Al Tofayli (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 485 (Temporary Graduate) visa. The applicant had been granted the visa as a secondary applicant, a member of the family unit of the primary visa holder, Ms Sbeity. The Minister's delegate cancelled the visa on the ground that the visa was granted based on a fact or circumstance that no longer existed, specifically that the applicant was no longer a member of the family unit of the primary visa holder. The applicant claimed the breakdown of his relationship with Ms Sbeity was due to domestic violence.

The Tribunal was required to determine whether the ground for cancellation under section 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 applicant confirmed that he and Ms Sbeity had separated in August 2022 and divorced in January 2023, and that he was now in a de facto relationship with another partner. The Tribunal found that the applicant was no longer a member of the family unit of the primary visa holder, thus satisfying the ground for cancellation.

In considering the exercise of discretion, the Tribunal had regard to the circumstances of the case, including the applicant's claims of domestic violence and his desire to remain in Australia. The applicant stated he had been in Australia for four years, wished to start a family, and intended to apply for a partner visa with his current Australian citizen partner. Despite these submissions, and acknowledging the applicant's claims about the breakdown of his marriage and his current relationship circumstances, the Tribunal concluded that it was appropriate to affirm the decision to cancel the applicant's visa.