Nguyen (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The applicant, represented by a registered migration agent, sought to have the cancellation decision set aside.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the provisions of the Migration Act 1958 (Cth) as particularised in the notice issued under section 107, and if so, whether the applicant's visa should be cancelled under section 109(1) of the Act. The Tribunal was required to determine if the section 107 notice was valid and if the identified non-compliance had occurred.

The Tribunal found that the section 107 notice complied with statutory requirements and that the applicant had indeed failed to comply with sections 101 and 103 of the Act by assuming his brother's identity and providing untruths to facilitate his migration. However, the cancellation of a visa under section 109(1) is discretionary. In exercising this discretion, the Tribunal considered the applicant's response to the non-compliance, the circumstances in which it occurred, and other prescribed factors under regulation 2.41 of the Migration Regulations 1994. Despite the established non-compliance, the Tribunal concluded, after considering all relevant circumstances, that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 820 (Spouse) visa.