Cheong (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision by the Department of Home Affairs to cancel a Student (Temporary) (Class TU) visa, subclass 500, held by the applicant, a 26-year-old Malaysian national. The dispute arose from the applicant's answers in her 2017 student visa application, where she stated she had no parents or siblings in or outside Australia, while also declaring that she had provided complete and correct information. The Department's delegate found this information to be incorrect, as evidence indicated the applicant had parents and a sibling residing in Australia.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* by providing incorrect information in her visa application, and if so, whether the visa should be cancelled under section 109(1) of the Act. The Tribunal was required to determine if the notice of intention to cancel the visa issued under section 107 complied with statutory requirements and if the applicant's non-compliance was of a nature that warranted visa cancellation.

The Tribunal affirmed the Department's decision to cancel the visa. It found that the applicant had indeed provided incorrect information by failing to declare her parents and sibling in Australia, which was a significant omission that would have been considered by the delegate in assessing her visa application. The Tribunal noted that family ties and residency are important factors in determining if an applicant is a genuine student and meets public interest criteria. Despite the applicant's explanation of confusion and her age at the time, the Tribunal found that she had signed a declaration confirming the accuracy of the information provided, and it was her responsibility to ensure its correctness. The Tribunal gave significant weight to the incorrect information provided and the circumstances surrounding the non-compliance in favour of cancelling the visa.

Consequently, the Tribunal concluded that the applicant had failed to comply with section 101(b) of the *Migration Act 1958* as particularised in the section 107 notice. As the Tribunal found non-compliance, it then exercised its discretion under section 109(1) to cancel the visa, affirming the Department's decision.