2201451 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of a woman who had applied for a Subclass 204 (Woman at Risk) visa. The applicant had initially provided incorrect information regarding her name, date of birth, and family circumstances, stating her parents were deceased and she was an only child. This information was relied upon when granting her the visa. Subsequently, the Department received information suggesting the applicant's real name, living parents, and siblings.

The legal issues before the Tribunal were whether the applicant had failed to comply with the requirement to provide correct information in her visa application, as stipulated by section 101(b) of the Migration Act 1958 (Cth), and if so, whether the visa should be cancelled. The applicant conceded that she had provided incorrect information concerning her identity and family composition. The Tribunal was therefore required to determine if the cancellation power under section 109 of the Act was appropriately exercised, considering the discretionary factors and the applicant's circumstances.

The Tribunal found that while the applicant had indeed provided incorrect information, the delegate's decision to cancel the visa was flawed. The delegate had not adequately considered the applicant's explanation for the incorrect information, which included fear for her family's safety due to the actions of the Myanmar Military Intelligence Agency. Furthermore, the delegate had not properly assessed Australia's international obligations, particularly the principle of non-refoulement, and had failed to conduct a comprehensive review of the discretionary factors, including the applicant's significant ties to Australia, her Australian citizen husband and children, and her health and financial difficulties. The Tribunal also noted that the decision to cancel the visa was made without affording the applicant a hearing.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa.