Arumadura (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 190 Skilled Nominated visa. The cancellation was based on allegations of non-compliance with section 104 of the *Migration Act 1958* (Cth), specifically failing to notify the Department of a change in circumstances before the visa was granted. The Department's section 107 notice alleged that the applicant's declared relationship with their sponsor may have ceased and that they were not a "member of the family unit" to the exclusion of others, due to an ongoing relationship with another person.

The Tribunal was required to determine whether the applicant had failed to notify the Department of a change in circumstances as particularised in the section 107 notice, and if so, whether the visa should be cancelled. The core of the dispute centred on whether the applicant's relationship status had changed in a way that rendered their previous declarations incorrect, and whether this change constituted a breach of their notification obligations under section 104 of the Act.

The Tribunal found that while the applicant had engaged in sexual infidelity and maintained a relationship with another person, this did not necessarily mean their declared de facto relationship with the sponsor had ceased for the purposes of the visa application. The Tribunal was satisfied that a genuine de facto relationship was maintained during the relevant period, and therefore, the circumstances described in the section 107 notice did not constitute non-compliance. Consequently, the discretionary power to cancel the visa under section 109 of the Act did not arise.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 190 Skilled Nominated visa.