Gill (Migration)

The Federal Circuit and Family Court of Australia considered a dispute concerning the cancellation of a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, held by a secondary applicant. The primary ground for cancellation was that a fact or circumstance upon which the visa was granted no longer existed, specifically the cessation of the relationship between the secondary applicant and the primary visa holder.

The court was required to determine whether the Minister, or their delegate, had properly exercised the discretion to cancel the visa. This involved assessing whether the purpose for which the visa was granted could still be fulfilled, given the changed circumstances of the secondary applicant, and whether the applicant had a reasonable opportunity to seek another visa onshore.

Her Honour Justice Raif reasoned that the visa's purpose, which was to allow the holder to remain in Australia following completion of studies and to gain further work experience, could no longer be fulfilled due to the breakdown of the relationship with the primary applicant. Crucially, the court found that the secondary applicant was not the holder of a substantive visa at the time of the cancellation decision and was therefore unable to apply for a Student visa onshore. The fact that the applicant was employed in Australia was also a relevant consideration in the exercise of discretion.

The decision under review was set aside.