Tong (Migration)

The Administrative Appeals Tribunal considered the decision of a delegate to cancel Mr Kwok Lung Tong's Subclass 500 (Student) visa. The dispute arose from information provided by Mr Tong in a previous application for a Subclass 417 Working Holiday (Extension) visa. Mr Tong had claimed to have undertaken specified regional work for three months, providing details of an employer and dates of employment. However, the named employer later advised the Department of Home Affairs that Mr Tong had never been employed by them. Mr Tong did not respond to communications from the Department or the Tribunal, nor did he appear at the hearing.

The primary legal issue before the Tribunal was whether Mr Tong's student visa had been validly cancelled under section 109 of the Migration Act 1958 (Cth) due to non-compliance with section 101(b) of the Act. This required the Tribunal to determine if Mr Tong had provided incorrect answers in his visa application, and if so, whether the cancellation decision was justified. The Tribunal also considered the discretion to cancel the visa, weighing factors for and against cancellation.

The Tribunal found that Mr Tong had indeed provided incorrect information in his Subclass 417 Working Holiday (Extension) visa application by claiming employment with CD Small Farm Services. This finding was based on the advice received from the employer. The Tribunal concluded that this incorrect information was critical to the grant of the Subclass 417 visa, meaning that visa would not have been granted had the correct information been known. The Tribunal accepted that Mr Tong deliberately provided this false information to meet regulatory requirements and gain an immigration advantage, thereby prolonging his stay in Australia. The Tribunal determined that the reasons for cancelling the visa outweighed any reasons not to cancel.

Consequently, the Tribunal affirmed the delegate's decision to cancel Mr Tong's Subclass 500 (Student) visa.