Cai (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had previously been granted a Working Holiday (Extension) (Class TZ subclass 417) visa based on information provided in an application dated 27 March 2016. The Department later received information from the owner of an Australian Business Number (ABN) provided in that application, stating that the applicant had never worked for their entity. This led the Department to form the view that the applicant had provided incorrect information in their Working Holiday visa application. A Notice of Intention to Consider Cancellation was issued to the applicant, who responded to the notice. The Administrative Appeals Tribunal (the Tribunal) affirmed the delegate's decision to cancel the applicant's Subclass 500 (Student) visa.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 101 of the Migration Act 1958 (Cth) by providing incorrect information in their Working Holiday visa application, and if so, whether the visa should be cancelled under section 109 of the Act. Section 101 requires a non-citizen to complete their visa application form such that all questions are answered and no incorrect answers are given. Section 107A of the Act permits the cancellation of a current visa based on non-compliance in a previous visa application. The Tribunal was also required to determine if the notice issued under section 107 of the Act complied with statutory requirements and if the delegate had reached the necessary state of mind to engage the cancellation power.

The Tribunal found that the notice issued under section 107 complied with the statutory requirements. It was satisfied that the applicant had breached section 101(b) of the Act by providing incorrect information in their Working Holiday visa application, specifically regarding undertaking specified work in regional Australia. The Tribunal noted that section 100 of the Act clarifies that an answer is considered incorrect even if the applicant did not know it was incorrect. Despite the applicant's response to the Notice of Intention to Consider Cancellation, the Tribunal concluded, on balance, that the visa should be cancelled. The Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 500 (Student) visa.