Jaiswal (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel Ms. Jaiswal's Skilled Regional Sponsored (Provisional) (Class SP) visa, Subclass 489. Ms. Jaiswal had been granted the visa as a secondary applicant, relying on her partner's eligibility. The dispute arose when the relationship with the primary visa holder ceased, and Ms. Jaiswal subsequently claimed family violence and expressed fear of harm if she returned to her home country, Nepal. She also highlighted her employment in a critical sector in a regional area and her intention to apply for a permanent skilled visa.

The Tribunal was required to determine whether, in light of the changed circumstances, Ms. Jaiswal's visa should be cancelled. Specifically, the Tribunal had to consider the discretionary power to cancel the visa, taking into account factors such as the original purpose of the visa, the applicant's current circumstances, and the potential hardship if the visa were cancelled. The Tribunal also had to assess the applicant's claims regarding her inability to return to Nepal and the potential harm she might face there, as well as her ability to secure future onshore visa applications.

The Tribunal reasoned that while the original purpose of the visa, to accompany her partner, was no longer valid due to the relationship breakdown, this did not automatically mandate cancellation. The Tribunal acknowledged Ms. Jaiswal's employment in a regional area and her intention to apply for a permanent visa, noting that cancellation could preclude her from making such an application onshore. While the Tribunal was not entirely persuaded by the claims of compelling need to remain in Australia or the extent of fear of harm in Nepal, it considered the totality of the circumstances. The Tribunal found no evidence of non-compliance with visa conditions and acknowledged the potential hardship if the visa were cancelled.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel Ms. Jaiswal's Subclass 489 visa.