Yang (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the ground that the applicant had provided incorrect information in a previous visa application, specifically relating to a fraudulent employment sponsorship arrangement. The court was required to determine whether the visa holder had indeed failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing incorrect information, and if so, whether the discretion to cancel the visa should be exercised.

The court considered the provisions of the *Migration Act 1958* (Cth), particularly sections 100 and 101, which stipulate that visa applications must be completed accurately and that any incorrect answer is considered non-compliance, regardless of the applicant's knowledge. The court found that the applicant had indeed provided incorrect information in their previous application, constituting non-compliance as particularised in the notice issued under section 107. However, the Tribunal then exercised its discretion, taking into account the present circumstances of the visa holder, including the time that had elapsed since the original application and the best interests of the children involved, which would suffer significant social and educational upheaval if the visa were cancelled.

The Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel the applicant's Subclass 155 visa.