Asuncion (Migration)

The Administrative Appeals Tribunal (AAT) considered a migration matter concerning the applicant, Ms. Asuncion, and the Department of Home Affairs. The dispute arose from the cancellation of Ms. Asuncion's Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse), due to alleged incomplete information provided in her visa application. Specifically, the Department identified that Ms. Asuncion had failed to declare three children from a previous relationship and a former de facto relationship.

The primary legal issue before the Tribunal was whether the Department had correctly exercised its discretion to cancel Ms. Asuncion's visa under section 107 of the Migration Act 1958 (Cth). This required the Tribunal to assess the circumstances of Ms. Asuncion's non-compliance and determine if there were sufficient grounds to justify the cancellation, or if the visa should be allowed to remain in effect.

The Tribunal found that while there was indeed non-compliance as identified by the Department, the specific circumstances warranted a decision not to cancel the visa. The Tribunal took into account the complex history involving Ms. Asuncion's former partner taking the children without her knowledge and threatening to withhold access, which was only resolved when financial support ceased. Furthermore, the Tribunal noted the presence of an Australian citizen child with a husband who has a developmental disorder, for whom Ms. Asuncion is the primary carer and who requires special education and support. Considering these factors, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the Department's decision to cancel Ms. Asuncion's Subclass 100 visa and substituted a decision that the visa should not be cancelled.