Mcnally (Migration)

This matter concerned an appeal by the applicant against the cancellation of her Working Holiday (Temporary) (Class TZ) visa, Subclass 417. The dispute arose from incorrect information provided in her extension application, specifically regarding whether she had completed three months of specified work in a regional area while holding her first visa. Verification checks indicated that the applicant had not worked at the claimed business, and the non-compliance was not disputed. The application was completed and lodged by a third party. The Tribunal, constituted by Member Rosa Gagliardi, considered the applicant's circumstances, including the prevalence of COVID-19 in her home country, a physical health condition (asthma), her current employment in an essential service in a regional area, and the fact that no approach was made to the Department.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) in her visa application, and if so, whether the decision to cancel her visa should be affirmed. Specifically, the Tribunal had to determine if the notice issued under section 107 of the Act complied with statutory requirements and if the applicant's response to that notice, or lack thereof, warranted visa cancellation under section 109. The Tribunal also considered the meaning of "incorrect answers" under section 100 of the Act, which states that an answer is incorrect even if the person providing it did not know it was incorrect.

The Tribunal reasoned that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. The Tribunal found that the applicant had provided an incorrect answer to the question regarding specified work, contrary to section 101(b) of the Act, and that this non-compliance was not disputed. The Tribunal noted that section 100 of the Act deems an answer incorrect regardless of the applicant's knowledge. Having found that the applicant did not comply with section 101(b) of the Act, and having considered all relevant circumstances, the Tribunal concluded that the visa should be cancelled.

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