Chen (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant, identified as Chen, whose Partner (Provisional) (Class UF) visa, subclass 309, was subject to cancellation. The dispute arose from concerns that the applicant had been known by other names and had provided incorrect answers on their visa application. The Tribunal was tasked with determining whether the applicant had failed to comply with the requirements of the Act in a manner that would justify visa cancellation.

The central legal issue before the Tribunal was whether it could be positively satisfied that the applicant had provided incorrect answers on their application form, thereby constituting a ground for cancellation under section 107 of the Migration Act 1958 (Cth). This required the Tribunal to assess the probative value of a forensic examination and to determine if the applicant's conduct amounted to a breach of their obligations under the Act.

The Tribunal found that it could not be positively satisfied that the applicant had completed the application form in a way that involved giving incorrect answers. Consequently, the Tribunal concluded that the discretionary power to cancel the applicant's visa did not arise. The Tribunal therefore set aside the decision to cancel the applicant's Subclass 309 visa and substituted a decision not to cancel it.