Murphy (Migration)

This matter concerned the cancellation of the applicant's Subclass 417 (Working Holiday) visa. The dispute arose from incorrect information provided by the applicant in their extension application, specifically regarding the completion of three months of specified work in regional Australia while holding their first visa. Verification checks by the Department indicated that the applicant had not worked for the claimed business, Pearl Recruitment Group (WA) Pty Ltd, and therefore had not completed the required specified work. The decision was reviewed by the Tribunal.

The legal issues before the Tribunal were whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 by providing incorrect answers in their visa application, and if so, whether the visa should be cancelled under section 109 of the Act. The Tribunal was required to determine if the notice issued under section 107 of the Act complied with statutory requirements and if the applicant's stated non-compliance was established. The Tribunal also had to consider the discretionary nature of the cancellation power under section 109(1), taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed provided incorrect information in their visa application, confirming non-compliance with section 101(b) as particularised in the section 107 notice. The Tribunal noted that section 100 of the Act states that an answer is incorrect even if the person did not know it was incorrect. Having established non-compliance, the Tribunal then considered the exercise of its discretion under section 109(1). While the applicant presented arguments relating to COVID-19 restrictions, continuing non-specified work, their partner's permanent residency application, and skills shortages, the Tribunal found these factors did not outweigh the applicant's minimal efforts to find specified work and their complicity in providing incorrect answers. The Tribunal also noted evidence suggesting the applicant was advised by their agent not to respond to the Department's notice.

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