Gomes Soares (Migration)

This matter concerned an appeal by the applicant, a citizen of Brazil, against the cancellation of his Subclass 485 (Temporary Graduate) visa. The applicant had been granted the visa as a member of the family unit of the primary visa holder, Ligia De Deus Schultz. The visa was cancelled on the basis that the applicant was no longer a member of the family unit of the primary visa holder, as their relationship had ceased. The Administrative Appeals Tribunal (the Tribunal) affirmed the decision to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant's Subclass 485 visa should be cancelled, given that he was no longer a member of the family unit of the primary visa holder. This required the Tribunal to consider the grounds for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) and, as the ground did not mandate cancellation, to exercise its discretion regarding whether to cancel the visa.

In its reasoning, the Tribunal found that the applicant was no longer a member of the family unit of the primary visa holder, thus satisfying the ground for cancellation under section 116(1)(a). In exercising its discretion, the Tribunal gave significant weight to the fact that the visa was granted for the purpose of the applicant accompanying his former partner and that this purpose was no longer extant. The Tribunal also noted the lack of compelling evidence regarding the applicant's need to remain in Australia and the absence of probative evidence demonstrating the degree of hardship that cancellation might cause. Consequently, the Tribunal concluded that, on balance, the visa should be cancelled.