Patel (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on alleged non-compliance with section 101 of the Migration Act 1958, which requires visa applicants to provide correct information. The specific allegations related to incorrect details provided in a previous visa application, including an employer's address and the nature of the business.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the Act, as particularised in the notice issued under section 107. This involved determining if the information provided in the applicant's previous visa application, specifically regarding employment details, constituted incorrect answers as defined by the Act. The Tribunal also considered whether the notice issued under section 107 complied with the statutory requirements for engaging the Minister's power to cancel a visa.

The Tribunal reasoned that the exercise of the cancellation power under section 109 of the Act is contingent on the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. In this instance, the Tribunal was not satisfied that the non-compliance, as described in the section 107 notice, had been established. Consequently, the discretionary power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa.