Archani (Migration)

This matter concerned an appeal by Ines Archani against the cancellation of her Subclass 417 (Working Holiday) visa. The cancellation was based on the ground that Ms Archani had provided incorrect information in her visa application, specifically by answering "Yes" to the question of whether she had undertaken specified work in regional Australia for a total of three months, when in fact she had not. The Tribunal was required to determine whether there had been non-compliance with the Migration Act 1958 (Cth) as alleged and, if so, whether the visa should be cancelled.

The legal issues before the Tribunal were whether the notice issued under section 107 of the Act complied with statutory requirements, whether Ms Archani had failed to comply with section 101(b) of the Act by providing an incorrect answer in her visa application, and if non-compliance was established, whether the discretion to cancel the visa should be exercised. Section 101(b) requires a non-citizen to complete their visa application form such that no incorrect answers are given. Section 109 of the Act permits the Minister to cancel a visa if the holder has failed to comply with certain provisions, including section 101, after considering any response and prescribed circumstances.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with the statutory requirements. It was accepted by Ms Archani's representative that she had not undertaken the specified work in regional Australia, thus constituting non-compliance with section 101(b). While Ms Archani argued she was a victim of fraud, having relied on advice from an agent named Lee Hansol, the Tribunal noted that section 100 of the Act states that a person's state of mind is irrelevant when determining whether an incorrect answer was provided. The Tribunal considered the various factors presented in mitigation, including the circumstances of the non-compliance, Ms Archani's subsequent conduct, her contributions to the community, and her current employment and relationship status. Despite these mitigating factors, the Tribunal concluded that the non-compliance was established and that, having regard to all relevant circumstances, the visa should be cancelled.

The Tribunal affirmed the decision to cancel Ms Archani's Subclass 417 (Working Holiday) visa.