Jokic (Migration)

This matter concerned an appeal by the applicant, Mr. Jokic, against the Minister's delegate's decision to cancel his Partner (Residence) (Class BS) visa, Subclass 801. The cancellation was based on the delegate's finding that Mr. Jokic had failed to comply with section 104(1) of the Migration Act 1958 (Cth) by not notifying the Department of changes in his circumstances. These changes included two criminal charges and an apprehended violence order (AVO) that arose between the time of his visa application and its grant.

The primary legal issue before the Tribunal was whether Mr. Jokic had indeed failed to comply with section 104(1) of the Act, and if so, whether the visa should be cancelled. This required the Tribunal to determine if the circumstances described in the notice of intention to cancel, specifically the non-notification of the criminal charges and AVO, constituted a breach of his obligations. A further consideration was whether any incorrect information provided, or changes in circumstances not notified, formed the basis, or part of the basis, for the original grant of the visa.

The Tribunal reasoned that while the delegate had issued a valid notice under section 107 of the Act, the critical question was whether the non-compliance alleged in the notice had occurred. The Tribunal noted that section 104(1) requires a non-citizen to inform the Department of changes in circumstances that render an answer to a question in their application incorrect. The Tribunal found that the delegate was unable to be fully informed of all circumstances pertaining to the de facto relationship between Mr. Jokic and his sponsor due to the non-disclosure of the pending charges, which were laid as a result of the sponsor's complaint. Consequently, the Tribunal concluded that the incorrect information was part of the basis for the decision to grant the visa, weighing this consideration slightly in favour of cancellation. However, the Tribunal also considered the applicant's personal circumstances, including his mental health treatment and reliance on a representative, as well as the eventual withdrawal and dismissal of the charges and the expiry of the AVO. The Tribunal also noted that the sponsor had taken their Australian citizen child overseas without the applicant's permission, and the best interests of the child were a factor.

Ultimately, the Tribunal concluded that the decision to cancel Mr. Jokic's visa should be set aside. This outcome was influenced by the eventual resolution of the criminal matters, the applicant's personal circumstances, and the broader context of the relationship and the child's best interests, despite the initial finding of non-compliance with section 104(1).