2214380 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 494 - Skilled Employer Sponsored Regional (Provisional) visa granted to the applicant. The applicant's visa had been granted as a secondary applicant, based on his status as a member of the family unit of his wife, Ms A. The core of the dispute revolved around whether the applicant still met the criteria for being a member of Ms A's family unit, given that their relationship had ceased and a Family Violence Restraining Order was in place.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) was made out, specifically whether the fact or circumstance upon which the visa was granted (being a member of the family unit) was no longer the case. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant was no longer in a relationship with Ms A, did not reside with her, and had no contact since May 2022, when he was removed from their shared residence by police. A Family Violence Restraining Order was in place, prohibiting contact with Ms A. While the applicant remained legally married, the Tribunal concluded that he was no longer a member of Ms A's family unit for migration purposes, which was the basis for his visa grant. The Tribunal also found no evidence that Ms A had made false allegations to the police. Applying the principle that decision-makers can attribute weight to evidence as they see fit, the Tribunal determined that the applicant's continued presence in Australia as a secondary visa holder, pursuing other visa options, was inconsistent with the purpose of the Subclass 494 visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 494 visa.