Lee (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 417 (Working Holiday) visa. The applicant, a national of Taiwan, had arrived in Australia in January 2019 and held multiple working holiday visas. The cancellation under review related to his third such visa, granted in July 2021. The reason for cancellation was that the applicant had provided incorrect information in a previous visa application, specifically concerning an arrest warrant and drug charges issued against him in Taiwan in 2018, prior to his initial working holiday visa applications. The decision was made by the Tribunal, with Member Jennifer Cripps Watts presiding.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) regarding the provision of correct information in visa applications, and whether the delegate had properly exercised the power to cancel the visa under section 109 of the Act. This involved determining if a valid notice of non-compliance had been issued under section 107 of the Act, and if the information received from Taiwanese authorities constituted a failure to comply with section 101(b) of the Act, which mandates that visa applicants provide no incorrect answers. The Tribunal also considered whether the delegate had reached the necessary state of mind to engage section 107 and whether the notice issued complied with statutory requirements.

The Tribunal reasoned that section 109 of the Act permits the Minister to cancel a visa if the visa holder has failed to comply with certain provisions, including section 101, which requires visa applicants to provide correct information. It was satisfied that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued under that section was valid. The Tribunal found that the applicant had provided incorrect information in a previous visa application, as evidenced by information received from the Taiwan National Policy Agency regarding an arrest warrant and drug charges. The Tribunal also noted that section 100 of the Act clarifies that an answer is considered incorrect even if the applicant was unaware of its inaccuracy. Furthermore, the Tribunal considered its obligations under section 359A, sending a letter to the applicant inviting comment on adverse information, which was not disclosed due to public interest considerations.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 417 (Working Holiday) visa. It concluded that there had been non-compliance by the applicant in the manner described in the notice issued under section 107 of the Act and that, having regard to all relevant circumstances, the visa should be cancelled.