Wang (Migration)

The Administrative Appeals Tribunal considered the case of Ms Wang, who sought to have the cancellation of her Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), set aside. The dispute arose because the visa was granted in contravention of the *Migration Act 1958* (Cth) or another law, specifically because Ms Wang, as a holder of a contributory parent visa, was limited in the types of visas she could apply for. Despite being advised by the Department of Home Affairs that she could apply for a partner visa, which was subsequently granted in error, there was a substantial delay in issuing the notice of intention to consider cancellation.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(f) of the *Migration Act 1958* (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The Tribunal found that the ground for cancellation did exist, as the visa was granted in contravention of the Act. However, s 116(3) did not mandate cancellation, thus requiring the Tribunal to consider its discretion.

In exercising its discretion, the Tribunal had regard to various factors, including the purpose of Ms Wang's travel and stay, her compliance with visa conditions, and the potential hardship that cancellation would cause. The Tribunal noted that Ms Wang had an Australian citizen child and a permanent resident husband in Australia, and her parents and sister were also permanent residents. The Tribunal accepted that separation from her child would cause significant hardship, and that her husband's ability to work and her food business might be negatively impacted. Furthermore, Ms Wang had lived in Australia for over seven years, had no experience of Chinese society, and relied on the emotional support of her husband. The Tribunal also acknowledged the risk of COVID-19 associated with travel.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel Ms Wang's Subclass 820 visa.