Chen (Migration)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the applicant's alleged failure to comply with section 101(b) of the *Migration Act 1958* (Cth) in relation to a previous visa application for a Subclass 187 visa. The particulars of the alleged non-compliance, as stated in the notice of intention to consider cancellation, related to the employment history of the applicant's then-spouse, Mr Xiaoqin Li, who was included in the Subclass 187 visa application.

The primary legal issue before the Tribunal was whether the applicant had indeed failed to comply with section 101(b) of the Act, as particularised in the notice. This required the Tribunal to determine if the employment information provided for Mr Li in the Subclass 187 visa application was incorrect, and if so, whether this non-compliance warranted the cancellation of the applicant's current Subclass 155 visa. The Tribunal also considered the validity of a non-disclosure certificate issued under section 375A of the Act, which related to certain departmental documents.

The Tribunal found that while the notice of intention to consider cancellation and the delegate's state of mind were valid, the evidence presented did not establish the alleged non-compliance. The Tribunal noted that the particulars of the s 107 notice referred to Mr Li's claimed employment with Marie Hardware Group Co. Ltd. However, the Tribunal ultimately set aside the delegate's decision to cancel the applicant's visa.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.