Pelger (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 417 (Working Holiday) visa of the applicant, Pelger. The dispute arose from the applicant's response to a question on her visa application regarding visits outside Germany in the preceding five years. The applicant had answered "no" to having visited or lived outside Germany for more than three consecutive months, other than Australia, but subsequently informed the Department that she had been backpacking through Southeast Asia for six months.

The Tribunal was required to determine whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing an incorrect answer on her visa application, and if so, whether her visa should be cancelled. Specifically, the Tribunal considered the validity of the Notice of Intention to Consider Cancellation (NOICC) issued under section 107 of the Act and whether the applicant's actions constituted non-compliance as particularised in that notice.

The Tribunal found that the NOICC complied with the statutory requirements and that the applicant had indeed provided an incorrect answer on her application form, as defined by section 100 of the Act. However, the Tribunal reasoned that while the applicant's initial response was incorrect, she had promptly sought to rectify the mistake by informing the Department of her travel. The Tribunal concluded that this was not a serious failure to provide correct information or to mislead the Department, and that in light of all relevant circumstances, 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 (Working Holiday) visa.