Lee (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa held by Mr. Lee. The cancellation was based on allegations that Mr. Lee had provided incorrect information and a bogus document in support of a previous visa application, specifically concerning his English language test results. The Tribunal was tasked with determining whether Mr. Lee had indeed failed to comply with the relevant provisions of the Migration Act 1958 and, if so, whether his visa should be cancelled.

The central legal issues before the Tribunal were whether the evidence established non-compliance with sections 101 and 103 of the Migration Act, as particularised in the notice issued under section 107, and if such non-compliance was found, whether the discretion to cancel the visa should be exercised. The non-compliance alleged related to the provision of an English language test report form where the photograph on the document was found by a forensic examiner to be inconsistent with the photograph provided with Mr. Lee's visa application, suggesting it was not his document.

The Tribunal found that while the notice issued under section 107 complied with statutory requirements and that the forensic evidence indicated non-compliance with sections 101 and 103 of the Act, it ultimately decided to set aside the cancellation decision. In exercising its discretion, the Tribunal gave significant weight to factors weighing against cancellation, including Mr. Lee's contributions to the Australian community through donations and volunteer work, the consequential cancellation of his partner's and son's visas, and crucially, the best interests of his nearly three-year-old son. The Tribunal considered evidence that the son would experience a significantly better quality of life in Australia and that the family unit would be disrupted if Mr. Lee were forced to leave, with his partner and son relocating to Taiwan and Mr. Lee to Hong Kong, due to political and social difficulties in each other's countries.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Lee's Subclass 155 visa.