Mohammadi (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 100 (Spouse) visa granted to the applicant, who was a dependent child of the primary visa holder. The applicant had failed to notify the Department of Immigration and Border Protection of a change in her circumstances, specifically her engagement to Mr Rahmani, which occurred after her visa was granted but before she was immigration cleared. The delegate of the Minister had cancelled the applicant's visa under section 109 of the *Migration Act 1958* (Cth) for non-compliance with section 104 of the Act.

The Tribunal was required to determine whether the applicant had failed to comply with section 104 of the Act by not notifying the Department of her engagement, and if so, whether the visa should be cancelled. Section 104(1) of the Act mandates that a non-citizen must inform an officer in writing of new circumstances and the correct answer as soon as practicable if circumstances change such that an answer on their application form becomes incorrect. Section 104(3) specifies that for applicants outside Australia at the time of visa grant, this obligation applies to changes in circumstances after the application and before being immigration cleared.

The Tribunal found that the applicant's engagement on 1 July 2013, prior to her immigration clearance on 30 July 2013, constituted a change in circumstances that rendered her declaration of being single on her visa application incorrect. The Tribunal accepted the applicant's submission that she was unaware of the requirement to notify the Department of her engagement, citing cultural practices and her continued dependence on her parents. While acknowledging the non-compliance, the Tribunal had regard to the policy outlined in the Department’s Procedural Advice Manual, which requires consideration of factors such as whether the visa would have been granted had correct information been provided, and the potential hardship resulting from cancellation. The Tribunal concluded that, despite the non-compliance, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 100 visa.