2119159 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The cancellation was based on the allegation that the applicant had provided incorrect information in their visa application, specifically regarding their place of birth. The applicant had stated they were born in Kosovo, but the Department of Home Affairs, after verifying with Kosovar authorities, found no record of their birth under their current name.

The primary legal issue before the Tribunal was whether the applicant had indeed provided incorrect information in their visa application, thereby constituting a ground for cancellation under section 109 of the Migration Act 1958. This required the Tribunal to determine if the absence of a birth record under the applicant's current name in Kosovo definitively proved that the information provided was incorrect, or if other explanations, such as the loss or destruction of records, or the applicant's refugee status and name change from a young age, could account for the discrepancy.

The Tribunal reasoned that the verification with Kosovar authorities only confirmed the absence of a birth record under the applicant's current name. It did not exclude the possibility of a record existing under a previous name, particularly given the applicant's evidence, supported by an affidavit from their mother, that they were born in Kosovo, had never seen their birth certificate, and had migrated as a refugee at a young age with their deceased father having registered the birth. The Tribunal concluded that the information provided by the Department did not establish that the applicant had provided incorrect information, as the possibility of records being lost, destroyed, or existing under a previous name had not been ruled out. Consequently, the ground for cancellation was not made out.

The Tribunal set aside the decision to cancel the applicant's Subclass 801 visa and substituted a decision not to cancel the visa.