Macleod (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Subclass 417 (Working Holiday) visa. The dispute arose because the applicant had failed to declare criminal convictions in Scotland between 2014 and 2018 on his visa application form, despite declaring that the information provided was complete and correct. The Department of Home Affairs had subsequently cancelled his visa on the grounds of non-compliance with section 101(b) of the Migration Act 1958. The case was heard by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 by providing an incorrect answer regarding his criminal convictions, and if so, whether the cancellation of his visa was the appropriate course of action. The Tribunal was required to consider the applicant's explanation for the incorrect answer, which he attributed to a mistake and a belief that only convictions leading to a prison sentence needed to be declared. The Tribunal also had to assess the nature of the convictions, the applicant's young age at the time, his neurological condition (Asperger's), and the potential hardship that cancellation would cause to his employer and his Australian citizen girlfriend.

The Tribunal found that the applicant had indeed provided an incorrect answer to the question about criminal convictions, as required by section 101(b) of the Act, and that the notice issued under section 107 of the Act was valid. However, after considering all the relevant circumstances, including the minor nature of the convictions, the applicant's stated intention not to mislead, his neurological condition, and the significant hardship that cancellation would impose, the Tribunal concluded that the visa should not be cancelled. The Tribunal applied the principles that all convictions must be declared, regardless of their perceived significance or whether they are spent, but also acknowledged the discretion available in determining whether to cancel a visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 417 (Working Holiday) visa and substituted a decision not to cancel the visa.