Khan (Migration)

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant’s Subclass 485 (Temporary Graduate) visa. The applicant had been granted the visa on 16 September 2019, valid until 16 September 2021, based on being a member of the family unit of the primary visa holder, Ms Alam. The delegate cancelled the visa under s 116(1)(a) of the *Migration Act 1958* (Cth) on the grounds that the applicant was no longer a member of Ms Alam's family unit, as the relationship had ceased. The Administrative Appeals Tribunal was asked to determine whether the ground for cancellation was made out and, if so, whether the visa should be cancelled.

The Tribunal was required to determine if the ground for cancellation under s 116(1)(a) of the Act was established. This section permits cancellation if the visa was granted based on a fact or circumstance that no longer exists. The Tribunal also had to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised, taking into account all relevant circumstances. The applicant had confirmed the breakdown of his relationship with Ms Alam and provided a divorce certificate.

The Tribunal found that the applicant was no longer in a spousal or de facto relationship with Ms Alam, and that the visa had been granted based on this relationship. Consequently, the Tribunal concluded that the fact or circumstance upon which the visa was granted no longer existed, establishing the ground for cancellation under s 116(1)(a). In exercising its discretion, the Tribunal considered the applicant's submissions, including his intention to undertake further studies and claims of financial hardship, but found these did not constitute a compelling need to remain in Australia. The Tribunal determined that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.