Azimi (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Azimi, concerning the cancellation of a Subclass 117 (Orphan Relative) visa. The applicant, Azimi, had been granted this visa, but the Department of Home Affairs later issued a notice of intention to cancel the visa on the ground that incorrect information had been provided in the visa application, specifically regarding the death of both parents.

The central legal issue before the Tribunal was whether the applicant had provided incorrect information in their visa application, thereby triggering the discretionary power to cancel the visa under section 107 of the Migration Act 1958 (Cth). The Tribunal was required to determine if the evidence presented sufficiently established that both of the applicant's parents were deceased at the time of the application, as claimed.

The Tribunal found that while the applicant had provided evidence such as a single money transfer and possession of identity documents, and credible witnesses had testified, the information presented was insufficient to establish with the necessary degree of satisfaction that the applicant had provided incorrect information regarding the death of both parents. Consequently, the Tribunal concluded that the ground for cancellation as described in the notice was not made out.

As the Tribunal was not satisfied that there was non-compliance by the applicant in the way described in the notice, the discretionary power to cancel the visa did not arise. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.