that the Subclass 417 visa should be cancelled.

   DECISION

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

    K. Chapman
    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.