AYALA REYES (Migration)

This matter concerned an application by Mr. Ayala Reyes (the applicant) to review a decision to cancel his Temporary Skill Shortage (Class GK) visa, Subclass 482. The cancellation was based on the ground that the circumstances which permitted the grant of the visa no longer existed, specifically that the applicant's relationship with the primary visa holder, Ms. Bahnan, had ended. The applicant was a secondary visa holder, and his visa was granted on the basis of his relationship with Ms. Bahnan. The decision was made by the Tribunal, with Member Joanne Bakas presiding.

The primary legal issue before the Tribunal was 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 Tribunal was required to determine if the applicant's relationship with Ms. Bahnan had indeed ended, thereby ceasing the circumstances that permitted the grant of his visa. If this ground was established, the Tribunal then had to consider all relevant circumstances, including government policy and the applicant's personal situation, to decide whether to exercise the discretion to cancel the visa.

The Tribunal found that while the applicant and Ms. Bahnan were still legally married, their relationship had effectively ended due to a lengthy separation of approximately one and a half years with no communication for over a year. This satisfied the ground for cancellation under section 116(1)(a). However, the Tribunal then considered the exercise of discretion. It took into account the applicant's submissions regarding his long-term presence in Australia, his desire to reunite with his son who was in Indonesia due to COVID-19 travel restrictions, and his concerns about returning to Colombia due to its instability and limited opportunities. The Tribunal weighed these factors against the fact that the original purpose of his stay had ceased.

Ultimately, the Tribunal concluded that the factors favouring not cancelling the visa outweighed those in favour of cancellation. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 482 visa.