Di Paulo (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 417 (Working Holiday) visa was cancelled by the Department of Home Affairs. The cancellation was based on the suspicion that the visa had been obtained as a result of fraudulent conduct, specifically by the applicant providing false information in his visa application. The applicant had answered "no" to questions regarding other names, other citizenships, previous removals from any country, and association with criminal conduct.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out. This section permits the Minister to cancel a visa if satisfied that the visa was obtained as a result of fraudulent conduct, as prescribed by regulation 2.43(1)(o). The Department's suspicion of fraud arose from the applicant's previous travel to Australia on a Subclass 601 visa, which had been cancelled under a different name. The applicant contended that he had not deliberately or knowingly engaged in fraudulent conduct and that his failure to disclose his previous visa and name change was for personal reasons, not to mislead the Department.

The Tribunal found that the applicant had indeed travelled to Australia on a Subclass 601 visa which was cancelled in 2013. However, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(g) was established. The applicant's explanation for not disclosing his previous visa and name change was accepted as not being a deliberate attempt to deceive. Consequently, the power to cancel the visa did not arise, and it was unnecessary to consider the discretionary power to cancel. The Tribunal noted that the applicant's second Working Holiday visa had already ceased.

Accordingly, the Tribunal set aside the Department's decision to cancel the applicant's Subclass 417 visa and substituted a decision not to cancel it.