2203610 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass (155) (Five Year Resident Return) visa. The cancellation was based on allegations of non-compliance with section 101(b) of the *Migration Act 1958* (Cth), specifically providing incorrect information in a previous visa application regarding the citizenship of the applicant's mother and sister, and the whereabouts of their father. The Tribunal was required to determine whether the applicant had indeed failed to comply with the Act as alleged, and if so, whether the visa should be cancelled.

The Tribunal was required to consider whether the applicant had provided incorrect answers in their visa application, as particularised in the notice issued under section 107 of the Act. The Department's case was that the applicant's mother and sister were Pakistani citizens, evidenced by Pakistani identity cards, which, coupled with the father's name appearing on the sister's ID, suggested the applicant was also a Pakistani citizen. This contradicted the applicant's assertion that his father was missing since 2009 and that his mother and sister held Afghan citizenship. The Tribunal noted that section 100 of the Act states an answer is incorrect even if the person did not know it was incorrect, and section 109 allows for visa cancellation if non-compliance is found under section 108.

Ultimately, the Tribunal found that it was not satisfied that the applicant had engaged in non-compliance as described in the section 107 notice. Consequently, the power to cancel the visa under section 109 did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.