Tan (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 100 (Spouse) visa of the applicant, Ms. Tan. The dispute arose from allegations that Ms. Tan had provided a bogus document, specifically a Notarial Certificate of "No criminal record" from China, in support of her visa application.

The Tribunal was required to determine whether Ms. Tan had failed to comply with section 103 of the Migration Act 1958, which prohibits the provision of bogus documents. This involved assessing whether the Notarial Certificate provided by Ms. Tan was indeed a bogus document, and if so, whether this constituted non-compliance in the manner particularised in the notice issued under section 107 of the Act.

The Tribunal reasoned that while the Chinese Public Security Bureau had advised that the Notarial Certificate was bogus because Ms. Tan was a "recorded fugitive suspect" in China, the notice issued under section 107 had particularised the non-compliance as relating to an "ongoing investigation by the Chinese police on a crime of swindling" and a request for an original police certificate. The Tribunal found that the subsequent Notarial Certificate provided by Ms. Tan, which certified she had no criminal record up to May 31, 2013, did not directly address the specific allegations of an ongoing investigation or a crime of swindling as particularised in the section 107 notice. Therefore, the Tribunal concluded that there was no non-compliance by the applicant in the way described in the section 107 notice, and consequently, the power to cancel the visa did not arise.

The Tribunal set aside the decision to cancel Ms. Tan's Subclass 100 visa and substituted a decision not to cancel it.