KURUP (Migration)

This matter concerned Mr Kurup, who sought review of the cancellation of his Skilled Independent (Permanent) visa (Subclass 189). Mr Kurup had been granted the visa as a secondary applicant, relying on his relationship with his wife, Mrs Varna Kurup, who was the primary applicant. At the time of the visa application, Mr Kurup stated he was legally married to Mrs Kurup and that their relationship was genuine and to the exclusion of all others. Following the grant of the visa, Mr Kurup, his wife, and their daughter relocated to Australia. The review was heard by Katie Malyon.

The legal issues before the Tribunal included whether Mr Kurup had failed to meet the criteria for the visa, specifically concerning the genuineness of his relationship with his wife, and whether the visa had been obtained by fraud or misrepresentation. The Tribunal was required to consider the nature of the allegations and the gravity of the consequences, and to determine whether there had been non-compliance as described in the notice of cancellation. The Tribunal also had to consider the weight to be given to various pieces of evidence and whether to exercise its discretion to cancel the visa.

In its reasoning, the Tribunal applied established legal principles for reviewing visa cancellation matters. It noted that it must first determine if there was non-compliance as particularised in the notice. The Tribunal also acknowledged that while it must have regard to matters set out in the regulations, this did not exclude other considerations. Crucially, the Tribunal considered the presumption of innocence, stating that it could only note the fact of an applicant being charged with an offence and afford it no weight unless making findings of fact on the conduct amounting to a breach of law, or until a conviction. The Tribunal also had regard to lawful government policy and any other relevant matters. The case text indicates that the Tribunal had before it the Department's files relating to both the visa cancellation and the original application, and that Mr Kurup had stated he was legally married to Mrs Kurup for 6½ years and in a genuine relationship with her.