Gormley (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Working Holiday (Temporary) (Class TZ) visa, Subclass 417. The dispute arose from an incorrect answer provided in the applicant's visa application regarding specified work undertaken in regional Australia. The applicant had claimed to have worked for a specific employer for over 90 days, a claim later contradicted by information received from that employer. The Tribunal was required to determine whether the applicant had indeed failed to comply with the requirements of the Migration Act 1958 and, if so, whether the visa should be cancelled.

The central legal issue was whether the applicant's incorrect statement in their visa application constituted a failure to comply with section 101(b) of the Act, which mandates that no incorrect answers be given. The Tribunal also had to consider the subsequent decision to cancel the visa under section 109 of the Act, having regard to the applicant's response and any other relevant circumstances. The applicant had acknowledged providing incorrect information but faced difficulties in arranging the specified work, partly due to the impact of the COVID-19 pandemic and the costs associated with employer-arranged quarantine.

The Tribunal found that the applicant had indeed failed to comply with section 101(b) of the Act by providing an incorrect answer in their visa application, as confirmed by the subsequent information received by the Department. However, after considering all the relevant circumstances, including the applicant's explanation for the non-compliance and the challenges posed by the pandemic, the Tribunal concluded that the visa should not be cancelled. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 417 visa.