2436509 (Migration) - [2024] ARTA 520

2436509 (MIGRATION) [2024] ARTA 520 (18 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2436509

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 18 December 2024
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Partner) visa.

Statement made on 18 December 2024 at 2:08pm
CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – incorrect information provided in support of visa application – applicant not living with sponsor and her aunt and uncle, but with own relatives, then short cohabitation – periods of separation and reconciliation, then final separation, and separate travel – residing together in genuine relationship when permanent stage visa processed – value of work to employer – mental health – no evidence of current treatment – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 375A
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 September 2024 to cancel the applicant’s Subclass 100 Partner (Migrant) (Class BC) visa under s.109 of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information to the Department in support of the processing of the subclass 100 visa, and the delegate concluded that the applicant and the sponsor had separated in May 2019, had not reconciled, and the applicant was not in a spousal relationship with the sponsor at the time he provided information for the permanent stage processing in June 2020 and at the time of the grant of the subclass 100 visa in June 2020. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was invited to a hearing scheduled on 5 January 2025. The applicant requested a postponement of the hearing due to the unavailability of his representative. The request for postponement was granted, and the hearing was scheduled at an earlier date, namely 16 December 2024.
The applicant’s representative is based in Melbourne, and the matter was constituted to a member in the Melbourne registry of the Tribunal. The applicant resides in New South Wales and the Tribunal invited the applicant to attend the hearing by video connection. The applicant advised that he wished to attend the hearing in person, and would travel to Melbourne for the hearing. The Tribunal changed the type of hearing to an in-person hearing.
The applicant appeared before the Tribunal on 16 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from a witness [Mr A], who had also travelled from interstate, South Australia, to attend the hearing. A further witness was available to give evidence by telephone.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with sections 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require noncitizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in the circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.
The Tribunal is satisfied in this matter that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act, namely that the applicant had provided incorrect answers in the application form and documents relevant to the application.
The incorrect information particularised in the s.107 notice included information the applicant had provided in the online permanent stage processing Partner visa application submitted on 22 June 2020, in which he recorded that he had been in a relationship for a long time with the sponsor, that they had been staying with the sponsor’s uncle in shared accommodation for a long time, and earlier in 2020 they decided to rent their own home. The incorrect information particularised in the s.107 notice included statutory declarations provided from the sponsor’s uncle and aunt in which they declared that the applicant and sponsor had resided at their home after the applicant arrived in Australia in June 2018 and until February 2020.
Based on the submissions from the applicant’s representative, and the applicant’s oral and written evidence, the Tribunal accepts that this was incorrect information. The applicant arrived in June 2018 and spent a significant amount of time residing with relations in [Area], and not residing with the sponsor and her aunt and uncle in [Suburb 1]. The applicant and sponsor rented an apartment in March 2019, but ended the lease in May 2019, the parties separated, and lived separately. The applicant returned to [Country] in August 2019.
The Tribunal is satisfied that the applicant has provided incorrect information with the application claiming he and the sponsor resided together with her aunt and uncle at their home in [Suburb 1] from June 2018 until February 2020.
The incorrect information particularised in the s.107 notice also included that the applicant and sponsor in June 2020 were in a committed spousal relationship within the meaning of s.5F(2). The delegate was satisfied based on the assessment of the other incorrect information, that the relationship had ceased in May 2019.
The Tribunal had provided the applicant with a copy of a non-disclosure certificate issued on the Department file dated 9 October 2024 pursuant to s.375A of the Act. The Tribunal is satisfied that this certificate is valid, as it is signed, dated, records that the disclosure of the information would be contrary to the public interest because release would enable a person to ascertain the existence or identity of a confidential source of information and other information was provided in confidence and the provider had not consented to the information being disclosed.
The Tribunal put the information to which the nondisclosure certificate applies to the applicant in the hearing. The Tribunal explained that the nondisclosure certificate applied to information that was either in the nature of allegations about the relationship between the applicant and the sponsor, or information on the sponsor’s incoming passenger cards.
The Tribunal discussed with the applicant in the hearing that the allegations were very detailed, were anonymous, were declared to be provided by a person who had not provided the information before, but the Tribunal is unable to ascertain whether they were provided by different people. The Tribunal discussed with the applicant that it is significant that the allegations are very detailed, and that there is more than one allegation provided to the Department over a period of some months.
The particulars of the gist of the information included that the sponsor was scared of the applicant, and that the applicant had threatened and abused the sponsor. The particulars of the gist of the information included that the applicant and sponsor had separated on three occasions, namely in December 2018, [in] May 2019 when they left the lease of their apartment in [Suburb 1], and that they separated and lived separately but under the same roof in 2020 at the time the information was provided to the Department. The particulars of the information included that the applicant had resided with his relatives in [Area] from June until December 2018, and did not reside with the sponsor until they moved into their apartment in [Suburb 1] for two months from March to May 2019. The allegations in the information include that the applicant returned to [Country] in August 2019, and the sponsor travelled to [Country] in December 2019 and they reconciled in January prior to their return to Australia. The information to which the certificate applied included allegations that the applicant and sponsor had resided together at an apartment in [Suburb 2], during the pandemic lockdowns, and they were separated at this time although living at the same address, the sponsor was afraid and traumatised and the applicant filed the permanent residency documents at this point in time. The information to which the certificate applied included reference to documents provided by the applicant to the Department in support of the permanent stage processing for the subclass 100 visa, including quotes for travel itineraries but no evidence of actual joint travel, and statements from friends of the applicant who had either not met the sponsor for rarely met her. The allegations also included details of where the sponsor goes for trauma counselling, and details of the applicant’s behaviour after the separations including stalking and social media posts (the Tribunal was not provided with copies of any posts on social media). The allegations included information to the Department that the applicant had committed family violence against the sponsor.
The Tribunal discussed with the applicant the relevance of the particulars to the review, and the consequences if the Tribunal relied on the information.
The applicant stated he understood the particulars of the information, he understood their relevance to the review, which included an assessment of what incorrect information had been provided, and an assessment of the prescribed circumstances as to whether the Tribunal should exercise its discretion in relation to cancel or not cancel the visa. The applicant stated he understood the consequences to the decision in the review if the tribunal relied on the information.
The hearing was adjourned to allow the applicant to consult with his representative. The applicant then advised he wished to respond in the hearing.
The applicant stated that he did arrive in June 2018, he spent the first night with his relatives in [Area] as a matter of courtesy, and after that he was travelling between the sponsor’s home with her aunt and uncle in [Suburb 1] and his relatives in [Area]. The applicant stated that one point he had work that was closer to his relatives’ place and he stayed with his relatives, for the convenience of travelling to the employment. The applicant stated that in December 2018 he had a fight with the sponsor but it was resolved within a matter of days. The applicant stated he returned to [Country] in December 2018 because his grandfather was very unwell, and subsequently passed away.
The applicant stated that in March 2019 he and the sponsor rented an unfurnished apartment, it took them some time to furnish it and they did not move in until they have the white goods and the bed. The applicant stated that they did not live together for very long in this apartment. The applicant stated that he lost his job and the sponsor did not want to remain in the apartment. The applicant stated his father flew to Australia to mediate between the couple. The applicant stated that they broke the lease in May 2019, and the sponsor return to her aunt and uncle in [Suburb 1] and he returned to stay with his relatives in [Area].
The applicant stated that they did not reside together after that before he returned to [Country], but they reconciled and kept in contact and tried to continue their relationship. The applicant stated he returned to [Country] for [medical] treatment at the suggestion of his family in August 2018. The applicant stated the attitude between the respective families had been tense but started to cool down in October 2019. The applicant stated that in September the sponsor obtained approval for leave from her employment, and in December she travelled to [Country] to join the applicant. The applicant stated that they had a wedding ceremony with their families in January 2020. The applicant stated that he and the sponsor returned to Australia together and rented an apartment in [Suburb 2] in February 2020. The applicant stated that the sponsor was working in healthcare and continued to work during the pandemic, and that he, the applicant, did not have employment at this time. The applicant stated they did have arguments but they resided together in their rented apartment during 2020 until they separated in October.
The oral evidence of the applicant was consistent with the documents provided to the Tribunal, including the two joint leases and the information about breaking the lease in May 2019.
The applicant stated he was not scared of the sponsor and he did not think he scared her. The applicant stated he did not think their relationship was one of family violence although they did argue a lot. The applicant stated that the sponsor wanted him to give up smoking, and wanted him to help her with the cooking. The applicant stated this was the main issue in their relationship and the main cause of the arguments between them.
The Tribunal has considered the evidence of the witness [Mr A], and finds his evidence to be credible and reliable. The Tribunal is satisfied that the witness had known the applicant since he taught him at primary school. The witness stated that he was involved in trying to assist the sponsor and the applicant to reconcile and resolve the issues in their relationship. The witness stated that he resided in South Australia and his contact with the applicant and the sponsor was substantially by telephone. The witness stated that both the sponsor and the applicant would call him to discuss the relationship. The witness stated that the difficulty in their relationship seems to be cultural; he stated the applicant had been brought up in [Country], and the sponsor had been brought up in Australia after the death of her parents by her aunt and uncle. The witness stated that the applicant would never have undertaken any chores in [Country], and the blending of the two cultures led to regular fights about who was responsible for chores. The witness stated that when the applicant and the sponsor had fights about this, he generally advised the applicant to try and fix the issues and to assist the sponsor with the household chores.
The witness stated that his son went to Sydney on two occasions and stayed with the applicant and sponsor in their home. The witness stated that he had conversations with the sponsor in July 2020 and the relationship was still ongoing at that time. The witness stated that he knows they separated [in] September 2020, because he had a conversation with the applicant about the difficulties of the separation combining with [a particular event]. The witness stated he had telephone conversations with both the applicant and the sponsor, in which both appealed to him for assistance to try and salvage the married relationship. The sponsor had told the witness at the end of September 2020 that she could not remain in the relationship and nothing was changing.
The information relevant to the review in relation to the passenger cards includes that the sponsor recorded her residential address [in] January 2020 as her aunt and uncle’s [Suburb 1] address, and that her emergency contact in Australia would be her uncle. The sponsor did not record the applicant with whom the applicant claims she had just had a wedding ceremony in [Country] as her emergency contact.
The Tribunal is satisfied that the sponsor’s residential address at the time of her return [in] January 2020 was the [Suburb 1] address of her aunt and uncle. There is no evidence before the Tribunal as to why the sponsor recorded her uncle as her emergency contact in Australia on her incoming passenger card, if she was married to the applicant the time. The Tribunal accepts that the sponsor had been raised by her aunt and uncle after the death of her parents, and that the sponsor had resided with her aunt and uncle almost continually during a relationship with her husband, the applicant. The Tribunal does not draw any adverse inference from the information contained in the sponsor’s incoming passenger cards.
The Tribunal has considered the information contained in the allegations provided to the Department, and the applicant’s responses in the hearing, and the information provided by the witness. The Tribunal is satisfied that the applicant and sponsor had a difficult relationship, and when living together argued a lot, particularly about the applicant smoking, and the applicant not assisting with cooking and other household chores. The Tribunal is satisfied that the parties fought and reconciled on a number of occasions. The Tribunal is satisfied, based on the oral evidence in the hearing, that the applicant and sponsor were residing together as a married couple in June 2020 at the time the applicant provided information claiming that they were in a spousal relationship, and at the time the Subclass 100 visa was granted.
The Tribunal finds that the information provided by the applicant that the relationship existed in June 2020 is not incorrect information.
However the Tribunal is satisfied as stated above that the applicant provided incorrect information in his description of the relationship, in not disclosing that the applicant and sponsor spent significant time apart, in not disclosing that the applicant and sponsor had separated and reconciled, and in providing statutory declarations from the sponsors aunt and uncle that also claims the parties had resided together without separation.
The Tribunal is satisfied there was non-compliance by the applicant as described in some of the particulars in the s.107 notice. For this reason, the Tribunal finds there was non-compliance with s.101(b) and the ground for cancellation exists.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in some of the particulars in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s responses to the s.107 notice about the non-compliance, and must have regard to any prescribed circumstances as set out in reg 2.41 of the Migration Regulations 1994 (Cth).
The correct information: – the Tribunal is satisfied that the correct information is that the applicant and sponsor did not reside together continually from June 2018 to February 2020 at the home of the sponsor’s aunt and uncle. The correct information is that the sponsor resided with his relatives in [Area] for part of the time from June 2018 to December 2018, and with his relatives in [Area] or at another location from May 2019 to August 2019. The correct information is that the sponsor was in [Country] from December 2018 to January 2019, and in [Country] from August 2019 to January 2020. The correct information is that the relationship between the applicant and the sponsor kept breaking down, and they kept trying to reconcile. The correct information is that at the time of the permanent stage processing in June 2020, the parties had resided together in their own apartment in [Suburb 2] from February 2020 and did not separate until the end of September 2020. The Tribunal gives the consideration of the correct information weight in favour of cancellation of the visa.

The content of any genuine document: – there is no evidence of any bogus or non-genuine document being provided by the applicant in support of the application for the visa. The Tribunal gives the consideration of the content of any genuine document neutral weight in its assessment of whether to cancel or not cancel the visa.
Whether the decision to grant the visa to the visa holder was based wholly or partly on the incorrect information: – The Tribunal is satisfied that if the correct information had been provided to the Department, the Department may have required further information to assess the genuineness of the spousal relationship between the applicant and the sponsor. The Tribunal is satisfied that the length of time the parties resided together, and where they resided are material matters to be considered by the delegate in assessing whether to grant the partner visa. The Tribunal gives consideration of whether the decision to grant the visa to the visa holder was based wholly or partly on the incorrect information, weight in favour of cancellation of the visa.
The circumstances in which the non-compliance occurred: – the Tribunal has considered the applicant has stated that he was following the advice of his then representative in not providing the Department with information about not always residing together, the separations, the jointly leased apartment in 2019 which the applicant and sponsor left after two months, and the parties wedding ceremony in [Country]. The Tribunal finds that the applicant has provided information that is incorrect, and the applicant was aware that it was incorrect at the time he provided that information. The Tribunal is satisfied that the relationship between the applicant and the sponsor was difficult, and they both attempted to try to make the marriage work. The Tribunal is satisfied that the applicant and sponsor were committed to the relationship, but found living together to be the source of many arguments and difficulties. The Tribunal is satisfied that at the time the incorrect information was provided, the applicant and sponsor were residing together in a shared apartment, and were still facing ongoing difficulties within their relationship which they did not seem to be able to overcome. The Tribunal is satisfied that the applicant and sponsor had sought assistance from family and friends to try and resolve their differences. The Tribunal is satisfied that the applicant and sponsor were residing together at the time the incorrect information was provided, and the applicant considered at the time the incorrect information was provided, that their relationship was a genuine spousal relationship. The Tribunal has considered the circumstances in which the non-compliance occurred, and gives this weight in favour against cancellation of the visa.
The present circumstances of the visa holder: – the Tribunal is satisfied that the applicant is currently employed [at] a company that provides [services for] [products]. The Tribunal is satisfied that the applicant has been employed at this company since September 2020. The Tribunal accepts the applicant’s employer describes him as excellent, conscientious, extremely responsible, and trustworthy. The Tribunal is satisfied that the applicant has developed knowledge and expertise that would be difficult for his employer to replace. The Tribunal is also satisfied that the applicant is currently single and resides alone. The Tribunal is satisfied that the applicant commenced a part-time TAFE [course] but withdrew after his visa was cancelled. The Tribunal accepts that in the circumstances of this course the applicant would have to commence the course from the beginning in order to complete it.
The Tribunal is satisfied based on the psychologist reports dated 19 August 2024 and 5 December 2024 that the applicant has been diagnosed with symptoms of depression, anxiety, stress and low self-esteem. The Tribunal is satisfied that the applicant saw the psychologist WP on 14 January 2023, relating to grief over the breakup of the relationship and was given strategies to help him assist overcome or cope with his depression. The Tribunal is satisfied the applicant saw the psychologist T W-M on 28 November 2024 and 3 December 2024, and this report refers to previous mental health care plans dated November 2020 and July 2022, and a letter from the applicant’s doctor dated 14 August 2024 which confirmed the applicant was his regular patient since May 2020. These documents were also provided to the Tribunal.
The Tribunal is satisfied the applicant is a valued employee who would be difficult to replace. The Tribunal is satisfied the applicant has been diagnosed with depression and anxiety, and has been placed on mental health care plans and referred to psychologists for strategies to deal with these issues since November 2020. The Tribunal gives the present circumstances of the visa holder weight in favour against cancellation of the visa.
The subsequent behaviour of the visa holder concerning his obligations under Subdivision c of Division 3 of Part 2 of the Act: – there is no evidence before the Tribunal that the applicant has not complied with his obligations. The Tribunal gives this consideration weight in favour against cancellation of the visa.
Any other instances of non-compliance by the visa holder: – there is no evidence before the Tribunal that there are other instances of non-compliance by the applicant. The Tribunal gives this consideration weight in favour against cancellation of the visa.
The time that has elapsed since the non-compliance: – the non-compliance occurred when the applicant provided the documents and information in support of the permanent processing stage for the Subclass 100 visa, and when the Subclass 100 visa was granted in June 2020. The Tribunal is satisfied that four and a half years have passed since the non-compliance occurred. The Tribunal gives this consideration weight in favour against cancellation of the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches: - the Tribunal is satisfied that the applicant was charged with a traffic offence and [in] July 2022 was found guilty and placed on a conditional order without conviction. The Tribunal is satisfied that the applicant has been substantially of good behaviour and the breach of the law in the traffic offence was relatively minor. The Tribunal gives this consideration weight in favour against cancellation of the visa.
Any contribution made by the visa holder to the community: - the Tribunal is satisfied based on the receipt provided that the applicant has been a regular financial donor to the [named] Foundation. The Tribunal is satisfied based on the statement provided that the applicant has provided constant support and assistance to a friend who was unwell during 2022 and 2023 including grocery shopping, hospital visits and bringing meals to his home. The Tribunal is satisfied that the applicant has been employed and has paid income tax, although the Tribunal does not consider the payment of tax which is an assessed requirement of every employee, to necessarily be considered a significant contribution to the community. The Tribunal gives the contribution made by the applicant to the community weight in favour against cancellation of the visa.
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances which might properly be considered to be relevant in any case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. This is set out in the Department’s policy guidelines.
Consequential cancellations under s.140: - the Tribunal is satisfied that the cancellation of the applicant’s visa will not result in the consequential cancellation pursuant to s.140(1) of the Act of the visas of any other person in Australia. The Tribunal gives this consideration neutral weight in its assessment of whether to cancel or not cancel the visa.
Australia’s international obligations: –. the Tribunal is satisfied that the applicant and the sponsor did not have any children, and the Tribunal is satisfied that the cancellation of the visa would not impact any child. The Tribunal is satisfied that there is no evidence before it, and the applicant has not made any claim that he would experience persecution if he was required to depart Australia and return to his home country. The Tribunal is satisfied that the cancellation of the applicant’s visa would not breach any of Australia’s international obligations under any agreements or conventions to which it is a signatory. The Tribunal gives this consideration neutral weight in its assessment of whether to cancel or not cancel the visa.
Mandatory legal consequences: – the Tribunal has considered that there are mandatory legal consequences upon the cancellation of a visa, including potential detention Public Interest Criterion 4013. The Tribunal gives this consideration weight in favour against cancellation of the visa.
Any other relevant matters: – the Tribunal has considered the impact of the cancellation of visa on the applicant’s employer. The Tribunal accepts that if the visa is cancelled and the applicant is required to depart Australia, the employer would have to retrain another person in that position. The Tribunal is satisfied that the applicant is a skilled and valued employee, but the fact of the employer may need to train another person to replace an employee that has left the employment is a consideration to which the Tribunal gives limited weight. On balance, the Tribunal gives this factor weight in favour against cancellation of the visa.
The psychologist T W-M recommended the applicant have cognitive behaviour therapy and continue his motivational and supportive psychotherapy. This report also states that the applicant has a therapeutic rapport with his psychologist and the treatment had commenced and should continue. There is no evidence before the Tribunal in the form of a medical report from a treating psychologist, that the applicant is currently under psychological treatment. The applicant had provided evidence that he had returned to [Country] in 2019 for medical treatment on the advice of his sister and other family members. The Tribunal was provided with a letter from the applicant’s sister stating the quality of mental health care in [Country] is inferior to that of Australia, and it would be preferable if the applicant could obtain the psychological treatment he needs in Australia. The Tribunal accepts the applicant has previously travelled to [Country], on the basis of a preference for undergoing medical treatment in [Country]. The Tribunal does not have any evidence before it of the applicant current psychological treatment in Australia. The Tribunal does not have any evidence indicating that the quality of mental health care in [Country] is inferior to that of Australia. For these reasons, the Tribunal does not consider that the claim the applicant should remain in Australia for the benefit of psychological treatment is a factor to be given weight against cancellation of the visa. The Tribunal does not accept the applicant’s claim that it is a relevant factor that he should remain in Australia to be able to access psychological treatment. The Tribunal gives this neutral weight in its assessment of whether to cancel or not cancel the visa.
The applicant through his representative in a submission dated 11 December 2024 claims that the applicant experienced relevant family violence during the relationship. The Tribunal has considered the information in the psychological report of T W-M. The Tribunal has considered the evidence of the applicant and the witness [Mr A]. The Tribunal is satisfied that the applicant and the sponsor had lots of arguments. The Tribunal is satisfied that there was one incident where the applicant played a ‘prank’ on the sponsor who became very distressed, and in her reaction scratched the applicant. The Tribunal does not consider that this one incident amounts to the applicant experiencing family violence. The Tribunal has considered the applicant’s evidence about his relationship with the sponsor; the applicant stated he did not feel unsafe, did not fear for his well-being, and did not feel controlled in the relationship. The Tribunal has considered the applicant’s evidence that they argued because he would not give up smoking and he would not assist her with cooking and other household chores. The Tribunal is not satisfied that the applicant experienced relevant family violence during the relationship. The Tribunal gives this claimed factor neutral weight in its assessment of whether to cancel or not cancel the visa.
Conclusion: – the Tribunal has carefully considered all the prescribed circumstances, as set out in reg 2.41, and has considered additional factors as set out above. The Tribunal has balanced all the considerations before it, and is satisfied in its analysis that the most weight applies in favour of not cancelling the visa.
The Tribunal has decided that there was non-compliance by the applicant in the way described in some of the particulars in the s.107 notice. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Partner) visa.
Date(s) of hearing: 16 December 2024
Representative for the Applicant: Mr Duy San