Lo (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, subclass 500. The dispute arose because the applicant was no longer a member of the family unit of Ms Ng, the primary visa holder, which was a circumstance upon which the applicant's visa had been granted.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was made out, and if so, whether the visa should be cancelled. Section 116(1)(a) permits the Minister to cancel a visa if satisfied that the decision to grant it was based on a fact or circumstance that no longer exists. The applicant's eligibility as a member of the family unit was defined by regulation 1.12 of the Migration Regulations 1994 (Cth), which requires the applicant to be a spouse or de facto partner of the family head, as defined by ss 5F and 5CB of the Act.

The Tribunal found that the applicant was no longer a member of Ms Ng's family unit, as their relationship had ceased. This meant the circumstance upon which the visa was granted no longer existed, thus satisfying the ground for cancellation under s 116(1)(a). While this ground did not mandate cancellation under s 116(3), the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal had regard to the applicant's submissions, including his desire to maintain a relationship with his son, his engagement in study pathways, and his volunteer work. However, it also considered the purpose of the visa grant, which was to accompany Ms Ng, and the legal consequences of cancellation, such as becoming an unlawful non-citizen and potential restrictions on future visa applications. The Tribunal noted Australia's international obligations regarding the best interests of the child and the protection of the family unit, but concluded that these circumstances did not outweigh the grounds for cancellation, particularly as the situation was not due to extenuating circumstances beyond the applicant's control.

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