LU (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 890 (Business Owner) visa of the applicant, LU. The cancellation was based on allegations of non-compliance with section 101 of the *Migration Act 1958* (Cth), specifically providing incorrect information in his visa application. The alleged incorrect information related to the commencement date of his de facto relationship, which was stated as October 2013 in his mother's Subclass 890 visa application, but later stated as October 2013 in his wife's Partner visa application lodged in December 2015.

The Tribunal was required to determine whether the applicant had provided incorrect information in his visa application, as particularised in the notice of intention to cancel his visa. This involved assessing whether the applicant and his now wife were in a de facto relationship from October 2013, as claimed in the Partner visa application, which would contradict the information provided in the Subclass 890 application. The Tribunal also had to consider whether, if non-compliance was found, the visa should be cancelled.

The Tribunal found that the applicant's wife arrived in Australia in October 2013 and initially resided with the applicant's family on a short-term basis, occupying her own bedroom. Evidence indicated that the applicant and his wife had met only once prior to her arrival and that at this time, they had not formed the requisite intention to commit to a shared life. While their relationship evolved into friendship by the end of 2014, the Tribunal concluded that they could not have been in a de facto relationship in October 2013. The Tribunal noted that the couple followed the advice of a migration agent who suggested lodging a Partner visa application on de facto grounds, even though they may have misunderstood the definition of a de facto relationship.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 890 visa and substituted a decision not to cancel it.