Vu (Migration)

This matter concerned an application by the applicant, a holder of a Subclass 801 (Spouse) visa, to review a decision to cancel that visa. The applicant had been granted permanent residency, and the cancellation was based on allegations that the spousal relationship was not genuine and exclusive at the time of the application. The decision under review was made by the Minister, and the review was heard by Senior Member Michael Cooke of the Tribunal.

The primary legal issue before the Tribunal was whether the Minister had the power to cancel the applicant's visa. This turned on whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) concerning the genuineness and exclusivity of their spousal relationship, as alleged by the Minister. Specifically, the Tribunal had to determine if the applicant had engaged in non-compliance as described in a notice issued under section 107 of the Act, which would then trigger the discretionary power to cancel the visa under section 109.

The Tribunal found that it was not satisfied that the applicant had engaged in the alleged non-compliance. As a consequence, the discretionary power to cancel the visa did not arise. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 801 (Spouse) visa.