Adu (Migration)

This matter concerned an appeal by the applicant against the cancellation of her Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The cancellation was based on the ground that a fact or circumstance upon which the visa was granted no longer existed. The applicant had been granted the visa as a member of the family unit of the primary visa holder, her husband. However, the primary visa holder had informed the department that their marriage had ended in divorce, which the applicant did not dispute.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal found that the ground for cancellation was established, as the applicant was no longer a member of the family unit of the primary visa holder due to the divorce. However, as this ground did not mandate cancellation, the Tribunal then considered whether to exercise its discretion to cancel the visa.

In considering the exercise of discretion, the Tribunal had regard to the applicant's evidence regarding the purpose of the visa grant, which was to support her husband's studies. She provided evidence of her financial contributions and support, even in the face of her husband's abusive behaviour. The applicant also presented evidence of a new relationship with an Australian permanent resident, her current employment, and her application for a spouse visa. Crucially, she submitted that cancellation would prevent her from supporting her child and parents in Ghana, and would thwart her aspirations for a nursing career in Australia. The Tribunal found her evidence credible, noting she was used and abandoned by her ex-husband, and that she was unaware of the divorce proceedings.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substitute decision was made not to cancel the applicant's Subclass 485 visa.