1920271 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 155 visa of an applicant, who had previously been granted a Subclass 866 visa. The dispute arose from allegations that the applicant had provided incorrect information in his application for the Subclass 866 visa, which subsequently led to the cancellation of his Subclass 155 visa under section 109 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the Act by providing incorrect information in his Subclass 866 visa application, as particularised in the notice issued under section 107 of the Act. The Tribunal was required to determine if the information provided regarding his identity, family relationships, and the whereabouts of his father was indeed incorrect, and if so, whether this non-compliance warranted the cancellation of his Subclass 155 visa.

The Tribunal reasoned that section 109(1) of the Act permits the Minister to cancel a visa if the visa holder has failed to comply with section 101, which mandates the provision of correct information. It noted that non-compliance with section 101 in relation to a previous visa, such as the Subclass 866 visa, could lead to the cancellation of a subsequently granted visa, like the Subclass 155 visa. The Tribunal examined the evidence, including advice from the National Identity Verification Centre and a facial comparison report, which suggested the applicant was the same person as an individual who had previously applied for a visa under a different name. It also considered discrepancies in the applicant's claims about his brother's relationship to him and the undisclosed existence of other siblings. While the Tribunal found the applicant's claim about his father's disappearance to be unsubstantiated, it concluded that there was non-compliance with section 101 in relation to several specific questions on his Subclass 866 visa application. The Tribunal then considered the discretionary power to cancel the visa under section 109(1), taking into account prescribed factors including the applicant's response to the notice and the content of any genuine documents. It found that the applicant's taskira was likely not genuine, given the circumstances of its acquisition.

The Tribunal found that the applicant had failed to comply with section 101 of the Act in the manner particularised in the section 107 notice. Consequently, the Tribunal determined that the cancellation of the applicant's Subclass 155 visa was justified.