Ma (Migration)

This matter concerned the Administrative Appeals Tribunal's review of a decision to cancel Ms Li Ma's permanent Partner (Subclass 100) visa. The applicant had been granted the visa in 2013, sponsored by her Australian citizen husband. The Minister's delegate had decided to cancel the visa under section 109 of the Migration Act 1958 (Cth) on the grounds that the applicant had failed to comply with section 101(b) of the Act, which requires a non-citizen to provide no incorrect answers in their visa application.

The primary legal issue before the Tribunal was whether the applicant had indeed failed to comply with section 101(b) of the Act, as particularised in the notice issued under section 107, and if so, whether the visa should be cancelled. The Tribunal was required to determine if the notice issued under section 107 complied with statutory requirements and if the delegate had reached the necessary state of mind to engage that section.

The Tribunal reasoned that the power to cancel a visa under section 109 is contingent on the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. The Tribunal was satisfied that the delegate had properly engaged section 107 and that the notice issued complied with the statutory requirements. The Tribunal then considered whether the non-compliance identified in the notice, specifically with section 101(b), had occurred. The Tribunal found that the applicant and Master Yang would become unlawful non-citizens if their visas were cancelled, potentially facing detention and removal, and would be subject to the section 48 bar, which restricts further visa applications while in Australia. These were acknowledged as intended consequences of the legislation.