Yu (Migration)

This matter concerned the cancellation of a Partner (Residence) (Class BS) visa, subclass 801. The applicant, the visa holder, had previously been granted the visa based on her relationship with her sponsor. The Department of Home Affairs sought to cancel the visa on the grounds that the applicant had provided incorrect information in her visa application, specifically regarding her marital status and relationship with her sponsor, alleging she was previously married to another person and that her marriage to the sponsor was declared null and void. The Tribunal was required to determine whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) concerning the provision of correct information in her visa application.

The central legal issue before the Tribunal was whether the applicant had provided incorrect answers in her visa application, thereby constituting non-compliance with section 101(b) of the *Migration Act 1958* (Cth), which mandates that visa application forms must be completed without incorrect answers. The Tribunal considered evidence suggesting the applicant's sponsor had gone to "extraordinary lengths" to discredit her, including fabricating evidence of a prior marriage and falsely presenting her as single. The applicant denied these allegations, asserting she was the recipient of threats and harassment from the sponsor and that she had been granted her visa on family violence grounds. She also stated she did not know an individual named Ang Sheng Hok, who was allegedly her "real" husband, and that a person in photographs provided by the sponsor was merely an old friend.

The Tribunal reasoned that the cancellation power under section 109 of the Act was contingent on a valid notice of possible non-compliance being issued under section 107. While satisfied that a valid notice was issued, the Tribunal ultimately found that it was not satisfied that the applicant had engaged in non-compliance as particularised in the notice. This conclusion was influenced by the applicant's evidence, including an affidavit from the friend in Singapore who declared he was not named Ang Sheng Hok, was married, and had never been married to the applicant. Consequently, the Tribunal determined that the discretionary power to cancel the visa did not arise. The Tribunal set aside the decision to cancel the visa holder’s subclass 801 visa and substituted a decision not to cancel it.