Belete (Migration)

Belete (Migration) [2023] AATA 703 (28 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gebeyehu Wondifraw Belete
REPRESENTATIVE:  Mr Adeel Khan
CASE NUMBER:  2211739
HOME AFFAIRS REFERENCE(S):          BCC2021/459016
MEMBER:Michael Cooke
DATE:28 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 28 February 2023 at 12:28pm
CATCHWORDS
MIGRATION – Cancellation – Subclass 100 (Spouse) visa –applicant provided incorrect information – not informing the Department about his sponsor’s extra-marital child – applicant had remained in a genuine spouse relationship up until his relationship collapsed –applicant would experience significant hardship if he were required to return to Ethiopia – strong evidence of the applicant’s contribution to the Australian community –decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 104, 107, 109
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had not indicated a change in circumstances pursuant to s.104 of the Act. 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’s representative has forwarded a plethora of additional information from the applicant, his former wife and other persons and organizations. This information elaborates on the findings of the delegate and gives reasons for not affirming the cancellation.
The applicant appeared before the Tribunal on 20 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former mother-in-law and a friend of both the applicant and his former wife.
The applicant was represented in relation to the review.
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 ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens 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 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. Extracts of the Act relevant to this case are attached to this decision.
Sections of Subdivision C of the Migration Act 1958 (the Act) with which it is considered the visa holder has not complied:
The delegate considered there had been non-compliance with the following sections of the Act:
Section 104 Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
By operation of s 99 of the Act, any information a non-citizen gives or provides, causes to be given or provided, or is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
If the visa holder did not comply with subsection 104 his visa may be cancelled under section 109 of the Migration Act.
In the present matter, the Tribunal is satisfied 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.104 of the Act in the following respects: failing to report a change in his personal circumstances so that information indicating answers provided in his permanent Partner visa application were incorrect.
Temporary Partner visa application
·Departmental records indicate that on 30 July 2013 the applicant married his sponsor, Ms Alemayehu, in Ethiopia. On 30 April 2013 she had travelled there for the first time since her initial arrival in Australia on 27 February 2007. The visa holder had yet to visit Australia.
·Approximately one year later, on 10 June 2014 the visa holder lodged a Combined Partner visa application and submitted documentation in support of his relationship. He remained overseas while the application was being assessed.
·On 25 January 2015, while he was overseas and his temporary Partner visa was being assessed, Ms Alemayehu gave birth to a son in Australia whom she named Yeamlak Zelalem Mekonnen.
·Departmental records indicate the applicant is not the biological father.
·On 23 July 2015, some six months after the birth, the applicant’s temporary Partner visa was granted. Before the grant he did not advise the Department that his wife had given birth to a child of whom he was not the father.
·On 5 February 2016 the applicant arrived in Australia for the first time on his temporary Partner visa.
Second stage permanent Partner visa application
·On 10 May 2016 the applicant submitted a Partner visa application – information for permanent stage processing in which he declared he had a mutual commitment to a shared life as husband and wife to the exclusion of all others.
·In her statement to the Department (a Tribunal witness) Ms Asegedech W-Agegnehu did not indicate her daughter had a young son who likely was living at the same address.
·In this application the applicant did not declare his wife had a 16-month-old son.
·Information correlated by the Department indicated the applicant was no longer living together seven months before his permanent Partner visa was granted.
·Their mutual friends who attested to their relationship in Form 888s, did not refer to the former sponsor’s extra-marital son, Yeamlak Zelalem Mekonnen.
In his NOICC response the applicant cited the following reasons why his visa should not be cancelled:
·He did not deliberately intend to mislead the Department about the birth of his wife’s son. He is from another country and English is his second language. He did not engage a migration agent or lawyer and he thought all government departments were linked such that the Department would already be aware of the birth of his wife’s son. He also believed that as he is not the biological father there was ‘no positive obligation’ to inform the Department.
·The submitted electricity accounts indicate he and his wife were living at 1/204-206 Victoria Street Punchbowl. The divorce application, including a sworn affidavit, demonstrates the separation took place on 2 November 2017.
·He is established in the community and contributes to it. He has been studying nursing and working simultaneously as a nursing assistant at an aged care facility. He now has a Bachelor of Nursing and is registered with the Australian Health Practitioner Regulation Agency (AHPRA) and has secured a graduate position in a hospital.
·He is active in the Coptic Orthodox Church.
·If his visa were cancelled, he will suffer hardship as a result of having to re-establish himself elsewhere.
The applicant has further elaborated on his hardship issues in oral evidence before the Tribunal. In particular, he has referred to his fear of being repatriated to a turbulent and dangerous modern-day Ethiopia and elaborated on this via submission and orally. His former mother-in-law outlined in the hearing her personal trauma caused by the recent death of her brother from the ethnic turmoil and the generally dangerous political situation in parts of Ethiopia - due to inter-ethnic rivalry.
The applicant has indicated in oral evidence that he now accepts that he made an (inadvertent) breach of s 104 by not informing the Department about his sponsor’s extra-marital child. His said his former wife had been involved in completing his immigration paperwork - without the assistance of a migration agent. He insisted that he had remained in a genuine spouse relationship up until his relationship collapsed. His former mother-in-law at the hearing supported this claim in oral evidence.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with s 104 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described 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 response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
· the correct information
The correct information is that prior to the grant of his temporary Partner visa the applicant’s wife gave birth to a child (Yeamlak Zelalem Mekonnen) of whom the applicant was not the father.
He did not advise the Department of the birth of this child prior to the grant of either his temporary Partner visa or his permanent Partner visa.
After the grant of his temporary Partner visa and when the applicant arrived in Australia, he claimed he resided with his wife from 5 February 2016 to 2 November 2017 when they separated permanently.
The applicant has given a plausible answer in oral and written evidence to account for where his wife lived during this time.
The father of his former wife’s son (Mr Mekonnen) visited Australia before he arrived from Ethiopia and appears to have resided at the same address as the applicant’s wife (from arrival card information). The question arose in the hearing as to why he would stay with the mother and former sponsor at their house. The sponsor’s mother has explained that this person obtained the address for his arrival card from a friend of hers in Kentucky USA. This person was a friend of the America-based Ethiopian friend of the sponsor’s mother. The sponsor’s mother’s friend had asked her for a contact address in Australia for immigration purposes for the sponsor’s later partner (Mr Mekkonen). She had given her home address (wherein the applicant and his former sponsor were residing) as it was required for the Departmental paperwork and appeared on the arrival card. During the period he visited the former sponsor and her mother’s house. Mr Mekonnen and the applicant’s former sponsoring spouse (whilst lubricated with alcohol) became involved in sexual intimacy via a ‘one night stand’ - according to the applicant’s former wife’s statutory declaration. This event later led to the birth of a child (Master Yeamlak Zelalem Mekonnen).
The applicant’s former sponsoring spouse and he separated and later divorced due to continuing marital discord. She later began a relationship with Mr Mekkonen when he came back to Australia and subsequently gave birth to another child. Mr Mekkonen has since lodged a Partner visa application with the applicant’s former sponsor/wife.
The applicant has indicated in oral evidence that the sponsor’s new partner never visited or lived with him and his family in the entire time of their marriage. His mother-in-law (who works as a nurse) has confirmed that information in oral evidence.
The Tribunal is satisfied from the additional evidence led by the applicant and witnesses that the applicant was still in a genuine spouse relationship with his former sponsor when he signed off on the Departmental paperwork.
However, the point is that he never informed the Department of his then wife’s extra marital child. In his defence, he claims he planned to forgive his wife and raise the child as his stepson with his wife. Unfortunately, the sponsor’s infidelity proved to be a driver in the subsequent break up of their marriage. He has claimed that his wife had declared the child to the appropriate Commonwealth authorities. There was no effort to bamboozle the authorities (he claimed) because the child’s real parentage is listed correctly on his birth certificate. It appears from the applicant’s evidence that his former wife and sponsor wrongly presumed that, in the modern Internet era, such information would have been available, seamlessly, to all Government authorities. The Tribunal finds such a suggestion to be credible, but it was a significant requirement with which he and his former sponsor did not comply.
The Tribunal gives this consideration significant weight in favour of cancelling the visa.
· the content of the genuine document (if any)
Not applicable.
· whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document
The grant of the permanent Partner visa was wholly based on the relationship the applicant had with his former sponsor. The Tribunal is satisfied that, had the delegate known she had a child with another man, the visa may not have been granted.
The Tribunal gives this consideration some weight in favour of cancelling the visa.
· the circumstances in which the non-compliance occurred
The Tribunal observes that the non-compliance occurred when the applicant did not advise the Department that his wife had given birth to a child of whom the applicant was not the father. The delegate further concluded from residential information that he was not in a relationship with his sponsor at the time of the grant of his Permanent Partner visa on 19 September 2017.The applicant claimed that, as he was not the father of the child, he did not consider it necessary to advise the Department.
To be eligible to be granted a Partner visa the applicant and their sponsor are required to demonstrate they have ‘a mutual commitment to a shared life as husband and wife to the exclusion of all others’. The delegate opined that the birth of a child to a sponsor by another person could potentially undermine this relationship and is relevant to the assessment of whether the relationship is mutual and exclusive.
The Tribunal agrees with that contention. In his visa application the applicant completed the relevant forms and submitted evidence attesting to his relationship with his wife. However, the Tribunal is not convinced he was fully aware of the requirements to be granted the visa or that he deliberately withheld the information knowing it could impact on the delegate’s assessment.
The applicant advises that he and his wife believed that as she had informed several other Commonwealth Government departments of the birth of her child, that the Department would have been aware of the birth. While this may be feasible to a layperson, the applicant received a grant letter for his temporary Partner visa that clearly stipulated the need for him to advise the Department of any change to his circumstances. He also signed a declaration to this effect when he lodged his permanent Partner visa application.
The applicant claims he lived with his wife from 5 February 2016 to 2 November 2017. However, he provided inconsistent dates in his Citizenship application.
Subsequently, the applicant has submitted to the Tribunal evidence of him living with his wife during the period in question (some 20 months) and being in a genuine and continuing relationship. He has submitted documentation to support his claims, and which detail his residential addresses during that time. The Tribunal is satisfied (following receipt of further evidence) that the applicant was in a relationship with his wife at the time of the grant of his Permanent Partner visa on 19 September 2017.
The Tribunal, therefore, gives this consideration some weight against cancelling the visa.
· the present circumstances of the applicant
The applicant first arrived in Australia over six years ago. He has travelled overseas once in recent times for one month. He has worked in aged care and has acquired a Bachelor of Nursing. He has secured a graduate position in a hospital. His employers speak highly of him and have been at pains to endorse his important role in the respiratory care area of the hospital – especially during the pandemic and its aftermath. The Tribunal was requested by his employer to change the date of the hearing - specifically for that reason. He has evidenced significant ties to the Ethiopian community in this time and assistance to its functioning. He has indicated his overarching humanitarian qualities in his voluntary assistance in West Africa to Ebola victims. The applicant is 35 years old and has been in Australia for seven years. The Tribunal is of the view that when consideration of his professional attributes is made, he would experience significant hardship if he were required to return to Ethiopia.
The Tribunal gives this consideration heavy weight against cancelling the visa.
· the subsequent behaviour of the applicant concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has engaged a representative and has responded to the NOICC and Tribunal. He has supported his claims with quantifiable evidence one would expect from a person with a genuine story responding to a Notice of Intention to Consider Cancellation of their permanent visa and Tribunal enquiry.
The Tribunal gives this consideration some weight against cancelling the visa
·any other instances of non-compliance by the applicant known to the Minister
There are no other instances of non-compliance before the Tribunal.
The Tribunal gives this consideration some weight against cancelling the visa.
· the time that has elapsed since the non-compliance
Some seven years have elapsed since the non-compliance. The applicant has settled into the community and has ties to it. He has been an important cog in the health system and its fight against the pandemic.

The Tribunal gives this consideration significant weight against cancelling the visa.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal to indicate the applicant has breached any laws since the non-compliance occurred and he has sought Australian citizenship.
The Tribunal gives this consideration significant weight against cancelling the visa.
· any contribution made by the applicant to the community.
According to Parish Priest, Father George Nakhil, the applicant attends the St Damiana & St Athanasius Coptic Orthodox Church every Sunday. He voluntarily helps the elderly people of the church and teaches the Bible and undertakes activities with the children.
The applicant also a member of Debre Tsion St Mary’s Ethiopian Orthodox Tewahedo Church.
According to Lead Priest, Father Deresegn H/Gebriel, he serves as a member of the Church’s choir and teaches the Bible to the children.
Mr Daniel from the Ethiopian Community Association in New South Wales advises the applicant has been a member since 2016. He has participated in community activities and helps out where required.
Based on the above the Tribunal accepts the applicant has been very active in his community and contributed to it.
The applicant’s former mother-in-law suffers from colitis and other maladies. She has given oral and written evidence that the applicant has been a tower of strength to her acting as a carer – despite the fact he is no longer her son-in-law.
The Tribunal gives this consideration significant weight against cancelling the visa.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Consideration of the prescribed factors, where relevant, or indicate where not relevant; any matters raised by the applicant in response to the s 107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:
·whether there would be consequential cancellations under s 140.
Not applicable.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
The applicant has no children.
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
Not applicable.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
Visa cancellation may result in the applicant being detained under s189 and being liable for removal from Australia under s198 of the Act as he would no longer hold a valid visa. The applicant in the case of affirmation of the cancellation may be subject to section 48 of the Act preventing him from applying for further visas while in Australia.
The Tribunal gives this consideration significant weight against cancelling the visa.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal has read significantly on the contemporary political situation in Ethiopia, in particular the information sent by the applicant from reliable sources. The Tribunal gives heavy positive weight against cancellation to the potential personal danger that (potentially) faces the applicant - if here were forced to return to Ethiopia. He is an ethnic Amharic person who hails from a province in which (according to reliable country information) he faces a threat to his person from religious and other political conflict present (contemporarily) in that particular region of Ethiopia (Oromia). His witness mother-in-law informed the Tribunal in oral evidence that her brother was recently shot to death in inter-ethnic political violence. Sources estimate that the latest ethnic violence in all of Ethiopia has led to the deaths of 500,000 people. The Tribunal gives this consideration heavy weight against cancellation.
The Tribunal also gives significant positive weight against cancellation to the educational and professional efforts of the applicant to become a solid, dependable and helpful citizen of Australia. His important position of nurse in the respiratory health area has been commented on by his supervisors in testimonials. His diligence and competence have been praised highly and he appears to be an asset to Australia. As a side note he has presented a certificate for his humanitarian voluntary efforts in West Africa as a volunteer nurse aiding the victims of Ebola. To remove the applicant from his chosen position would induce personal hardship on him and vicariously to the country long term - in the Tribunal’s opinion.
The Tribunal gives these matters maximum weight against cancellation.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, 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 (Spouse) visa.
Michael Cooke
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2023] AATA 703

28 February 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Procedural Fairness

Statutory Construction

Judicial Review

Natural Justice

Breach

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