Zhao (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking to retain their Subclass 155 (Five Year Resident Return) visa. The Department of Home Affairs had initiated cancellation proceedings based on the applicant providing a bogus document, specifically phone bills that had been altered without authority. The applicant contended that the visa should not be cancelled, highlighting factors such as the best interests of their Australian citizen child, their contributions to the Australian community, and the significant hardship cancellation would cause.

The primary legal issue before the Tribunal was whether the applicant's Subclass 155 visa should be cancelled on the ground of providing a bogus document. This required the Tribunal to determine if the applicant had indeed failed to comply with the Act in the manner alleged by the Department, and if so, whether the discretion to cancel the visa should be exercised in light of all relevant circumstances. The Tribunal was tasked with weighing the seriousness of the non-compliance against the personal circumstances and contributions of the applicant.

The Tribunal found that there had been non-compliance by the applicant as described in the notice given under s 107 of the Migration Act 1958 (Cth). However, after considering all the relevant circumstances, including the best interests of the applicant's child, their community contributions, and the hardship that cancellation would impose, the Tribunal concluded that the visa should not be cancelled. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s visa.