Singh (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Partner (Combined) visa (Subclass 309/100). The cancellation was based on the applicant allegedly providing incorrect answers in their visa application regarding their marital status, specifically failing to disclose a previous marriage that was deemed invalid due to being a prohibited relationship. The delegate found that the applicant had failed to comply with section 101(b) of the Migration Act 1958 by providing incorrect answers to conceal their marital status, which rendered their subsequent marriage to the visa sponsor invalid.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 by providing incorrect answers in their visa application. This involved assessing whether the applicant's previous marriage was legally valid and whether the answers provided in the application form concerning their marital status were indeed incorrect, thereby constituting non-compliance with the Act. The Tribunal also had to consider if the notice issued under section 107 of the Act complied with statutory requirements and if the delegate had reached the necessary state of mind to engage the cancellation power.

The Tribunal reasoned that while the applicant had acknowledged entering into a marriage with a cousin under the Hindu Marriage Act 1955, and this marriage was not valid under that Act, the delegate's finding that the applicant remained in breach of section 101(b) for providing an incorrect answer was flawed. The delegate had conceded that the marriage to Satvinder Grewal was not valid under the Hindu Marriage Act 1955. However, the Tribunal found that the ground for cancellation, as particularised in the section 107 notice, was not made out. The Tribunal concluded that the decision to cancel the applicant's visa should be set aside.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.