Al Tofayli (Migration)

Al Tofayli (Migration) [2024] AATA 455 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ali Al Tofayli
CASE NUMBER:  2315601
HOME AFFAIRS REFERENCE(S):          BCC2022/5738076
MEMBER:Karen McNamara
DATE:26 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 26 February 2024 at 4:16pm
CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – visa granted on fact or circumstance no longer the case or no longer exists – secondary applicant member of family unit husband – declared divorced with de facto partner in own later student visa application – no appearance at hearing and application for review dismissed – application for reinstatement allowed – claim that relationship ended because of domestic violence – party to current proceedings before a court – multiple requests for extension – former wife returned to home country – visa stay period ceased and current status unclear – plans to apply for partner visa and wish to remain permanently – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(a), 359A, 360, 362B(1A)(b), 379A(5)
Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cl 485.311
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Government Information (Public Access) Act 2009 (NSW), s 60(1)(e)
CASES
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 September 2023, made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that on 24 November 2021, the applicant was granted a Temporary Graduate visa on the basis that he was a member of the family unit of the primary applicant, Ms Katia Sbeity. The delegate records that on 22 March 2023, the applicant lodged an application for a Student (Subclass 500) visa in which the applicant stated that he was ‘Divorced’. On 12 May 2023, the applicant provided a Personal particulars for assessment including character assessment (Form 80) in support of his student visa application. The applicant stated that he had a de facto Sarah Malla. The delegate noted that on the basis of this information, the applicant no longer meets the definition of a member of the family unit of Ms Sbeity because he and Ms Sbeity have divorced, and the applicant has declared that Sarah Malla is his de facto partner.
On 31 August 2023, the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant did not respond to the notice.
On 21 September 2023, the delegate cancelled the visa under s.116(1)(a) of the Act on the basis that a prescribed ground for cancelling the visa applied to the applicant. That is, the applicant is no longer a member of the family unit of Ms Sbeity as per regulation 1.12 of the Regulations, and therefore no longer meets the requirements of subclass 485.311 of the Regulations.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 13 November 2023, the Tribunal wrote to the review applicant (dispatched by email to the authorised recipient) advising that it had considered all the information before it regarding the application but could not make a favourable decision on that information alone. The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 19 December 2023 at 11:30 am.
The invitation stated that if the review applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
On 30 November 2023, the applicant advised the Tribunal via email that he would not be able to appear for the hearing scheduled on 19 December 2023 due to “ongoing mental health difficulties.” The applicant proposed that the hearing be rescheduled in February/March 2024, stating “…allowing sufficient time for me to address my mental health concerns and actively participate in the proceedings without compromising the quality of my representation.” The applicant enclosed a report from his treating psychologist Hamid Dadgostar dated 29 November 2023.
On 30 November 2023, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient) advising that after affording careful consideration to his request for a hearing postponement, that in this instance a postponement would not be granted and that the hearing would proceed as scheduled for 19 December 2023 at 11:30am.
The Tribunal noted that the applicant’s reason for seeking to postpone his hearing is to allow the applicant sufficient time to address his mental health concerns and that he proposes the hearing be rescheduled in February/March 2024. The Tribunal carefully considered the applicant’s request and formed the view that the applicant’s reason in seeking to delay this matter, is not reasonable.
In reaching this conclusion the Tribunal paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
The Tribunal further observes that the legislative objectives of the Tribunal as set out in section 2A of the Administrative Appeals Tribunal Act 1975, directs that in carrying out its functions; the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal, quick and proportionate.
The applicant provided a report from his treating psychologist, Mr Hamid Dadgostar. The Tribunal notes Mr Dadgostar’s concluding remarks “…It appears that with time Mr Altofayli will regain his normal self but at this time an adjournment of his AAT hearing would be of great help in assisting him to better manage his current mental health.[1]” Whilst the Tribunal acknowledges an applicant may suffer from a degree of anxiety normally associated with appearing before it, there is no information before the Tribunal to support how in this case, the applicant’s current mental health would improve by February/March 2024, to enable him to appear before the Tribunal, nor did the applicant provided a definite time that the matter be postponed to.
[1] Prepared and transcribed as per report by Mr Hamid Dadgostar dated 29 November 2023
The Tribunal therefore considered that postponing the hearing to a future date proposed by the applicant, in order for him to ‘address his mental health concerns’, does not on balance outweigh the legislative objectives of the functions of the Tribunal.
The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal was satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5). Two separate SMS reminders were also sent to the review applicant about the hearing to the number provided by the applicant to the Tribunal. The review applicant did not notify or provide updated change of contact details to the Tribunal.
As no satisfactory reason for the non-appearance had been given, the Tribunal decided to dismiss the application under s.362B(1A)(b) of the Act.
On 2 January 2024, the review applicant applied for reinstatement of the application within the prescribed period. The review applicant is self-represented and claims he has mental health issues which “have made it challenging to fulfill certain obligations”, including his attendance at the scheduled hearing on 19 December 2023. Having consideration to the applicant’s claims, the Tribunal considered it appropriate to reinstate the application.
On 4 January 2024, the Tribunal wrote to the review applicant (dispatched by email to the authorised recipient) advising that the matter had been reinstated and invited the applicant to appear before the Tribunal on 18 January 2024 at 2:30pm.
On 4 January 2024, the applicant via email sought a postponement on the basis that he had submitted an application for access to police records under the Government Information (Public Access) Act 2009 (GIPA Act) and that it would take between 15 to 20 days for access to said documents.
On 5 January 2024, the Tribunal advised the applicant that the hearing scheduled for 18 January 2024 would proceed and that the Member would discuss any possible extensions with him at the hearing.
On 12 January 2024, the applicant via email advised the Tribunal “most of my evidence is with the police, so if I attend on January 18th, it's risky for me. They will send all my stuff on February 8, 2024. Could you please reschedule it to February 9, 2024?”
By way of return email on 12 January 2024, the Tribunal advised the applicant that a postponement of the hearing scheduled for 18 January 2024 would not be granted. The Tribunal noted “…The Member will discuss with you, at the hearing, the Police matter and determine if any additional time will be afforded to provide the information.
The Member reminds you that you have already failed to attend a scheduled hearing and that it is your responsibility to ensure you attend the hearing scheduled on 18 January 2024.
Failure to attend the hearing at the scheduled date and time may result in this matter being dismissed.”
On 15 January 2024, the applicant via email advised the Tribunal as follows:
“ I'm going to send some of my papers explaining why I appealed, but the most crucial documents are still with the police. If possible, I would also appreciate having an interpreter.
Thanks .
Your Honor,
The enclosed documents illustrate my efforts to build and start my life. Initially, I planned to pursue sponsorship with my former company, but my ex-partner disrupted everything, taking away our shared aspirations and leaving the country. She falsely accused me of threatening her with a knife, leading to a DNA test that proved her deception. Despite her attempts to involve the police in alleged breaches of an AVO, investigations revealed her falsehoods.
During her departure, I found myself alone, attempting to rebuild and pursue studies. I undertook English tests, faced initial exam failures, but persevered to enter university. Despite visa rejections, I continued attending classes, dealing with mental health challenges triggered by the tumultuous relationship. Unfortunately, due to her absence from Australia, I cannot pursue domestic violence claims.
In this difficult period, I found support in a caring partner and her children, who provided financial and emotional assistance. Our life together has been fulfilling, and we plan to marry. I trust that your judgment will recognize my innocence, much like the criminal court that acquitted me. Thank you for your consideration...”
The applicant included the following information:
·         A group photograph at Movie World
·         Screenshots of text messages,
·         NSW Police Force Forensic Procedure Consent Form completed 12 November 2022
·         AFP National Police Certificate 11 July 2023,
·         Enrolment Confirmation Letter Mercury College dated 31 August 2023
·         Department notification of refusal re: Class TU Subclass 500 visa 29 November 2023
·         Pearson PTE Academic Score report 5 December 2022
·         Psychologist report dated 29 November 2023
On 17 January 2024, the applicant advised the Tribunal that he would be attending the hearing scheduled for 18 January 2024 and enclosed a completed response to hearing invitation.
The applicant appeared before the Tribunal on 18 January 2024, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
At the hearing the applicant told the Tribunal that he relied upon information he had requested under GIPA to support his claim that his relationship with the primary visa holder had ended due to domestic violence. The applicant indicated that he expected receipt of said information by early February.
Following the hearing the applicant emailed the Tribunal to advise as follows “I received an update this afternoon regarding the police documents. I will be following up on this, and I've been informed that I need to request a subpoena for the police paperwork, which I am currently organizing. I kindly ask, should the paperwork go directly to the court, what is the best place to have them sent to?”
The applicant provided a copy of the GIPA NSW Police Force Notice of Decision dated 18 January 2024. The decision stated that the application was refused on the grounds, under s 60(1)(e) of the GIPA Act, because the applicant is ‘party to current proceedings before a court and able to apply to the court for that information.’ The delegate for the NSW Commissioner of Police noted the applicant had written in his application that the documents are required due to his court hearing and therefore the police delegate considered it “reasonable in the circumstances to believe that you are a party to current proceedings before a court and able to apply to the court for the information by way of seeking an order for production (or equivalent).”
The Tribunal is cognisant of the numerous attempts the applicant has sought to delay this matter and having consideration to the legislative objectives of the Tribunal as set out in section 2A of the Administrative Appeals Tribunal Act 1975, the Tribunal wrote to the applicant on 19 January 2024, advising that the Tribunal will issue a summons to NSW Police for information as noted in his GIPA request.
On 23 January 2024, the Tribunal issued a summons to NSW Police Force seeking production of documents as requested by the applicant in his GIPA request. The summons was subsequently reissued on 29 January 2024, with the appropriate conduct fee,
On 31 January 2024, the NSW Police Force produced documents as sought by the Tribunal.
On 5 February 2024, the Tribunal wrote to the applicant under s 359A of the Act. The invitation sought comments from the applicant and stated as follows;
“… I am writing on instruction from the Member conducting your review, in relation to the
application for review made by you in respect of a decision to cancel your Subclass 485 (Temporary Graduate) visa.
On 23 January 2023, the Tribunal sent a summons to NSW Police Force Headquarters requesting information pertaining to information you advised the Tribunal on 18 January 2024, that you previously sought under Government Information (Public Access) Act 2009 (NSW) and were subsequently advised by the NSW Police, this information be sought by way of subpoena.
In submissions before the Tribunal, you indicated that the said information was sought
in support of your application for review and that this information be made available to
the Tribunal.
On 31 January 2024, the Tribunal received a response to the summons from NSW Police. A redacted courtesy copy is attached for your information and records.
The redacted information relates to third parties including names.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
· The Tribunal notes the information provided by the NSW Police contains information which may be considered adverse to the Tribunal’s consideration of the circumstances in which the ground for cancellation arose.
The aforementioned information is relevant because if the Tribunal relies on this
information, it may find that the grounds for cancelling the visa outweigh the reasons
not to cancel the visa and consequently the decision under review would be affirmed.”
The Tribunal sought the applicant’s response by 19 February 2024.
On Sunday 18 February 2024, the applicant forwarded an email to the Tribunal stating as follows:
“ I sincerely apologize for the delay in responding to your email. I was endeavoring to gather more information from Lebanon regarding recent events, particularly concerning an event involving Katia's brother falsely accusing me of kidnapping Katia. However, Katia was actually in Australia during the mentioned incident in 2019. I require additional time to gather more details.
I firmly maintain my innocence in this matter. If I were guilty, I would not be fighting these accusations or appealing my visa status. Despite Katia's claims, I did not flee the country when she made these allegations. I remained steadfast because I am confident in my innocence, and law enforcement authorities can attest to that fact. Katia left the country after taking money from both Australia and Lebanon, leaving me to deal with the repercussions of her actions. Surveillance footage and witness statements corroborate my version of events, indicating that she fabricated these accusations to cause trouble for me and compel my return to my home country.
Now I have a loving family—Sarah, my partner, Aydan, Rihanna, and Medina—who mean the world to me. We have built a happy life together, characterized by love and trust. Throughout our time together, there has never been any indication of misconduct on my part. Katia's sole focus was on money, not on building a family, as she adamantly opposed having children.
I am appealing my case because Katia has imposed unwarranted conditions on me, and I humbly request an extension until April. By then, I plan to have married Sarah, and I can provide all necessary documentation to support my spouse visa application. Family members, including her parents and sister, along with friends and the children, can attest to the genuineness of our relationship. I am eagerly awaiting the arrival of the engagement ring, which I ordered from Cabramatta.
I implore you to grant me this extension as I have always respected the laws and regulations of this country. Thank you for your understanding and consideration.
And i can send you any paper of evidence which I prepared all my documents im just waiting for the engagement ring and proposal in april.” [2]
[2] Prepared and transcribed as submitted by applicant
On 19 February 2024, the Tribunal advised the applicant via email ‘ After careful consideration, the Member has decided that no further extension will be granted.
Please ensure that any submissions you wish to rely on in response to the letter that the Tribunal sent to you on 5 February 2024 are made by 11:59pm today, 19 February 2024.’
By return email on 19 February 2024, the applicant provided to the Tribunal a photograph and a receipt (partly obscured) for a gold ring. The applicant requested “an extension of my stay in Australia until I can propose to Sarah. Sarah's sister, Amani Malla …….., and I have been planning this special moment. Any assistance from your side would be greatly appreciated by me and my family. Thank you.
The proposal day is planned for the middle of April, and we will be submitting our paperwork.”

On 20 February 2024, the applicant requested the Tribunal grant him an extension until the end of March, stating “I will be able to apply for a spouse visa. I will submit all the required documents by the second week of March to support my application.”
The Tribunal notes that the applicant is seeking to have the Tribunal defer its decision to provide him opportunity to obtain more information (in response to the documents provided by the NSW Police Force), to propose to his current partner and to lodge a partner visa. The Tribunal notes throughout its engagement with the applicant, he has continually sought to delay the Tribunal’s decision-making process.
The Tribunal has carefully considered whether to afford additional time to the applicant for the reasons he purports and in doing so has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.
The Tribunal additionally is mindful that requests for deferrals must be considered carefully to determine whether they are reasonable or not: Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
The Tribunal has carefully considered the applicant’s request in the context of the issue before it but declines to defer its decision in this matter, as it has formed the view that the reasons purported by the applicant in seeking to further delay this matter are not reasonable. Additionally, having consideration to the issue before the Tribunal, the Tribunal is satisfied that the applicant has been afforded fair and ample opportunity to provide relevant information.
Furthermore, the Tribunal considers that the placement of an applicant’s review on hold for the reasons sought by the applicant including a pending engagement and lodgement of a partner visa, does not contribute towards achieving the objectives of the functions of the Tribunal as per section 2A of the Administrative Appeals Tribunal Act.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116 (1) (a). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.
In this case the delegate’s decision record provided to the Tribunal by the applicant, shows the delegate found that the applicant was no longer a member of the family unit of the primary visa holder, Ms Sbeity.
The applicant confirmed at the hearing on 18 January 2024, that he and Ms Sbeity separated in August 2022 and divorced in January 2023. The applicant confirmed that he is now in a de facto relationship with his current partner, Ms Malla.
The Tribunal is therefore satisfied that the applicant is no longer a member of the family unit of the primary visa holder and therefore the ground for cancellation in s 116(1)(a) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
On 24 November 2021, the applicant was granted a Temporary Graduate visa on the basis that he was a member of the family unit of the primary applicant, Ms Sbeity. The visa was granted on 24 November 2021 and expired on 24 November 2023.
Information before the Tribunal shows that the applicant and Ms Sbeity divorced in Lebanon in January 2023. The applicant claims the relationship broke down as a result of domestic violence and that his former wife left him and took everything.
At the hearing, the applicant told the Tribunal that he came to Australia four years ago and was planning to stay in Australia, he wanted to start a family and did not want to go back to Lebanon. His former wife graduated, and did not want to stay in Australia, nor did she want to start a family. The applicant claims his former wife ruined his life, made false accusations about him, and took everything from him. The applicant told the Tribunal that the couple divorced in Lebanon in January 2023 and the Department became aware of the divorce in February 2023.
The applicant is currently in a de facto relationship with an Australian citizen and claims that he supports his current partner mentally and financially and that her children call him “Dad”. The applicant told the Tribunal that his current partner’s former husband does not know about the relationship, as his current partner has a matter before the Courts, and he does not wish his relationship with his partner to cause any issues for her court matter. Once the partner has her court matter settled the applicant intends to propose to her.
When asked what his plans are for the future the applicant told the Tribunal that he plans on proposing to his current partner in April and they hope to have a baby, buy a house and open a new business together. The applicant intends to lodge a partner visa as his current partner is an Australian citizen. The applicant told the Tribunal that he has continued working since his visa was cancelled in September 2023 and eventually would like to start his own business as a Security Technician.
The Tribunal discussed with the applicant the circumstances in which the ground for cancellation arose. He claimed his former wife lied about domestic violence and left him with nothing. This is why he wanted to provide police records to the Tribunal to support he is innocent.
Assessment of the Evidence:
In exercising its discretion, the Tribunal has first considered the applicant’s purpose for remaining in Australia. The applicant made it clear at the hearing that he wishes to remain in Australia permanently. The applicant told the Tribunal that he is in a relationship with an Australian citizen, and they intend to start a family, buy a house and start a new business together.
The Tribunal takes into account the purpose of the Temporary Graduate (class VC) Subclass 485 visa is to provide opportunity to international students who have recently graduated with qualifications that are relevant to specific occupations required in Australia, to temporarily live, study and work in Australia. The applicant was granted this visa to accompany his former spouse in Australia, after she completed her studies. The applicant is no longer in a relationship with the primary visa holder. The primary visa holder departed Australia to return to Lebanon, however, the applicant chose to remain in Australia and enter into a relationship with an Australian citizen.
The Tribunal notes the purpose of the grant of this visa was for the applicant to accompany his former partner in Australia following her graduation whilst she undertook skilled employment in Australia. The relationship ceased and the primary applicant departed Australia. The Tribunal, therefore, is not satisfied that the applicant has continued to engage in activities for the purpose the visa was granted. The Tribunal therefore gives these factors weight in favour of cancelling the visa.
The Tribunal has considered the applicant’s compliance with visa conditions. The applicant was granted his Subclass 485 visa essentially on the basis of being a member of the family unit of a person who was granted a subclass 485 visa. The relationship formally ceased in January 2023 and the stay period of the visa was until 24 November 2023. At the time of this decision, Department records show the applicant does not currently hold a valid visa.
There is no probative evidence before the Tribunal to indicate the degree of financial hardship the applicant may suffer if the visa is cancelled. The applicant told the Tribunal that he resides with his current partner and her children. When asked by the Tribunal how he supports them financially, the applicant told the Tribunal that if the “kids need anything he will never say no and if they go anywhere like Luna Park I can offer it to them.”
The applicant told the Tribunal that the household is not reliant on his wage, and he started paying rent 2 to 3 months ago. Until November/December 2023 he was very stressed and couldn’t work property and would leave work after two hours because he was anxious and couldn’t work. He now has his mental health under better control and attends regular sessions with his doctor and with the support of his partner he is coping better. The applicant has resumed full time employment and gives his money to his partner to manage.
The applicant told the Tribunal that he is currently working and holds a bridging visa. The Tribunal discussed with the applicant that information before the Tribunal suggested that he did not at the time of the hearing, hold a valid bridging visa. The Tribunal noted the applicant stated he has a migration agent and suggested the applicant seek advice on his visa status.
The Tribunal accepts that the applicant might suffer some financial and emotional hardship if the visa is cancelled, however, there is no persuasive evidence before the Tribunal to support the current financial position of the applicant and how a visa cancellation outcome would impact the applicant’s financial position. In the absence of evidence to support the degree or severity of hardship that cancellation of the visa may cause the visa holder, the Tribunal cannot be satisfied that that it will be serious given the applicant’s evidence that until November /December 2023 he was unable to work fulltime.
The Tribunal takes into consideration that there is no evidence before it to suggest the Department has been concerned about the applicant’s conduct and it has not recorded breaches of visa conditions. The Tribunal notes there will be no consequential cancellation and, so long as the applicant resolves his immigration status or voluntarily departs, he will not be subjected to detention. The Tribunal is satisfied no international obligations would be breached as a consequence of a cancellation.
The Tribunal accepts that the circumstances in which the ground for cancellation arose that being the relationship between the applicant and primary visa holder ceased and therefore the applicant was no longer a member of the family unit of a person who holds a Subclass 485 visa. Whilst the evidence before the Tribunal suggests a volatile relationship between the parties contributed to the breakdown of the relationship, the Tribunal is cognisant that the applicant was granted the visa on the grounds of being a member of the family unit of his former wife. That ground ceased to exist when the relationship ended. Whilst the applicant disputes his former wife’s accusations to the NSW Police Force, and that the circumstances in which the ground for cancellation arose were beyond his control, the Tribunal must turn its mind to whether it is appropriate, having consideration to the totality of the evidence before it, (including information provided by the NSW Police Force), to cancel the applicant’s Subclass 485 visa.
Overall, having considered all the information before it, the Tribunal considers it significant that the applicant was granted his Subclass 485 visa as a member of the family unit of his former wife. The applicant does not dispute that he is no longer a member of the family unit of Ms Sbeity and that the relationship formally ceased in January 2023. In evidence before the Tribunal as to why the relationship ceased, the applicant claims the relationship broke down at the instigation of his former partner due to domestic violence. Whilst the Tribunal notes the applicant’s claims that he was not to blame for the marriage break down and he disputes his former wife’s accusations to the NSW Police, the Tribunal notes that the applicant has expressed a strong desire to remain in Australia. The Tribunal told the Tribunal that he came to Australia to stay and start a family and that he did not wish to return to Lebanon.
Since arriving in Australia, the applicant entered into a relationship with an Australian citizen and intends to lodge an application for a partner visa. Securing permanent residency is not the intent of the Subclass 485 visa program. The applicant’s subclass 485 expired on 24 November 2023 and the primary visa holder has departed Australia. The Tribunal is therefore of the view that the applicant’s desire to secure permanent residence in Australia is not consistent with a visa program designed to allow international student graduates, to temporarily live and work in Australia.
Having afforded careful consideration to the entirety of the evidence before it, the Tribunal is of the view it is appropriate in this case, that the applicant’s Subclass 485 visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.
Karen McNamara
Member

[2024] AATA 455

26 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction