Xu (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the cancellation of a Subclass 155 (Five Year Resident Return) visa held by Ms. Xu. The cancellation was based on the ground that incorrect information had been provided in a previous visa application, specifically relating to a fraudulent employment sponsorship arrangement. This information was deemed to have been provided by Ms. Xu, leading to the initial grant of her visa on the basis of that incorrect information.

The AAT was required to determine whether the Minister had correctly exercised their discretion to cancel Ms. Xu's visa. This involved assessing whether the visa had been granted based on incorrect information and, if so, whether the circumstances warranted cancellation. The Tribunal also had to consider the present circumstances of the visa holder, including the time that had elapsed since the original visa grant, the best interests of her child, and the potential social and educational upheaval and degree of hardship that cancellation would cause.

In its reasoning, the AAT applied the principles governing the cancellation of visas under the *Migration Act 1958* (Cth). The Tribunal found that while the initial visa grant was based on incorrect information, the significant time that had passed, coupled with the substantial impact on Ms. Xu's child, weighed heavily against cancellation. The AAT concluded that the degree of hardship and the best interests of the child were paramount considerations that militated against upholding the cancellation decision. Consequently, the AAT set aside the decision under review.