Syed (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 100 (Spouse) visa of the applicant, Mr. Syed. The cancellation was based on allegations that the applicant provided incorrect information in their visa application, specifically concerning their father's personal details and the authenticity of his death certificate. The Tribunal was tasked with determining whether the grounds for cancellation were established and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issues before the Tribunal were whether the applicant had failed to provide accurate information as required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), and whether the evidence presented, including third-party statements regarding the applicant's father's death, sufficiently established the grounds for cancellation. The Tribunal also had to consider the applicant's personal circumstances and the potential hardship that cancellation would cause, in assessing whether to exercise the discretion to not cancel the visa.

The Tribunal reasoned that while a question mark against the father's date of birth on the application form and the authenticity of the death certificate were raised, the onus was on the Department to establish the facts giving rise to cancellation. The Tribunal found that the evidence, including third-party accounts, provided a plausible explanation for the discrepancies and that the applicant's identity was not withheld. Crucially, the Tribunal considered the significant hardship cancellation would impose on the applicant, particularly given their involvement in the completion of the visa application, and concluded that, even if non-compliance were found, the visa should not be cancelled.

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