Wang (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass (155) (Five Year Resident Return) visa held by the applicant. The cancellation was based on allegations of non-compliance with section 101(b) of the *Migration Act 1958* (Cth) concerning incorrect information provided in a previous visa application. Specifically, the delegate alleged that an IELTS test report submitted for a Subclass 187 visa application, which included the applicant as a member of the family unit, was either bogus or contained incorrect information, as a discrepancy was noted between the photograph on the report and a photograph taken during the applicant's mother's health assessment.

The Tribunal was required to determine whether the applicant had indeed failed to comply with section 101(b) of the Act, as particularised in the notice issued under section 107. This involved assessing whether the IELTS test report was a bogus document or contained incorrect information, and if so, whether this constituted non-compliance that warranted visa cancellation. The Tribunal also had to consider whether, even if non-compliance was established, the visa should be cancelled, having regard to all relevant circumstances, including policy considerations and the best interests of the applicant's sister.

The Tribunal found that while there was non-compliance as described in the section 107 notice, it ultimately decided not to cancel the applicant's visa. The reasoning focused on the positive contributions the applicant made to his community through music and his involvement in fundraising and charity events, which weighed against cancellation. Furthermore, the Tribunal considered the significant adverse impact cancellation would have on the applicant's seven-year-old Australian permanent resident sister, including potential disruption to her education, language barriers, social and lifestyle adjustments, and emotional stress. Despite acknowledging that the sister might overcome these difficulties with support, the Tribunal concluded that her best interests were served by the applicant's visa not being cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass (155) (Five Year Resident Return) visa.