O'Mahony (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Working Holiday (Temporary) (Class TZ) visa, Subclass 417, held by O'Mahony. The cancellation was based on the applicant allegedly providing incorrect information in her visa application regarding specified work in regional Australia, as her nominated employer reported no record of her employment.

The Tribunal was required to determine whether the applicant had failed to comply with section 101 of the Migration Act 1958 by providing incorrect information in her visa application, and if so, whether her visa should be cancelled under section 109 of the Act. The Tribunal also had to consider the prescribed circumstances for cancellation as set out in regulation 2.41 of the Migration Regulations 1994.

The Tribunal found that the applicant had indeed provided incorrect information regarding her employment, which was central to the grant of her Working Holiday (Extension) visa. However, in exercising its discretion under section 109, the Tribunal had regard to the circumstances in which the non-compliance occurred, including the impact of COVID-19 travel restrictions and the applicant's reliance on a third party to lodge her application. Despite acknowledging that the incorrect information may have influenced the visa grant, the Tribunal concluded that, on balance, 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 visa.