2204089 (Migration)

This matter concerned an appeal by a Fijian citizen against the cancellation of his Subclass 600 (Visitor) visa. The dispute arose from the applicant's failure to declare criminal convictions from 15 years prior in his visa application and entry cards, which the delegate considered to be non-compliance with the Migration Act 1958 (Cth). The case was heard by K. Chapman of the Tribunal.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa was justified, considering the circumstances surrounding his failure to declare his criminal convictions and the subsequent evidence presented regarding his ties to Australia and his wife's circumstances. The Tribunal was required to determine if the discretion to cancel the visa under section 109 of the Act had been exercised appropriately, taking into account the applicant's explanation for the incorrect answers and any mitigating factors.

The Tribunal reasoned that while section 100 of the Act states that an answer is incorrect even if the person did not know it was incorrect, the exercise of the cancellation power under section 109 involves a consideration of prescribed circumstances. In this instance, the applicant's failure to declare his convictions was found to be reckless rather than deliberate. The Tribunal noted the applicant's subsequent marriage to an Australian citizen, his intention to apply for a partner visa, his wife's fertility treatment, her community work, and the applicant's own family and community ties and volunteer work. On balance, the Tribunal found that these circumstances outweighed those favouring cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 600 (Visitor) visa.