2118433 (Migration)

The applicant sought judicial review of the decision to cancel their Subclass 444 (Special Category) visa. The dispute concerned whether the grounds for cancellation, specifically the provision of incorrect information on an incoming passenger card and failure to declare criminal convictions, were validly established and whether the cancellation notice adequately specified the obligations the applicant had breached. The matter was heard by Senior Member Kate Millar of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the Minister had the power to cancel the applicant's visa based on the information provided and the applicant's criminal history. Specifically, the Tribunal considered whether the applicant's failure to declare criminal convictions, which resulted in a suspended sentence and participation in a Clean Slate program, constituted a failure to meet visa conditions or a ground for cancellation under the relevant migration legislation. The Tribunal also examined whether the cancellation notice correctly identified the specific obligations the applicant was alleged to have breached.

Senior Member Millar reasoned that the power to cancel the visa did not arise in this instance. The Tribunal found that the applicant's criminal convictions, having been subject to a suspended sentence and a Clean Slate program, did not necessarily equate to a failure to declare them in a manner that would trigger cancellation. Furthermore, the Tribunal determined that the cancellation notice failed to specify the precise obligations the applicant had allegedly breached, rendering the cancellation decision invalid. Consequently, the decision to cancel the applicant's Subclass 444 visa was set aside and substituted with a decision not to cancel the visa.