Abas (Migration)

This matter concerned an appeal by the applicant, Abas, against the cancellation of his Subclass 155 (Five Year Resident Return) visa. The cancellation was based on allegations of non-compliance with visa application requirements, specifically that the applicant's visa had been granted due to incorrect information provided by his uncle, Bahram Ali Sanaee, in a separate visa application. The Tribunal was required to determine whether the grounds for cancellation were made out and, if so, whether the visa should be cancelled.

The central legal issue was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958, which mandates that a non-citizen must complete their visa application form without providing incorrect answers. The Tribunal also considered the provisions of section 100, which clarifies that information is considered incorrect regardless of whether the person knew it to be incorrect, and section 109, which outlines the Minister's power to cancel a visa following a finding of non-compliance. The validity of the notice issued under section 107 of the Act, detailing the alleged non-compliance, was also a preliminary consideration.

The Tribunal found that while the notice issued under section 107 complied with statutory requirements and the delegate had reached the necessary state of mind to engage the section, the specific non-compliance alleged was not sufficiently established against the applicant. The incorrect information regarding the death of the applicant's father was provided by his uncle in a separate visa application, and the applicant himself was not directly involved in providing that specific piece of incorrect information at the time of his own visa application. Consequently, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal substituted a decision not to cancel the applicant's Subclass 155 visa.