Harmanpreet Singh (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant, Harmanpreet Singh, had been granted the visa as a secondary applicant, being a member of the family unit of the primary applicant, Sarabjit Kaur. The dispute arose when the Department of Home Affairs was notified that the applicant was no longer in a relationship with Ms Kaur, leading to the cancellation of his visa under section 116(1)(a) of the *Migration Act 1958* (Cth). The Administrative Appeals Tribunal, constituted by Member Vanessa Plain, was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled.

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 section permits the Minister to cancel a visa if satisfied that the decision to grant it was based, wholly or partly, on a fact or circumstance that is no longer the case or no longer exists. In this instance, the applicant's visa was granted on the basis that he was a member of the family unit of the primary applicant, specifically as her spouse or de facto partner, as defined by regulation 1.12(2)(a) of the *Migration Regulations 1994* and sections 5F and 5CB of the Act. The Tribunal had to consider whether the applicant continued to meet these criteria.

The Tribunal reasoned that the applicant's visa was granted because he was considered a member of the family unit of Sarabjit Kaur, a condition met by being her spouse or de facto partner. Evidence before the Tribunal indicated that the applicant was no longer in a relationship with Ms Kaur, and the applicant admitted this in his evidence. The Tribunal found that the applicant's marriage to Ms Kaur had broken down, and he was no longer her spouse or de facto partner. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(a) was established, as the basis upon which the visa was granted – being a member of the family unit – no longer existed.

Having found that the ground for cancellation existed, the Tribunal then considered whether to exercise its discretion to cancel the visa. The applicant presented reasons for why the visa should not be cancelled, including a desire to reconcile with Ms Kaur and pursue permanent residency. However, the Tribunal weighed these submissions against the circumstances of the case and concluded that the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 visa.