An (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the applicant's alleged non-compliance with section 101(b) of the *Migration Act 1958* (Cth) concerning incorrect answers provided in a previous visa application. The applicant had been granted his current visa on 17 May 2020, and the delegate's decision to cancel it was made on 13 September 2022, following a notice issued under section 107 of the Act. The claimed non-compliance related to information provided in a previous Partner (Provisional) (Subclass 309) visa application lodged on 6 November 2008, where the applicant was a secondary applicant to his mother.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Act by providing incorrect answers in his previous visa application, and if so, whether his current visa should be cancelled. Specifically, the Tribunal had to determine if the incorrect information provided by the applicant's mother in her primary application, concerning her identity and past history, could be attributed to the applicant as a secondary applicant, thereby rendering his own visa grant based on that incorrect information. The Tribunal also considered whether the applicant could be held responsible for his mother's actions, given his submission that he had no knowledge or participation in the lodgement of her application.

The Tribunal considered the applicant's argument that as a secondary applicant, his own eligibility was based on meeting criteria such as health requirements, and that incorrect information provided by his mother was not material to his qualification. However, the Tribunal rejected this interpretation. It found that the applicant's Partner (Provisional) (Subclass 309) visa was granted on the basis that he was a member of the family unit of his mother, who met the primary criteria for the visa. Given that the mother's application contained extensive incorrect information regarding her identity and past history, which would have impacted matters such as her character assessment, the Tribunal was satisfied that the applicant's own visa grant was based, wholly or partly, on the incorrect information provided by his mother. Despite finding that there was indeed non-compliance as described in the section 107 notice, the Tribunal concluded that, having regard to all relevant circumstances, the visa should not be cancelled.

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