Sharma Rimal (Migration)

This matter concerned an appeal by Sharma Rimal against the cancellation of her Subclass 887 (Skilled - Regional) visa. The Department of Home Affairs had cancelled Ms Rimal's visa on the grounds that she had provided incorrect information in her visa applications and associated forms, specifically concerning her previous residence in the United Kingdom, her daughter's place of birth, and her removal from the United Kingdom. The Administrative Appeals Tribunal was tasked with determining whether Ms Rimal had indeed failed to comply with the relevant provisions of the Migration Act 1958 (Cth) and, if so, whether her visa should be cancelled.

The primary legal issue before the Tribunal was whether Ms Rimal had contravened section 101 of the Migration Act 1958 (Cth) by providing incorrect information in her visa applications and on her Form 80. This included allegations that she had falsely stated she had never been removed from any country, failed to disclose her residence in the United Kingdom between 2003 and 2007, omitted her daughter's birth in the United Kingdom, and incorrectly answered questions about her travel history. The Tribunal also had to consider whether the notice issued under section 107 of the Act, which detailed the alleged non-compliance, was valid and whether the cancellation power under section 109 of the Act had been properly engaged.

The Tribunal found that the delegate had properly engaged section 107 of the Act and that the notice issued complied with statutory requirements. However, upon considering the evidence, the Tribunal determined that while Ms Rimal had provided incorrect information, the circumstances warranted setting aside the cancellation decision. The Tribunal took into account the best interests of her children, who had spent the majority of their lives in Australia, their provision of police clearances indicating no other character concerns, and the emotional impact and hardship that cancellation would cause. The Tribunal also considered Ms Rimal's contributions to the community. Consequently, the decision under review was set aside.