Saeed (Migration)

This matter concerned an appeal by the applicant, Saeed, against the cancellation of his Subclass 100 (Spouse) visa. The dispute arose from the applicant's failure to disclose a previous marriage to Neelam Shahzadi in his visa application. The delegate had formed the view that this omission constituted a failure to provide correct information, leading to the cancellation of the visa. The Administrative Appeals Tribunal was required to determine whether the applicant had indeed failed to provide correct information as alleged, and consequently, whether the delegate had a lawful basis to cancel the visa.

The Tribunal's reasoning focused on the evidentiary threshold required to establish non-compliance. It found that there was insufficient evidence to make a positive finding that the applicant and Ms Shahzadi had a relationship of a nature that was required to be declared on the application form. Crucially, the Tribunal concluded that there was no non-compliance by the applicant in the manner described in the notice given under section 107 of the Migration Act 1958 (Cth). As a result, the discretionary power to cancel the applicant's visa did not arise.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's Subclass 100 (Spouse) visa and substituted a decision not to cancel the visa.