O'Rourke (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the applicant's Working Holiday (Temporary) (Class TZ) visa, subclass 417. The cancellation was based on the applicant allegedly providing false information in her visa application, specifically regarding her undertaking of three months of specified work in regional Australia. The applicant, a qualified social worker, had conceded that the employment details provided were not true but claimed she was unaware of the false information lodged on her behalf.

The primary legal issue before the Tribunal was 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 was required to determine if the notice issued under section 107 of the Act, which particularised the alleged non-compliance, was valid and if the grounds for cancellation were established.

The Tribunal found that while the applicant had indeed provided incorrect information, as contemplated by section 101(b) and section 100 of the Act, and that the notice under section 107 was valid, the exercise of discretion under section 109 warranted reconsideration. The Tribunal noted that section 100 states an answer is incorrect even if the person did not know it was incorrect, and the applicant had conceded the falsity of the information. However, having regard to all the relevant circumstances, including the applicant's potential valuable contribution to vulnerable members of Australian society as a social worker, the Tribunal concluded that 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.