Hannon (Migration)

This matter concerned an appeal against the cancellation of a Working Holiday (Class TZ) visa, subclass 417. The applicant, Ms Hannon, had applied for an extension visa on 26 August 2020, declaring that she had completed three months of specified work in a regional area between 2 March and 5 July 2020. Following verification checks, the Department of Home Affairs was advised by Pearl Recruitment Group that the applicant had not been employed by them during the stated period. Consequently, a Notice of Intention to Consider Cancellation (NOICC) was issued on 4 May 2021, alleging non-compliance with section 101(b) of the Migration Act 1958 for providing incorrect information in her visa application. The Tribunal was asked to review the delegate's decision to cancel the visa.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the Act by providing incorrect information in her visa application, and if so, whether the visa should be cancelled. The Tribunal was required to determine if the NOICC issued under section 107 of the Act was valid and if the particulars of non-compliance provided were accurate. Furthermore, the Tribunal had to consider the applicant's submissions regarding the circumstances surrounding the non-compliance, including the impact of COVID-19 border closures, difficulties in finding work as a couple, and complications arising from her pregnancy and the premature birth of her child. The Tribunal also needed to assess the best interests of the child and the consequences of cancellation on the applicant and her family.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 and that the NOICC complied with statutory requirements. It was satisfied that the applicant had provided incorrect information regarding her specified work experience, thus contravening section 101(b) of the Act. While acknowledging the uncertainties caused by the COVID-19 pandemic and the applicant's personal circumstances, including her pregnancy and the birth of her vulnerable child, the Tribunal gave these factors less weight. This was primarily because the applicant had not approached the Department to discuss her situation or explore alternative options, and the pregnancy complications arose after the non-compliance occurred. The Tribunal also noted that the applicant's child, not being an Australian citizen, would likely accompany her if she returned to Ireland, where comparable healthcare was available.

Ultimately, the Tribunal affirmed the decision to cancel Ms Hannon's subclass 417 visa. It concluded that the factors favouring cancellation, particularly the fact that the visa would not have been granted had the correct information been provided and the applicant's awareness of this, outweighed the factors against cancellation. The Tribunal considered the significant consequences of cancellation, including the applicant becoming an unlawful non-citizen and potential limitations on future visa applications, but found these did not outweigh the seriousness of the initial non-compliance. The Tribunal stated it had no jurisdiction with respect to the second applicant.