Hussain (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The applicant had previously applied for a visa as a dependent family member, declaring no marriage or de facto relationship. Subsequently, the applicant married in secret due to family disapproval and failed to notify the Department of Immigration of this change in circumstances. The Tribunal was required to determine whether the applicant had engaged in conduct that warranted visa cancellation and, if so, whether there were compassionate circumstances that justified a decision not to cancel the visa.

The Tribunal found that the applicant had indeed failed to notify the Department of a change in circumstances, constituting non-compliance as described in section 107 of the Migration Act 1958 (Cth). However, the Tribunal then considered the applicant's personal circumstances, which included the death of her husband, the location of her older child in her country of residence, her younger child being an Australian citizen, her mental health concerns, and the risk of deportation from her country of residence, as well as potential hardship or harm in her country of citizenship. Applying a discretionary power, the Tribunal concluded that, having regard to all these relevant circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.