Singh (Migration) - [2024] ARTA 72

DECISION AND
REASONS FOR DECISION
Singh (Migration) [2024] ARTA 72 (18 October 2024)
Applicant:Mr Davinder Singh
Respondent:  Minister for Home Affairs
Tribunal Number:  2421911

Tribunal:Kira Raif
Place:Sydney
Date: 18 October 2024
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa

Statement made on 18 October 2024 at 2:08pm
CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in previous visa application as dependent child on mother’s partner visa – never married, no children and address since birth – later application as sponsor of own partner disclosed marriage, child and different address – status of religious ceremony under Indian and Australian law, and parties’ intentions – valid marriage or de facto relationship – even if no marriage or relationship, non-declaration of child was incorrect – no findings on other possibly incorrect information – discretion to cancel visa – parents and siblings in Australia, and partner and child in home country – forms completed by family members – significant disabilities and reliance on family to communicate – limited healthcare, social support and employment opportunities for people with disabilities – decision made without hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 101, 107, 109(1)
Migration Regulations 1994 (Cth), r 1.12
CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India, born in January 1993. He was granted the Partner visa in May 2018 and in May 2023 he was granted the most recent Resident Return visa (RRV). In May 2023 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant may not have complied with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Tribunal invited the applicant to attend a hearing to give evidence and present arguments. The applicant advised that due to his disability, he would be unable to present oral evidence, even with the assistance of a specialist interpreter. The Tribunal discussed with the applicant’s representative the ways in which evidence could be provided and, as a first step, invited written submissions on the issues that arise on review. Having reviewed the applicant’s written evidence, the Tribunal has decided that it is able to make a favourable decision on the material before it. As such, no hearing was held in this case.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s. 101 of the Act.
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in November 2014 the applicant’s mother Mr Kaur made the application for a Partner visa and the applicant was included in that application as a secondary applicant, being a dependent child of Ms Kaur. It is stated that in that application, the applicant claimed on Form 47A that
-   he was never married and that he had never been in a de facto relationship,
-   the applicant did not provide a response to a question whether he had any children,
-   from the time of birth until 2016 he had been residing in Punjab, India.
The applicant was granted the Provisional Partner visa in December 2016. He submitted additional documents in support of the application for the permanent visa in July 2017. In that application, the applicant stated that he was never married.
The primary decision record indicates that in February 2020 the applicant sponsored Ms Jasmeet Kaur for a Partner visa. In the sponsorship form it was stated that the applicant and Ms Kaur married in January 2019. It was stated that they first met in January 2015 and have a child together, born in November 2015. The application indicated a different address for the applicant that was given in the applicant’s own visa application.
The primary decision record notes that in response to a natural justice letter, Ms Kaur claimed that she and the applicant solemnised their marriage in 2014 with the consent of both families and the marriage was solemnised in accordance with all rites and Sikh religion.
The delegate found that the applicant had not complied with s. 101(b) when applying for the Provisional Partner visa and the Permanent Partner visa by
-claiming that he was never married,
-failing to mention the existence of a child,
-providing incorrect addresses where he resided in India.
When sponsoring his partner, the applicant claimed he and Ms Kaur were married in January 2019 while Ms Kaur claimed in response to the natural justice letter that the marriage as solemnised in 2014 and not in 2019. The delegate noted that this is supported by the fact that their child was born in 2015 and that Ms Kaur has been living in the applicant’s home in India since March 2015.
In his response to the NOCC the applicant submits, essentially, that the 2014 ceremony was merely a commitment ceremony which did not amount to a recognised marriage ceremony. The applicant states that the religious ceremony in 2014 was not a legally recognised marriage and, contrary to Ms Kaur’s statement, there was no evidence that the ceremony was solemnised as a proper legal marriage. The applicant states that they were not considered to be married in India. The applicant states that the ceremony was arranged by his parents who failed to inform Ms Kaur about his disability and Ms Kaur left the family home after the ceremony and returned to the family home. The applicant submits that the birth of the child in 2015 is not evidence that the couple were married in 2014 as women often give birth outside of marriage. The applicant stated that the birth of the child brought them closer together, he returned to India in 2017 to meet his child and he began more frequent communication with Ms Kaur. The applicant provided a copy of the marriage certificate showing the couple married in India in April 2019 and held the marriage ceremony in January 2019.
The delegate notes that in her Partner visa application Ms Kaur initially claimed she first met the applicant in January 2015 and that they were married in January 2019. However, Ms Kaur provided some photographs from the marriage ceremony which appeared to be significantly older than the claimed date of marriage. It is also noted that one of the marriage photographs depicted the applicant’s parents and brother who had not departed Australia since 2017 or 2018 and could not have been attending the wedding in India in January 2019. In response to the Natural Justice letter Ms Kaur claimed that the religious marriage ceremony took place in 2014 according to all the rites of the Sikh religion. The delegate noted that the applicant failed to provide any evidence that the 2014 ceremony was a commitment ceremony rather than the marriage ceremony and failed to explain why Ms Kaur claimed in her statement of 18 July 2021 that the couple held a Sikh religious marriage ceremony if he now suggests that claim is incorrect.
The delegate noted that in June 2012 Anand Marriage Amendment Bill was introduced to validate traditional Sikh marriages, providing that under the legislation, couples whose marriages had been registered under the Act would not be required to additionally get their marriage registered, supporting Ms Kaur’s statement that the 2014 ceremony amounted to a legal marriage. The delegate noted that contrary to the applicant’s assertion, it is not common, nor culturally acceptable in India for women to give birth outside of marriage. The delegate rejected the applicant’s claim that the 2014 ceremony did not amount to a legal marriage.
The Tribunal notes, in that respect, that in his response to the NOICC the applicant provided the marriage certificate indicating that he and Ms Kaur were legally married in April 2019. However, as the information in the primary decision suggests, that does not necessarily mean that prior to 2019 the marriage was not valid or legally recognised. The delegate refers to legislation which indicates that the religious ceremony performed in 2014 would have reflected a valid marriage, which would have been recognised as a valid marriage in India without the partners having to take any further steps to register it, and this occurred prior to the registration in 2019.
In his response to the NOICC the applicant states that under the Anand Marriage (Amendment) Act 2012 both parties must be able to give free and valid consent to the marriage and in this case, there was fraud committed on Ms Kaur regarding the nature and extent of the applicant’s disabilities. The Tribunal notes that Ms Kaur in her statement that was submitted with her application stated that on the day she met the applicant’s parents, she knew that he had a disability “of hearing and listening”, which shocked her but he had already touched her heart and she decided to see him again. While the dates in that statement appear to be inaccurate (Ms Kaur claimed she first met in applicant in 2015 which is clearly false), her evidence indicates that she knew about his disabilities from the start. In the Tribunal’s view, that contradicts the applicant’s claim that there was fraud upon Ms Kaur regarding his disabilities.
The applicant submits that the 2014 marriage would not have met the requirements of the Australian law. The Tribunal does not accept that is the case. In the Tribunal’s view, the evidence indicates that the couple participated in a ceremony which they perceived to be a wedding ceremony and which, under the laws of the country they were resident in, would have been recognised as a marriage ceremony resulting in a valid marriage. The Tribunal is also persuaded by the delegate’s comment that it is uncommon in India for women to have children outside of marriage and the fact that the applicant and Ms Kaur conceived their child soon after the ceremony supports a finding that they perceived to have been married, contrary to the applicant’s present claims.
The delegate also noted that the applicant provided false or misleading information when sponsoring Ms Kaur for the visa as he claimed the couple first met in January 2015 even though he now admits that they held a religious ceremony in 2014. The Tribunal finds that the provision of this clearly false information (whether or not the couple believed they were legally married in 2014, it is not in dispute that they met each other before January 2015) reflects very poorly on the couple’s credibility and indicates that they are willing to provide false information to support their visa applications. The Tribunal finds that the applicant’s and Ms Kaur’s willingness to provide deliberately false information in support of the visa application indicates they are not credible witnesses and detracts from the veracity and probative value of the applicant’s present claims that Ms Kaur was not aware of the nature and extent of his disability around 2014 and that the couple did not freely agree to enter a marriage. That is, the fact that the applicant and Ms Kaur continued to provide deliberately false information in Ms Kaur’s visa application supports the Tribunal’s view that the applicant’s present evidence about the circumstances of the 2014 marriage is not truthful.
The delegate also notes that when applying for the Partner visa, the applicant stated that he had completed, in English, a Diploma in Computer Programming at Society for Industrial and Information Technology and the applicant provided with the application a copy of the document and a statement of marks. However, when applying for the Australian citizenship the applicant claimed that he understands little English and due to his disability, his ability to understand language is significantly affected. The delegate has formed the view that it would not have been possible for the applicant to successfully complete the Diploma in English and achieve the marks he has claimed to have obtained. The delegate formed the view that the Diploma and Statement of marks may be bogus documents. Neither has the applicant offered any explanation as to his ability to pass the health requirements when he applied for the visa. The Tribunal makes no findings on those issues, other than to note that they raise further concerns about the applicant’s credibility.
The Tribunal has formed the view that the applicant was validly married to Ms Kaur in 2014. Alternatively, even if the marriage was not valid at that time, the Tribunal finds that the applicant formed a de facto relationship with Ms Kaur in 2014, which was characterised by a mutual commitment of the applicant and Ms Kaur to a shared life to the exclusion of all others, a genuine and continuing relationship, whether or not the couple lived together. The Tribunal finds that when the applicant indicated on the application form that he was never married or in a de facto relationship, he completed the form in a way that incorrect answers were given or provided. That constituted a breach of s. 101(b) of the Act.
The Tribunal further finds that the applicant had a child born in 2015. The applicant did not mention that child in his Partner visa application and did not respond to a question whether he had any children. The Tribunal finds that this constituted a breach of s. 101(a) of the Act.
The Tribunal finds that there was non-compliance with s. 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. They are:
The correct information
The Tribunal has formed the view that the applicant was married prior to his visa application being made. That was the correct information. The Tribunal also finds that the applicant had a child born at the time of the application.
The content of the genuine document (if any)
This is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant sought the visa on the basis of being a member of the family unit, as a dependent child, of his mother who was the primary visa applicant. The definition of the term ‘member of the family unit’ in r. 1.12 expressly excludes a child who has a spouse or de facto partner. That is, if it was known to the decision-maker that the applicant had a spouse or de facto partner, the applicant may have been unable to meet the requirements of being a member of the family unit of the primary visa applicant.
The Tribunal finds that the decisions to grant the visa was based, partly but to a very considerable extent, on incorrect information.
The circumstances in which the non-compliance occurred
These are substantially addressed above. In his submissions to the delegate, the applicant denied that there was non-compliance and stated that his marriage to Ms Kaur was not a valid one. The applicant did not address in his responses to the NOICC the issue of the child and whether there was non-compliance in relation to the child.
For the reasons stated above, the Tribunal does not accept that the marriage was not valid or that the applicant genuinely believed when he was seeking the Partner visa that his marriage was not a valid one. The Tribunal has formed the view that the applicant sought to deliberately withhold information about his relationship with Ms Kaur and the birth of his child, knowing that disclosure of that information would preclude him from visa grant. The applicant and Ms Kaur then fabricated evidence concerning the circumstances and the timing of their meeting and of their relationship and marriage, when applying for Ms Kaur’s visa.
The applicant also claims that the information about the child was ‘unintentionally left off’ the application when his family completed the forms. It is not entirely clear to the Tribunal how one may forget the existence of one’s child and not mention the child in response to a direct and expressly worded question whether the applicant has any children. There is little scope for misinterpreting such a question and no ambiguity in determining whether or not the applicant has a child. It is difficult to see how such forgetfulness could be unintentional, particularly when coupled with the applicant’s misrepresentation about his marital status. The Tribunal has formed the view that the applicant had deliberately withheld information about the child, would have raised concerns about his claims concerning his relationship status.
In his submission to the Tribunal the applicant claims that he was incapable of reading and completing the application forms and that it was his family who had done so to assist him, so he should not be held responsible for the actions of his family members. The Tribunal does not accept that argument, as s 98 of the Act makes it clear that the applicant retains the responsibility for the information on the form, even if it is completed by another person. The Tribunal is also mindful that the applicant does not claim cognitive impairment that would have precluded him from providing answers on the form. Rather, he refers to lack of English and speech and hearing impairments. The Tribunal is not convinced that the applicant’s disabilities prevented him from being able to comprehend the forms, and provide truthful and accurate answers, with the assistance of his family. The Tribunal does not accept the submission that the applicant cannot bear the responsibility for the provision of incorrect answers.

The Tribunal has formed the view that the applicant was deliberately untruthful when making his visa application and that the non-compliance was done knowingly and deliberately to ensure the visa grant.
The present circumstances of the visa holder
These are addressed in the applicant’s extensive written submissions to the Tribunal. The applicant provided a number of submissions, including several statements on 9 October 2024. The Tribunal has had regard to these.
The Tribunal accepts that the applicant is a person with disability and that he has a significant speech impairment, requiring him to rely on his family to communicate with others.
The applicant states in his statement to the Tribunal that he has been able to find employment in Australia and a means to support his family overseas but his disabilities would make it ‘extremely challenging’ to find suitable employment in India. The applicant states that he is committed to continue with his employment and contribution to the Australian community. The applicant presented no documentary evidence concerning his employment in Australia, no evidence concerning employment opportunities in India.
The applicant refers to the support of his family in Australia, including emotional and practical support. He states that the infrastructure and social support for people with disabilities is lacking in India. The applicant submits hat due to his disability, he would be unable to find employment in India and healthcare facilities would not provide him with the care that he needs.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
As noted above, the applicant denied any non-compliance in his response to the NOICC. The Tribunal has formed the view that the applicant’s evidence has been untruthful, both because he did have a marital (or even de facto) relationship with Ms Kaur when the application was made, and also because he had a child born at that time, of whom the applicant was well aware but the applicant chose to withhold that information from the delegate.
The Tribunal has formed the view that the applicant continued to be untruthful in his subsequent dealings with the Department and has not complied with his obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
There are no known instances of non-compliance by the applicant. The primary decision record refers to the possible provision by the applicant of incorrect information in support of his citizenship application but that does not constitute non-compliance under the Act.
The time that has elapsed since the non-compliance
The application for the Partner visa was made in November 2014 and ten years passed since that non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community.
The applicant refers to his contribution to the community through employment.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s 140.
There are no consequential cancellations under s. 140.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
In his submission to the Tribunal the applicant refers to a better education system in Australia for his child ensuring his child would have a better start in life. The applicant states that returning to India would compromise his child’s education and overall development as the education infrastructure is not equipped to provide the same level of support and opportunities. The Tribunal does not accept that evidence (which is entirely unsupported by any probative evidence). The applicant has not identified the educational opportunities that the child would have in Australia that are not available to the child in India. It is not sufficient, in the Tribunal’s view, to make such broad and generalised statements that Australia has a better educational system compared to another country, without some probative evidence to support the claims.
The Tribunal is also mindful that the child has never lived in Australia and does not have a visa to live in Australia. Whether or not the applicant’s visa is cancelled, it would not necessarily provide the applicant’s child with the opportunity to live in Australia, as the child’s visa is yet to be granted and there can be no certainty as to the outcome of that application.
The evidence before the Tribunal is that the applicant supports his wife and child financially and is their only source of income. It is unfortunate that the applicant has not presented any documentary evidence to support these claims, such as evidence of money transfers. Nevertheless, the Tribunal accepts that the applicant may be providing financial support to his wife and child and the Tribunal is prepared to accept that they are reliant on such support. In her statement to the Tribunal the applicant’s wife claims that she has no other immediate family and is fully reliant on her husband, who would not be able to find employment in India. The Tribunal accepts that if these claims are true, the applicant’s wife and child may experience financial hardship if the applicant is to leave Australia as a result of his visa being cancelled, as the applicant’s employment opportunities may be more limited in India than they are in Australia.
For that reason, the Tribunal accepts that it may be in the best interest of the applicant’s child that the applicant’s visa is not cancelled as this would ensure that the child has the financial support required for daily living. This is a primary, but not a determinative, consideration.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The applicant is not subject to a protection finding. He made no claims that Australia’s non-refoulement obligation arises in this case. On the limited evidence before it, the Tribunal does not consider that Australia’s non-refoulement obligations arise in this case and finds that the cancellation of the visa would not lead to the applicant’s removal in breach of such obligations.
As for the principles of family unity, the applicant’s parents and siblings reside in Australia while his partner and child live in India. The Tribunal is not satisfied that the family unity obligations would be breached if the applicant was to leave Australia as a result of his visa being cancelled.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant would become an unlawful non-citizen and would be subject to detention and removal from Australia. There is nothing to suggest the applicant would be detained indefinitely or that his removal could not progress for any reason. If the applicant’s visa is cancelled, he would be subject to the limitations in s. 48 in seeking other visas onshore and to an exclusion period in PIC 4013 in making future visa applications. The cancellation of the applicant’s visa means that he would not be entitled to act as a sponsor for his partner and child, he would not be entitled to the grant of the Australian citizenship and he would lose any entitlements he had acquired as an Australian permanent resident.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant outlined the hardship that he and his family would experience as a result of the cancellation in his multiple submissions to the delegate and the Tribunal. Essentially, the applicant submits that due to his disability, he is unable to communicate with others, other than with the support of his family, and that he has no “survival skills” while his general skills are severely impaired. The applicant submits that he would not have access to social support, would be unable to generate income and would live in poverty if he was to leave Australia.
The applicant’s immediate family members in Australia provided statements outlining the hardship they would experience if the applicant was to leave Australia. The Tribunal generally accepts that the family has a close connection with the applicant and that they would be affected by the separation and their concern for the applicant’s welfare and well-being if he was to leave Australia.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has determined that the applicant has not complied with the requirements of s. 101 and that there are grounds for cancelling his visa.
The Tribunal places significant weight on the circumstances in which the non-compliance occurred. In this case, the Tribunal has formed the view that the applicant had deliberately provided false information in his own visa application (by withholding information about his marriage and the birth of the child) so as to ensure he would be assessed as a dependent child and granted the visa. The applicant then continued to mislead in response to the NOICC by claiming the marriage was not solemnised and was not a valid marriage. The Tribunal has formed the view that these claims were false and misrepresented the applicant’s circumstances. Again, the applicant has been untruthful in his dealings with Immigration after the NOICC was issued in order to preserve his visa. The applicant would have also had involvement in the preparation of his partner’s visa application and that application also contained significant falsities and while the visa application made by the applicant’s wife cannot form any basis for the present decision, these matters support the Tribunal’s view that the applicant is not a person of credibility, that he has been consistently untruthful in his dealings with Immigration in order to obtain, or preserve, a benefit, and that he is willing to be untruthful to suit his circumstances. In the Tribunal’s view, these matters weigh very strongly in favour of the cancellation.
The Tribunal also finds it highly significant that the applicant is unlikely to have been entitled to the grant of the visa if the correct information was known. Before the applicant was granted the permanent Partner visa, he was married and had a child. The applicant would not have been considered to be a member of the family unit of his mother and he would not have been granted the Partner visa, which later enabled him to be granted the Resident Return visa, if the correct information was known. The fact that the grant of the visa to the applicant was based on deliberate falsehoods also weighs very strongly in favour of the cancellation.
In most circumstances, the Tribunal would have given greatest weight to the above factors and determine that the visa should be cancelled. However, in this case, the Tribunal acknowledges that the applicant faces unique circumstances due to his disability and such circumstances would lead to a far more significant degree of hardship if his visa were to be cancelled.
The evidence before the Tribunal is that the applicant is significantly impaired in his ability to communicate and relies on his immediate family to communicate his needs. That is, if the applicant was to leave Australia and be separated from his immediate family (as is likely to be the result of the visa cancellation), he is likely to experience significant detriment, hardship and this would severely limit his ability to participate in the society and engage in activities of daily living. Due to the nature and extent of his disability, the hardship that the applicant and his family would experience if the applicant was to leave Australia would be extensive. These factors weigh against the cancellation.
The Tribunal has also formed the view that it is in the best interest of the applicant’s child if the visa is not cancelled, as the applicant would then be able to continue to provide financial support to his partner and child, on which they are reliant.
In the particular circumstances of this case, the Tribunal has decided to give the latter considerations the greatest weight.
Conclusion
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Senior Member K. Raif
Date(s) of hearing n/a
Representative for the Applicant: Mr Mark Edward Northam