Jian (Migration)

This matter concerned the review of a decision to cancel the Subclass 190 Skilled – Nominated visa of the applicant, Jian. The cancellation was based on the delegate's belief that the applicant had provided incorrect information in his visa application, specifically regarding his spousal relationship at the time of application. The applicant contended that he was in a continuing partner relationship with his former spouse, to the exclusion of all others, at the time of his visa application.

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 answers in his visa application, as particularised in the notice issued under section 107 of the Act. If non-compliance was found, the Tribunal was then required to determine whether the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal found that while the applicant had indeed provided incorrect information regarding his spousal status, which constituted non-compliance with section 101(b), it ultimately decided to set aside the cancellation decision. The Tribunal reasoned that the applicant's poor memory and struggle to recall details were not indicative of dishonesty. Furthermore, the Tribunal gave weight to the applicant's current circumstances, including his wife's significant physical disability and reliance on his support, as well as the impending birth of their child. These factors, combined with the passage of time, were considered to outweigh the grounds for cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 190 visa.