2111435 (Migration)

This matter concerned an appeal against the cancellation of a Subclass 801 (Spouse) visa. The applicant had initially applied for a Subclass 820/801 Partner visa with Mr. A, declaring their relationship had not ceased and commenced in May 2012. She was granted the temporary Subclass 820 visa on 21 June 2012. In support of the permanent Subclass 801 visa application, the applicant provided a Statutory Declaration on 26 May 2014, affirming a mutual commitment to a shared life with Mr. A to the exclusion of all others, that their relationship was genuine and continuing, and that they had lived together for two years. She also stated she was pregnant and preparing for their baby boy. The Subclass 801 visa was granted on 9 September 2014. However, on 21 January 2016, the applicant notified a change of circumstances, seeking a visa for her son, Master B, whose birth certificate listed Mr. B as the father. This triggered a review of the applicant's visa status.

The primary legal issues before the court were whether the applicant had provided incorrect information and failed to notify the Department of changes in her circumstances, thereby breaching the conditions of her visa. Specifically, the court had to determine if the applicant's relationship with Mr. A was genuinely to the exclusion of all others at the time of the Subclass 801 visa grant, and if she had failed to inform the Department about the breakdown of that relationship and the true paternity of her child. The court also considered the impact of the cancellation on the best interests of the child.

The court found that the applicant had provided incorrect information regarding the paternity of her son and had failed to inform the Department of the breakdown of her relationship with Mr. A. The Statutory Declaration of 26 May 2014, which stated the relationship was to the exclusion of all others, was found to be inaccurate given the subsequent notification of Master B's paternity by Mr. B. The court acknowledged the applicant's role as a loving and committed mother and considered the adverse effect cancellation would have on the child's best interests. Applying the principles of migration law concerning the provision of accurate information and notification of changes in circumstances, the court determined that the decision under review should be set aside.