2001670 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass 155 (Five Year Resident Return) visa. The decision under review was made by the Migration Review Tribunal, presided over by Senior Member R. Skaros. The core of the dispute revolved around allegations of the applicant providing incorrect information in previous visa applications, specifically concerning their relationship status and the number of dependent children, which potentially contravened section 101 of the Migration Act 1958.

The Tribunal was required to determine whether the notice issued under section 107 of the Act complied with statutory requirements and whether the applicant had indeed failed to comply with section 101 by providing incorrect information in their applications for a Subclass 457 visa and a Regional Sponsored Migration Scheme (Subclass 857) visa. The Tribunal also had to consider whether, in light of any proven non-compliance, the cancellation of the applicant's current visa was the appropriate course of action, taking into account all relevant circumstances.

The Tribunal found that the section 107 notice was valid and that the applicant had provided incorrect information regarding their marital status and dependent children in previous visa applications. However, despite acknowledging that this non-compliance strongly favoured cancellation, the Tribunal ultimately set aside the decision to cancel the visa. This decision was based on a careful consideration of the applicant's present circumstances and, crucially, the best interests of the applicant's Australian citizen children, which outweighed the considerations favouring cancellation.