Belete (Migration)

This matter concerned an appeal by Mr. Belete against the cancellation of his Subclass 100 (Spouse) visa. The Department of Home Affairs had cancelled the visa on the grounds that Mr. Belete had failed to notify the Department of a change in his circumstances, specifically that his sponsor and then-wife had given birth to a child of whom he was not the biological father, prior to the grant of his temporary Partner visa and subsequently his permanent Partner visa. Mr. Belete contended that he had remained in a genuine spouse relationship until its collapse and that his failure to report the birth was inadvertent, with his former wife having assisted with the immigration paperwork without professional advice.

The primary legal issue before the Tribunal was whether Mr. Belete had failed to comply with his notification obligations under section 104 of the Migration Act 1958 (Cth), as particularised in the notice issued under section 107 of the Act. If non-compliance was established, the Tribunal was then required to determine whether the discretionary power to cancel Mr. Belete's visa under section 109 of the Act should be exercised, considering the prescribed circumstances in regulation 2.41 of the Migration Regulations 1994.

The Tribunal found that Mr. Belete had indeed failed to comply with section 104 by not informing the Department of his sponsor's extra-marital child before the grant of his visas. However, in considering the exercise of the cancellation power under section 109, the Tribunal took into account Mr. Belete's explanation for the non-compliance, which he attributed to inadvertence and his former wife's involvement in completing the application forms. The Tribunal also considered evidence suggesting that Mr. Belete had maintained a genuine spouse relationship until the relationship ended and noted strong evidence of his contribution to the Australian community.

Ultimately, the Tribunal set aside the decision to cancel Mr. Belete's visa. While acknowledging the non-compliance with section 104, the Tribunal concluded that the circumstances warranted a decision not to cancel the visa, implicitly finding that the discretionary power under section 109 should not be exercised in this instance, given the applicant's explanation, the nature of the relationship, and his community contributions.