Le (Migration)

This matter concerned an appeal by the applicant, Le, against a decision by the Minister to cancel her Partner (Residence) (Class BS) Subclass 801 visa. The cancellation was based on allegations that the applicant had provided false and misleading evidence in relation to her spousal relationship, specifically that she was not in a genuine and continuing relationship with her sponsor. The Administrative Appeals Tribunal was tasked with reviewing this decision.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the Migration Act 1958 (Cth), specifically section 101, by claiming to be in a genuine and continuing relationship with her sponsor when this was not the case. The Tribunal also had to consider whether the notice issued by the Department under section 107 of the Act, which detailed the alleged non-compliance, was valid and complied with statutory requirements. If non-compliance was established, the Tribunal then had to determine whether the visa should be cancelled.

The Tribunal found that the notice issued under section 107 was valid and that the delegate had properly engaged the cancellation power. In assessing the applicant's claim of a genuine and continuing relationship, the Tribunal noted the limited financial information provided, such as joint bank accounts and an electricity account, and a receipt for jointly purchased items. While tax returns, photos, and statements from a friend and the sponsor's mother were submitted, the Tribunal was not satisfied that these adequately demonstrated a genuine and continuing spousal relationship. The Tribunal considered that the applicant's children were cared for in Vietnam, and there was a lack of evidence regarding companionship and emotional support, leading to concerns about the genuineness of the relationship and potential collusion to provide false information.

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's visa, concluding that the applicant had not satisfied the Tribunal that she was in a genuine and continuing relationship with her sponsor at the relevant times.