Doherty (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 417 (Working Holiday) visa. The applicant had applied for a second Working Holiday visa on 21 August 2020, declaring that they had undertaken three months of specified work as the holder of a first Working Holiday visa. The Tribunal, constituted by Member Rosa Gagliardi, was required to determine whether the notice issued under section 107 of the Migration Act 1958 complied with statutory requirements and whether there had been non-compliance as particularised in that notice.

The central legal issues were whether the notice issued by the Minister's delegate satisfied the requirements of section 107 of the Act and, if so, whether the applicant had indeed failed to comply with section 101(b) of the Act by providing an incorrect answer on their visa application. Specifically, the Tribunal had to consider whether the applicant's declaration of having completed three months of specified work was accurate, and if not, whether this constituted a failure to provide correct information as required by the Act. The Tribunal also considered the effect of section 100 of the Act, which states that an answer is incorrect even if the person providing it did not know it was incorrect.

The Tribunal found that the notice issued under section 107 complied with the statutory requirements and that the delegate had reached the necessary state of mind to engage this section. The Tribunal was satisfied that the applicant had not completed the required three months of regional work, rendering their affirmative answer to that question on the visa application incorrect. Applying section 100 of the Act, the Tribunal concluded that the incorrect answer constituted non-compliance with section 101(b). Having found non-compliance and considering all relevant circumstances, the Tribunal affirmed the decision to cancel the applicant's visa.