B K (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 485 (Temporary Graduate) visa. The applicant's visa had been granted on the basis that he was a member of the family unit of Ms Shankar. However, the Department of Home Affairs was advised that the applicant's relationship with Ms Shankar had ceased. Consequently, the Department decided to cancel the applicant's visa under section 116(1)(a) of the *Migration Act 1958* (Cth), on the ground that the fact or circumstance upon which the visa was granted no longer existed. The Administrative Appeals Tribunal, constituted by Member Ian Berry, affirmed this decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(a) of the *Migration Act 1958* was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(a) permits the cancellation of a visa if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a fact or circumstance that is no longer the case or no longer exists. The Tribunal also considered whether there were any specific matters that it was required to consider in the exercise of its discretion to cancel the visa.

The Tribunal reasoned that the ground for cancellation under section 116(1)(a) was established because the applicant's relationship with Ms Shankar, which was a basis for the grant of his visa, had ceased. The Tribunal noted that there were no specific matters mandated by the Act or Regulations to be considered in the exercise of its discretion. It had regard to the circumstances of the case, including matters raised by the applicant and relevant guidance from the Department's Procedures Advice Manual. After considering all relevant factors, the Tribunal concluded that the decision to cancel the applicant's visa should be affirmed.