Lathwal (Migration)

This matter concerned an appeal by the applicant against the cancellation of her Student (Class TU) visa (Subclass 500). The Department of Home Affairs had cancelled the visa under section 109 of the Migration Act 1958 (Cth) on the grounds that the applicant had provided incorrect information and a bogus document in her visa application, specifically concerning her access to sufficient funds for her stay in Australia. The applicant claimed that a local agent had fraudulently completed the application form and that she had provided genuine documents in response to the Department's notice.

The Tribunal was required to determine whether the applicant had failed to comply with the provisions of the Migration Act, specifically sections 101(b) and 103, as particularised in the notice of intention to consider cancellation. It also had to consider whether, having found non-compliance, the discretion to cancel the visa under section 109(1) should be exercised. The legal issues included whether the applicant had provided incorrect answers regarding her financial capacity and whether she had submitted a bogus document, and if so, whether these constituted a failure to comply with the Act.

The Tribunal found that the applicant had indeed failed to comply with section 101(b) of the Act because the information provided regarding financial support from her parent was incorrect, as the stated funds were not held by the parent. Furthermore, the Tribunal found that a statement of account provided in the applicant's name was a bogus document, constituting non-compliance with section 103. The Tribunal noted that the Act provides that incorrect answers are still considered incorrect even if the applicant was unaware of the inaccuracy, and that non-compliance can be either deliberate or inadvertent. While acknowledging potential hardship and the consequential cancellation of a partner's visa, the Tribunal ultimately affirmed the decision to cancel the applicant's visa, finding that the non-compliance was established and that the cancellation was warranted.