1927138 (Migration)

The applicant, a Vietnamese citizen, sought review of the decision to cancel his Subclass 155 (Five Year Resident Return) visa. The applicant had previously been granted a Subclass 801 partner visa based on his relationship with Ms B. However, he later entered into a relationship with Ms A, with whom he has a child, and applied for and was granted a Subclass 820 partner visa sponsored by Ms A. The Department of Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC) for his Subclass 155 visa, alleging non-compliance with Section 104(1) of the Migration Act 1958, specifically failing to notify the Department of changes in his circumstances.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with Section 104(1) of the Act by not informing the Department of his relationship with Ms A and their child, and if so, whether the cancellation of his visa was warranted. This involved determining if the information provided in his partner visa applications was incorrect due to the undisclosed relationship, and if this non-compliance justified the cancellation of his subsequent Resident Return visa.

The Tribunal reasoned that the applicant's partner visa applications, both for the Subclass 801 visa sponsored by Ms B and the Subclass 820 visa sponsored by Ms A, were based on information that was either incorrect or misleading. Specifically, the applicant failed to disclose his relationship with Ms A and their child when applying for the Subclass 801 visa, which was granted on the basis of his exclusive relationship with Ms B. The Tribunal found that this failure to notify the Department of a significant change in circumstances, as required by Section 104(1) of the Act, meant that the Subclass 801 visa was granted based on incorrect information. The Tribunal considered the applicant's personal circumstances, including his child's medical conditions and his integration into Australian society, but concluded that these did not outweigh the fundamental breach of his obligation to provide truthful and up-to-date information to the Department.

The Tribunal affirmed the decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The Tribunal found that the applicant's failure to disclose his relationship with Ms A and their child constituted a significant breach of his obligations under the Migration Act, leading to the grant of his Subclass 801 partner visa based on incorrect information. Consequently, the cancellation of his Resident Return visa was upheld.