Chhantyal (Migration)

The Administrative Appeals Tribunal considered the cancellation of Ms. Sangita Chhantyal's Subclass 485 (Temporary Graduate) visa. The applicant had been granted the visa as a dependent of her spouse, Mr. Subash Nagarkoti. The Department of Home Affairs had advised that the applicant's relationship with Mr. Nagarkoti had broken down and they had subsequently divorced, leading to the consideration of visa cancellation under section 116(1)(a) of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(a) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(a) permits the Minister to cancel a visa if satisfied that the visa was granted based wholly or partly on a fact or circumstance that no longer exists. The Tribunal was required to determine if the applicant's marital relationship, which was the basis for her dependent visa, had indeed ended.

The Tribunal found that the ground for cancellation under section 116(1)(a) was established, as the applicant's marriage to the primary visa holder had ended. While acknowledging the applicant's submissions regarding the emotional hardship and social stigma associated with divorce in Nepal, the Tribunal noted that the divorce had been finalised over 12 months prior and the applicant had been living separately from her former husband for a similar period. The Tribunal also considered the applicant's stated intention to undertake further studies in Australia but found no concrete evidence of such plans being sufficiently compelling to warrant retaining the visa. The Tribunal concluded that there was no further compelling need for the applicant to remain in Australia.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 485 (Temporary Graduate) visa.