2214071 (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 the applicant's failure to notify the Department of Home Affairs of a change in her circumstances before her visa was granted, specifically the breakdown of her relationship with her sponsor. The applicant contended that she was unaware of the sponsor's infidelity, which led to the relationship's end, until after her visa had been granted. The case was heard by Senior Member Michael Cooke of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached section 104 of the Migration Act 1958 by failing to notify the Department of a change in circumstances prior to the grant of her visa. This involved determining the precise date of the relationship breakdown and whether the applicant was aware of the circumstances leading to it before her visa was granted on 11 December 2020. The Tribunal also considered the effect of section 104(2) of the Act, which limits the notification requirement to changes occurring before visa grant for applicants in Australia at the time of grant.

The Tribunal found that the applicant became aware of the sponsor's infidelity, which caused the relationship breakdown, in late December 2020, after her visa had been granted. Evidence, including correspondence from the sponsor's current partner and the applicant's own testimony, supported the assertion that the relationship ended after the visa grant date. Crucially, section 104(2) of the Migration Act 1958 states that the notification requirement for changes in circumstances only applies to events occurring before the visa is granted if the applicant is in Australia at that time. As the applicant was unaware of the relationship breakdown until after her visa was granted, she did not breach section 104.

Consequently, the Tribunal was not satisfied that there had been a non-compliance by the applicant as described in the notice issued under section 107 of the Act. Therefore, the discretionary power to cancel the applicant's visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 801 (Spouse) visa.