Rafferty (Migration)

This matter concerned an appeal by an applicant against the cancellation of her Partner (Residence) (Class BS) visa, Subclass 801. The dispute centred on whether the applicant had failed to notify the Department of Immigration of a change in her circumstances, specifically the cessation of her relationship with her sponsor, Mr Kurt Tenio, prior to the grant of her permanent visa. The decision was made by the Tribunal.

The legal issues before the Tribunal were whether the applicant had failed to comply with section 104 of the Migration Act 1958 (Cth) by not notifying the Department of the end of her relationship with Mr Tenio, and if so, whether her visa should be cancelled. The Tribunal was required to determine if the notice issued under section 107 of the Act complied with statutory requirements and if the delegate had formed the necessary state of mind to engage the cancellation power.

The Tribunal found that the notice issued under section 107 was valid and complied with the Act. The non-compliance identified was the applicant's failure to inform the Department that her relationship with Mr Tenio had ended before the grant of her Subclass 801 visa on 9 April 2020. This failure rendered her previous statements about the genuineness and continuation of the relationship incorrect. The Tribunal considered various factors relevant to the discretion to cancel the visa, including the potential consequences for the applicant, such as becoming an unlawful non-citizen and facing difficulties in obtaining future visas. However, it noted that these were intended consequences of cancellation. The Tribunal ultimately concluded that the decision to cancel the applicant's visa should be set aside.