Abdul Wahid (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Skilled Regional Sponsored (Provisional) (Class SP) visa, Subclass 489, held by Mr. Abdul Wahid. The cancellation was based on the ground that a fact or circumstance upon which the visa was granted no longer existed, specifically that Mr. Wahid was no longer a member of the family unit of the primary visa holder, Mrs. Rashmeed Ali. The Tribunal was required to determine whether the delegate's satisfaction that the ground for cancellation was made out was correct, and if so, whether the visa should be cancelled.

The Tribunal considered the definition of a "married relationship" under section 5F(2) of the Migration Act 1958 (Cth), which requires a valid marriage, a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and that the parties either live together or do not live separately and apart on a permanent basis. The Tribunal found that while the couple had experienced a heated argument resulting in a physical altercation and the breaking of a phone, which led to Mrs. Ali reporting their separation to the Department and seeking an intervention order, this incident did not signify a permanent separation. Evidence of reconciliation, including Mr. Wahid's engagement in cognitive behaviour therapy and support from family and friends, along with the couple's continued cohabitation as a family unit in Adelaide for over two years, demonstrated that their relationship remained genuine and continuing.

Consequently, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(a) of the Act had been established. As the ground for cancellation did not arise, the power to cancel Mr. Wahid's visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.