Sharafpour (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Subclass 155 (Five Year Resident Return) visa. The applicant had initially applied for a Skilled-Independent visa as a dependent applicant, stating his marital status as 'married'. Subsequent to the grant of this visa but prior to being immigration cleared to enter Australia, the applicant and his spouse divorced. The Department of Home Affairs initiated cancellation proceedings on the basis that the applicant had failed to notify the Department in writing of this change in circumstances, thereby contravening his obligations under section 104 of the Migration Act 1958.

The legal issue before the Tribunal was whether the applicant's failure to notify the Department of his divorce constituted a ground for cancellation of his visa under section 109 of the Act, and if so, whether the visa should be cancelled. The Tribunal was required to consider the applicant's response to the Notice of Intention to Consider Cancellation (NOICC) and all accompanying documentation, including evidence of his subsequent employment and contributions to the hospitality industry.

The Tribunal reasoned that while the applicant had indeed failed to notify the Department of his divorce, which was a change in circumstances that rendered his previous answer regarding marital status incorrect, the exercise of the cancellation power under section 109 was discretionary. Having regard to all the relevant circumstances, including the applicant's subsequent engagement with the Australian economy and the nature of the original visa application, the Tribunal concluded that the cancellation of the visa was not warranted.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the visa.