SACKO (Migration)

The Administrative Appeals Tribunal considered a dispute between the applicant, a visa holder, and the Minister regarding the cancellation of the applicant's Subclass 801 (Spouse) visa. The Minister's delegate had decided to cancel the visa based on alleged non-compliance with certain provisions of the *Migration Act 1958* (Cth).

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of section 104 of the Act, as particularised in the notice issued under section 107. Specifically, the delegate alleged non-compliance in the applicant's response to a question regarding living separately and apart from their partner, and in the applicant's declaration to notify the Department of changes in personal circumstances. The Tribunal was required to determine if these alleged failures constituted non-compliance with the Act and, if so, whether the visa should be cancelled.

The Tribunal reasoned that the power to cancel a visa under section 109 of the Act is contingent upon the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. The Tribunal found that while the notice issued under section 107 complied with statutory requirements and the delegate had reached the necessary state of mind to engage section 107, it was not satisfied that the applicant had actually engaged in non-compliance in the manner described in the notice. Consequently, the discretionary power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 801 (Spouse) visa.