Rong (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on allegations of non-compliance with sections 101(b) and 103 of the *Migration Act 1958* (Cth), specifically providing incorrect information in a previous visa application and presenting a bogus document. The applicant contended that they were an unwitting victim of migration fraud. The decision was made by Senior Member Bridget Cullen of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 101(b) by providing incorrect answers in their visa application, and whether they had provided a bogus document contrary to section 103. The Tribunal was required to determine if the notice issued under section 107 of the Act complied with statutory requirements and if the alleged non-compliance had occurred. The definition of a "bogus document" under section 5(1) of the Act, which includes documents obtained due to a false or misleading statement, whether or not made knowingly, was central to the assessment.

The Tribunal found that the notice issued under section 107 was valid and that the delegate had reached the necessary state of mind to engage the cancellation power. However, after considering the evidence, including expert testimony from a digital forensic expert, the Tribunal was satisfied that there was no non-compliance by the applicant in the manner particularised in the section 107 notice. 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.