2213870 (Migration)

This matter concerned a review of the cancellation of the applicant's Partner (Migrant) (Class BC) Subclass 100 (Spouse) visa. The dispute arose from the applicant providing incorrect information in his visa applications, including his correct name, date of birth, and visa history. This led to a refusal of a further student visa, a period as an unlawful non-citizen, and the grant of a Bridging E visa. The applicant had also paid a municipal council to obtain a new citizenship card and a passport that was considered a bogus document. The Tribunal considered the discretion to cancel the visa, noting that the previous partner visa application might have been granted if correct information had been provided, but the previous relationship had ceased and the incorrect information was repeated in the current application. The cancellation of the applicant's wife's visa was also considered in a combined hearing, with the Tribunal finding that she was not complicit in the provision of incorrect information and setting aside the cancellation of her visa. One child of the couple was an Australian citizen.

The legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing incorrect information and a bogus document in his visa applications, and whether the decision to cancel his visa was justified. Specifically, the Tribunal had to determine if a valid notice under section 107 of the Act had been issued, particulars of the alleged non-compliance were provided, and if the applicant had indeed failed to comply with sections 101, 102, 103, 104, or 105 of the Act. The Tribunal also considered the validity of a non-disclosure certificate issued under section 375A of the Act, which related to the method of biometric testing and facial image matching.

The Tribunal reasoned that section 109 of the Act allows for visa cancellation if a visa holder has failed to comply with specific sections requiring the provision of correct information and the non-submission of bogus documents. The Tribunal found that a valid notice under section 107 had been issued, providing particulars of the alleged non-compliance. The applicant acknowledged the facial image comparison was correct, and the Tribunal determined that the reasons for referral to the facial image examination unit, which were subject to the non-disclosure certificate, were not relevant to the review. The conclusions of the facial recognition report, which were not covered by the non-disclosure prohibition, were considered relevant and had been disclosed by the Department. The Tribunal concluded that there had been non-compliance by the applicant as described in the section 107 notice, and having regard to all relevant circumstances, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 100 (Spouse) visa.