Gandhi (Migration)

This matter concerned the review of a decision to cancel the applicant's Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The applicant, an Indian citizen, had married an Australian permanent resident in 2009, and they had a child. The applicant was granted a Subclass 100 visa in January 2021. The sponsor notified the Department of Immigration in February 2022 of the parties' divorce, which was finalised in January 2022, and sought to withdraw her sponsorship. The applicant did not notify the Department of his separation and divorce until August 2022. The applicant subsequently travelled to India, remarried in February 2024, and sought to sponsor his new wife.

The primary legal issue before the Tribunal was whether the delegate had correctly applied section 109(1) of the Migration Act 1958 (Cth) in cancelling the applicant's visa. This section permits the Minister to cancel a visa if the visa holder fails to comply with certain provisions, including those requiring the provision of correct information and notification of changes in circumstances. The exercise of this power is contingent on the Minister issuing a valid notice under section 107 of the Act, detailing the alleged non-compliance.

The Tribunal considered evidence including court documents indicating the parties' separation in January 2020, prior to the applicant's arrival in Australia. Despite this separation and the subsequent divorce, the applicant failed to notify the Department of these changes until August 2022, significantly after the sponsor had notified the Department in February 2022. The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. The Tribunal found that the applicant had not provided correct information and had failed to notify the Department of relevant changes in his circumstances, leading to the affirmation of the visa cancellation decision.