Promsopa (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The cancellation was based on allegations that the applicant provided incorrect information in her previous visa application and failed to notify the Department of changes in her circumstances, specifically that her relationship with the sponsor had ceased before the visa was granted and that she was pregnant to someone other than the sponsor.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 104 of the Migration Act 1958, which requires notification of changes in circumstances that render an answer on a visa application incorrect. The Tribunal also considered the exercise of discretion under section 109 of the Act regarding the cancellation of the visa, taking into account prescribed circumstances and other relevant factors.

The Tribunal found that the Notice of Intention to Consider Cancellation (NOICC) issued under section 107 complied with statutory requirements and that the applicant had indeed failed to notify the Department of changes in her circumstances as required by section 104. These changes included the cessation of her genuine and continuing relationship with the sponsor and her pregnancy to another individual, which rendered her previous declarations on the Partner visa application incorrect. However, in exercising its discretion under section 109, the Tribunal gave significant weight to the best interests of the applicant's Australian citizen child. The child resided in Australia, had strong ties to her school and community, and shared parental responsibility with the child's father, who played a significant role in her life. The Tribunal concluded that cancelling the visa would negatively impact the child's relationship with her mother and potentially complicate co-parenting arrangements.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 100 visa and substituted a decision not to cancel it.