Didiwik (Migration)

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the ground that the applicant had provided a bogus document, specifically a birth certificate issued by the PNG Birth Registry, which contained an incorrect date of birth. The Tribunal was asked to determine whether this constituted a valid ground for cancellation and, if so, whether the visa should be cancelled.

The central legal issue was whether the applicant's provision of a birth certificate with an incorrect date of birth, in the context of a previous visa application, amounted to obtaining a visa because of a false or misleading statement. The Tribunal also had to consider whether, even if a ground for cancellation existed, it was appropriate to exercise discretion and not cancel the visa, taking into account all relevant circumstances.

In its reasoning, the Tribunal found that while there was non-compliance as described in the notice under s.107 of the Act, the visa should not be cancelled. The Tribunal considered factors such as the length of time since the non-compliance, the applicant's contributions to the community, their role as the primary financial support for their family, and the best interests of their children. It was noted that the incorrect information in the previous visa application did not distinguish between biological and adopted children, and the applicant's eligibility for another visa was also a relevant consideration. The Tribunal concluded that the breach was unintentional and unlikely to adversely affect the applicant's eligibility.

Consequently, 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.