Challenging Visa Cancellation Based On “Incorrect Information” In Application

Federal Circuit Court case shows cancellations can be overturned if Tribunal does not accurately identify the information said to be “incorrect”

Suppose your client has had her/his visa canceled as a result of providing incorrect information on the visa application.

And that the Tribunal has proceeded, on review, to affirm the decision to cancel.

Is there any useful strategy that you can adopt to get the cancellation overturned in the Federal Circuit Court?

A recent decision by Judge Vasta, in Xiao v Minister for Immigration & Anor (2020) FCCA 2673 (27 August 2020) illustrates one possible approach that you could consider taking.

The background of the Xiao case was as follows:

The applicant was the holder of a Resident Return visa (Subclass 155). She was a citizen of China, born in 1984, and had originally applied and been granted a series of Partner visas. Her sponsoring partner was considerably (33 years) older, having been born in 1951. They had claimed that they had been introduced to each other by friends in China in 2007, and that they had entered into a committed relationship in 2009.

After having been granted a Prospective Marriage visa, the applicant then traveled to Australia and married her sponsor. She then applied for a Subclass 820/801 partner visas, and on this application, she stated, in reply to a question on the application form, that she had not previously been in a de facto relationship.

What then occurred was that the applicant gave birth to a daughter (in 2016). The applicant ultimately identified a man other than her sponsoring partner as the biological father of the child. The Department conducted a telephone interview with this man, who stated that he had met the applicant in China in 2003, and that they had lived together and had together bought a property which was registered in the applicant’s name.

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