Bigarella (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Bigarella, who sought review of a decision to cancel his Working Holiday (Temporary) (Class TZ) visa, Subclass 417. The cancellation was based on the applicant providing incorrect information in his visa application, specifically regarding the completion of specified work in regional Australia. The employer named in the application reported no record of the applicant, and the applicant himself confirmed he had not completed the work as stated.

The primary legal issue before the Tribunal was whether the applicant had contravened section 101(b) of the *Migration Act 1958* by providing incorrect information in his visa application, and if so, whether his visa should be cancelled under section 109 of the Act. The Tribunal was required to determine if the notice issued under section 107 of the Act complied with statutory requirements and if the delegate had validly engaged the cancellation power.

The Tribunal found that the applicant had indeed provided incorrect information regarding his specified work in regional Australia, thus contravening section 101(b) of the Act. However, the Tribunal noted that the cancellation of a visa under section 109 is discretionary, with no mandatory cancellation circumstances prescribed. In considering whether to exercise this discretion, the Tribunal had regard to the applicant's submissions, including evidence of his good character, his efforts to support his family in Brazil, the financial hardship and emotional distress he experienced due to COVID-19 lockdown travel restrictions, and his plans for further studies in Australia. The Tribunal also considered a character reference from a friend who relied on the applicant for emotional support.

Ultimately, the Tribunal set aside the delegate's decision to cancel Mr. Bigarella's visa and substituted a decision not to cancel the visa.