Dharmender Singh (Migration)

This matter concerned an appeal by Dharmender Singh against the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The applicant had been granted this visa as a dependant of Ms. Komal Sharma, the primary visa holder, on the basis that he was a member of her family unit. The Department of Home Affairs subsequently cancelled Mr. Singh's visa under section 116(1)(a) of the Migration Act 1958 (Cth), finding that the basis upon which the visa was granted no longer existed.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(a) of the Act was made out. This provision allows for visa cancellation if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists. The Tribunal was required to determine if the applicant had ceased to be a member of Ms. Sharma's family unit, as defined by the Migration Regulations 1994 and the Migration Act 1958, which was the factual basis for the visa grant.

The Tribunal reasoned that the applicant's Student visa was granted as a dependant because he was a spouse of Ms. Sharma at the time of the grant. Regulation 1.12(2)(a) of the Regulations defines a person as a member of a family unit if they are a spouse or de facto partner of the family head. Sections 5F and 5CB of the Act define "spouse" and "de facto partner" respectively, requiring, among other things, a mutual commitment to a shared life, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. The Tribunal was satisfied, based on the evidence, that the applicant's relationship with Ms. Sharma had broken down and he was no longer a member of her family unit. Consequently, the Tribunal concluded that the ground for cancellation under section 116(1)(a) was established, as the factual basis for the visa grant had ceased to exist.

Having affirmed the existence of the ground for cancellation, the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal found that the purpose for which the visa was granted, namely to accompany Ms. Sharma, had ended. While acknowledging the applicant's need to work to meet living expenses, the Tribunal was not satisfied that the generalised claims of hardship demonstrated a degree of hardship that warranted exercising the discretion not to cancel the visa. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 visa.