Chou (Migration)

This matter concerned an appeal by a minor child, the applicant, against the cancellation of his Subclass 820 (Partner) visa. The applicant's visa was granted on the basis of being a member of the family unit of his mother, Ms Chou. The dispute arose because Ms Chou's own visa had been cancelled, meaning the applicant could no longer fulfil the purpose of his visa by remaining in Australia with his mother. The decision was made by Senior Member Kira Raif of the Tribunal.

The primary legal issue before the Tribunal was whether there were grounds to cancel the applicant's visa under section 140(2) of the Migration Act 1958 (Cth), given that his mother's visa had been cancelled. The Tribunal was also required to consider whether to exercise its discretion to cancel the visa, taking into account the applicant's circumstances, including the degree of hardship that might be caused by cancellation and the child's best interests.

The Tribunal reasoned that section 140(1) of the Act did not apply as the applicant was not granted a visa as a member of the family unit of his mother in the primary sense. Instead, he held a visa solely because his mother held one. Consequently, section 140(2) provided grounds for cancellation following the cancellation of Ms Chou's visa. In considering its discretion, the Tribunal noted the applicant's birth and lifelong residence in Australia, his relationship with his aunt, and his financial support through Centrelink. However, it found that at his age, the applicant would adapt to a new environment and language. The Tribunal also considered the benefit of the applicant being with both parents in Cambodia, despite Ms Chou's claims about the father's lack of support, finding that the father would likely provide parental support.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 820 visa. It concluded that while some hardship might result, the child's best interests were served by remaining with his parents, neither of whom had a permanent visa to remain in Australia.