1709137 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass 117 (Orphan Relative) visa. The cancellation was based on allegations of providing incorrect information in the visa application, specifically regarding the applicant's father being alive when the application stated both parents were deceased. The department had received information in 2016 suggesting the applicant's father was still alive, leading to the deemed non-compliance with section 101(b) of the Migration Act 1958. The Tribunal was required to determine whether the applicant had indeed failed to comply with the Act by providing incorrect information.

The Tribunal considered the applicant's explanation for the information provided in the visa application. The applicant stated that his mother died in South Sudan around 2007 or 2008 during conflict, and his father died of a heart attack in Khartoum in 2009, with the applicant attending his funeral. The applicant and his siblings subsequently moved to Australia in 2012. The Tribunal found that the applicant had provided a detailed account of his parents' deaths and the circumstances surrounding them, including the forced relocation of his family to South Sudan in 2012 before their arrival in Australia.

Ultimately, the Tribunal was not satisfied that the applicant had provided incorrect information in the manner described in the notice issued under section 107 of the Act. Consequently, the power to cancel the visa did not arise. The Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel the applicant's Subclass 117 (Orphan Relative) visa.