Latumeten (Migration)

This matter concerned an Indonesian national who was granted a Subclass 100 Partner visa based on her relationship with Mr John Stephen Green. The applicant had lodged her visa application while outside Australia, and her visa was granted while she was still outside Australia. Subsequently, the applicant's visa was cancelled under s.109 of the Migration Act 1958, following allegations of non-compliance with s.104 of the Act, which requires notification of changes in circumstances that render an answer on a visa application incorrect. The applicant sought review of this cancellation decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with her obligations under s.104 of the Migration Act 1958, specifically concerning the notification of changes in her circumstances after her visa application was lodged and before she was immigration cleared. This involved determining whether the applicant was under a statutory obligation to inform the Department of changes in her relationship with her sponsor, Mr Green, given that she was outside Australia when her visa was granted. The Tribunal also considered the validity of the notice issued under s.107 of the Act, which is a prerequisite for visa cancellation under s.109.

The Tribunal found that while the applicant had undertaken to inform the Department of changes in her circumstances, including relationship breakdowns, the specific provisions of s.104(3) limited this obligation. Section 104(3) stipulates that for applicants outside Australia when their visa is granted, the obligation to notify of changes in circumstances only applies to changes occurring after the application and before immigration clearance. The Tribunal noted that neither the application form nor the visa grant notice indicated that the applicant was required to advise of changes in her relationship after her application was decided, and crucially, there was no evidence that she had been advised of this specific obligation under s.104(3) given her circumstances. The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with statutory requirements.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 100 Partner visa and substituted a decision not to cancel the visa.