Cho (Migration)

This matter concerned an appeal by the applicant, Ms. Cho, against a decision to cancel her Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The dispute arose because the applicant's relationship with the primary visa holder had ceased, which was a basis for the cancellation.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, it should cancel the applicant's visa, notwithstanding the cessation of her relationship with the primary applicant. The Tribunal was required to consider various factors, including the purpose of the visa, the applicant's compliance with visa conditions, and the degree of hardship that cancellation might cause.

The Tribunal reasoned that the ground for cancellation did not mandate mandatory cancellation under section 116(3) of the Migration Act 1958 (Cth). It then considered the applicant's circumstances, noting that while the original purpose of the visa was linked to her relationship, this purpose was no longer achievable. However, the Tribunal found no evidence of non-compliance with visa conditions. Crucially, it acknowledged significant hardship that cancellation would cause, both to the applicant's employer, who relied on her contributions to business expansion, and to the applicant herself, who presented evidence of mental health issues, including anxiety, depression, and post-traumatic stress disorder, exacerbated by the relationship breakdown and visa cancellation. The Tribunal also noted the applicant's intention to seek a Subclass 408 visa to continue her employment.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. It set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 485 visa.