Kumar (Migration)

The Administrative Appeals Tribunal considered the case of Mr Kumar, who sought review of the Minister's decision to cancel his Subclass 500 (Student) visa. The cancellation was based on the ground that the visa was granted on the basis of a fact or circumstance that no longer existed, specifically that Mr Kumar was in a genuine and continuing relationship with the primary visa holder, Ms Maninder Jit Kaur.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The primary issue was whether Mr Kumar's relationship with Ms Kaur had ceased, rendering the basis for his dependent student visa no longer valid.

The Tribunal found that the ground for cancellation was established, as Mr Kumar admitted in his response to the Notice of Intention to Consider Cancellation and during the hearing that his relationship with Ms Kaur had ceased. The Tribunal noted that this ground did not mandate cancellation under s 116(3) of the Act, allowing for the exercise of discretion. In considering this discretion, the Tribunal had regard to the circumstances of the case, including Mr Kumar's explanation of the relationship breakdown, his financial situation, his desire to study cookery in Australia, and the fact that divorce proceedings had been finalised.

Ultimately, the Tribunal affirmed the decision to cancel Mr Kumar's visa, concluding that the circumstances warranted cancellation.