Conlon (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 417 (Working Holiday) visa. The cancellation was based on alleged non-compliance with section 101(b) of the Migration Act 1958, specifically by providing incorrect answers in a second extension application for the visa. The applicant had stated that they had completed at least six months of specified work in a regional area while holding a previous Subclass 417 visa, and provided details of this employment.

The Tribunal was required to determine whether the applicant had indeed failed to comply with section 101(b) of the Act by providing incorrect answers in their visa application, and if so, whether the visa should be cancelled. The Tribunal noted that section 100 of the Act provides that an answer is incorrect even if the person providing it did not know it was incorrect, and that section 98 deems an application to be filled in if it is caused to be filled in or otherwise filled in on behalf of the applicant. The Tribunal also considered the requirements of section 107, which mandates that a notice of possible non-compliance must provide particulars of the alleged non-compliance.

The Tribunal found that while the notice issued under section 107 complied with statutory requirements and that the delegate had reached the necessary state of mind to engage section 107, the applicant's answers in the visa application were indeed incorrect. However, after considering all relevant circumstances, including the applicant's mental health challenges, the impact of COVID-19 restrictions, and the fact that the application was completed by an agent, the Tribunal concluded that the visa should not be cancelled. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the applicant's visa.