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 alleged incorrect answers provided in a previous Employer Nomination Scheme (ENS) (subclass 186) visa application. The applicant's husband, Mr Patel, had applied for the ENS visa, nominating "Falcon Accounting Services Pty Ltd" as his employer and providing an address for that employer. The delegate subsequently cancelled the applicant's Subclass 155 visa on the basis that the information provided regarding the employer's address was incorrect, constituting a non-compliance with section 101(b) of the Migration Act 1958.

The primary legal issue before the Tribunal was whether the information provided in the ENS visa application regarding the employer's address was indeed incorrect, thereby triggering the grounds for cancellation under section 109 of the Migration Act 1958. This required the Tribunal to consider the definition of an "incorrect answer" under section 100 of the Act and the evidentiary basis for the delegate's conclusion that the provided address was not associated with the employer's business. The Tribunal also had to determine if the applicant had complied with section 101 of the Act, which mandates that visa applications must be completed without incorrect answers.

The Tribunal reasoned that while section 100 of the Act states that an answer is incorrect even if the person providing it did not know it was incorrect, the evidence presented did not establish that the employer's address was factually incorrect. The employer's business did exist at the premises, and there were leasing arrangements in place. The Tribunal found that the information provided in the visa application was not demonstrably false or misleading, and therefore, the applicant had not failed to comply with section 101(b) of the Act. Consequently, the power to cancel the visa under section 109 did not arise.

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.