2301259 (Migration)

This matter concerns the review of a decision to cancel the Subclass 886 (Skilled - Sponsored) visa of the first named applicant, a citizen of India. The applicant had previously entered Australia under an assumed name, applied for a protection visa under that name which was refused, and subsequently applied for and was granted further visas under his own name, including the Skilled-Sponsored visa. The Department of Home Affairs identified that the applicant had provided incorrect answers to facilitate the grant of his Student and Skilled visas, leading to the delegate issuing a Notice of Intention to Consider Cancellation (NOICC) under section 109 of the Migration Act 1958 (Cth). The applicant, along with his minor children (the third, fourth, and fifth applicants), sought review of this cancellation decision.

The primary legal issue before the court was whether the delegate had erred in cancelling the first named applicant's visa under section 109 of the Act, which permits cancellation where a visa holder has failed to provide correct information or has been misleading in their application. The court was required to determine if the non-compliance identified by the delegate was sufficiently established and if the delegate had properly considered the applicant's response to the NOICC before making the cancellation decision.

Deputy Judge Redfern Psm P found that the evidence, including facial recognition reports, information from New South Wales Roads and Maritime Services, and site visits in India, cogently established that the first named applicant had entered Australia using an assumed identity and had provided incorrect information in his visa applications. However, the judge concluded that the delegate had failed to adequately consider the applicant's response to the NOICC, particularly in relation to the specific particulars of non-compliance raised. The judge determined that the decision to cancel the visa was therefore vitiated.

Consequently, the court set aside the decision under review and substituted a decision that the visa should not be cancelled. Due to the applicants being minors, a non-disclosure direction was made under section 378(1) of the Act, and the decision was anonymised.