2112204 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Working Holiday (Temporary) (Class TZ) visa, subclass 417. The dispute arose from the applicant's visa application, where they indicated they had completed three months of specified work in a regional area, a requirement for extending or obtaining a further Working Holiday visa. Verification checks by the Department revealed this information was incorrect, as the applicant had not worked for the stated employer. Consequently, the Department issued a Notice of Intention to Consider Cancellation (NOICC) on the grounds of providing incorrect information, contrary to section 101(b) of the Migration Act 1958.

The Tribunal was required to determine whether the applicant had indeed failed to comply with the provisions of the Act by providing incorrect information in their visa application. If non-compliance was established, the Tribunal then had to consider whether the cancellation of the visa was the appropriate course of action, taking into account all relevant circumstances. The legal framework for this assessment involved sections 100, 101, 107, and 109 of the Migration Act 1958, which govern the provision of correct information in visa applications and the subsequent power of the Minister to cancel a visa based on non-compliance.

The Tribunal found that the delegate had properly engaged section 107 and that the notice issued complied with statutory requirements. It was accepted that the applicant had provided incorrect information in their visa application regarding the completion of specified work. However, the Tribunal exercised its discretion under section 109 of the Act. Having regard to the ongoing relationship between the applicant and their de facto partner, and the impending arrival of their child, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.