1836632 (Migration)

This matter concerned an application to review the cancellation of a Subclass 101 (Child) visa. The applicant's visa was cancelled under section 140(2) of the Migration Act 1958 (Cth) following the cancellation of their father's, Mr. A's, visa. Mr. A's visa was cancelled under section 109 of the Act due to non-compliance with section 101, specifically by failing to declare the applicant and another child in his visa applications. The Tribunal was required to determine whether the cancellation of the applicant's visa was justified, considering the circumstances of the father's non-compliance and the potential impact on the family unit.

The central legal issues before the Tribunal were whether the father, Mr. A, had indeed failed to comply with the requirements of section 101 of the Act by not declaring all his children on his visa applications, and if so, whether the cancellation of the applicant's visa under section 140(2) was appropriate. The Tribunal also had to consider the specific circumstances of the applicant, including their mental health, the socio-economic conditions in their country of residence, and the potential for the cancellation to split the family unit, which included the applicant's mother who was applying for citizenship in a European country.

The Tribunal found that Mr. A had breached section 101 of the Act by failing to declare the applicant and another child on his visa applications, which constituted non-compliance. However, the Tribunal then considered the broader circumstances under section 109(1) of the Act, which allows for cancellation but requires consideration of prescribed circumstances. The Tribunal noted that the applicant's visa was held only because Mr. A held a visa, and that Mr. A's visa was cancelled due to incorrect information provided in his applications. Despite the established non-compliance by Mr. A, the Tribunal concluded that, having regard to all the relevant circumstances, including the potential impact on the family unit and the applicant's well-being, 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 Subclass 101 (Child) visa.