1825299 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of her Subclass 202 (Global Special Humanitarian) visa. The cancellation was based on allegations that the applicant had provided incorrect information in her visa application regarding her relationship status. The applicant had declared she had never been married or in a de facto relationship, and had not previously been married, in a de facto relationship, or in a customary, traditional, or religious marriage. However, she later notified the Department of an incorrect answer, stating she had been in a de facto relationship since 2014, married in a religious ceremony, and had a child.

The primary legal issues before the Tribunal were whether a valid notice under section 107 of the *Migration Act 1958* (Cth) had been issued, whether a ground for cancellation under section 109 of the Act had been established, and whether the visa should be cancelled having regard to the prescribed circumstances in the *Migration Regulations 1994* (Cth). The Tribunal considered the requirements for issuing a valid notice under section 107, which necessitates providing particulars of the alleged non-compliance. It also examined the definition of an incorrect answer under section 100, noting that knowledge of the incorrectness is not required.

The Tribunal found that the delegate had reached the necessary state of mind to issue a notice under section 107, as the applicant had notified of an incorrect answer. The notice provided particulars of the non-compliance by referencing the applicant's declaration of "Never married or been in a de facto relationship" and the answer "No" to questions about previous marital or de facto relationships. The Tribunal noted that the applicant's subsequent notification revealed she was in a de facto relationship and had been married in a religious ceremony, and had a child. Despite the initial incorrect information, the Tribunal ultimately set aside the decision to cancel the visa, substituting a decision not to cancel.