WARSAPPERUMA ARACHCHILAGE (Migration)

This matter concerned an appeal by Warsapperuma Arachchilage against the cancellation of his Subclass 500 (Student) visa. The dispute arose from allegations that the applicant had provided incorrect information in his visa application, specifically failing to declare past immigration and criminal history in New Zealand, including an assault conviction for which no conviction was recorded and an overstay of his New Zealand visa for two years. The decision under review was made by Tigiilagi Eteuati, a member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 101 of the Migration Act 1958 by providing incorrect answers in his visa application, and if so, whether the cancellation of his visa should be affirmed. The Tribunal was required to determine if the notice issued under section 107 of the Act complied with statutory requirements and if the particulars of non-compliance alleged in that notice were established by the evidence.

The Tribunal reasoned that the applicant had indeed failed to comply with section 101 of the Act. This conclusion was based on the applicant's representations in his student visa application that he had not visited any countries in the past 10 years, had not held any visas to Australia or other countries, had not departed a country outside his authorised period of stay, and had not been convicted of any offence or overstayed a visa. These statements were found to be contradicted by information held by the Department indicating his residence in New Zealand, the cancellation of his New Zealand visa, his departure from New Zealand after being located by immigration authorities, and his guilt for an offence in New Zealand. The Tribunal affirmed the decision to cancel the visa, finding that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. The Tribunal also noted that certain information was precluded from being provided to the applicant due to certificates issued under sections 375 and 375A of the Act, but this information did not form the basis of the Tribunal's decision.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 500 (Student) visa.