1822320 (Migration)

This matter concerned an application by a visa holder to review the cancellation of their Subclass 116 (Carer) visa. The applicant had provided information in their visa application regarding their mother's need for care and the availability of other relatives in Australia to provide that care. The Department of Home Affairs had subsequently cancelled the visa, alleging non-compliance with section 101(b) of the Migration Act 1958 (Cth) by providing incorrect answers in the application. The Tribunal was required to determine whether the visa cancellation was valid.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 (Cth), which mandates that visa applicants provide no incorrect answers in their application forms. This involved assessing whether the information provided by the applicant concerning their mother's care needs and the availability of other relatives in Australia was indeed incorrect, and if so, whether this constituted a valid ground for visa cancellation under section 109 of the Act. A further issue was the Tribunal's jurisdiction concerning secondary applicants.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 of the Act and that the notice issued under that section complied with statutory requirements. However, the Tribunal was not satisfied that the applicant had provided incorrect answers as particularised in the section 107 notice. The applicant had stated that no other relatives in Australia were reasonably able to provide the required assistance, and that their mother did not have other relatives in Australia not previously listed. The Tribunal noted that the applicant had spent time offshore for health reasons, during which other relatives provided assistance. Crucially, the Tribunal concluded that the applicant's absence and the subsequent assistance from other relatives did not render their original statements incorrect in the context of the visa application. Consequently, the Tribunal determined that the discretionary power to cancel the visa under section 109 of the Act did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the first applicant's Subclass 116 (Carer) visa. The Tribunal also stated that it had no jurisdiction with respect to the other applicants.