Nauli (Migration)

This matter concerned a review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had arrived in Australia with 17,180 cigarettes and failed to declare more than 50 cigarettes or 50g of tobacco products on her incoming passenger card. The delegate issued a Notice of Intention to Consider Cancellation under s 109 of the *Migration Act 1958* (Cth) for this non-compliance. The applicant's adviser argued that the passenger card questions related to customs declarations and were not linked to the *Migration Act* provisions concerning visa compliance, and that the passenger card was not an approved form.

The legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the *Migration Act* regarding the completion of her passenger card, and if so, whether the cancellation of her visa was justified. Specifically, the Tribunal had to determine if the questions on the passenger card, relating to the declaration of tobacco products, fell within the scope of the Migration Act and its associated regulations, and whether the applicant's failure to declare the full quantity of cigarettes constituted an "incorrect answer" as contemplated by the Act. The Tribunal also considered whether the delegate possessed the necessary powers to cancel the visa, although it noted this was outside the scope of the applicant's request for review.

The Tribunal reasoned that s 102 of the *Migration Act* requires a non-citizen to fill in their passenger card such that all questions are answered and no incorrect answers are given. Section 100 clarifies that an answer is incorrect even if the person did not know it was incorrect. The Tribunal found that the applicant's failure to declare the quantity of cigarettes constituted an incorrect answer, and that the passenger card, as defined by s 506(2) and relevant regulations, was a document for which truthful completion was mandated under the *Migration Act*. The Tribunal rejected the argument that the questions were solely for customs purposes, finding they were incorporated into the immigration clearance process. The Tribunal also affirmed that there was no evidence to suggest the delegate lacked the necessary delegated powers for cancellation, and that such an inquiry was beyond the scope of the review.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa.