1511722 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who had been granted a Class TU, subclass 573 visa as a member of the family unit of the primary visa holder, his wife. The applicant and his wife arrived in Australia together in October 2012, with his wife holding a student visa to study nursing. The Department notified the applicant of its intention to cancel his visa in July 2015, and the delegate subsequently decided to cancel the visa in August 2015.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) were made out. This section permits visa cancellation if the decision to grant the visa was based, wholly or partly, on a fact or circumstance that no longer exists. The delegate's decision was based on the finding that the applicant's spousal relationship with the primary visa holder had ended since the time of the visa grant, which was a basis for his secondary applicant status.

The Tribunal reasoned that the definition of "spouse" under section 5F of the Act requires, among other things, that the parties live together or do not live separately and apart on a permanent basis. While the applicant and his wife had lived apart for a period between 2013 and 2015, the Tribunal was satisfied that the spousal relationship had not ended in a manner that would negate the basis of the visa grant. Therefore, the Tribunal concluded that the factual basis for cancellation under section 116(1)(a) was not established. The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.