Macinnes (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel the Subclass 835 (Remaining Relative) visa granted to the applicant, a citizen of the United Kingdom. The dispute centred on the applicant's alleged failure to notify the Department of a change in his circumstances, specifically his relationship status, prior to the grant of his visa. The applicant had been granted the visa on 14 June 2021 and married a Thai citizen on 23 July 2021. The Department's decision to cancel the visa was based on a finding of non-compliance with section 104 of the Migration Act 1958.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 104 of the Act by not notifying the Department of a change in his circumstances, namely entering into a de facto relationship with Ms Nganprakon, before his visa was granted. This non-compliance, if established, was the basis for the Department's decision to cancel his visa under section 109 of the Act. The Tribunal was required to determine if the applicant's relationship with Ms Nganprakon constituted a de facto relationship that should have been notified, and if so, whether the cancellation of his visa was warranted.

The Tribunal found that while the applicant had indeed failed to notify the Department of a change in his circumstances as required by section 104, the weight of factors in favour of not cancelling the visa far outweighed those favouring cancellation. The Tribunal acknowledged that the applicant's failure to disclose his relationship meant that the Department could not assess his eligibility under clause 835.221 of the Migration Regulations, which requires that the applicant and their partner (if any) have no near relatives other than those usually resident in Australia. However, the Tribunal was not persuaded that the non-compliance was intentional or deliberate, noting the applicant's assertion that he did not consider his relationship to be a committed de facto one at the time. The Tribunal also took into account the applicant's long residence in Australia, his significant employment, and established family relationships.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 835 visa.