Johnston (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Working Holiday (Temporary) (Class TZ) visa, Subclass 417. The dispute arose from allegations that the applicant had provided incorrect information in their visa application regarding their employment, specifically that they had not worked for the stated employer. The decision was made by the Tribunal.

The legal issues before the Tribunal were whether the applicant had failed to comply with section 101 of the Migration Act 1958 by providing incorrect answers in their visa application, and if so, whether the visa should be cancelled. The Tribunal was required to consider the discretionary nature of the cancellation power under section 109(1) of the Act, taking into account various factors relevant to the applicant's circumstances.

The Tribunal found that the applicant had indeed failed to comply with section 101 of the Act, as the employer verification checks indicated the applicant had never worked for the stated company. However, in exercising its discretion under section 109(1), the Tribunal gave significant weight against cancellation due to the applicant's long-term de facto relationship, the considerable assistance provided to their partner during health crises, and their employment in a skilled occupation listed on the Priority Migration Skilled Occupation List. The Tribunal also noted the impact of the COVID-19 pandemic and the applicant's valued contribution to their employer.

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