1901227 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The dispute centred on allegations of non-compliance with section 104 of the *Migration Act 1958* (Cth), specifically concerning the applicant's failure to notify the Department of changes in her circumstances prior to the grant of a previous partner visa. The applicant had allegedly provided inconsistent and conflicting evidence regarding the breakdown of her relationship with her initial sponsor and the commencement of a new relationship, which the Department considered indicative of a lack of genuine commitment to a shared life and an attempt to secure a positive migration outcome by withholding information.

The primary legal issue before the Tribunal was to determine whether the ground for cancellation, namely non-compliance with section 104 of the *Migration Act*, was made out. This required the Tribunal to assess the credibility of the applicant's explanations for the inconsistencies in her evidence, particularly concerning the timing of her separations and new relationships, and to decide whether she had a positive obligation to notify the Department of these changes before her partner visa was granted. The Tribunal also had to consider whether, even if non-compliance was established, the visa should still be cancelled.

The Tribunal considered extensive documentation, including departmental files related to the cancellation decision and previous partner visa applications, and reviewed the audio recording of the hearing. While acknowledging the delegate's findings of conflicting information and a lack of credibility regarding the applicant's explanations, the Tribunal ultimately found that the evidence, despite the passage of time and some language difficulties experienced by the applicant, was consistent and credible. The Tribunal noted that allegations of the second relationship being contrived were unsubstantiated and that evidence from family and friends supported the applicant's claims. Crucially, the Tribunal concluded that there was insufficient evidence to make a finding of non-compliance with section 104.

Consequently, the Tribunal set aside the decision under review, meaning the cancellation of the applicant's visa was revoked.