Gaurav (Migration)

The Administrative Appeals Tribunal considered whether to affirm the decision to cancel the applicant's Subclass 485 visa. The applicant's visa was granted on the basis that he was a member of the family unit of the primary visa holder, Ms A, as prescribed by regulation 1.12(2)(a) of the Migration Regulations 1994. The Department of Home Affairs had information suggesting the applicant was no longer in a relationship with Ms A, leading to a Notice of Intention to Consider Cancellation. The applicant responded, confirming separation from his spouse since September 2019 due to a domestic violence case, though he stated they were not formally divorced. Consequently, the delegate cancelled the applicant's visa.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(a) of the Migration Act 1958 was made out, and if so, whether the visa should be cancelled. Section 116(1)(a) allows for visa cancellation if the Minister is satisfied that the visa was granted based wholly or partly on a fact or circumstance that no longer exists. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal reasoned that for the applicant to be considered a member of the family unit of Ms A, he needed to continue to be a spouse or de facto partner. While the applicant remained formally married, the Tribunal found that a spousal relationship requires more than a valid marriage; it necessitates a genuine and continuing relationship with a mutual commitment to a shared life. The applicant's evidence of no contact with Ms A since September 2019, due to an intervention order, and their living separately, led the Tribunal to conclude that such a mutual commitment did not exist. Therefore, the ground for cancellation under section 116(1)(a) was established. In considering its discretion, the Tribunal noted that the applicant's visa purpose was to remain with his spouse, a purpose no longer fulfilled. Giving significant weight to this, the Tribunal found that the reasons for cancelling the visa outweighed the reasons against it.

The Tribunal affirmed the decision to cancel the applicant's Subclass 485 visa.