Hopfner (Migration)

This matter concerned an application by a holder of a Subclass 417 (Working Holiday) visa to review the decision to cancel that visa. The cancellation was based on the applicant providing incorrect information in her extension application, specifically that she had not undertaken the specified work required while holding her first visa. The applicant argued that COVID-19 restrictions, which commenced shortly after her arrival in Australia, prevented her from undertaking the work and returning home. The Tribunal, presided over by Catherine Carney-Orsborn, was required to determine whether the delegate had validly exercised the power to cancel the visa under section 109 of the Migration Act 1958 (Cth).

The legal issues before the Tribunal included whether the notice issued under section 107 of the Act complied with statutory requirements and whether the applicant had indeed failed to comply with the conditions of her visa by providing incorrect information. The Tribunal also considered the applicant's explanation for the non-compliance, including her reliance on advice from a hostel resident for her visa extension application and her subsequent relationship in Australia. The Tribunal was required to assess whether the delegate had reached the necessary state of mind to engage section 107 and whether the information provided by the applicant was indeed incorrect, irrespective of her knowledge of its inaccuracy.

The Tribunal found that the notice issued under section 107 was valid and had been sent to the applicant's last known email address. The applicant admitted that the information she provided was incorrect and that she had not undertaken the specified work. While acknowledging the impact of COVID-19 restrictions, the Tribunal noted the applicant's delay in attempting to return home and her reliance on another person to complete her visa application. The Tribunal applied section 109 of the Act, which permits visa cancellation where a visa holder has failed to comply with visa conditions, and section 100, which states that an incorrect answer is still incorrect even if the person did not know it was incorrect.

The Tribunal affirmed the decision to cancel the applicant's Subclass 417 visa. The Tribunal concluded that there had been non-compliance by the applicant as described in the notice issued under section 107 and, having regard to all relevant circumstances, determined that the visa should be cancelled.