Haymes (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose from allegations that the applicant had provided incorrect information in their visa application, specifically concerning a health condition, which constituted a failure to comply with section 101 of the Migration Act 1958.

The Tribunal was required to determine whether the applicant had indeed failed to comply with section 101 of the Act by providing incorrect information in their visa application, and if so, whether the visa should be cancelled. This involved assessing whether the decision to grant the visa was based, wholly or partly, on incorrect information, considering the circumstances in which any non-compliance occurred, and evaluating the present circumstances of the visa holder.

The Tribunal found that while the applicant had technically failed to disclose a medical condition in their application, thereby breaching section 101(b) of the Act, the decision to grant the visa was not demonstrably based on this incorrect information. The Tribunal considered it plausible that the applicant would have met the relevant health criterion had the correct information been disclosed, particularly given the support of their employer and the possibility of further medical examinations. Crucially, the Tribunal gave significant weight to the fact that the non-compliance was due to the error of the migration agent who completed the application, rather than deliberate deception by the applicant. The applicant had acknowledged their imprudence in trusting the agent without thorough verification. Considering the agent's professional obligations and the applicant's current circumstances, including their efforts to secure new employment, the Tribunal concluded that cancelling the visa would be unduly harsh.

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