Wilson (Migration)

Wilson (Migration) [2022] AATA 778 (25 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Benjamin Wilson
CASE NUMBER:  2112391
HOME AFFAIRS REFERENCE:               BCC2020/2706229
MEMBER:L. Symons
DATE:25 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 25 February 2022 at 4:15pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – incorrect information in the visa application – 6 months of specified work in regional Australia – specified work completed was not as recorded in application – impact of the COVID19 pandemic – impact on sponsored employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 111,112, 140, 189, 198
Migration Regulations 1994, Schedule 2 cl 417.211; 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 (Cth) (the Act).
The applicant is a national of the United Kingdom (UK) and was born on 4 October 1995. He was granted his first Subclass 417 (Working Holiday) visa on 19 July 2018. He arrived in Australia on 13 November 2018 and the visa was valid until 13 November 2019. On 24 October 2019, he was granted his second Subclass 417 (Working Holiday) visa which was valid until 5 October 2020.
On 5 October 2020, the applicant made an application to the Department of Immigration (the Department) for a third Subclass 417 (Working Holiday) visa. One of the requirements for a third Subclass 417 (Working Holiday) visa is that he must have completed 6 months of specified work in regional Australia. In his visa application, he claimed that he had completed 6 months of specified work in regional Australia. On 5 October 2020, he was granted a third Subclass 417 (Working Holiday) visa that was valid until 13 November 2021.
On 10 September 2021, the delegate cancelled the third Subclass 417 (Working Holiday) visa under s.109(1) of the Act on the basis that on 5 October 2020 the applicant provided incorrect answers in his application for a third Subclass 417 (Working Holiday) visa. On 15 September 2021, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal, via video, on 8 February 2022 to give evidence and present arguments.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
On 11 August 2021, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of his third Subclass 417 (Working Holiday) visa as he/she considered that there had been non-compliance with s.101(b) of the Act. The NOITCC stated that s.101(b) of the Act provided that a non-citizen must fill in or complete his or her application in such a way that no incorrect answers are given or provided.
The NOITCC stated that the applicant lodged an application for a Subclass 417 (Working Holiday) (Extension) visa on 5 October 2020 via the Department’s online facility. The NOITCC stated that in response to the question “They have carried out at least 6 months of specified work?” he answered “Yes”.
The NOITCC stated that in response to the question “All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a Bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)” the applicant answered “Yes”.
The NOITCC stated that under the heading “Details of specified work undertaken” the applicant provided the following answers in part:
Employer details
Legal registered name:  Quenby Viticultural Services
Trading name:  Quenby Viticultural Services
Australian Business N umber:            49457432243
Employer business address:
Address:Quenby Viticultural Services
Suburb/Town  Mount Barker
State/Territory:  Western Australia
Postcode:6324
Work address:
Business name at this location:         Jindawarra Vineyard
Address:1307 Bussell Highway
Suburb/Town:  Margaret River
State/Territory:  Western Australia
Postcode:6285
Work conditions:
Employment type:  Direct employment
Industry type:  Agriculture, forestry and fishing
Industry type sub-group:  Plant and animal cultivation
Description of duties:  Horticulture – Vineyard. Pruning vines in order to prepare for next growth season for commercial selling
Date from:  09 March 2020
Date to:  30 August 2020
Total days worked:  90
The NOITCC stated that under the heading “Working Holiday Declaration”, in response to the question “Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019”, the applicant answered “Yes.” The NOITCC stated that based on this information, as well as meeting other criteria, he was granted a Subclass 417 (Working Holiday) (Extension) visa on 5 October 2020.
The NOITCC stated that the Department subsequently initiated employment verification checks with Quenby Viticultural Services, the business registered under ABN 49457432242, to verify the applicant’s employment claims. On 12 November 2020, Quenby Viticultural Services contacted the Department and advised that he never worked at their business.
The NOITCC set out the provisions of s.98, s.99, s.100 and s.101 of the Act. It stated that the delegate considered that the applicant had not complied with s.101(b) of the Act, which required the applicant to fill in his application form in such a way that no incorrect answers are given or provided, as follows:
·When he answered “Yes” to the question “They have carried out at least 6 months of specified work?”
·When he answered “Yes” to the question “All of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a Bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa (subclass 417)”
·When he provided details of claimed employment with Quenby Viticultural Services in the section of the application form titled “Details of specified work undertaken”
·When he answered “Yes”’ in the declaration “Working Holiday Declaration” to the question “Have carried out at least six months of specified work; AND all of that work was carried out while the applicant held the second Working Holiday visa (subclass 417); OR while the applicant held a bridging visa that was in effect and was granted on the basis of the application for a second Working Holiday visa (subclass 417) which was made at a time when the applicant held the first Working Holiday visa; AND all of that work was carried out after 1 July 2019’,
The NOITCC stated that the delegate considered the above information to be incorrect because verification checks undertaken by the Department had concluded that he never worked at the business Quenby Viticultural Services as claimed and therefore had not undertaken 6 months of specified work in regional Australia. It stated that the delegate considered that, based on the above information, he had provided incorrect answers in support of his application for a Subclass 417 (Working Holiday) (Extension) visa. It stated that the delegate considered that he had not complied with s.101(b) of the Act and his Subclass 417 (Working Holiday) (Extension) visa may be liable for cancellation under s.109 of the Act.
The NOITCC invited the applicant to comment on the possible non-compliance and give a response as to why his visa should not be cancelled in writing within 14 calendar days after he was taken to have received the letter. He was advised of the process for deciding whether his visa should be cancelled and that his response would be taken into account. He was advised that his obligations under ss.104 and 105 of the Act continue. He was advised of the provisions of ss.108, 109, 111 and 112 of the Act. He was advised of the provisions of r.2.41 of the Regulations and what matters the delegate would consider. He was advised that he was required to keep the Department informed of his residential address and any change in his residential address until the time a decision is made about whether to cancel his visa.
On 25 August 2021, the applicant responded to the NOITCC. He stated that he arrived in Australia on 13 November 2018 in search of new job opportunities and wanted to make new friends and travel around Australia. Prior to his arrival in Australia he worked as a welder (metal fabricator or boilermaker) for 4 years. He was an apprentice to a senior welder and this was the equivalent to a fabricator apprentice. He set out in detail his continuous work history in Australia starting in Sydney initially as a formwork labourer and then as a welder and fabricator. He enjoyed working and living in Australia so much that he decided to do farm work to secure a second Working Holiday visa. He moved to Boowora in NSW where he worked as a farm hand for 3 months. After completing his 3 months of regional work he moved to Melbourne in October 2020 and secured employment there.
In his response to the NOITCC, the applicant stated that he then undertook 6 months of specified work in regional Australia as the holder of his second Working Holiday visa whilst employed by Ardreagh Formwork Pty Ltd and PGDD Construction Pty Ltd. Whilst working at Ardreagh Formwork Pty Ltd as a formwork labourer he worked in regional Victoria (Geelong) on a construction site building apartments. He ended this employment on 26 April 2020 and commenced employment with PGDD Construction Pty Ltd on 27 April 2020. He worked as a formwork labourer on two construction sites near Geelong including building a new water treatment plant at Drouin. He ended this employment on 18 October 2020. He was subsequently re-employed by Ardreagh Formwork Pty Ltd as a welder fabricator from 19 October 2020 to 11 April 2021. He was also re-employed by PGDD Construction Pty Ltd as a welder fabricator from 12 April 2021 to 6 June 2021.
In his response to the NOITCC, the applicant stated that a friend gave him the details of a person who he thought was a legitimate agent. He contacted this person to seek his assistance with the visa application process (for his third Working Holiday visa). He never met this person, only contacted him by email and does not know where he is based. He seemed confident that he would get his third Working Holiday visa and he trusted him. He was desperate to stay in Australia as the Covid-19 pandemic was affecting his home country and he was fearful of flying back to the UK.
In his response to the NOITCC, the applicant stated that he was running out of time and began to panic. This resulted in him making no inquiries as to whether the agent was authorised and skilled enough to lodge his visa application. He provided the agent with his personal details, a copy of his passport, his employment history, details of his work locations, visa history and where he lived in Australia. He never saw a copy of the visa application. He did not work for the employer listed in his visa application for the third Working Holiday visa. He was highly stressed at the time and looking back now he realises that he should have employed a registered migration agent to prepare his visa application and reviewed a draft of his visa application before it was lodged.
In his response to the NOITCC, the applicant stated that he is a person of good character. After completing his Advanced Level examinations, he decided that he wanted a trade that he could travel around the world with. He started working in the fabrication/metal industry and now has over 6 ½ years’ experience as a metal fabricator. During his time in Australia he has learnt new techniques and has passed on some of his skills to others. He has completed various welding courses whilst living in Melbourne and this has taught him new skills. He is a hard worker and does not shy away from trying something new or challenging. In his spare time he participates in local sports like golf, soccer and fishing.
In his response to the NOITCC, the applicant stated that he believes that he is eligible for a third Working Holiday visa as he undertook just over 6 months work in regional Victoria in the construction industry whilst the holder of his second Working Holiday visa. Had the agent lodged his visa application correctly he does not believe he would have received the NOITCC. He provided his employment history in Australia. He also provided a number of supporting documents including payslips from Ardreagh Formwork Pty Ltd, payslips from PGDD Construction Pty Ltd, a letter dated 6 August 2021 from Apprenticeships Plus confirming his completion of a welding course and a reference dated 7 August 2021 from the Head Coach of Middle Park Soccer Club.
The applicant’s subclass 417 (Working Holiday) (Extension) visa was cancelled on 22 June 2021.
The applicant filed with the Tribunal copies of the Department’s Decision Record dated 21 September 2021, the notification letter from the Department dated 21 September 2021, his response to the NOITCC, a work reference dated 5 July 2021 from B. Wilson & Sons (his employer in the UK), a work reference dated 5 August 2021 from Ardreagh Formwork Pty Ltd, an undated work reference from Carrington Health in relation to his partner, Danielle Feely and the supporting documents provided to the Department.
Following the hearing, the applicant provided the Tribunal with a letter dated 9 February 2022 from Mr Joseph Doherty, Director of Ardreagh Formwork Pty Ltd. Mr Doherty stated that the applicant commenced his employment with Ardreagh Formwork Pty Ltd on 7 November 2019 whilst the holder of his first Working Holiday visa. On 9 March 2020, he took up a full time position in Geelong, Victoria 3220 (whilst the holder of his second Working Holiday visa). He provided support to the formwork labouring team who were building high rise apartments. His principal place of employment between 9 March 2020 and 26 April 2020 was at 10 Bellerine Street, Geelong. He worked in Geelong for 1 month and 18 days. He provided the applicant’s first and last payslips for this period.
In his letter, Mr Doherty stated that PGDD Construction Pty Ltd was established by his wife, Edel Halvey, on the 13 March 2018 and this company traded until June 2021. (ABN 32 624 961 922). This company was a separate entity and operated independently of Ardreagh Formwork Pty Ltd. The company focus was on commercial and infrastructure projects. PDGG Construction Pty Ltd employed the applicant as a construction formwork labourer from 27 April 2020 until 19 September 2020. During this period he worked at 10 Bellerine Street, Geelong, Victoria from 27 April 2020 until 9 May 2020. His principal place of work changed on 10 May 2020 as they needed support constructing a wastewater treatment plant. He worked at 175 Settlement Road, Drouin, Victoria 3818 from 10 May 2020 until 19 September 2020. During this period, he supported the formwork team with their concrete pours and carried out general site maintenance. The total period of employment equated to 4 months 24 days of regional work. He provided the applicant’s first and last payslips for this period.
The applicant also provided the Tribunal with another letter dated 22 February 2022 from Mr Joseph Doherty, Director of Ardreagh Formwork Pty Ltd. Mr Doherty stated that the terms and conditions offered to their trade workers is dictated by an Enterprise Bargaining Agreement (EBA) with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). According to their EBA, a trade worker is classified as CWI (Construction Worker 1). As per the agreement/wage sheet, the rate of pay for a trade worker is $44.78 per hour. The applicant was paid $45.71 per hour including for all other EBA benefits such as travel allowance, overtime and meal allowance. Whilst employed at PGDD he was also paid the sum of $45.71 per hour which was above the Building and Construction Onsite Award 2020 wage of $22.65 for his class (CW1(d)). The hourly rate of $45.71 also applied to his travel allowance, overtime and meal allowance.
During the hearing, the Tribunal went through the NOITCC with the applicant. He gave evidence that he had undertaken 6 months of specified work in regional Australia, whilst the holder of a second Working Holiday visa, working for the above employers. He stated that he provided his employment details to the agent who prepared his visa application for the third Working Holiday visa. He never saw the completed visa application and was not aware that the agent had provided incorrect answers in relation to his employers. When asked whether he was aware that he was responsible for the answers given in his visa application, he responded that he was not aware of that at the time but is now. He agreed that he had breached s.101 of the Act by providing incorrect answers in relation to his employer/s.
Having considered all the evidence, the Tribunal finds the applicant to be a credible witness and accepts his evidence. The Tribunal accepts the written evidence from Mr Doherty. The Tribunal finds that the work undertaken by the applicant as a construction formwork labourer in the construction industry during the course of his employment with Ardreagh Formwork Pty Ltd from 9 March 2020 to 26 April 2020 and with PGDD Construction Pty Ltd from 27 April 2020 to 19 September 2020 (total of 194 days), whilst the holder of a second Working Holiday visa, is specified work for the purpose of subitem 1225(5) of Schedule 1.[1]
[1] Migration (IMMI 17/018: Working Holiday visa – Specified Work and Regional Australia) Instrument 2017.

The Tribunal finds that this work was undertaken in Geelong, Victoria (postcode 3220) from 9 March 2020 to 9 May 2020 and Drouin, Victoria (postcode 3818) from 10 May 2020 to 19 September 2020 and that this was in regional Australia for the purpose of subitem 1225(5) of Schedule 1.[2] Therefore, the Tribunal finds that the applicant undertook 6 months specified work in regional Australia whilst the holder of his second Working Holiday visa and that all of that work was carried out after 1 July 2019. The Tribunal finds that he was remunerated for that work in accordance with relevant Australian legislation and awards. Accordingly, the Tribunal finds that these were correct answers for the purpose of his application for a third Working Holiday visa.
[2] Ibid.
In view of the above, the Tribunal finds that the applicant only gave or caused to be given incorrect answers in his application for a Subclass 417 (Working Holiday) (Extension) visa lodged on 5 October 2020 in the section titled “Details of specified work undertaken” being the following:
Employer details
Legal registered name:  Quenby Viticultural Services
Trading name:  Quenby Viticultural Services
Australian Business N umber:            49457432243

Employer business address:
Address:  Quenby Viticultural Services
Suburb/Town   Mount Barker
State/Territory:  Western Australia
Postcode:  6324
Work address:
Business name at this location:         Jindawarra Vineyard
Address:  1307 Bussell Highway
Suburb/Town:   Margaret River
State/Territory:  Western Australia
Postcode:  6285
Work conditions:
Employment type:  Direct employment
Industry type:   Agriculture, forestry and fishing
Industry type sub-group:                   Plant and animal cultivation
Description of duties:  Horticulture – Vineyard. Pruning vines in order to prepare for next growth season for commercial selling

Date from:  09 March 2020
Date to:  30 August 2020
Total days worked:  90

For these reasons, 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 only in relation to the answers provided in the section titled “Details of specified work undertaken” .
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 in relation to the answers provided in the section titled “Details of specified work undertaken”, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The correct information is that the applicant was employed by Ardreagh Formwork Pty Ltd (ABN 16 147 301 577), unit 11, 26-32 Pipe Road, Laverton North, Victoria, 3026. His work address was 10 Bellerine Street, Geelong, Victoria, 3220. He was in direct employment on a full time basis and was employed as a construction formwork labourer. He worked in the construction industry and more specifically in residential building construction. His duties were to provide support to the formwork labouring team. He worked there from 9 March 2020 to 26 April 2020.
The correct information is that the applicant was employed by PGDD Construction Pty Ltd (ABN 32 624 961 922), Laverton North, Victoria, 3026. His work address was 10 Bellerine Street, Geelong, Victoria, 3220 from 27 April 2020 to 9 May 2020 and 175 Settlement Road, Drouin, Victoria, 3818 from 10 May 2020 to 19 September 2020. He was in direct employment on a full time basis and was employed as a construction formwork labourer. He worked in the construction industry and more specifically in construction services. His duties were to support the formwork team with their concrete pours and carry out general site maintenance.
The content of the genuine document
Not applicable.
Whether the decision to grant the visa was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted a Subclass 417 (Working Holiday) (Extension) visa on 5 October 2020 on the basis that he satisfied the criteria for the visa. One of the criterion is cl.417.211(6) which requires that, if the applicant held two Subclass 417 visas in Australia, the Minister is satisfied that he has carried out a period or periods of specified work in regional Australia, the total period of that work is at least 6 months, all of that work was carried out while he held a second Subclass 417 visa or a Bridging visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when he held the first Subclass 417 visa), all of that work was carried out on or after 1 July 2019 and he has been remunerated for that work in accordance with relevant Australian legislation and awards.
The Department’s Decision Record indicates that the delegate considered that the delegate who granted him the third Working Holiday visa relied partly on his incorrect answers to grant him the Subclass 417 (Working Holiday) (Extension) visa on 5 October 2020 and he may have received an immigration benefit to which he may not have been entitled. In view of the above findings, the Tribunal considers that if the correct answers were provided, he would have received an immigration benefit to which he was entitled.
The Tribunal gives this consideration considerable weight in favour of setting aside the decision to cancel the applicant’s visa.
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 5 October 2020 and provided incorrect answers in his visa application in relation to “Details of specified work undertaken”.
The applicant provided a response to the NOITCC to the Department together with several supporting documents. These documents were also provided to the Tribunal as well as additional supporting documents.
During the hearing, the applicant reiterated the evidence he gave in his response to the NOITCC (see above). He stated that, because he had undertaken the 6 months of specified work in regional Australia, he decided to apply for a third Working Holiday visa. He was running out of time and did not want to overstay his visa. He is not good with computers and completing online forms. A friend and housemate helped him with his application for a second Working Holiday visa but she has since returned to the UK. He saw a post from Lee Hansol on a Facebook page for Irish backpackers in relation to assisting with Working Holiday visa applications. He thought Mr Hansol was a migration agent or a lawyer and contacted him.
The applicant stated that his contact with Mr Hansol was always by email. He provided him with copies of his passport, employment history, addresses where he worked, details of the type of work he did, payslips etc and paid him $2,000.00. Before he applied for the third Working Holiday visa, he was aware that it was a requirement for that visa that he had to have undertaken specified work in regional Australia for 6 months. He checked that the work he did was specified work and where he worked was in regional Australia. He worked for Ardreagh Formwork Pty Ltd from 9 March 2020 to 26 April 2020 as a formwork labourer constructing a high rise apartment block at 10 Bellerine St, Geelong, Victoria.
The applicant stated that, as he was only allowed to work with a company for 6 months, he then worked for PGDD Construction Pty Ltd from 26 April 2020 to 9 May 2020. He worked on the same project in Geelong during that period. He then continued to work for PGDD Construction Pty Ltd, as a formwork labourer, constructing a water treatment plant at 175 Settlement Road, Drouin, Victoria from 10 May 2020 to 19 September 2020. He subsequently moved to Melbourne for work. He was paid in accordance with the legislation and awards in these jobs.
The applicant stated that Ardreagh Formwork Pty Ltd sponsored him for a visa and referred him to a migration agent, Ruth Mulhern, who undertook work for the company. She helped him to prepare his sponsorship application in around September 2021. The Department approved his employer but refused his visa application. He has applied to the Tribunal for a review of that decision.
Having considered all the evidence, the Tribunal accepts that the applicant was under the impression that Mr Lee Hansol was a migration agent at the time he instructed him to prepare his application for a third Working Holiday visa. The Tribunal accepts that he was satisfied that he met the requirements for a third Working Holiday visa at the time he instructed Mr Hansol. The Tribunal accepts that he provided Mr Hansol with instructions to provide correct answers in his visa application and was not aware that Mr Hansol had provided incorrect answers in his visa application until he received the NOITCC. The Tribunal accepts that if Mr Hansol had followed his instructions, he would not have been issued with a NOITCC.
The Tribunal gives this consideration considerable weight in favour of setting aside the decision to cancel the applicant’s visa.
The present circumstances of the visa holder
The applicant stated that he is living in Melbourne with his partner of over 10 years. She is also from Northern Ireland and they came to Australia together. She is working in the healthcare sector and loves living in Australia. They have planned a future together here and have both established a good foundation for their futures.
The applicant stated that the company he currently works for have recently contracted work all over Melbourne and are busy. His employer wants him to stay on and keep working. The company he worked for in Northern Ireland has let go of a number of staff because of the Covid-19 pandemic. He will not have a job to return to in Northern Ireland and it will be financially very difficult for him.
The applicant stated that he and his partner rent accommodation in Melbourne. There is a housing crisis in Northern Ireland. His mother lives in a small place and he would not be able to live with her. He had to sleep on the couch when he visited her. His father, stepmother, sister and brother live together. He used to share a room with his brother when he lived there. His brother is now 15 years old and it would not be an ideal situation. He is not sure how he will pay for accommodation if he cannot find a job. His savings will not last long.
The Tribunal gives this consideration 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
There is no evidence before the Tribunal to indicate that the applicant attempted to contact the Department to correct the incorrect answers provided in his application for a Subclass 417 (Working Holiday) (Extension) visa. His evidence is that he was not aware of the incorrect answers until he received the NOITCC. He engaged with the Department after he received the NOITCC. He also notified the Department of his change of address.
The Tribunal gives this consideration weight in favour of setting aside 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 gave evidence that he has complied with the conditions of visas held by him. The Tribunal accepts this evidence.
The Tribunal gives this consideration 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 5 October 2020 when the applicant provided, or caused to be provided, incorrect answers in his application for a third Subclass 417 (Working Holiday) (Extension) visa. It has been over 1 year and 4 months since then. The Tribunal does not consider this to be a substantial period of time.
The Tribunal gives this consideration no 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 gave evidence that he has not been charged with any criminal offences in Australia. He has not breached any laws and has not got into trouble with the Police.
The Tribunal gives this consideration weight in favour of setting aside the decision to cancel the applicant’s visa.
Any contribution made by the visa holder to the community
The applicant gave evidence that he was a member of a community club and played in their football team. It had a number of youth systems. He helped the manager and was always around the club. He was unable to commit to a coaching role because of his work commitments. He is now in a different football team. Their last season was cancelled because of the Covid-19 pandemic. The new season will start next month.
The applicant has provided the Tribunal with a letter 7 August 2021 from Mr Michael Loftus, Head Coach, Middle Park Soccer Club. He stated that the applicant has been a pivotal and important member of their community soccer club. He has shown himself to be a team player and his commitment to the team is exemplary. He occupies a senior role due to his experience and has taken it upon himself to be a leader in the senior group and motivates and encourages his teammates. He has been impressed by the positive and caring manner he exhibits when working with their younger and less experienced players. Beyond training and playing, he has also supported him on match days by collecting equipment and players. This generosity is essential for the running of a community sports club.
The Tribunal gives this consideration weight in favour of setting aside the decision to cancel the applicant’s visa.
Whether there would be consequential cancellations under s.140 of the Act
The applicant gave evidence that if his visa is cancelled his partner, Danielle Feely, will also have her visa cancelled. She came to Australia as a dependant on his visa. She is also a dependant on his sponsorship visa and is currently on a Bridging visa.
The applicant stated that Danielle Feely has a Business degree from Northern Ireland but has pursued a different career in health care. She has been working in the health care sector in Australia. She was working on double Covid-19 vaccination targets and was working closely with the Department of Health. They have vaccinated over one thousand people. In her current job, she is in a high risk accommodation response team. She sometimes has to go onsite. She enjoys her job and wants to stay with her current employer.
The applicant stated that both he and his partner have established fulfilling careers in Australia and would like to live here for the foreseeable future.
The applicant has provided the Tribunal with a letter from Louisa Cahill from Access Health and Community. She stated that she has known Ms Feely since May 2021 through their work together on a Covid-19 response project at Access Health and Community. Ms Feely is a Project Support Officer on the High Risk Accommodation Response Team and reports to her. She is a diligent and hard working team member who has shown commitment to her work and colleagues often through stressful periods when Covid-19 outbreaks occur in the community. Her main responsibilities involve providing administrative support to the outreach team in providing Covid-19 outbreak support to vulnerable community members and developing regular reports for the Department of Families, Fairness and Housing.
The Tribunal gives this consideration considerable weight in favour of setting aside the decision to cancel the applicant’s visa.
Are there children whose interests would be affected by the cancellation of the visa
There is no evidence before the Tribunal to indicate that the applicant has any children of his own.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Would the cancellation lead to the applicant’s removal in breach of Australia's non-refoulement or family unity obligations
There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s visa would lead to his removal in breach of Australia’s non-refoulement or family unity obligations.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
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. It is unlikely that he would be granted a Bridging visa on departure grounds and, even though he will not have a valid visa, he will have sufficient time to depart Australia voluntarily. As there is no apparent reason why he cannot return to the UK, there is no prospect of indefinite detention if he does not depart Australia voluntarily.
If the applicant’s third 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 and Public Interest Criteria may prevent him from being granted particular temporary visas for a period of 3 years from the date of cancellation. This will affect his ability to make a valid application for certain visas. These are the intended legal consequences in the legislation when a visa is cancelled, and it reflects the seriousness of a breach of s.101(b) of the Act and consequent cancellation of a visa.

The applicant gave evidence that he is aware of the legal consequences if his visa is cancelled. He will have to leave Australia within 28 days and a 3 year ban will apply in relation to certain types of visas. If this happens it will shake up his life and will affect his sponsorship. He deeply regrets not looking into it more. If he knew then what he knows now, he would not be in this situation. It was all new to him and he was not good on computers or smart that way. It is now affecting his future. He is very aware of the consequences.
The Tribunal accepts that the cancellation of the applicant’s third Subclass 417 (Working Holiday) (Extension) visa will have a significant impact on his life. It will also impact on his partner, Danielle Feely, and their sponsorship by his employer. The Tribunal accepts that it would adversely impact on their careers and their plans for a future together in Australia.
The Tribunal gives this consideration considerable weight in favour of setting aside the decision to cancel the applicant’s visa.
Any other relevant matter
The evidence before the Tribunal indicates that the cancellation of the applicant’s third Subclass 417 (Working Holiday) (Extension) visa will result in a significant degree of hardship for the applicant and his partner if they have to return to Northern Ireland.
The Tribunal gives this consideration weight in favour of setting aside the decision to cancel the applicant’s visa.
CONCLUSION
The Tribunal has decided that there was non-compliance by the applicant as described in the notice given under s.107 of the Act only in relation to the answers provided in the section titled “Details of specified work undertaken”. However, having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for not cancelling the applicant’s Subclass 417 (Working Holiday) (Extension) visa outweigh the grounds for cancelling his visa. Therefore, the Tribunal concludes that the Subclass 417 (Working Holiday) (Extension) visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.
L. Symons
Member

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

[2022] AATA 778

25 February 2022

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