Ali (Migration)

The Administrative Appeals Tribunal considered an application by the applicant, Ali, concerning the cancellation of their Subclass 155 (Five Year Resident Return) visa. The dispute arose from allegations of non-compliance with migration law, specifically relating to incorrect information provided in a previous visa application, Form 40CH, where the applicant's mother was incorrectly stated as deceased.

The Tribunal was required to determine whether the applicant had failed to comply with a condition of their visa, as notified under section 107 of the Migration Act 1958 (Cth). Furthermore, the Tribunal had to consider whether, in light of all relevant circumstances, it should exercise its discretion to cancel the visa, or whether the visa should be granted despite the non-compliance. Key factors for consideration included the applicant's age at the time of the original application, the degree of hardship that cancellation would cause, the best interests of the applicant's three Australian citizen children, and the applicant's length of time spent in Australia and strong family ties.

The Tribunal found that there had been non-compliance as described in the notice given under section 107. However, after carefully considering all the relevant circumstances, including the applicant's age when the incorrect information was provided, the significant hardship that cancellation would impose on the applicant and their Australian citizen children, and the applicant's strong ties to Australia, the Tribunal concluded that the visa should not be cancelled. The Tribunal exercised its discretion not to cancel the visa.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.