TSE (Migration)

This matter concerned an appeal by the applicant, TSE, against the cancellation of their Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on alleged non-compliance with section 101(b) of the *Migration Act 1958* (Cth) in a previous application for a Working Holiday (Extension) (subclass 417) visa. The alleged non-compliance involved providing incorrect information regarding specified work undertaken in regional Australia, which was later contradicted by the employer. The decision was made by the Tribunal, presided over by R. Skaros.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 101(b) of the Act in their previous visa application, and if so, whether the applicant's current visa should be cancelled. Section 101(b) requires a non-citizen to complete their visa application form without giving incorrect answers. Section 107A of the Act permits the cancellation of a current visa if there has been non-compliance with a previous visa application. The Tribunal was required to determine if the incorrect information provided in the subclass 417 visa application constituted a breach of section 101(b) and if this breach, under section 107A, provided grounds for cancelling the applicant's subclass 457 visa.

The Tribunal found that the applicant had indeed provided incorrect information in their subclass 417 visa application, specifically in response to questions about undertaking specified work in regional Australia. This constituted a breach of section 101(b) of the Act, as confirmed by the employer's statement to the Department. The Tribunal also confirmed that the notice issued under section 107 of the Act complied with statutory requirements and that the delegate had reached the necessary state of mind to engage section 107. However, after considering all relevant circumstances, including the potential hardship for the applicant's marriage and the spouse's employer, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa and substituted a decision not to cancel the visa.