KANJ (Migration)

The Administrative Appeals Tribunal (AAT) considered a migration matter concerning the cancellation of a Subclass 836 (Carer) visa. The applicant, identified as KANJ, had their visa cancelled by the Department of Home Affairs on the grounds of providing incorrect information in their visa application, specifically in answers given during a telephone interview. The applicant contended that the questioning was generalised and non-specific, leading to an omission regarding lengthy periods spent overseas and the continuous provision of care.

The central legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) in a manner that would justify the cancellation of their visa. Specifically, the Tribunal had to determine if the applicant's responses during the telephone interview constituted a failure to provide information or the provision of incorrect information, thereby triggering the discretionary power to cancel the visa under section 107 of the Act.

The Tribunal found that the questioning during the telephone interview was generalised and non-specific. Consequently, it was not satisfied that the applicant had failed to comply with the Act in the way described in the notice of cancellation. As the non-compliance required for the exercise of the cancellation power was not established, the Tribunal concluded that the discretionary power to cancel the visa did not arise. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 836 (Carer) visa. The Tribunal noted it had no jurisdiction concerning other applicants.