Fox (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 417 (Working Holiday) visa of the applicant, Mr. Fox. The dispute arose from incorrect information provided by Mr. Fox in his application for a second Working Holiday visa, specifically regarding his completion of three months of specified work in a regional area while holding his first visa. The Department of Home Affairs had verified with the employer, GMR Enterprises Pty Ltd, that Mr. Fox had not been employed by them, leading to the conclusion that he had not met the eligibility criteria for the extension visa.

The Tribunal was required to determine two primary issues. Firstly, whether Mr. Fox had indeed failed to comply with his obligations under section 101(b) of the Migration Act 1958 by providing incorrect answers in his visa application. Secondly, if non-compliance was established, whether the Minister's discretion to cancel the visa under section 109(1) of the Act should be exercised. The validity of the section 107 notice issued by the Department, which particulars the alleged non-compliance, was also a preliminary consideration.

The Tribunal found that the section 107 notice was valid and that Mr. Fox had failed to comply with section 101(b) of the Act. It was noted that Mr. Fox had not disputed the incorrectness of the information provided, which was submitted by an agent he had engaged. However, the Tribunal determined that the cancellation of the visa was not mandatory, as no prescribed circumstances for mandatory cancellation applied. In exercising its discretion, the Tribunal considered Mr. Fox's extensive submissions detailing the circumstances surrounding the incorrect information, including stress and confusion due to COVID-19 restrictions, numerous attempts to find specified work, and seeking assistance from the Department and a lawyer. It also took into account his sincere remorse, his current employment in a critical shortage area, a provisional offer of sponsorship, significant volunteer community work, and character references.

Consequently, the Tribunal set aside the decision to cancel Mr. Fox's visa and substituted a decision not to cancel it.