Shao (Migration)

This matter concerned the cancellation of a Temporary Activity (subclass 408) visa held by the applicant, Mr. Shao. The dispute arose when the Department of Home Affairs, through routine biometric integrity checks, discovered that the applicant's biometrics matched those of an individual known as Yi Shang Siew, who held Malaysian citizenship and had previously had a student visa cancelled, leading to his exclusion from Australia. The applicant had provided incorrect information on his visa application, including denying being known by other names, being a citizen of another country, or possessing other passports or identity documents. The Administrative Appeals Tribunal was required to determine whether the visa cancellation was justified and whether the decision to grant the visa had been based, wholly or partly, on incorrect information.

The Tribunal considered the provisions of section 109 of the Migration Act 1958 (Cth), which allows for visa cancellation if a visa holder fails to comply with certain obligations, including providing correct information in their application. It was established that the applicant had indeed provided false and misleading information regarding his identity, citizenship, and previous visa history. The Tribunal found that the decision to grant the visa was likely affected by this incorrect information, as the applicant's true identity, previous visa cancellation, and exclusion from Australia were material facts.

In reaching its decision, the Tribunal applied the principles of section 109 and considered the prescribed circumstances under regulation 2.41 of the Migration Regulations 1994. While accepting the applicant's explanation that he provided incorrect information due to a concern that his application would be refused if his full history were known, the Tribunal weighed this against other factors. These included the applicant's skilled employment in Australia, his personal circumstances, and the fact that his previous student visa had been cancelled due to non-compliance. The Tribunal concluded that the decision to cancel the visa should be affirmed.