Abdo (Migration)

This matter concerned an appeal by the applicant, Mr Abdo, against a decision to cancel his Skilled Regional Sponsored (Provisional) (Class SP) visa, subclass 489. The visa had been granted on the basis of a fact or circumstance that was no longer the case, specifically that Mr Abdo was no longer a member of the family unit of the primary visa holder, his wife, due to their separation and unlikelihood of reconciliation. The decision was made by the Administrative Appeals Tribunal (AAT) with Member Amanda Mendes Da Costa presiding.

The primary legal issue before the Tribunal was whether, having found that the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was made out, the Tribunal should exercise its discretion not to cancel Mr Abdo's visa. This required a consideration of all relevant circumstances, including the purpose of his travel, his compliance with visa conditions, the hardship that cancellation might cause, the circumstances in which the ground for cancellation arose, and his past and present behaviour towards the Department.

The Tribunal reasoned that while the breakdown of the marital relationship and the applicant's separation from his wife meant the original purpose of his visa was no longer applicable, this factor weighed in favour of cancellation. However, the Tribunal also gave weight against cancellation to the applicant's compliance with his visa conditions and the significant hardship he would face if his visa were cancelled, particularly the separation from his children. The Tribunal noted that the applicant had made efforts to maintain contact with his children, including regular child support payments and arrangements for video contact and future visits, and that he was actively pursuing professional registration as a pharmacist in Australia. Considering these factors collectively, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr Abdo's Subclass 489 visa.