MIGRATION - cancellation - Partner (Residence) (Class BS) visa - Subclass 801 (Spouse) - bogus document - allegation of family violence - genuine and continuing relationship prior to separation - onus of establishing the facts on the Tribunal - discretionary power to cancel the visa does not arise - decision under review set aside

Migration Act 1958 (Cth), ss 101-105, 107-109, 116, 359

Migration Regulations 1994

Mian v MILGEA [1992] FCA 261; (1992) 28 ALD 165

Singh v MIEA [1994] FCA 1534

Zhao v MIMA [2000] FCA 1235

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
2. The applicant is a national of Nepal, born in November 1991. He was granted the Spouse visa in November 2021. In August 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s. 103 of the Act. The applicant provided his response to the NOICC and the visa was cancelled. The applicant seeks review of the delegate's decision.
3. The applicant appeared before the Tribunal on 7 August 2025 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be set aside.

1. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
2. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.
3. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

Was there non-compliance as described in the s 107 notice?

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s. 103 of the Act.
2. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Spouse visa in April 2019 and he was sponsored in that application by Ms Rattanincharoensri. In support of the application the applicant provided a statement purportedly made and signed by the sponsor on 30 August 2021. That statement outlined the couple's long term plans for their life together. The primary decision record indicates that the Department received advice that the sponsor did not write or sign the statement. The delegate concluded that the statement was a bogus document.
3. In his response to the NOICC the applicant stated that he had typed the document and the sponsor was next to him and telling him what to write and the statement is in her own words. The applicant stated that the sponsor drew her signature on the computer. The applicant claimed that (after speaking to a lawyer) he determined that he had experienced family violence and the sponsor's claim that she did not prepare or sign the document indicates that she is still trying to control him by making false claims.
4. The Tribunal wrote to the applicant pursuant to s. 359A of the Act inviting his comments on the allegation received by the Department. The applicant replied in his submission of 17 July 2025. The applicant relied on his earlier declaration dated 19 August 2024 in which he referred to his relationship with the sponsor developing from 2016 and their cohabitation from March 2018. The applicant states that it was the sponsor who suggested marriage. The applicant denied that he married the sponsor for the visa, stating that they had been living together for about 12 months at the time of marriage registration and could have applied on de facto grounds. The applicant stated that since he was no longer studying and had the relationship with the sponsor, they sought immigration advice and decided to apply for the Partner visa without professional advice. Once he received a letter about the Schedule 3 requirements, he obtained professional advice and at that time realised that the sponsor's health condition could be the reason to seek the waiver and he relied on that advice. The applicant stated that he did not make a false claim about the sponsor's condition and need for care.
5. With respect to the sponsor's statement, the applicant submits that the statement was written by them together, the sponsor dictated and he typed it and the sponsor signed it electronically. The applicant stated that there is no evidence to suggest the sponsor's documents were completed without her knowledge or that he forged her signature and this is not true.
6. The applicant stated that he had a genuine and continuing relationship with the sponsor until February 2022 when she ended the relationship. The applicant stated that he did not suggest divorce and his family were supportive of the relationship. He also had a good relationship with the sponsor's daughter.
7. With respect to the traffic fines (the allegation being that he had not paid these and had forged the documents), the applicant stated that on the occasion in question, both he and the sponsor were driving and they received two fines, so they decided to pay one each. The applicant stated that he paid one fine online and transferred the other to the sponsor's name, which was done with her knowledge and consent. The applicant stated that he could not have forged the sponsor's signature since it was done online. The applicant stated that he later transferred the money for the fine to the sponsor.
8. With respect to the breakdown of the relationship, the applicant stated that they had a genuine relationship until the separation in February 2022 and there is evidence of the relationship until that time. The applicant states that it was the sponsor who asked for divorce and left the relationship.
9. In oral evidence the applicant told the Tribunal that he is now married and he and his current partner have a child together. They first met around January 2024 and were married in June 2024. The applicant states that he and the sponsor separated in February 2022 and the relationship broke down a few days earlier. The applicant states that the sponsor 'insisted' that he was to make the application for divorce as 'she was not good with paperwork'.
10. The applicant told the Tribunal that the sponsor 'always had some control over him' and they had some arguments but in February 2022 they had an argument, the sponsor was making accusations against him and his family and he "could not bear it anymore". The applicant claims that the relationship was genuine from his side and it was the sponsor who walked out on him while he continued to live at the same place. The applicant states that they tried once to reconcile but it did not work out. After the relationship breakdown he had given all his money to the sponsor.
11. With respect to the statement in question, the applicant states that they were requested to provide further documents by the Department and the lawyer explained what was required. They would sit together and prepare the documents together on the computer and the sponsor then signed the statement electronically. The applicant states that the sponsor would have been happy to sign a statutory declaration if they knew it was a requirement.
12. The applicant submits that his relationship with the sponsor was always genuine and it was the sponsor rather than himself who ended the relationship and left the family home and she was the one who initiated the divorce.
13. It is of considerable concern to the Tribunal that the applicant's relationship broke down soon after he was granted the permanent visa. Information provided to the Department (which was the subject of Tribunal's s. 359A correspondence) indicates that within three months of being granted the permanent visa, the applicant told the sponsor that his family could not accept her and that they should get a divorce. In the Tribunal's view, the speed with which the relationship ended after the applicant was granted permanent residence supports the information in the allegation that the applicant relied on the sponsor solely for the purpose of gaining permanent residence.
14. It is also of concern to the Tribunal that the applicant determined that he was subjected to family violence only after speaking to a lawyer. The applicant now claims that the sponsor controlled his finances and social contacts etc. The Tribunal is mindful that there is no evidence whatsoever to support these assertions and the allegation provided to the Department indicates that it was in fact the applicant who relied on the sponsor's funds to pay for his mobile and driving fines. Even if the applicant was not familiar with the definition of family violence, he made no mention of the sponsor's control or the circumstances to which he now refers in his previous dealings with the Department. Even if the applicant did not refer specifically to family violence, there is no reason he could not have disclosed the circumstances of the relationship to which he now refers. The fact that, after seeking legal advice, he has now made claims that were never raised previously (whether or not the applicant recognised these claimed actions as constituting family violence), does raise for the Tribunal considerable concerns about the applicant's credibility.
15. The applicant claims that the sponsor's advice to the Department that the statement was not written or signed by her is evidence of the sponsor being manipulative and is an example of the family violence. In the Tribunal's view, it can equally be seen as evidence of the sponsor being truthful and of the applicant's lack of credibility. The allegation suggests that the sponsor believed the relationship was good until the applicant was granted the permanent visa and broke the relationship. There was thus no reason for the sponsor to notify the Department of any concerns about the relationship earlier. It is also not evident that the sponsor was aware of the existence of the document in question earlier. The Tribunal does not accept the applicant's suggestion that the fact that the sponsor notified the Department after the relationship broke down is evidence of manipulation by her.
16. The applicant provided with his response to the NOICC several documents evidencing his relationship with the sponsor. The utility of these documents is not clear. Information provided to the Department indicates that the sponsor believed the relationship to be a genuine one until the applicant was granted the permanent residence and sought to end it. Thus, the fact that there is documentary evidence of the relationship is unremarkable. There is no suggestion that the relationship was fabricated by both partners (and even in that case there is likely to be available documentary evidence of the relationship).
17. Having regard to the above issues, the Tribunal has significant concerns about the nature of the applicant's relationship with the sponsor and the applicant's motivations in entering that relationship. In the Tribunal's view, it is possible that the applicant's relationship with the sponsor was not a genuine one and was not a mutually committed one. However, it is not the matter for this Tribunal. This is because the NOICC identifies the sole basis of the cancellation as the breach of s. 103 due to the provision of the bogus document (the statement from the sponsor). The NOICC does not identify the absence of a genuine spouse relationship (which may have implied a breach of s. 101) as the basis for cancellation. This Tribunal is limited in its consideration to establishing if there was non-compliance in a way described in the Notice. Thus, despite its concerns, the Tribunal makes no finding as to whether the applicant's relationship with the sponsor was a genuine one. (It is open to the delegate to issue a new NOICC addressing the nature of the applicant's relationship with the sponsor and the potential non-compliance with s. 101.)
18. As noted above, the sole issue identified in the NOICC is the non-compliance with s.103. The delegate referred to the sponsor's statement as being a bogus document. No other document has been identified as being a bogus document. The reason for the finding that the sponsor's statement is a bogus document was the information received by the Department that the sponsor did not see or sign that document. The applicant denies that information, stating that the document was prepared by both himself and the sponsor together and was electronically signed. Given the electronic signature, it would be difficult if not impossible to carry out a handwriting analysis to confirm who had signed the document.
19. It is impossible to objectively determine with any certainty how that document was prepared and who had signed it. It is important that the onus of establishing those facts is on the Minister (or on review, the Tribunal).[1] Although the visa holder must be invited to show that the ground does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:

The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. ... A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]

20. While that case was concerned with cancellation under s 116, the Court's comments would be equally applicable to s 109.
21. In the Tribunal's view, there is equal possibility that the document was prepared by the couple and electronically signed by the sponsor and that the document was signed without the sponsor's knowledge. In all the circumstances of this case, the Tribunal cannot reach a positive satisfaction that the statement in question was not prepared in the way the applicant suggests. That is, the Tribunal cannot reach a positive satisfaction that the statement in question is a bogus document.
22. For these reasons, the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant's visa does not arise.

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 801 (Spouse) visa.

[1] Mian v MILGEA [1992] FCA 261; (1992) 28 ALD 165 at 169; Singh v MIEA [1994] FCA 1534 at [14].

[2] Zhao v MIMA [2000] FCA 1235 at [25] and [32].