Yesmin (Migration)

The applicant, Yesmin, sought judicial review of a decision by the Migration Review Tribunal (MRT) to cancel her Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The Federal Circuit and Family Court of Australia was tasked with determining the lawfulness of the MRT's decision. The core of the dispute concerned whether the applicant had failed to maintain a genuine and exclusive spousal relationship with her sponsor, leading to a notifiable change in circumstances that would justify visa cancellation.

The primary legal issue before the court was whether the MRT had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) in finding that the applicant had engaged in conduct that warranted the cancellation of her visa. Specifically, the court had to consider whether the evidence established a non-compliance with the Act as alleged by the Department, which would trigger the discretionary power to cancel the visa. This involved an assessment of the applicant's relationship history, including a prior relationship and a subsequent marriage and cohabitation with a second sponsor.

The court reasoned that the Tribunal's satisfaction regarding non-compliance was a prerequisite for the exercise of the discretionary power to cancel the visa under section 107 of the *Migration Act 1958* (Cth). In this instance, the Tribunal was not satisfied that the applicant had engaged in the non-compliance described in the notice provided. Consequently, the discretionary power to cancel the visa did not arise. The court therefore set aside the Tribunal's decision and substituted a decision not to cancel the applicant's Subclass 100 (Spouse) visa.