Rani (Migration)

This matter concerned an appeal by Ms Rani against a decision to cancel her Subclass 186 Employer Nomination Scheme visa. The cancellation was based on allegations of non-compliance with section 101(b) of the Migration Act 1958, specifically by providing incorrect answers in her visa application. The incorrect answers related to her husband, Mr Pattar, concerning whether he had been known by other names and whether he had ever been removed, deported, or excluded from any country. Additionally, incorrect details were provided regarding countries where Mr Pattar had spent significant time and his previous travel history to Australia.

The primary legal issue before the Tribunal was whether there had been non-compliance with the Act as particularised in the notice issued under section 107, and if so, whether the visa should be cancelled. The Tribunal was required to consider the circumstances of the non-compliance and weigh various factors in determining whether to exercise its discretion to cancel the visa. This included assessing the impact of cancellation on third parties, such as Mr Pattar's business partner and employees, and considering the elapsed exclusion period for Mr Pattar.

The Tribunal found that Ms Rani had indeed breached section 101(b) by providing incorrect answers, acknowledging that she and Mr Pattar knew the truth would likely result in a visa refusal. However, the Tribunal noted that Mr Pattar's three-year exclusion period had elapsed well before the visa application was lodged, and it was not appropriate to speculate on how the original visa grant might have been affected by correct information, especially since Ms Rani met the primary criteria for the visa. Furthermore, the Tribunal accepted Ms Rani's explanation that she felt obliged to obey her husband, despite not taking steps to mitigate the risks. Ultimately, the Tribunal concluded that while non-compliance occurred, the circumstances warranted a decision not to cancel the visa.

The Tribunal set aside the delegate's decision to cancel Ms Rani's Subclass 186 visa and substituted a decision not to cancel it.