1813239 (Migration)

The applicant, a former resident visa holder, sought judicial review of the decision to cancel their Special Eligibility (Class CB) visa, Subclass 151. The cancellation was based on the applicant providing incorrect information to the Department by failing to declare their son and alleged partner at the time of their visa application. The applicant maintained that a partner relationship did not exist until a later date. The core of the dispute revolved around whether the undeclared individuals constituted a "member of the family unit" at the time of the original visa application, and the subsequent impact of this incorrect information on a later request for Ministerial Intervention.

The court was required to determine whether the applicant had provided incorrect information to the Department concerning their family circumstances at the time of the visa application. Specifically, the court had to consider whether the applicant's son and alleged partner were "members of the family unit" as defined by the Migration Regulations at that time. Furthermore, the court needed to assess the significance of this incorrect information in the context of the subsequent Ministerial Intervention request and whether the decision to cancel the visa was affected by the failure to properly consider the applicant's circumstances, including the dependency of the son.

Justice Cooke found that the applicant had indeed provided incorrect information by failing to declare their son and alleged partner. However, the court reasoned that the definition of "member of the family unit" did not impose an upper age limit for a child at the time of the application. Crucially, the court determined that the incorrect information provided by the applicant had a significant impact on the Ministerial Intervention decision, as it prevented a proper assessment of the applicant's circumstances and the dependency of their son. Consequently, the decision to cancel the visa was set aside.