2112710 (Migration)

The applicant sought review of a decision by the Migration Review Tribunal to cancel her Partner (Residence) (Class BS) Subclass 801 visa. The cancellation was based on alleged non-compliance with visa application requirements, specifically the provision of incomplete or incorrect answers. The applicant had previously held a visa under a different name and date of birth, had overstayed a previous visa, and had departed Australia on a bridging visa, none of which were declared in her current application. A facial image comparison also indicated a discrepancy.

The primary legal issue before the Tribunal was whether the applicant had failed to meet the criteria for the visa, and if so, whether the Tribunal should exercise its discretion not to cancel the visa, considering all relevant circumstances. The applicant conceded non-compliance on most grounds. The Tribunal was required to weigh the factors favouring cancellation against those favouring the retention of the visa, particularly in light of the applicant's personal circumstances and the best interests of her child.

The Tribunal found that while there was non-compliance as alleged, it ultimately concluded that the visa should not be cancelled. In reaching this decision, the Tribunal considered that the visa application was completed by the applicant's then-partner with her knowledge. It also took into account the applicant's inability to obtain genuine birth certificates and passports for her first visit, her experience of family violence which led to the cessation of her relationship, and the existence of an Australian citizen child. The Tribunal noted that a Family Court parenting order might prevent the child from leaving Australia, and that the best interests of the child were a significant consideration. Furthermore, the Tribunal acknowledged the applicant's history of sexual abuse, her physical and mental health, her long residence in Australia with limited links to her home country, and the absence of consideration regarding the possibility of serious harm in her home country.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.