Dalla (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 457 (Temporary Work (Skilled)) visa was subject to cancellation under section 109 of the *Migration Act 1958* (Cth). The dispute arose from the applicant's response to a question on an outgoing passenger card concerning the amount of money being taken out of Australia. The delegate of the Minister formed the view that the applicant had provided incorrect information, leading to a potential breach of visa conditions.

The Tribunal was required to determine two primary legal issues. Firstly, whether the incorrect information provided on the outgoing passenger card constituted a failure to comply with section 102(b) of the *Migration Act*. This involved considering the definition of a "passenger card" for the purposes of the Act and whether the outgoing passenger card, and specifically the question about currency, fell within that definition and was lawfully prescribed. Secondly, if non-compliance was established, the Tribunal had to consider whether to exercise its discretion to cancel the applicant's visa, taking into account the prescribed circumstances.

The Tribunal reasoned that for the purposes of section 115 of the *Migration Act*, which applies to passenger cards filled in on or after 1 September 1994, the definition of "passenger card" includes documents provided for by regulations under section 504(1)(c). Section 504(1)(c) authorises regulations for obtaining information from persons departing Australia. Regulation 3.01, in effect at the time of the applicant's departure, required persons leaving Australia by aeroplane to provide certain information, including answers to questions on a passenger card. Therefore, the outgoing passenger card and the question about currency were considered to be lawfully part of the passenger card. The Tribunal found that the applicant had indeed provided incorrect information by answering "No" to the question about taking out AUD$10,000 or more, when he was found to be carrying over AUD$24,000. In considering the exercise of discretion, the Tribunal noted the applicant's present circumstances, including his parole status for serious offences, uncertain employment prospects due to his sponsor entering administration, and potential financial and other difficulties upon return to his country of origin.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa. The Tribunal concluded that the non-compliance with section 102(b) was established and, after considering the prescribed circumstances, including the applicant's criminal history and the nature of his employment, determined that the cancellation of the visa was the appropriate course of action.