Davies (Migration)

This matter concerned an application for review of the cancellation of the applicant's Working Holiday (Temporary) (Class TZ) visa, Subclass 417. The applicant had applied for an extension of this visa, claiming to have completed at least three months of specified work in a designated regional area. The Department of Home Affairs subsequently received confirmation from the claimed employer that the applicant had not worked for them, leading to the issuance of a notice under s.107 of the Migration Act 1958 indicating an intention to cancel the visa due to the provision of incorrect information. The applicant did not respond to this notice within the prescribed timeframe, and the visa was cancelled. The applicant then sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with s.101(b) of the Migration Act 1958 by providing incorrect answers in their visa application, and if so, whether the visa should be cancelled. Section 101(b) requires a non-citizen to complete their application form without giving or providing any incorrect answers. Section 109 of the Act permits the Minister to cancel a visa if a visa holder has failed to comply with certain provisions, including s.101, provided a valid notice under s.107 has been issued.

The Tribunal found that the notice issued under s.107 complied with statutory requirements and that the delegate had reached the necessary state of mind to engage s.107. While the Tribunal acknowledged that the applicant had provided incorrect information regarding their employment, which constituted non-compliance with s.101(b), it ultimately set aside the cancellation decision. The Tribunal reasoned that, having regard to all relevant circumstances, the visa should not be cancelled. The Tribunal substituted a decision not to cancel the applicant’s Subclass 417 visa.