1605112 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister to cancel Ms Dou's permanent partner visa. The cancellation was based on an alleged failure by Ms Dou to comply with section 104 of the *Migration Act 1958* (Cth) by not notifying the Department of Immigration and Border Protection of her de facto relationship with Mr Chen, which commenced in May 2013 and was registered in August 2013, approximately five months before the grant of her permanent visa. The Tribunal considered evidence from the Department, Ms Dou's solicitor, and oral evidence from Ms Dou and her husband, Mr Chen.

The primary legal issue before the Tribunal was whether Ms Dou had failed to comply with section 104 of the *Migration Act 1958* (Cth) in the manner alleged in the section 107 notice, and if so, whether the cancellation of her visa was the appropriate course of action. The Tribunal was required to determine if the section 107 notice adequately notified Ms Dou of the alleged non-compliance and then to consider the merits of cancelling the visa, taking into account various factors including the purpose of section 104 and Ms Dou's conduct.

The Tribunal found that while the section 107 notice's description of the non-compliance was not perfectly aligned with the evidence regarding the precise timing of the de facto relationship, it was sufficient to notify Ms Dou that the Department considered she had failed to comply with her obligation to report entering into a de facto relationship with Mr Chen. Despite this finding of non-compliance, the Tribunal ultimately determined that it was preferable not to cancel the visa. The Tribunal reasoned that the non-compliance was an isolated incident, that there was no evidence of migration fraud or other breaches of law, and that Ms Dou had been an honest witness. Consequently, the Tribunal set aside the delegate's decision to cancel the visa and substituted a decision not to cancel it.