Malonga (Migration)

This matter concerned an application by the holder of a Subclass 417 (Working Holiday) visa for review of a decision to cancel that visa. The applicant had provided information in their visa application indicating they had undertaken three months of specified regional work, which was a requirement for the visa extension. However, subsequent verification checks by the Department indicated that the applicant had not worked for the named employer, FarmPro Labour. The delegate formed the view that the applicant had provided incorrect information in their application, constituting non-compliance with section 101(b) of the *Migration Act 1958* (Cth).

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 incorrect information in their visa application, and if so, whether the visa should be cancelled. The Tribunal was required to consider the evidence presented by the applicant, including payslips and a completion certificate, in light of the Department's verification findings and the relevant provisions of the Act concerning visa application correctness and cancellation.

The Tribunal found that while the applicant had indeed provided incorrect information in their visa application, as evidenced by the Department's verification checks with FarmPro Labour, it was satisfied that the applicant did not intend to provide false information and had undertaken the required work to be eligible for the visa extension. Applying the principles of section 100 of the Act, which states that an answer is incorrect even if the person did not know it was incorrect, the Tribunal acknowledged the non-compliance. However, having regard to all the circumstances, including the applicant's demonstrable work and lack of intent to deceive, the Tribunal concluded that the visa should not be cancelled.

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