Gautam (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant whose Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491, was subject to cancellation. The dispute arose after the applicant's relationship with the primary visa holder ceased, impacting the purpose for which the visa was granted.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The legal issues revolved around whether the applicant had a compelling need to remain in Australia, despite the cessation of the relationship that underpinned the visa grant, and the degree of hardship that cancellation might cause.

The Tribunal found that the ground for cancellation under s 116(1)(a) was satisfied as the applicant was no longer in the de facto relationship with the primary visa holder, meaning the purpose of his stay was no longer fulfilled. However, in exercising its discretion, the Tribunal considered the applicant's circumstances, including his seven years of residence in Australia, his employment in the critical disability and aged care sectors, and his stated intention to pursue further education and permanent residency. Despite acknowledging the applicant's lack of a clear pathway to a permanent visa and that his temporary visa status limited the compelling nature of his employment, the Tribunal also noted the absence of any visa condition breaches. The Tribunal concluded that, on balance, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 491 visa.