CHOTANAN (Migration)

This matter concerned the cancellation of a Student (Temporary) (Class TU) visa, subclass 572, held by the first applicant. The dispute arose because the visa holder had provided incorrect information on his visa application by failing to declare previous visa refusals, which the Department of Immigration and Border Protection considered a breach of section 101(b) of the Migration Act 1958. The Administrative Appeals Tribunal (AAT) was required to determine whether the visa holder had indeed failed to comply with the Act and, if so, whether the visa should be cancelled.

The Tribunal was tasked with assessing whether the visa holder's failure to declare previous visa refusals constituted non-compliance with section 101(b) of the Act, as particularised in the Notice of Intention to Consider Cancellation. Furthermore, the Tribunal had to consider the circumstances surrounding this non-compliance, the present circumstances of the visa holder, his subsequent behaviour, and any other relevant factors in deciding whether to cancel the visa. The Tribunal applied section 109 of the Act, which permits the Minister to cancel a visa if the holder has failed to comply with certain provisions, including section 101, provided a valid notice under section 107 has been issued.

The Tribunal found that while the visa holder had provided incorrect information on his application, leading to the grant of the visa, the circumstances of the non-compliance were critical. The Tribunal accepted evidence that the applicant and his wife had provided accurate information regarding their previous visa refusals to their migration agent, and that the agent had made an error in completing the application forms. The Tribunal also considered that the applicant had been a conscientious student, had not breached any visa conditions, and had engaged with the Department and the Tribunal. Weighing these factors against the non-compliance, the Tribunal concluded that the factors favouring cancellation were outweighed by those favouring its retention.

Consequently, the Tribunal set aside the decision to cancel the first applicant's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning the second applicant.