Hewa Masmullage (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 485 (Temporary Graduate) visa. The applicant had failed to attend a hearing before the Tribunal and had ceased to be the spouse of the primary applicant, meaning he was no longer considered a member of her family unit. The Tribunal was required to determine whether the cancellation of the applicant's visa was appropriate, considering the best interests of his child.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, given that the ground for cancellation did not mandate it under section 116(3) of the Migration Act 1958 (Cth). The Tribunal considered various factors, including the purpose of the applicant's stay in Australia, his compliance with visa conditions, and the potential hardship cancellation might cause.

The Tribunal reasoned that the applicant's Subclass 485 visa was granted to enable him to remain in Australia with his partner, but this relationship had ended. Consequently, the applicant could no longer fulfil the purpose of his visa. While the applicant's daughter resided in Australia, the Tribunal found that the applicant had not provided sufficient information about his relationship with the child or her presence in Australia to establish a compelling need for him to remain. Furthermore, the Tribunal noted that the applicant's visa would have expired in June 2021, irrespective of the cancellation decision, meaning he would not have had the right to remain in Australia as a holder of that visa to be with his child. The Tribunal also found that the applicant had presented minimal evidence of hardship resulting from the cancellation.

Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 485 (Temporary Graduate) visa.