Ghimire Subedi (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 186 Employer Nomination Scheme visa. The applicant had provided incorrect information in her visa application regarding her husband's country of previous residence and his attempts to obtain residency and asylum in Belgium. The applicant admitted to the non-compliance when issued with a Notice of Intention to Consider Cancellation.

The primary legal issue before the Tribunal was whether the applicant's Subclass 186 visa should be cancelled, given the admitted non-compliance with section 101(b) of the Migration Act 1958. The Tribunal was required to consider the applicant's response to the notice and any prescribed circumstances relevant to the cancellation decision, as outlined in section 109 of the Act and regulation 2.41 of the Migration Regulations 1994.

The Tribunal found that the applicant had indeed failed to provide correct information in her visa application, as her husband had resided in Belgium, applied for a residence permit, and sought asylum there, which was refused, leading to his deportation. The applicant explained that this information was not provided because she was unaware of the specifics of her husband's situation at the time of completing the form, attributing it to an arranged marriage and her husband's desire to please his parents. The Tribunal noted that cancellation under section 109(1) was discretionary as no mandatory cancellation circumstances applied. The Tribunal considered the applicant's explanation, her husband's evidence regarding his past actions and regret, and the fact that he had not returned to Belgium.

The Tribunal set aside the decision under review and remitted the matter to the Department of Home Affairs for reconsideration of the cancellation decision. The Tribunal also noted that it had no jurisdiction with respect to any other applicants.