Hughes (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel the Working Holiday (Temporary) (Class TZ) visa, Subclass 417, held by the applicant. The applicant, a citizen of the United Kingdom, had been granted a third Subclass 417 visa on 5 October 2020. The cancellation was based on the applicant's alleged failure to comply with section 101(b) of the Migration Act 1958 (Cth), which requires visa applicants to provide correct information. Specifically, the applicant had declared undertaking at least six months of specified agricultural work in regional Australia, a requirement for a third Subclass 417 visa extension, but checks with the nominated employer revealed no record of her employment.

The Tribunal was required to determine whether the applicant had indeed failed to comply with the Act as alleged, and if so, whether the discretion to cancel her visa should be exercised. The non-compliance identified in the Notice of Intention to Consider Cancellation (NOICC) related to the applicant's assertion of having completed the required specified work for a visa extension. The Tribunal was satisfied that the NOICC was valid and that the delegate had properly engaged the cancellation power under section 109(1) of the Act.

In its reasoning, the Tribunal acknowledged that the applicant's false declaration was integral to her apparent entitlement to a third Subclass 417 visa, thus weighing in favour of cancellation. However, the Tribunal gave considerable weight to the applicant's explanation that she provided the incorrect information while suffering from anxiety and depression, leading to irrational decision-making and reliance on poor advice from a migration agent. The Tribunal found the applicant to be candid and remorseful, concluding that the non-compliance arose from a situational crisis. Furthermore, the Tribunal noted the applicant's current gainful employment in Sydney with favourable employer reports, her strong prospects for future employment in the television industry once her visa status is clarified, and her continued significant involvement in community volunteering and charitable work. These factors, demonstrating a worthwhile and desirable contribution to the Australian community both economically and socially, strongly supported non-cancellation.

Consequently, the Tribunal determined that the applicant's current circumstances weighed heavily in favour of retaining her visa. The decision to cancel the applicant's visa was set aside.