Kunwar (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Skilled Regional (Provisional) visa (Subclass 489). The applicant had been granted the visa as a secondary applicant, relying on his relationship with the primary visa holder, Ms Thapa. However, the applicant's relationship with Ms Thapa had ended, meaning the circumstances that permitted the grant of the visa no longer existed.

The Tribunal was required to determine whether the applicant was still a member of the family unit of Ms Thapa, and if not, whether there were grounds for cancelling his visa under section 116(1)(a) of the Migration Act 1958 (Cth). The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to various factors including the purpose of the visa, compliance with conditions, and potential hardship.

The Tribunal found that the applicant was no longer a spouse or de facto partner of Ms Thapa, nor did he meet any alternative criteria for being a member of the family unit. Consequently, the basis on which the visa was granted no longer existed, establishing grounds for cancellation under section 116(1)(a). In considering the exercise of discretion, the Tribunal noted that the visa was temporary and intended to allow the applicant to remain in Australia with his partner, a purpose no longer achievable. The applicant had not demonstrated any compelling need to remain in Australia or any steps towards seeking permanent residency in his own right. While there was no evidence of visa condition non-compliance, the Tribunal was not satisfied that cancellation would cause undue hardship, particularly as the applicant had not pursued alternative visa pathways.

The Tribunal affirmed the decision to cancel the applicant's Subclass 489 visa.