Burke (Migration)

This matter concerned an appeal by Kelsey Burke against the cancellation of her Working Holiday (Temporary) (Class TZ) visa, Subclass 417. The dispute arose from allegations that Ms Burke had provided incorrect information in her application for an extension of this visa, specifically regarding her undertaking of three months of specified work in regional Australia. The delegate of the Minister had affirmed the decision to cancel the visa.

The primary legal issue before the Tribunal was whether Ms Burke had failed to comply with section 101 of the Migration Act 1958 by providing incorrect information in her visa application. This non-compliance related to her claim of having undertaken three months of specified work with Lincara Pty Ltd, which the Department's verification checks indicated was not the case. The Tribunal was required to determine if this alleged non-compliance had occurred and, if so, whether the visa should be cancelled.

The Tribunal found that Ms Burke had indeed provided incorrect information in her visa application, as she had not undertaken the specified work with Lincara Pty Ltd. The Tribunal considered Ms Burke's explanation that she had been misled by an individual into believing she could use false information to secure the visa extension due to her desperation to remain in Australia and pursue sponsorship, particularly in light of the COVID-19 pandemic's impact on her employment prospects. However, the Tribunal did not accept her claim of being a victim of fraud, noting that she was aware she was not qualified for the visa and had made no effort to explore legitimate avenues for extending her stay. The Tribunal concluded that the circumstances of the non-compliance, including Ms Burke's awareness of the false information being used and her lack of pursuit of lawful alternatives, weighed heavily in favour of cancellation.

Consequently, the Tribunal affirmed the decision to cancel Ms Burke's Subclass 417 (Working Holiday) visa.