Phan (Migration)

The Administrative Appeals Tribunal considered the case of Mrs Phan, an applicant for a Subclass 100 (Spouse) visa, whose visa had been cancelled. The dispute concerned whether the cancellation decision should be affirmed. The Tribunal was required to determine if there had been non-compliance with the Act as particularised in a notice issued under section 107, and if so, whether the visa should be cancelled.

The legal issues before the Tribunal were twofold: first, whether Mrs Phan had failed to notify the Department of a change in her circumstances as required by section 104 of the Migration Act 1958, specifically the birth of her child, and whether this non-compliance was accurately described in the section 107 notice. Second, if non-compliance was established, the Tribunal had to consider whether to exercise its discretion to cancel the visa under section 109 of the Act.

The Tribunal found that Mrs Phan acknowledged her failure to notify the Department of the birth of her child, thereby conceding non-compliance with section 104 of the Act. The Tribunal was satisfied that the section 107 notice issued to Mrs Phan complied with the statutory requirements and accurately particularised the non-compliance. Having established non-compliance, the Tribunal then considered the discretionary power to cancel the visa under section 109(1). This involved considering Mrs Phan's response to the notice, any prescribed circumstances under regulation 2.41, and relevant government policy, including matters such as the consequences of cancellation and international obligations. After considering all relevant circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mrs Phan's Subclass 100 (Spouse) visa.