Lin (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of the applicant, Ms. Lin. The dispute arose from the applicant's previous Working Holiday (Extension) (subclass 417) visa application, where incorrect information was provided regarding work undertaken in regional Australia. The delegate of the Minister had cancelled the applicant's current Subclass 500 visa based on this prior non-compliance.

The primary legal issue before the Tribunal was whether the applicant's Subclass 500 visa should be cancelled due to the incorrect information provided in her earlier Subclass 417 visa application. This involved determining if the non-compliance with section 101(b) of the Migration Act 1958, concerning the provision of correct information, had occurred and, if so, whether the cancellation power under section 109 of the Act should be exercised. The Tribunal also had to consider the prescribed factors under regulation 2.41 of the Migration Regulations 1994 when deciding whether to affirm or set aside the cancellation decision.

The Tribunal reasoned that while the applicant had indeed provided incorrect information in her Subclass 417 visa application, which constituted non-compliance under section 101(b) and could lead to the cancellation of her current visa under section 107A, the circumstances surrounding this non-compliance were crucial. The Tribunal found the applicant to be a credible witness who naively trusted an acquaintance to complete her visa application on her behalf. Furthermore, the Tribunal considered the applicant's present circumstances, including her status as a genuine student nearing completion of her diploma, her committed relationship with her partner, and her consistent engagement with the Department and the Tribunal. The Tribunal concluded that the factors favouring non-cancellation, such as the applicant's honesty, her genuine student status, and the potential separation from her partner, outweighed the factors favouring cancellation.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel the visa.