1705391 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Skilled (Temporary) (Class TU) Subclass 573 Higher Education Sector visa granted to the applicant. The applicant's visa had been granted on the basis of his spousal relationship with Ms. A, who was a student in Australia. The dispute arose when the Department of Home Affairs cancelled the applicant's visa, and the applicant sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) was made out. This section allows for visa cancellation if the Minister is satisfied that a fact or circumstance upon which the visa was granted no longer exists. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under s.116(1)(a) was established. The applicant's visa was granted based on his status as the spouse of Ms. A, a student. While the applicant and Ms. A stated they had reconciled after a period of separation from November 2016 to January 2018, the Tribunal noted that Ms. A had previously notified the Department that their relationship had broken down and she wished for the applicant to be excluded from her visa. Furthermore, Ms. A's student visa had expired, and she was no longer studying. The Tribunal considered the applicant's stated purpose for the visa, which was to be with his wife while she studied, and concluded that this purpose had ceased. While acknowledging the applicant's compliance with visa conditions and the emotional reliance Ms. A placed on the applicant, the Tribunal found no evidence of hardship endured during their extended period of separation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal concluded that, considering all the circumstances, the visa should be cancelled.