Hoey (Migration)

The Administrative Appeals Tribunal (Cth) considered an appeal by an applicant concerning the cancellation of their Subclass 417 (Working Holiday) visa. The dispute arose from the applicant's response to a question on their visa application regarding whether they had undertaken three months of specified work as a holder of a previous Working Holiday visa. The applicant answered affirmatively, providing details of employment with ObjectPro Information Systems Pty Ltd trading as FarmPro Labour, which involved picking and planting sweet potatoes from March to July 2020.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the Migration Act 1958, which mandates that visa applicants provide no incorrect answers. If non-compliance was established, the Tribunal then had to consider whether the visa should be cancelled, exercising its discretion in light of all relevant circumstances. The Tribunal noted that the exercise of the cancellation power under section 109 of the Act is conditional on the Minister issuing a valid notice under section 107, providing particulars of the alleged non-compliance.

The Tribunal found that the notice issued under section 107 complied with statutory requirements and that the delegate had reached the necessary state of mind to engage the section. While the Tribunal was satisfied that non-compliance, as described in the notice, had occurred, it then considered the applicant's submissions and provided evidence. This evidence included character references, employment-related documents, and an explanation of circumstances such as lockdowns, pandemic restrictions, an unscrupulous agent, and the applicant's mental health issues, which contributed to the incorrect information being provided.

Having regard to all the relevant circumstances, the Tribunal concluded that the visa should not be cancelled. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.