2213326 (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel the Partner (Subclass 801) visa of a Nigerian citizen. The cancellation was based on the delegate's conclusion that the applicant had provided incorrect information and bogus documents in relation to his visa application, thereby failing to comply with section 101(b) of the Migration Act 1958 (Cth). The applicant had been granted a Subclass 820 visa in 2017 and a Subclass 801 visa in 2019. In 2020, he applied for citizenship, which was initially approved but later cancelled in 2022 on character grounds, leading to the subsequent cancellation of his Subclass 801 visa.

The primary legal issue before the Tribunal was whether the applicant had indeed failed to comply with section 101(b) of the Act, as particularised in the Notice of Intention to Consider Cancellation (NOICC). This section requires that visa applications be completed without incorrect answers. The NOICC specified that the applicant provided incorrect information in his Partner visa applications and a Form 80, and that documents submitted in support of his citizenship application were assessed as fraudulent or non-original. Furthermore, the applicant had allegedly failed to declare aliases he had used, including one under which he had previously been refused a visa.

The Tribunal found that the applicant had provided incorrect information by failing to disclose one of his aliases in his Partner visa applications and Form 80, and by failing to re-disclose another alias in the Form 80. However, the Tribunal considered the applicant's significant contributions to the community as a substantial factor against cancelling the visa. It also had regard to government policy, which requires consideration of international obligations and mandatory legal consequences of cancellation, although these were not found to be breached or particularly relevant in this instance.

Ultimately, the Tribunal set aside the delegate's decision to cancel the applicant's Subclass 801 visa. Despite finding that non-compliance with section 101(b) had occurred, the Tribunal exercised its discretion not to cancel the visa, substituting a decision to affirm the visa's validity.