Citolin (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by the applicant. The dispute arose because the applicant's visa was granted based on his relationship with a primary visa holder, but this relationship had ended. The applicant remained in Australia after these changed circumstances, failing to regularise his immigration status and instead using his student visa to prolong his stay.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(a) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. Section 116(1)(a) permits cancellation if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a fact or circumstance that no longer exists. The Tribunal also had to consider all relevant circumstances in exercising its discretion, including government policy and the applicant's submissions.

The Tribunal found that the ground for cancellation under s.116(1)(a) was established, as the applicant acknowledged that the relationship underpinning his visa grant had ended. In considering the exercise of discretion, the Tribunal noted the applicant's stated original purpose of studying English and his subsequent actions of ceasing studies to support his former partner. While the applicant expressed a desire to remain in Australia to study further and be with his new partner, who also held a student visa and feared returning to Brazil due to domestic violence issues, the Tribunal did not accept these as compelling reasons to restore the visa. The Tribunal found that the applicant could avoid contact with his new partner's ex-husband or lodge a visa application from another country, and that his new relationship did not outweigh the significant period of non-compliance.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.