1512100 (Migration)

The Administrative Appeals Tribunal considered an application for review of a decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant's visa had been granted on the basis that he was a member of the family unit of Ms Kaur, specifically as her spouse. The dispute arose because the applicant and Ms Kaur were no longer in a relationship, meaning the factual basis upon which the visa was granted no longer existed.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. Section 116(1)(a) permits cancellation if the visa was granted based on a fact or circumstance that no longer exists. The Tribunal also had to consider the relevant circumstances in exercising its discretion, including the purpose of the applicant's travel, any breach of visa conditions, and the degree of hardship that cancellation might cause.

The Tribunal reasoned that the applicant's visa was granted on the premise of his spousal relationship with Ms Kaur, which was a requirement for being a member of her family unit under regulation 1.12 and defined by sections 5F and 5CB of the Act. The applicant himself confirmed that he and Ms Kaur were no longer in a relationship, thus satisfying the ground for cancellation under section 116(1)(a). In considering its discretion, the Tribunal noted that while the applicant would experience financial difficulty and personal challenges due to the cancellation, these were outweighed by the fact that the fundamental basis for the visa grant had ceased to exist. The Tribunal acknowledged the applicant's emotional distress but concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's visa.