KHASRIA (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's subclass 500 student visa under section 116 of the *Migration Act 1958* (Cth). The cancellation was based on the ground that the visa was granted on the basis of the applicant being a member of the family unit of Ms Kretiki Dawa, a circumstance that no longer existed. The applicant sought to argue for reconciliation with Ms Dawa, from whom he was now divorced. The Administrative Appeals Tribunal was required to determine whether the grounds for cancellation were made out and, if so, whether the visa should be cancelled.

The Tribunal was required to consider whether the applicant was still a member of a family unit with Ms Dawa, as this was the factual basis upon which his visa had been granted. If this ground for cancellation was established, the Tribunal then had to consider the exercise of discretion as to whether the visa should be cancelled, taking into account all relevant circumstances, including government policy. The Tribunal applied section 116(1)(a) of the *Migration Act*, which permits cancellation if a fact or circumstance upon which a visa was granted is no longer the case or no longer exists.

The Tribunal found that the applicant was no longer in a genuine and continuing relationship with Ms Dawa, noting that a divorce order had come into effect on 8 November 2018 and that the applicant had not lived with Ms Dawa since July 2017. Consequently, the Tribunal was satisfied that the grounds for cancellation under section 116(1)(a) were made out. As this ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider the exercise of discretion. The Tribunal affirmed the delegate's decision to cancel the applicant's visa.