Bakhsh (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Subclass 202 (Global Special Humanitarian) visa. The applicant had initially applied for the visa as a dependent of his mother, who was the primary applicant, and had stated he was unmarried. Following his arrival in Australia, the applicant lodged partner visa applications for a woman he claimed was his wife and their child, born after his visa was approved but before he arrived in Australia. The particulars of the child's parentage and the applicant's marital status changed across these subsequent applications, with DNA testing later confirming the applicant as the child's biological father. The Minister's delegate issued a notice of intention to cancel the visa, citing non-compliance with s.104(1) and (3) of the Migration Act 1958, which requires notification of changes in circumstances that render an answer on an application incorrect.

The Tribunal was required to determine whether the applicant had failed to notify the Department of changes in his circumstances as required by s.104 of the Act, and if so, whether the visa should be cancelled. The Tribunal considered the applicant's initial visa application, where he declared he was unmarried and not a father, in light of the subsequent information provided regarding his relationship and the birth of his child. The Tribunal also had to assess whether the notice of intention to cancel the visa complied with the requirements of s.107 of the Act and whether the delegate had properly considered the matter.

The Tribunal found that the notice issued under s.107 complied with the statutory requirements and that the applicant had indeed failed to notify the Department of changes in his circumstances as required by s.104. However, in exercising its discretion under s.109 of the Act, the Tribunal concluded that the visa should not be cancelled. This decision was made after considering all relevant circumstances, including the applicant's background as an Afghani Hazara Shia living in Pakistan with no immediate family in Afghanistan, and the fact that the birth of his child did not necessarily establish a relevant relationship or that he was not dependent on his primary applicant mother at the time of the initial application.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.