Ajay Kumar (Migration)

This matter concerned the review of a decision to cancel the Subclass 500 (Student) visa of Ajay Kumar, a citizen of India. The applicant had been granted the visa on 2 November 2020, valid until March 2024, to undertake study in Australia. The Department of Home Affairs issued a notice of intention to consider cancellation of the visa on 6 December 2022, alleging non-compliance with section 101 of the Migration Act 1958, specifically the failure to declare a previous visa refusal from the United Kingdom in his student visa application lodged on 13 October 2020. The applicant provided a response to this notice, which was considered by the delegate who subsequently cancelled the visa on 20 March 2023.

The primary legal issues before the Tribunal were whether the notice of intention to consider cancellation complied with the requirements of section 107 of the Act, and if so, whether there had been non-compliance as particularised in the notice. The Tribunal was also required to determine whether, having regard to all the circumstances, the visa should be cancelled. Section 109 of the Act permits the Minister to cancel a visa if the holder has failed to comply with certain provisions, including section 101, which mandates that visa applications be completed without incorrect answers.

The Tribunal found that the notice issued under section 107 was valid and that the applicant had indeed failed to comply with section 101 by not declaring his previous UK visa refusal. The applicant did not dispute this non-compliance, explaining that a family member had assisted with his visa application and he had not inquired about previous visa applications. Despite acknowledging the non-compliance, the Tribunal considered the applicant's response, which included a statutory declaration and a Form 1023 Notification of Incorrect Answers, and noted the applicant's voluntary disclosure of the incorrect information and the potential financial hardship that cancellation would cause.

Ultimately, the Tribunal concluded that while there was non-compliance with section 101, the decision to cancel the applicant's visa should be set aside. The Tribunal affirmed the decision to cancel the applicant's visa.