Suporn (Migration)

This matter concerned an appeal by the applicant against the cancellation of their Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The dispute arose from the applicant's failure to notify the Department of Immigration of a change in circumstances, specifically their declaration of a de facto relationship in a subsequent visa application, which contradicted their earlier status as a dependent child on their mother's visa. The decision was made by P. Maishman.

The primary legal issue before the Tribunal was whether the Minister's delegate had validly exercised the power to cancel the applicant's visa under section 109 of the Migration Act 1958. This required determining if the Notice of Intention to Consider Cancellation (NOICC) issued by the delegate complied with the requirements of section 107 of the Act, particularly concerning the particulars of the alleged non-compliance. A further issue was whether, even if non-compliance was established, the cancellation of the visa was warranted in the circumstances.

The Tribunal reasoned that while the applicant had indeed failed to notify the Department of a change in circumstances, as required by section 104 of the Act, the NOICC issued did not sufficiently particularise this non-compliance. The Tribunal found that the applicant's declaration of a de facto relationship, made in their own partner's visa application, was a significant change that should have been clearly articulated in the NOICC. Despite this technical deficiency in the notice, the Tribunal considered the applicant's evidence regarding their ongoing relationship and the existence of a young Australian citizen child. Applying a discretionary approach, the Tribunal concluded that the cancellation of the visa was not appropriate in these circumstances.

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