Aryee (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Child (Migrant) (Class AH) visa, Subclass 101, held by the applicant, Ms. Aryee. The dispute arose from alleged incorrect information provided in the visa application, specifically concerning the dates of birth of the applicant's parents and changes to family names, despite a DNA test confirming the familial relationships. The applicant was a minor at the time of the previous application and was studying in Australia.

The primary legal issue before the Tribunal was whether the grounds for cancellation under s 116(1)(aa) of the Migration Act 1958 (Cth) were satisfied. This section pertains to the Minister being satisfied that a visa holder has provided information that is false or misleading in a material particular. A secondary issue, to be considered if the primary ground was met, was whether the Tribunal should exercise its discretion not to cancel the visa.

The Tribunal found that it was not satisfied that the ground for cancellation under s 116(1)(aa) existed, meaning the power to cancel the visa did not arise. Even if it had found grounds for cancellation, the Tribunal determined that it would have exercised its discretion not to cancel the visa. In reaching this conclusion, the Tribunal had regard to various factors, including the applicant's purpose for travel and stay in Australia (to be reunited with family and her settlement in Australia, including her studies and employment), her compliance with visa conditions (of which there was no evidence of non-compliance), and the significant hardship that cancellation would cause. This hardship included potential inability to complete her university course, emotional and psychological distress to herself and her siblings with whom she has a close relationship, and the impact on her sponsored partner's visa application and their hopes of starting a family, particularly in light of a previous miscarriage.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Ms. Aryee's Subclass 101 (Child) visa.