Patel (Migration)

This matter concerned an appeal by the applicant, Mr Patel, against the cancellation of his Subclass (155) (Five Year Resident Return) visa. The cancellation was based on allegations of non-compliance with section 101 of the Migration Act 1958 (Cth) in relation to information provided in a previous visa application. The Tribunal was required to determine whether the applicant had indeed failed to provide correct information in his prior visa application, and if so, whether the cancellation of his current visa was warranted.

The Tribunal considered the provisions of section 109 of the Act, which permits the Minister to cancel a visa if the holder has failed to comply with certain sections, including section 101, which mandates that visa applications must be completed without incorrect answers. The delegate had formed the view that the applicant had provided incorrect information regarding his employer's address and the nature of his business in a previous Subclass 187 visa application. However, the Tribunal found that the notice issued under section 107 of the Act, which particularised the alleged non-compliance, did not accurately reflect the grounds upon which the delegate had formed their opinion. Crucially, the Tribunal was not satisfied that there was non-compliance in the specific manner described in the section 107 notice.

As the Tribunal was not satisfied that the applicant had failed to comply with section 101 of the Act in the way particularised in the notice issued under section 107, the power to cancel the applicant's visa did not arise. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass (155) (Five Year Resident Return) visa.