Kndeya (Migration)

This matter concerned an appeal by Mr Kndeya against the cancellation of his Subclass 491 Skilled Work Regional (Provisional) visa. The visa had been granted based on his status as a dependent spouse of the primary visa holder, his wife. However, the relationship had ceased, and Mr Kndeya no longer met the definition of a spouse under the Act. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was made out. This section allows for visa cancellation if the visa was granted based on a fact or circumstance that no longer exists. Mr Kndeya conceded that, following the separation from his wife, he no longer met the definition of 'spouse' as defined in s 5F of the Act, as they were living separately and apart on a permanent basis. The Tribunal was satisfied that this ground for cancellation was established.

Having found that the ground for cancellation existed, the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal had regard to the circumstances of the case, including the applicant's role as the primary caregiver for his two young children, his wife's undiagnosed neurological condition, and the potential harm to the children and Mr Kndeya if they were required to return to their home country. The Tribunal also noted Mr Kndeya's compliance with his visa conditions and his intention to continue supporting his children. Weighing these factors, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision to cancel Mr Kndeya's visa and substituted a decision not to cancel it.