Kim (Migration)

The Administrative Appeals Tribunal, constituted by Jennifer Cripps Watts, considered the case of an applicant whose Subclass 457 (Temporary Work (Skilled)) visa was cancelled. The dispute arose from alleged incorrect answers provided by the applicant in a previous working holiday visa application, specifically concerning the requirement for specified work in regional Australia. The applicant's circumstances, including the dismissal by a regional employer and separation from their partner, were also before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) in a manner that justified the cancellation of their visa. This involved determining if the notice issued under section 107 of the Act adequately particularised the alleged non-compliance and if the applicant had indeed provided incorrect answers in their prior visa application, as contemplated by section 101(b) of the Act. The Tribunal also considered the application of section 107A, which permits the cancellation of a current visa due to non-compliance with the conditions of a previous visa.

The Tribunal reasoned that section 109 of the Act empowers the Minister to cancel a visa if the holder has failed to comply with certain provisions, including section 101, which mandates that visa applications must not contain incorrect answers. The Tribunal found that the notice issued under section 107 complied with statutory requirements by providing particulars of the alleged non-compliance. Furthermore, applying section 99, which deems all information provided in relation to a visa application as an answer to a question, and section 100, which clarifies that an incorrect answer is still incorrect even if the applicant was unaware of its inaccuracy, the Tribunal was satisfied that the applicant had provided incorrect information in their previous working holiday visa application.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. It concluded that there had been non-compliance as particularised in the section 107 notice and, after considering all relevant circumstances, determined that the visa should be cancelled.