Chen (Migration)

This matter concerned an appeal by Mr Huan Xiang Chen against the decision of a delegate to cancel his Student (Temporary) (Class TU) visa, subclass 572 (Vocational Education and Training Sector). The delegate's decision was based on the applicant's alleged non-compliance with section 101(b) of the Migration Act 1958 (Cth), which requires that no incorrect answers be given in a visa application. The applicant had not responded to the department's notice regarding the potential non-compliance or appeared at the hearing.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in his visa application, thereby breaching section 101(b) of the Act, and if so, whether the decision to cancel his visa should be affirmed. Specifically, the Tribunal had to determine if the applicant's failure to declare previous visa overstays, removal from Australia, and outstanding debts constituted "incorrect answers" as contemplated by the Act.

The Tribunal reasoned that the applicant had indeed provided incorrect answers in his visa application. In his application lodged on 9 June 2016, the applicant answered "No" to questions regarding whether he had ever been removed, deported, or excluded from any country, had ever overstayed a visa, or had any outstanding debts to the Australian Government. However, the delegate's decision indicated that the applicant had first arrived in Australia on 7 December 2008, overstayed his visa from 8 March 2009 until 1 February 2016, was removed from Australia on 1 February 2016, and had incurred a debt to the Australian Government for his detention and removal. The Tribunal noted that section 100 of the Act clarifies that an answer is considered incorrect even if the person did not know it was incorrect. Furthermore, the Tribunal considered the applicant's failure to declare these matters, coupled with the fact that he had been removed from Australia and incurred a debt, meant he was subject to Public Interest Criterion (PIC) 4014, imposing a three-year exclusion period.

Having found that the applicant had failed to comply with section 101(b) of the Act, the Tribunal then considered whether the visa should be cancelled under section 109. The Tribunal concluded that the reasons for cancelling the visa outweighed the reasons not to cancel, and therefore affirmed the delegate's decision to cancel the applicant's Subclass 572 Student visa.