Dyne (Migration)

The Administrative Appeals Tribunal considered a dispute between an applicant for a Subclass 417 (Working Holiday) visa and the Minister for Immigration, concerning the cancellation of the applicant's visa. The applicant had provided incorrect information in an extension application, specifically claiming to have completed three months of specified work in a regional area, which was later found to be untrue during a verification check.

The Tribunal was required to determine whether the applicant had indeed failed to comply with the requirements of the Migration Act 1958, specifically section 101(b), by providing incorrect information in their visa application. If non-compliance was established, the Tribunal then had to consider whether the discretionary power to cancel the visa under section 109(1) of the Act should be exercised, having regard to the prescribed circumstances outlined in regulation 2.41.

The Tribunal found that the applicant had not completed the specified work as claimed and that the information provided in the visa application was therefore incorrect, constituting non-compliance with section 101(b). However, in exercising its discretion under section 109(1), the Tribunal considered various factors, including the applicant's admitted non-compliance, the circumstances surrounding it (such as COVID-19 restrictions, limited work undertaken, and attempts to find further employment), the applicant's current circumstances (including employment in a sector with worker shortages, family business involvement, and community volunteering), and the fact that no approach was made to the Department.

Ultimately, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it, finding that, after considering all relevant circumstances, cancellation was not warranted.