1812003 (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Combined Residence Partner visa (Subclass 801). The applicant, a national of the United Kingdom, had previously been granted a Partner visa in April 2015. The dispute arose from the applicant's subsequent travel to Australia on five occasions between December 2015 and October 2016, during which he provided incorrect answers on passenger cards concerning his criminal history.

The primary legal issues before the Tribunal were whether the notice of intention to consider cancellation complied with the requirements of section 107 of the Migration Act 1958, and if so, whether there had been non-compliance with section 102 of the Act, which mandates that passenger cards must be filled in correctly. The Tribunal was also required to consider whether, in light of any non-compliance, the visa should be cancelled, exercising its discretion in doing so.

The Tribunal found that the Notice of Intention to Consider Cancellation (NOICC) provided sufficient particulars for the applicant to understand and address the issues, and that the delegate had reached the necessary state of mind to engage section 107. It was determined that the applicant had indeed failed to comply with section 102 by providing incorrect answers on his passenger cards regarding his criminal convictions. However, the Tribunal noted that the applicant's criminal history had been disclosed in his Partner visa application and supporting documents prior to the visa being granted. While the incorrect passenger card declarations meant the applicant did not undergo the appropriate immigration clearance procedures for someone with his history, the Tribunal gave no weight to this consideration in its discretionary decision to cancel the visa, as the visa grant itself was not based on these incorrect declarations. Despite acknowledging the applicant's remorse and the emotional and financial support shared with his partner, the Tribunal concluded that the non-compliance was established and that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 801 (Spouse) visa.