Bui (Migration)

This matter concerned an appeal by the applicant against the cancellation of her Partner (Residence) (Class BS) Subclass 801 visa. The Department had cancelled the visa on the grounds that the applicant had provided incorrect information to the Department by failing to declare the birth of the sponsor’s child with another woman and by separating from the sponsor prior to the grant of her Subclass 801 visa. The Tribunal was required to determine whether the applicant had failed to notify the Department of changes in her circumstances as required by the Migration Act 1958.

The Tribunal considered the applicant's evidence regarding her separation from the sponsor. The applicant initially stated she separated from the sponsor in early May 2015, returned briefly, and then "left for good" around June or July 2015, which was prior to the grant of her Subclass 801 visa on 4 December 2015. She also stated she did not know how to inform the Department of this separation. The Tribunal found her explanation for not notifying the Department unconvincing and her demeanour evasive. The applicant later attempted to retract her earlier evidence, suggesting the relationship had not broken down prior to the visa grant, but the Tribunal found this subsequent evidence inconsistent and unconvincing, preferring her initial, clear statements.

The Tribunal applied the principles of s.104 of the Migration Act 1958, which requires visa holders to notify the Department of changes in circumstances that render an answer on their application form incorrect. The Tribunal found that the applicant's separation from the sponsor constituted a change in circumstances that should have been notified. The Tribunal also noted that the applicant's failure to declare the sponsor's child with another woman was a failure to provide correct information. Based on the applicant's evasive evidence and her failure to comply with her notification obligations, the Tribunal affirmed the decision to cancel the applicant's Subclass 801 visa.