SCOTT (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had previously been granted a Working Holiday (Extension) (class TZ subclass 417) visa on 26 November 2016, based on information provided in her application. Subsequently, on 29 November 2017, she was granted the Subclass 500 (Student) visa. The Department of Home Affairs later received information indicating that the applicant had not worked for the entity she listed in her Working Holiday visa application, leading to the cancellation of her Student visa. The review was heard by Senior Member Antoinette Younes.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing incorrect information in her previous visa application, and if so, whether her current visa should be cancelled. Specifically, the Tribunal considered whether the applicant's responses regarding specified work in regional Australia for her Working Holiday visa application constituted non-compliance with section 101(b) of the Act, which mandates that no incorrect answers be given. The Tribunal also had to determine if the notice issued by the Department under section 107 of the Act was valid and if the cancellation power under section 109 of the Act was appropriately engaged.

The Tribunal found that the applicant had indeed provided incorrect information in her Working Holiday visa application, thereby breaching section 101(b) of the Act. This non-compliance was particularised in the notice issued under section 107, which the Tribunal found to be statutorily compliant. However, after considering all relevant circumstances, including the applicant's acknowledgement of wrongdoing, genuine remorse, and difficult health circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal applied the principles that the exercise of the cancellation power under section 109 is conditional on a valid notice and that the decision to cancel a visa involves a consideration of all relevant circumstances.

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