2116083 (Migration)

This matter concerned an appeal by an applicant against the cancellation of her Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The dispute arose from information received by the Department suggesting the applicant's relationship with her sponsor had ceased and that she had a child with another man. The case was heard by K. Chapman.

The primary legal issue before the Tribunal was whether the applicant had failed to notify the Department of a change in circumstances, as required by section 104 of the Migration Act 1958, which could lead to the cancellation of her visa under section 109. Specifically, the Tribunal had to determine if the initial DNA paternity test, which excluded the sponsor as the father of the applicant's child, constituted a change in circumstances that rendered previous information incorrect, and if the applicant had complied with her notification obligations.

The Tribunal found that while an initial DNA paternity test result, which excluded the sponsor as the father, was provided to the Department, this result was due to an administrative error by the testing facility where the applicant's sample was mistakenly used instead of the child's. Subsequent evidence, including a second DNA paternity test, a divorce order, and a Child Support Agency assessment, conclusively established the sponsor as the biological father of the child. The Tribunal accepted that the applicant did not read the Notice of Intention to Consider Cancellation (NOICC) and therefore the Department was not appraised of the subsequent evidence confirming the sponsor's paternity. Given the administrative error and the subsequent evidence confirming the genuine relationship and paternity, the Tribunal concluded that the applicant had not failed to notify of a change in circumstances in a manner that warranted visa cancellation.

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