Mc Fadden (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 417 (Working Holiday) visa. The applicant had applied for a third Working Holiday visa, declaring employment from January 2020 to August 2020 in Land Development and Site Preparation Services for Pearl Recruitment Group (WA) Pty Ltd. The Department of Home Affairs subsequently received confirmation from the claimed employer that the applicant had never worked for them. Following this, the Department issued a notice under section 107 of the Migration Act 1958, outlining the intention to cancel the visa due to the provision of incorrect information in the visa application. The applicant failed to respond to this notice within the stipulated 14-day period. The decision under review was made by the Migration and Refugee Division of the Administrative Appeals Tribunal, with Member Catherine Carney-Orsborn presiding.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the Migration Act 1958, specifically section 101(b) concerning the provision of correct answers in a visa application, and if so, whether the visa should be cancelled. The Tribunal was required to determine if the notice issued under section 107 of the Act was valid and if the particulars of non-compliance stated therein were established. The Tribunal also considered the applicant's failure to respond to the section 107 notice and whether this, in conjunction with the established non-compliance, warranted the affirmation of the visa cancellation.

The Tribunal reasoned that the power to cancel a visa under section 109 of the Act is engaged when a visa holder fails to comply with certain provisions, including section 101, which mandates that visa applications must not contain incorrect answers. The Tribunal found that the section 107 notice issued to the applicant was valid and complied with statutory requirements, detailing the alleged non-compliance with section 101(b) by providing false information regarding employment. Crucially, the Tribunal noted that section 100 of the Act clarifies that an answer is considered incorrect even if the applicant was unaware of its inaccuracy. Given that the applicant did not respond to the section 107 notice, the Tribunal was satisfied that the delegate had reached the necessary state of mind to engage section 107 and that the non-compliance as particularised in the notice was established.

Consequently, the Tribunal affirmed the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.