Whitehead (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 444 (Special Category) visa of a New Zealand citizen, who was also known by another name. The applicant had entered Australia in 2009 with his two children, one of whom was an Australian citizen. The cancellation decision was based on the applicant's failure to declare numerous criminal convictions from both New Zealand and Australia on his incoming passenger card.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of section 102(ii) of the Migration Act 1958 by providing incorrect answers on his passenger card, and if so, whether his visa should be cancelled. The Tribunal was required to determine if the notice issued under section 107 of the Act was valid and if the applicant's failure to declare his criminal history constituted non-compliance.

The Tribunal found that the applicant had indeed failed to comply with section 102(ii) of the Act by answering "no" to the question regarding criminal convictions on his passenger card, despite having a significant number of convictions. The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. However, after considering all relevant circumstances, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel it.