1836216 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Partner (Residence) (Class BS) visa, subclass 801 (Spouse), held by the applicant, a national of [Country 1]. The cancellation was based on allegations that the applicant had provided incorrect information in his visa applications, specifically by failing to declare two children born to another partner. The applicant contended that despite a breakdown in his relationship with his sponsor, [Ms A], he met the criteria for the permanent partner visa due to exceptional circumstances, including family violence and the best interests of his children.

The Tribunal was required to determine whether the applicant had failed to comply with the provisions of the Migration Act 1958 (Cth) that mandate the provision of correct information in visa applications and to notify the Department of any changes in circumstances. Specifically, the Tribunal had to consider if the applicant's failure to declare his children from a previous relationship constituted a breach of these obligations, and if so, whether the cancellation power under section 109 of the Act was validly exercised. The Tribunal also had to assess the applicant's claims regarding family violence and the best interests of his children as exceptions to the sponsorship requirements for the permanent partner visa.

The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 of the Act and that the notice issued complied with statutory requirements, the applicant's circumstances warranted a reconsideration of the cancellation. The Tribunal noted the applicant's migration history, including previous visa applications and the birth of his children with [Ms A]. Crucially, the Tribunal considered the applicant's assertion of family violence and the impact on the best interests of his children, including their mental health and custody arrangements, which were subject to Family Court proceedings. The Tribunal concluded that the evidence presented regarding the breakdown of the relationship with [Ms A], the existence of children with another partner, and the subsequent Family Court proceedings, supported the applicant's claim for an exception to the sponsorship requirements.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa.