Liu (Migration)

This matter concerned an application by Liu (the applicant) to review the decision to cancel her Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on alleged non-compliance with section 101(b) of the Migration Act 1958 (Cth), specifically that the applicant provided incorrect information in her previous Subclass 417 Working Holiday (Extension) visa application regarding her regional work experience. The Tribunal was required to determine whether the applicant had indeed failed to comply with the Act and, if so, whether the visa should be cancelled.

The core legal issue was whether the applicant's answers in her Subclass 417 visa application concerning her regional work experience were incorrect, thereby constituting non-compliance under section 101(b) of the Act. This section mandates that visa applicants must not provide incorrect answers. The Tribunal also had to consider the exercise of discretion under section 109 of the Act, which allows for visa cancellation following a finding of non-compliance, having regard to any prescribed circumstances.

The Tribunal found that the applicant had provided incorrect information in her Subclass 417 visa application regarding her regional work experience, which was a requirement for the grant of that visa. The applicant had claimed to have completed three months of specified regional work, but the Tribunal concluded this was not the case. Despite this finding of non-compliance, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa. The Tribunal reasoned that while the non-compliance was established, the circumstances surrounding it, including potential pressure from a former employer and the applicant's subsequent employment with a highly valued current employer, weighed against cancellation. The Tribunal substituted a decision not to cancel the visa.