Donnelly (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel the applicant's Working Holiday (Temporary) (Class TZ) visa, subclass 417. The dispute arose from the applicant's answers in an extension application for the visa, where it was alleged he had provided incorrect information regarding his completion of three months of specified work in a regional area while holding his first subclass 417 visa. The Department initiated verification checks which indicated the applicant had not worked for the named employer, GMR ENTERPRISES PTY. LTD., leading to the cancellation of his visa.

The Tribunal was required to determine whether the applicant had indeed failed to comply with section 101 of the Migration Act 1958, which mandates that visa applicants provide correct information. Specifically, the Tribunal had to assess if the applicant's answers regarding his regional work experience and employment details in his extension application were incorrect, as particularised in the section 107 notice issued by the Department. The Tribunal also considered the validity of the section 107 notice itself, ensuring it met the statutory requirements for particulars of alleged non-compliance.

In its reasoning, the Tribunal found that while the section 107 notice was valid and the Department had a basis to suspect non-compliance with section 101(b) of the Act, the applicant presented substantial evidence and explanation for his actions. The applicant provided a statutory declaration detailing his circumstances, including the impact of COVID-19 restrictions, his financial and mental state, and his reliance on an agent to complete his application without his full knowledge of the specific details entered. He also provided evidence of subsequent regional work undertaken after the visa was granted and before its cancellation, and expressed regret for his negligence. The Tribunal considered these factors in light of the applicant's overall conduct and the passage of time since the alleged non-compliance.

Ultimately, the Tribunal set aside the Department's decision to cancel the applicant's visa. It substituted a new decision not to cancel the visa, acknowledging the applicant's explanations and subsequent efforts to comply with migration requirements, despite the initial incorrect information provided in his application.