Wang (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Skilled Independent (Permanent) (Class SI) visa, Subclass 189, held by the applicant, who was a member of the family unit of the primary applicant as a de facto partner. The cancellation was based on the provision of bogus documents, specifically phone bills and bank statements, during the visa application process, which were identified through verification checks.

The Tribunal was required to determine whether, in light of all the circumstances, the discretion to cancel the applicant's visa should be exercised. This involved considering the applicant's reliance on their partner and an unregistered agent, the current status of their relationship (which may have ceased), the timing of the relationship in relation to visa requirements, and the applicant's mental health diagnosis and treatment. The Tribunal also had to weigh factors such as a new relationship and newborn child, the applicant's long residence and established business and social links in Australia, and the impact of COVID-19 prevalence and restrictions in their home country.

The Tribunal reasoned that while there was non-compliance as described in the notice under s 107 of the Migration Act 1958 (Cth), a holistic assessment of the relevant circumstances led to the conclusion that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 189 visa.