Kasiaheng (Migration)

This matter concerned the review of a decision to cancel Ms Kasiaheng's Subclass 155 (Five Year Resident Return) visa. The dispute arose from information provided in Ms Kasiaheng's initial application for an orphan relative visa, specifically concerning the status of her parents. The decision under review was made by a delegate of the Minister for Immigration, and the matter came before the Administrative Appeals Tribunal for review.

The primary legal issue before the Tribunal was whether Ms Kasiaheng could be deemed to have filled in the Form 47CH, an application for migration to Australia by a child, on her own behalf, as contemplated by section 98 of the Migration Act 1958 (Cth). This was relevant because the application contained a false statement that Ms Kasiaheng was an orphan, when in fact her parents were alive. The Tribunal also considered whether, in light of the circumstances, the discretion to cancel the visa should have been exercised.

The Tribunal found that Ms Kasiaheng, a 14-year-old minor at the time of the application, was unaware of the false information provided by her aunt and grandmother. She did not participate in the plan to deceive the authorities and only learned of the lie when the visa cancellation process began. The Tribunal accepted Ms Kasiaheng's evidence as honest and straightforward, and concluded that she did not cause the form to be filled in, nor was it filled in on her behalf in a manner that would engage section 98. Furthermore, the Tribunal considered Ms Kasiaheng's settled family life in Australia, her Australian citizen husband, and the best interests of her children, finding that these factors weighed against the exercise of the cancellation discretion.

Consequently, the Tribunal set aside the decision to cancel Ms Kasiaheng's visa.