Ediga (Migration)

This matter concerned the review of a decision to cancel the Skilled Independent (Permanent) (Class SI) visa, Subclass 189, held by the applicant. The applicant was included in the primary application as a spouse or de facto partner of the main applicant, Ms Savarna Sushma Vemireddy. The visas were granted on 9 January 2020, and the applicant entered Australia on 4 September 2020. Subsequently, the applicant informed the Department that he had separated from Ms Vemireddy on 8 March 2020, had commenced a de facto relationship with another person in June 2020, and that divorce proceedings had been delayed due to the COVID-19 pandemic. The delegate issued a Notice of Intention to Consider Cancellation (s 107 Notice) on 6 January 2023, alleging that the applicant had failed to notify the Department of a change in his circumstances prior to being immigration cleared. The applicant's visa was subsequently cancelled on 13 July 2023.

The Tribunal was required to determine whether the applicant had failed to comply with his notification obligations under section 104 of the Migration Act 1958, and whether the s 107 Notice issued by the delegate was valid. The applicant also argued that the Tribunal should exercise its discretion not to cancel the visa, and that there was no actual non-compliance as described in the notice. The core legal issues revolved around the interpretation of "changes in circumstances" under section 104, the validity of the s 107 notice, and the application of the cancellation provisions under section 109 of the Act.

The Tribunal found that the applicant was outside Australia when his visa was granted, and therefore section 104(3) of the Act applied, requiring him to notify the Department of changes in circumstances after the application and before being immigration cleared. The Tribunal concluded that the applicant's separation from Ms Vemireddy and commencement of a new de facto relationship constituted a change in circumstances that rendered his original answer regarding his relationship status incorrect. The Tribunal also found that the s 107 Notice was validly issued, providing sufficient particulars of the alleged non-compliance. Having found non-compliance and considering all relevant circumstances, the Tribunal affirmed the delegate's decision to cancel the visa.