Patel (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The dispute arose from alleged incorrect information provided by the applicant's partner, Mr. Bhavesh Patel, in his application for a Subclass 187 visa, which the delegate considered to be non-compliance with section 101 of the Migration Act 1958.

The Tribunal was required to determine whether the applicant's partner had provided incorrect answers in his visa application, specifically concerning his intended employer and the employer's address, and if so, whether this constituted non-compliance that warranted the cancellation of the applicant's visa. The Tribunal also considered whether the notice issued under section 107 of the Act adequately particularised the alleged non-compliance.

The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and the notice complied with statutory requirements, the core issue was whether the non-compliance particularised in the notice had actually occurred. The delegate had relied on information provided in forms 1221 and 80, which were taken to be answers to questions in the visa application form under section 99 of the Act. However, the Tribunal was not satisfied that the non-compliance described in the section 107 notice had been established.

Consequently, the Tribunal concluded that the discretionary power to cancel the applicant's visa did not arise. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 155 visa.