Gibson (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Gibson, who sought to have the cancellation of his Working Holiday (Temporary) (Class TZ) visa, Subclass 417, affirmed. The dispute arose from allegations that Mr. Gibson provided incorrect information in his visa application concerning specified work undertaken in regional Australia, which was subsequently contradicted by the employer. The COVID-19 pandemic and associated travel restrictions, along with claims of fraud by a migration agent, were significant factors in the proceedings.

The primary legal issue before the Tribunal was whether Mr. Gibson had failed to comply with section 101 of the Migration Act 1958 (Cth), which requires non-citizens to provide correct information in their visa applications. This failure, if established, could render the visa liable for cancellation under section 109 of the Act. The Tribunal also had to determine the validity of the notice of intention to consider cancellation issued under section 107 of the Act and whether the visa holder had been an innocent victim of fraud perpetrated by a third party, thereby vitiating the application process.

The Tribunal reasoned that the notice of intention to consider cancellation was valid and that Mr. Gibson had indeed provided incorrect information regarding his specified work. While acknowledging the impact of the COVID-19 pandemic and the submissions that Mr. Gibson was a victim of fraud by his migration agent, Lee Hansol, the Tribunal applied the principles established in *SZFDE v Minister for Immigration and Citizenship* [2007] HCA 35. These principles require an applicant to prove they were an innocent victim, not complicit in or indifferent to the fraud. The Tribunal found that Mr. Gibson had not discharged this onus, as he had provided information that led to the incorrect statements in the application, and the circumstances did not sufficiently demonstrate he was entirely unaware of or unable to scrutinise the information provided.

Consequently, the Tribunal affirmed the decision to cancel Mr. Gibson's visa.