Sanaee (Migration)

This matter concerned the cancellation of the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the alleged provision of incorrect information by the applicant's father, Bahram Ali Sanaee, to the Migration Review Tribunal in 2008, which enabled him to obtain a Remaining Relative visa to which he was not entitled. The applicant's migration agent argued that Mr. Sanaee only became aware of the incorrect information after May 2010, a submission the Tribunal did not accept. The central issue for the Tribunal was to determine whether the ground for cancellation was made out and, if so, whether the visa should be cancelled.

The Tribunal was required to consider whether the notice issued by the Minister's delegate complied with the requirements of section 107 of the Migration Act 1958. Specifically, the Tribunal had to determine if there was non-compliance as particularised in the notice, and if that non-compliance warranted the cancellation of the visa. The Tribunal noted that section 109(1) of the Act permits visa cancellation if a visa holder fails to comply with certain provisions, including section 101(b), which mandates that visa applications be completed without incorrect answers. The Tribunal also referred to section 100, which clarifies that information is considered incorrect even if the person providing it was unaware of its inaccuracy, and section 99, which deems any information provided to the Minister or Tribunal as an answer to a question in an application form.

The Tribunal ultimately set aside the decision to cancel the applicant's visa. While acknowledging that Mr. Sanaee provided incorrect information regarding his brother's status, the Tribunal found that the notice issued under section 107 did not comply with its requirements. Consequently, the power to cancel the visa under section 109 did not arise. The Tribunal substituted a decision not to cancel the applicant's Subclass 155 visa.