Pandey (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The appeal was heard by the Tribunal, presided over by Member Wendy Banfield. The dispute arose from allegations that the applicant had provided incorrect information in their visa application, specifically concerning their name and travel history, including a previous overstay and the use of an alias in prior visa applications.

The Tribunal was required to determine two key issues: firstly, whether the applicant had indeed failed to comply with section 101(b) of the Migration Act 1958 by providing incorrect information in their visa application, as particularised in the notice issued under section 107 of the Act. Secondly, if non-compliance was established, the Tribunal had to consider whether the discretion to cancel the visa should be exercised, having regard to the prescribed circumstances outlined in regulation 2.41.

The Tribunal found that the applicant had failed to comply with section 101(b) of the Act. This conclusion was based on the applicant's own admission in a statutory declaration and during the Tribunal hearing that they had previously travelled to Australia as a student in 2009, overstayed their visa by more than 28 days, and used a different name when applying for a visa with their wife. The Tribunal was satisfied that the notice issued under section 107 complied with statutory requirements and that the delegate had reached the necessary state of mind to engage this section. In exercising its discretion regarding cancellation, the Tribunal considered the applicant's admissions, the deliberate provision of false information, and the circumstances surrounding the non-compliance, ultimately concluding that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.