Hailu (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the cancellation of a Subclass 117 (Orphan Relative) visa held by the applicant, Ms Hailu. The Department of Home Affairs had sought to cancel Ms Hailu's visa on the ground of her alleged failure to notify a change in her circumstances, specifically her marital status, which was said to have occurred after she lodged her visa application. The information regarding her marital status was reportedly obtained from a subsequent Partner visa application.

The primary legal issue before the Tribunal was whether Ms Hailu had, in fact, failed to notify a change in her circumstances as required by the *Migration Act 1958* (Cth). This involved determining whether the information provided in her Partner visa application constituted a notification of a change in circumstances relevant to her Subclass 117 visa, and whether the circumstances described in the notice of intention to cancel were established.

The Tribunal reasoned that the discretionary power to cancel a visa under section 107 of the *Migration Act 1958* (Cth) only arises if the Tribunal is satisfied that the applicant has failed to comply with a notification requirement. In this instance, the Tribunal was not satisfied that Ms Hailu had failed to notify a change in her circumstances in the manner described in the notice issued by the Department. Consequently, the discretionary power to cancel her visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel Ms Hailu's Subclass 117 (Orphan Relative) visa.