2215688 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was initiated due to allegations of incorrect information provided in statutory declarations supporting a previous partner visa application, specifically concerning the exclusivity of the applicant's relationship with her sponsor, Mr. A. The Department of Home Affairs alleged that Mr. A was the biological father of a child born to another person during the period the applicant and Mr. A claimed to be in an exclusive de facto relationship, thereby rendering their declarations false and constituting non-compliance with sections 101(b) and 104 of the Migration Act 1958.

The Tribunal was required to determine whether the applicant had failed to comply with the provisions of the Migration Act as particularised in the Notice of Intention to Consider Cancellation (NOICC). Specifically, the Tribunal had to assess whether the applicant's statutory declarations, asserting a mutual commitment to a shared life to the exclusion of all others with Mr. A, were indeed incorrect. Furthermore, the Tribunal needed to consider whether the birth of Mr. A's child constituted a change in circumstances that the applicant failed to notify the Department of, as required by section 104 of the Act, prior to the grant of her partner visa.

The Tribunal found that the power to cancel the visa under section 109 of the Act did not arise because it was not satisfied that the applicant had engaged in non-compliance in the manner described in the NOICC. While acknowledging the validity of the NOICC itself, the Tribunal concluded that the evidence before it was insufficient to establish that the applicant and Mr. A were not committed to a shared life to the exclusion of all others. The Tribunal noted that the relationship between the applicant and Mr. A was found to be genuine and continuing to the exclusion of others, even after the grant of the partner visa and up until their formal separation. Crucially, there was no evidence suggesting Mr. A had entered into a spousal relationship with the mother of his child.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa.