Gebremeskel (Migration)

This matter concerned an appeal by the applicant, a citizen of Eritrea, against the cancellation of her Subclass 202 (Global Special Humanitarian) visa. The applicant had been granted the visa in June 2018 and arrived in Australia in September 2018. In September 2022, a delegate of the Minister issued a Notice of Intention to Consider Cancellation (NOICC) alleging non-compliance with section 101 of the Migration Act 1958, specifically that incorrect information had been provided in her visa application regarding her spouse's previous relationships and children. The delegate subsequently decided to cancel the applicant's visa in November 2022. The applicant contended that she had not received the NOICC or the cancellation notice due to a residential move. The Administrative Appeals Tribunal was required to determine whether the NOICC complied with section 107 of the Act and, if so, whether the visa should be cancelled.

The Tribunal considered whether the applicant had provided incorrect information in her visa application, as alleged in the NOICC. The non-compliance identified related to section 101(b) of the Act, which requires that no incorrect answers be given in a visa application form. The delegate noted that the visa had been granted without awareness of a child from the applicant's spouse's previous relationship, which meant that relevant health and character requirements for that child had not been assessed. The Tribunal accepted that the applicant was unaware of this child at the time of her application and therefore could not have knowingly provided incorrect information. However, the Tribunal also acknowledged that the delegate's decision to grant the visa was based, in part, on incorrect information regarding the applicant's family composition.

Despite finding that there had been non-compliance with section 101 of the Act as particularised in the section 107 notice, the Tribunal ultimately set aside the cancellation decision. The Tribunal reasoned that while the applicant had provided incorrect information, she was unaware of the existence of her spouse's child at the time of her application. The Tribunal also took into account the time that had elapsed since the non-compliance, the best interests of the applicant's children, and her contribution to the Australian community. Consequently, the Tribunal substituted a decision not to cancel the applicant's visa.