2201671 (Migration)

This matter concerned an appeal before the Tribunal regarding the cancellation of a Subclass 202 (Global Special Humanitarian) visa. The dispute arose from allegations that the visa holder had failed to notify the Department of changes in their circumstances, specifically that a child, initially included as a member of the family unit and dependent on the father's primary application, had become engaged after the application was made but before a decision was reached. The Tribunal was required to determine whether there had been a contravention of section 104 of the Migration Act 1958, which mandates notification of changes in circumstances that render an answer on a visa application incorrect, and if so, whether the visa should be cancelled.

The Tribunal considered the provisions of section 104 of the Act, which requires a non-citizen to inform an officer in writing of new circumstances and the correct answer if circumstances change such that an answer on their application form becomes incorrect. It was noted that for applicants outside Australia when the visa is granted, this obligation applies to changes occurring after the application and before immigration clearance. The Tribunal found that the delegate had properly engaged section 107 of the Act and issued a compliant notice. However, after considering the specific circumstances, including the applicant's work and community ties in Australia, the fiancé's location in a fourth country, and the applicant's history of civil war and discrimination in their country of birth and as refugees in a third country, the Tribunal concluded that while the ground for cancellation existed, the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 202 (Global Special Humanitarian) visa.