1711300 (Migration)

This matter concerned an application to review the cancellation of a Subclass 202 (Global Special Humanitarian) visa. The applicant had provided information in their visa application and Form 80 that was alleged to be incorrect, leading to the Minister’s decision to cancel the visa under section 109 of the Migration Act 1958 (Cth). The Tribunal was required to determine whether the applicant had indeed failed to comply with the requirements of the Act regarding the provision of correct information in their visa application.

The central legal issue before the Tribunal was whether the applicant had provided incorrect answers in their visa application and Form 80, thereby breaching section 101(b) of the Act. Specifically, the Tribunal had to consider allegations that the applicant had provided false information regarding their parents' citizenship and residency, their reasons for fearing return to Syria, their previous travel history, and their employment and business activities in Syria. The Tribunal also had to consider whether the notice of intention to cancel the visa, issued under section 107, was valid and whether, despite any non-compliance, the visa should ultimately be cancelled.

The Tribunal found that while the applicant had indeed provided incorrect information in their visa application and Form 80, as particularised in the notice issued under section 107, the exercise of the cancellation power under section 109 was not mandatory in this instance. The Tribunal considered all relevant circumstances, including the applicant's background and the impact of a cancellation decision on their children. Having regard to these factors, the Tribunal concluded that 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 visa. The Tribunal noted that as a result of setting aside the cancellation decision, the visa was taken never to have been cancelled, meaning there was no basis for any consequential cancellation of related family members' visas.