Li (Migration)

This matter concerned the review of a decision to cancel the applicant's Return (Residence) (Class BB) visa, Subclass 155 (Five Year Resident Return). The applicant had been granted the visa as a secondary applicant, a member of the family unit of Mr Guo. The dispute arose from allegations of providing bogus documents and incorrect information in a previous visa application, specifically in relation to a claimed de facto relationship. The Tribunal was required to determine whether the applicant had failed to comply with the Act in a manner that warranted visa cancellation and, if so, whether the cancellation decision should be affirmed.

The central legal issue was whether the applicant had contravened section 103 of the Migration Act 1958 (Cth) by providing bogus documents or incorrect information in connection with a previous visa application, thereby engaging section 109 of the Act, which permits visa cancellation. The Tribunal also had to consider whether the notice issued under section 107 of the Act, detailing the alleged non-compliance, was valid and whether the cancellation power had been validly exercised. Furthermore, the Tribunal was required to consider various factors against cancellation, including the applicant's contributions to the Australian community, her assistance to others, and crucially, the best interests of her Australian citizen daughter.

The Tribunal found that the notice issued under section 107 complied with statutory requirements and that the delegate had reached the necessary state of mind to engage the cancellation power. It was satisfied that the applicant had provided altered bank and utility accounts in support of a claimed de facto relationship, constituting non-compliance with section 103. While acknowledging the applicant's community contributions and her role in assisting new arrivals, the Tribunal weighed these against the seriousness of the non-compliance. The Tribunal gave significant weight to the best interests of the applicant's Australian citizen daughter, accepting that cancellation would likely result in the child having to leave Australia and potentially miss out on experiencing Australian culture. However, despite this consideration, the Tribunal affirmed the decision to cancel the applicant's visa.