Ken (Migration)

The applicant, Ken, sought judicial review of a decision by the Migration Review Tribunal (MRT) concerning the cancellation of his Subclass 155 (Five Year Resident Return) visa. The dispute arose from the applicant's failure to declare prior criminal convictions on his Incoming Passenger Card, which led to immigration clearance being granted based on incorrect information.

The MRT was required to determine whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) and, if so, whether it was appropriate to exercise its discretion not to cancel the applicant's visa. Key considerations included the applicant's deliberate withholding of information, other instances of non-compliance, the best interests of his child, the risk of drug relapse, and the considerable hardship he would face, including his length of time in Australia and strong family ties.

The Tribunal found that while there had been non-compliance as described in the notice given under s 107 of the *Migration Act 1958* (Cth), it concluded that, having regard to all the relevant circumstances, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.