Ridhany (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The cancellation was based on alleged non-compliance with section 104 of the Migration Act 1958, specifically failing to notify the Department of changes in circumstances that rendered answers on her visa application incorrect, including a short-term extra-marital sexual relationship and pregnancy, and a subsequent separation from her sponsor. The applicant had initially applied for a Subclass 309/100 visa in 2014, claiming a de facto relationship that commenced in June 2013, and later separated from Mr. Shao in April 2016.

The primary legal issue before the Tribunal was whether the purported cancellation of the applicant's visa was valid, given that the delegate issuing the Notice of Intention to Consider Cancellation (NOICC) may not have held the necessary delegated power to cancel the visa. The Tribunal was required to determine if it had the jurisdiction to review such a cancellation and, if so, whether the cancellation decision itself was legally sound. This involved examining the requirements of section 107 of the Act concerning the notice of intention to cancel and the subsequent cancellation power under section 109.

The Tribunal found that, in accordance with the Full Federal Court's decision in *MHA v CSH18* [2019] FCAFC 80, it possessed the jurisdiction to review a purported cancellation made without the necessary delegation. The Tribunal concluded that the 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, rendering her initial answers incorrect. However, the Tribunal ultimately set aside the decision to cancel the visa, substituting a decision not to cancel.