Scott (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The Department had cancelled the visa on the grounds of alleged non-compliance with section 104 of the *Migration Act 1958* (Cth), specifically concerning the provision of incorrect information regarding the dates of separation from their spouse. The case was heard by Fiona Meagher, Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 104 of the Act by providing incorrect information about the breakdown of their marriage, and if so, whether the visa should be cancelled. The Tribunal was required to consider the validity of the notice issued under section 107 of the Act and the applicant's responses to the allegations of non-compliance, particularly in light of discrepancies in divorce papers and the reliability of the applicant's former wife's evidence.

The Tribunal found that while the Department had issued a valid notice under section 107, it was not satisfied that the applicant had failed to comply with section 104 of the Act. The Tribunal noted that the divorce papers contained mistakes and that the applicant's former wife's oral evidence was not entirely reliable. Crucially, the Tribunal concluded that it was not satisfied that the applicant had provided incorrect information in the manner particularised in the section 107 notice.

Consequently, the Tribunal set aside the decision under review. The Tribunal substituted a decision not to cancel the applicant's Subclass 801 (Spouse) visa, finding that the discretionary power to cancel the visa did not arise due to the lack of proven non-compliance.