2117245 (Migration)

This matter concerned an appeal by a Working Holiday (Temporary) (Class TZ) visa (Subclass 417) holder against the cancellation of their visa. The Department of Home Affairs had cancelled the visa on the grounds that the applicant had provided false information regarding their completion of specified regional work, a requirement for extending this visa subclass. The applicant had declared they had completed six months of specified work for a particular farm in Western Australia, providing details of employment, dates, and duration. However, departmental verification indicated the applicant had never worked at that business and had not fulfilled the regional work requirement.

The primary legal issues before the Tribunal were whether the applicant had indeed failed to comply with the requirements of the Act as particularised in the notice issued under section 107 of the Migration Act 1958, and if so, whether the visa should be cancelled. Section 109 of the Act permits the Minister to cancel a visa if the holder has failed to comply with certain provisions, including providing correct information in visa applications and notifying the Department of any incorrect information. The exercise of this power is contingent on the Minister issuing a valid notice under section 107, detailing the alleged non-compliance.

The Tribunal found that the notice issued under section 107 complied with statutory requirements and that the delegate had reached the necessary state of mind to engage this section. Crucially, the Tribunal was satisfied, based on the applicant's own written and oral admissions, that they had provided incorrect information in support of their application for a further Working Holiday visa. The applicant admitted to providing false information to secure an additional year on their visa. Despite this finding of non-compliance, the Tribunal considered all relevant circumstances, including the applicant's psychiatric condition and their voluntary contributions to the Australian community.

Ultimately, the Tribunal set aside the decision to cancel the applicant's Subclass 417 visa and substituted a decision not to cancel it.