2002195 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass 500 (Student) visa. The dispute arose when the Department of Home Affairs issued a notice under section 107 of the *Migration Act 1958* (Cth) alleging non-compliance with section 101(b) of the Act. The alleged non-compliance stemmed from the applicant's failure to disclose a criminal charge for affray, which was pending at the time of their visa application. The Tribunal, constituted by David McCulloch, was required to determine whether the applicant had indeed failed to comply with the Act and, if so, whether the visa cancellation should be affirmed.

The central legal issue before the Tribunal was whether the applicant provided an incorrect answer in their visa application, thereby contravening section 101(b) of the *Migration Act 1958*. This section mandates that a non-citizen must not provide incorrect answers in their visa application form. The Tribunal was also required to consider the consequences of such non-compliance, specifically whether the visa cancellation decision was appropriate under section 109 of the Act, which permits cancellation where incorrect information has been provided.

The Tribunal reasoned that section 100 of the *Migration Act 1958* defines an incorrect answer as one given without the applicant's knowledge of its incorrectness. The applicant had answered "NO" to the question of whether they had any pending legal actions, despite having been charged with affray prior to lodging their application. The Tribunal found that this answer was factually incorrect, and under section 101(b), it was a requirement that no incorrect answers be provided. The Tribunal affirmed the decision to cancel the applicant's visa, concluding that there had been non-compliance as particularised in the section 107 notice and that, having regard to all relevant circumstances, the visa cancellation was warranted.