Bhullar (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491, held by the applicant. The dispute arose because the applicant's relationship with the primary visa holder, his wife, had ended, meaning he was no longer a member of her family unit. The Tribunal was tasked with determining whether the grounds for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to determine if the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was made out. This provision allows for visa cancellation if the Minister is satisfied that the visa was granted based on a fact or circumstance that no longer exists. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including government policy.

The Tribunal found that the applicant's Subclass 491 visa was granted based on his status as a dependant and member of the family unit of the primary visa holder, Ms Bhullar. Evidence, including a divorce certificate and the applicant's own confirmation of separation, established that the spousal relationship had ceased and the applicant was no longer a member of Ms Bhullar's family unit. Consequently, the Tribunal concluded that the ground for cancellation under s 116(1)(a) was made out. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. While acknowledging policy guidelines, the Tribunal noted it was not bound by them. The Tribunal ultimately set aside the decision to cancel the applicant's visa.