Mengue (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The cancellation was based on allegations of non-compliance with section 101(b) of the *Migration Act 1958* (Cth) during a previous application for a Working Holiday (Extension) (class TZ subclass 417) visa. The applicant had claimed to have undertaken specified work in regional Australia, which was later disputed by the entity whose Australian Business Number (ABN) was provided.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in their previous visa application, thereby breaching section 101(b) of the Act, and if so, whether the discretion to cancel the current visa should be exercised. The Tribunal was required to consider the evidence presented by both the applicant and the Department, including the notice of intention to cancel and the applicant's response.

The Tribunal found that the applicant had indeed provided incorrect information in their Working Holiday visa application, as confirmed by the owner of the ABN. This constituted a non-compliance with section 101(b) of the Act, and section 107A of the Act made such past non-compliance a potential ground for cancellation of a current visa. However, the Tribunal considered the applicant's current circumstances, including the completion of their studies, their intention to apply for a partner visa, and their partner's serious mental health conditions. On balance, the Tribunal concluded that the exercise of discretion to cancel the visa was not warranted in these circumstances.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.