Parajuli (Migration) - [2025] ARTA 2248

PARAJULI (MIGRATION) [2025] ARTA 2248 (7 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Binod Parajuli
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2446675

Tribunal:Senior Member K. Raif
Place:Sydney
Date: 7 August 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 07 August 2025 at 11:00am
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – bogus document – allegation of family violence – genuine and continuing relationship prior to separation – onus of establishing the facts on the Tribunal – discretionary power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101-105, 107-109, 116, 359
Migration Regulations 1994
CASES
Mian v MILGEA (1992) 28 ALD 165
Singh v MIEA [1994] FCA 1534
Zhao v MIMA [2000] FCA 1235
STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Nepal, born in November 1991. He was granted the Spouse visa in November 2021. In August 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s. 103 of the Act. The applicant provided his response to the NOICC and the visa was cancelled. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 7 August 2025 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Parajuli (Migration) [2025] ARTA 2248
Case: [2025] ARTA 2248
Decision Date: 7 August 2025

CaseChat Overview and Summary

The case involved a challenge to the cancellation of a Subclass 801 (Spouse) visa held by the applicant. The dispute arose from an allegation that the visa had been obtained through a bogus document and that the applicant had engaged in family violence. The matter was heard by the Administrative Appeals Tribunal (AAT) in Australia.

The central legal issue before the AAT was whether the applicant had contravened the conditions of their visa, specifically by providing a false document and engaging in family violence. The AAT was required to determine whether the Minister’s decision to cancel the visa was supported by the evidence and whether the discretionary power to cancel the visa under section 107 of the Migration Act 1958 had been correctly exercised.

In examining the evidence, the AAT found that the applicant had not contravened the visa conditions as alleged. The AAT considered that the onus of establishing the facts necessary for the cancellation of the visa lay with the Minister. The Tribunal was not satisfied that the evidence demonstrated non-compliance by the applicant in the manner described in the notice of intent to cancel. Additionally, the Tribunal found that the applicant had a genuine and continuing relationship prior to their separation, which was a critical factor in the assessment. Consequently, the Tribunal concluded that the discretionary power to cancel the visa did not arise.

The Tribunal set aside the decision to cancel the applicant’s visa and substituted a decision not to cancel the visa. This outcome reflects the Tribunal's determination that the evidence did not support the allegations against the applicant and that the discretionary power to cancel the visa was not properly exercised. The Tribunal's decision provides a clear direction for the parties involved and clarifies the legal standing of the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.Date(s) of hearing 7 August 2025Representative for the Applicant: Mr Ernie Hu

Ratio Decidendi

Legal Principle Established

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