2001559 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The dispute arose from allegations that the applicant had failed to provide correct information in a previous Partner visa application, specifically concerning her identity, immigration history, and periods of unlawful residence, which would have subjected her to a three-year exclusion period.

The Tribunal was required to determine whether the ground for cancellation under section 109 of the Migration Act 1958 was made out, and if so, whether the visa should be cancelled. This involved considering whether the Notice of Intention to Consider Cancellation (NOICC) complied with the requirements of section 107 of the Act and whether the applicant had indeed failed to comply with section 101 by providing incorrect answers in her visa application.

The Tribunal found that the applicant had provided incorrect information regarding her previous identity and adverse migration history to circumvent an exclusion period and facilitate the grant of her Partner visa. The Tribunal accepted that the applicant and her husband were in a genuine and continuing relationship, which was the primary reason for the visa grant. However, it also noted that had the delegate been aware of her previous identity and adverse migration history, the Partner visa would likely have been refused due to the exclusion period. Despite finding that there was non-compliance by the applicant, the Tribunal, having regard to all relevant circumstances, 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 Subclass 155 visa.