Antonio (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Subclass 186 Employer Nomination Scheme visa. The cancellation was based on the applicant's alleged failure to declare a de facto relationship in his previous visa application. The Tribunal was required to determine whether the applicant had indeed failed to comply with the requirements of his visa application, and consequently, whether the Minister's power to cancel the visa had arisen.

The Tribunal considered the evidence presented, including the testimony of the applicant, his wife, and his sister, finding them to be credible and truthful. The evidence established that the applicant and his wife had dated in secondary school, but their relationship ceased for a period. They recommenced their relationship on a long-distance basis in April 2017, at which time they were boyfriend and girlfriend and resided in separate countries. The applicant's Subclass 186 visa application was lodged in June 2017, at which point he was required to demonstrate that he was not in a de facto or spousal relationship. The Tribunal found that at the time of the application, the applicant and his now-wife were not cohabiting, and their relationship was best characterised as boyfriend and girlfriend, not a de facto relationship. Cohabitation only commenced later, in 2019, after the wife had arrived in Australia.

The Tribunal concluded that the applicant had not been in a de facto relationship at the time of his visa application, and therefore, there was no non-compliance with the requirements of section 101 of the Migration Act 1958. As the exercise of the cancellation power under section 109 of the Act is conditional on a valid notice of non-compliance being issued under section 107, and the Tribunal was not satisfied that such non-compliance had occurred, the discretionary power to cancel the visa did not arise. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.