Statham (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel Mr Statham's Partner (Residence) (Class BS) visa, subclass 801. The cancellation was based on allegations of providing incorrect information in his visa application, specifically concerning a de facto relationship with Ms Charlotte Smith, which was purportedly indicated in a travel exemption request and supporting documents. Mr Statham had lodged his visa application based on his relationship with Ms Rachael Flitcroft.

The primary legal issue before the Tribunal was whether the notice of intention to cancel the visa, issued under section 107 of the Migration Act 1958, complied with the statutory requirements. Specifically, the Tribunal had to determine if the notice provided adequate particulars of the alleged non-compliance, as required by section 107(1)(a) of the Act, and whether all relevant information considered by the delegate had been disclosed to Mr Statham for comment.

The Tribunal found that the notice issued under section 107 did not comply with the Act's requirements. While the delegate had considered documents and information relating to the alleged relationship with Ms Smith, not all of this material was included in the particulars provided to Mr Statham in the notice. The Tribunal noted that documents within folios 123 to 140, which were relevant to the cancellation decision, were not included in the notice. As the exercise of the power to cancel a visa under section 109 is conditional on the Minister issuing a valid notice under section 107, and this notice was found to be deficient, the power to cancel the visa did not arise.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr Statham's subclass 801 visa.