2208501 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under section 109(1) of the *Migration Act 1958* (Cth). The applicant, a Vietnamese national, had a history of obtaining various visas based on his relationship with Ms A, culminating in the grant of a permanent partner visa and subsequently several Subclass 155 visas. The cancellation was based on allegations that the applicant had failed to notify the Department of changes in his circumstances, specifically a new de facto relationship with Ms F and the birth of their children, while his Subclass 801 Permanent Partner visa was being processed.

The primary legal issue before the Tribunal was whether the applicant had contravened section 104 of the Act by failing to notify the Department of his new relationship and the resulting pregnancy and birth of children, thereby rendering his previous statements about his relationship with Ms A incorrect. This alleged non-compliance formed the basis for the delegate's decision to cancel the applicant's Subclass 155 visa. The Tribunal was required to determine if the notice of intention to cancel the visa complied with section 107 of the Act and, if so, whether the grounds for cancellation were made out on the evidence.

The Tribunal found that while the notice of intention to cancel complied with section 107, the grounds for cancellation were not made out. The Tribunal considered the applicant's statement provided in support of child visa applications for his children with Ms F, which indicated a divorce from Ms A and a de facto relationship with Ms F from 2005 to 2020. However, the Tribunal concluded that the applicant's statements to the Department regarding his relationship with Ms A were correct at the time they were made and assessed. The Tribunal noted that the applicant's current circumstances, including a new relationship and step-children, were not relevant to the alleged non-compliance that occurred during the processing of his Subclass 801 visa application.

Consequently, the Tribunal set aside the decision under review. The Tribunal substituted a decision not to cancel the applicant's Subclass 155 (Five Year Resident Return) visa.