1717145 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa of the applicant. The cancellation was based on the grounds that the applicant had provided incorrect information in a previous visa application, specifically concerning her name, family composition, place of residence, and humanitarian claims relating to her fear of returning to Myanmar. The applicant contended that the Departmental interview, which formed the basis for the alleged inconsistencies, was conducted in an unsatisfactory manner, was not audio recorded, and that due to her vulnerabilities, the information obtained was unsafe to rely upon.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect answers in her previous visa application, and consequently, whether the delegate had valid grounds to consider cancelling her current visa under section 107A of the Act. A key issue was whether the Notice of Intention to Consider Cancellation (NOICC) provided sufficient particulars of the alleged non-compliance to fairly inform the applicant of the case against her, enabling her to respond adequately.

The Tribunal found that while the NOICC was valid and sufficiently particularised the alleged non-compliance, it was ultimately not satisfied that the applicant had, in fact, provided incorrect information in the manner described in the notice. The Tribunal noted that the applicant's subsequent statements regarding her daughter's age and health, her consistent employment in Australia, and her fear of returning to Myanmar due to potential arrest and hardship for her daughter, did not necessarily demonstrate a breach of the previous visa conditions. The Tribunal concluded that the discretionary power to cancel the visa did not arise because it was not satisfied that the applicant had failed to comply with the relevant provisions of the Act as alleged.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 (Five Year Resident Return) visa.