Ramos De Freitas (Migration)

This matter concerned the review of a decision to cancel the applicant's Partner (Residence) (Class BS) visa, subclass 801. The applicant, a citizen of Brazil, had been granted the permanent visa in February 2017 based on her de facto relationship with her sponsor, which commenced in February 2013. The visa was cancelled in November 2018 on the grounds that the applicant had failed to notify the Department of a breakdown in her relationship with the sponsor prior to the grant of her permanent visa. The applicant maintained that she believed the de facto relationship was genuine at all relevant times.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 104 of the *Migration Act 1958* (Cth) by not notifying the Department of a change in her circumstances, specifically the alleged breakdown of her de facto relationship with the sponsor in August 2016. This alleged non-compliance was the basis for the visa cancellation under section 109 of the Act. The Tribunal was required to determine if the applicant's belief that the relationship remained genuine was reasonable in the circumstances, despite the sponsor's alleged affair and subsequent marriage to another woman.

The Tribunal found that the applicant genuinely believed she was still in a de facto relationship with the sponsor. Evidence, including written statements, message transcripts, joint bank account records, travel itineraries, photographs, and oral testimony, supported the applicant's claim that she and the sponsor continued to maintain their relationship, including spending time together and making future plans. The Tribunal noted that the applicant only became aware of the sponsor's affair in February 2018 and that the parties continued to act as a couple until at least June 2018. Consequently, the Tribunal concluded that there was no non-compliance with section 104 of the Act as alleged in the notice issued under section 107.

As the Tribunal found no non-compliance, the discretionary power to cancel the applicant's visa under section 109 of the *Migration Act 1958* did not arise. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 801 (Spouse) visa.