Madani (Migration)

[2018] AATA 1593

Madani (Migration) [2018] AATA 1593 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parham Madani

CASE NUMBER:  1720457

DIBP REFERENCE(S):  BCC2017/471343

MEMBER:Susan Trotter

DATE:19 April 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 574 Postgraduate Research Sector visa.

Statement made on 19 April 2018 at 8:15am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 574 Postgraduate Research Sector – Existence of a particular fact or circumstance – Spouse of primary visa holder – Separate households – Separate finances – Court order in care of child – Substantial care of child – Child’s best interest – Financial hardship – Compliance with visa conditions – Decision under review set aside

LEGISLATION
Family Law Act 1975, s 60B
Migration Act 1958, ss 5, 5F, 116
Migration Regulations 1994,  rr 1.12, 1.15A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 August 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 574 Postgraduate Research Sector visa under s.116 of the Migration Act 1958 (the Act).

2. On 9 March 2015, the applicant was granted a Subclass 574 visa with a cease date of 26 December 2019 on the basis of being a member of the family unit of his wife, Mahsa Khorramdelazad, who satisfied the primary criteria for and was the holder of a Subclass 574 visa.

3. On 2 March 2017, a Notice of Intention to Consider Cancellation (NOICC) was forwarded to the applicant, to which the applicant responded via his agent.

4. On 29 August 2017, the visa was cancelled under s.116(1)(a) of the Act on the basis that a particular fact or circumstance upon which the decision to grant the visa was based was no longer the case or no longer existed. Specifically, the delegate found that the applicant was no longer a member of the family unit of Ms Khorramdelazad.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 4 September 2017. The applicant provided a copy of the delegate’s decision and decision record to the Tribunal with his application.

6. The applicant appeared before the Tribunal on 13 March 2018 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

8. Following the hearing, the Tribunal adjourned until 27 March 2018 to give the applicant the option of providing further evidence.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   ISSUES

10. Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(a) that a particular fact or circumstance upon which the decision to grant the visa was based is no longer the case or no longer exists.

11. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

12. There are no matters specified in the Act or Migration Regulations 1994 (the Regulations) that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual (PAM3), ‘General visa cancellation powers’, including:

    (a)  The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;

    (b)  The extent of compliance with visa conditions;

    (c)  Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;

    (d)  Circumstances in which the ground for cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

    (e)  Past and present conduct of the visa holder towards the Department;

    (f)    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention;

    (g)  Whether there would be consequential cancellations under s.140 of the Act;

    (h)  Whether any international obligations would be breached as a result of the cancellation; and

    (i)    Any other relevant matters.

13. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist?; and, if so

    (b)  Should the discretion to cancel the visa be exercised?

    CONSIDERATION

14. The applicant’s evidence to the Tribunal, at hearing and in statutory declarations before the Tribunal, included as follows:

    (a)  He and Ms Khorramdelazad were married in December 2007. She had completed a Bachelor degree in agriculture in Iran but because of the cultural situation in Iran, there were not good prospects for her as a female for further study in Iran. They were a team and had a stable family and life in Tehran and he had been working earning a good income. They had two cars and a stable life and were very happy.

    (b)  After Ms Khorramdelazad finished her Bachelor degree, she commenced her Masters, which she finished at around the same time they were married. They then discussed the future and made a family decision that it was a good idea to test their opportunities in overseas countries with a view to a better life. They were considering educating their son internationally when he was a bit older. The decision to look at options overseas was solely based upon study opportunities for Ms Khorramdelazad.

    (c)  Their son was born in 2010. Ms Khorramdelazad had some psychological issues following the birth of their son and was prescribed medication for depression. After the birth of their son, there were three occasions when they had disagreements in their relationship which resulted in him and Ms Khorramdelazad living separately and apart for two to three weeks. On each of these occasions Ms Khorramdelazad moved out of their family home and lived with her parents who lived approximately an hour’s drive away. On each occasion she left without telling him but he then had contact with her and their son. He felt she just needed some space. Ultimately on each occasion she and their son returned to their family home. He cannot remember exactly when these occasions were but the last occasion was in Iran approximately two months before coming to Australia. That last stay with her parents was for about three weeks. During this time, he would occasionally drive to visit them and have dinner with them. It was not a break-up – it was like she was having some space and getting away for a short time. There were some disagreements but they were not serious fights.

    (d)  The process to come to Australia was not an uncomplicated process. They were both under a lot of pressure with life and various life decisions and that contributed to some stress but they did not have major disagreements.

    (e)  They arrived in Australia in 2015. Ms Khorramdelazad started her studies at Griffith University. Their son started at school and was very happy. Because of Ms Khorramdelazad’s studies, he was the primary carer for their son for many years.

    (f)    In late 2016/early 2017, Ms Khorramdelazad’s parents came to visit them for three months and they all had a lot of fun. On the last day of Ms Khorramdelazad’s parents’ visit, in February 2017, he cooked a barbeque and they had a good lunch. He told Ms Khorramdelazad he was going to have a nap and that he would then take her parents to the airport. She lay down with him and hugged him and was crying. He thought she was sad that her parents were going back. He comforted her and he later took her parents to the airport and when he returned Ms Khorramdelazad and their son had left the house and taken all their personal belongings with them and left him a letter. When they had first arrived in Australia, Ms Khorramdelazad hid her passport and their son’s passport from him. At the time he thought it must have been because she was concerned that he might return to Iran with their son in the future. He did raise this issue with her at one stage and she just said that it was better for the passport to be with her. Whilst he had some concerns as to why she had done that, they had a happy family life and he did not think there would be any reason for that to happen. Whilst they were very happy, life in a new country was not without its challenges.

    (g)  Initially after Ms Khorramdelazad and their son moved out, he did not know where they were living. He tried to find them and he tried to find a legal way to have contact with their son.

    (h)  He continued to live in the home he shared with Ms Khorramdelazad and their son for some months after February 2017 but he subsequently moved to his own place. He now has court-ordered care of their son following court orders in July 2017. He picks their son up on Sunday morning and has care of him until he drops him at school on Wednesday mornings. He also has care of their son for half the school holidays. He does not see Ms Khorramdelazad at any other time other than when he drops off or picks up their son. Only their parents in Iran know of their changed living arrangements. None of their other relatives in Iran know of their separation.

    (i)    In relation to the allegations of family violence made by Ms Khorramdelazad, there have been no protection orders made or any complaint made to the police. He denies that he has perpetrated family violence against Ms Khorramdelazad or their son. Any actions complained of by her are in relation to reasonable disciplinary or protective measures taken by him.

    (j)    He is now operating as a sole trader doing mobile phone repairs. Ms Khorramdelazad's source of income is university funding for her doctorate of $1,100 per fortnight. They do not now share money, however she is not in a good financial situation. She pays $350 per week just for rent. She does not have enough money for internet. She does not have a car. She will text him that she is not in a good financial condition and ask him to pay for their son’s school stuff and clothes etc. Whenever she wants help, he pays for anything related to their son, but not for her. The expenses he has paid for their son are highlighted on bank statements he has provided to the Tribunal. He now has a life insurance policy where their son has been nominated as his beneficiary.

    (k)   When he and Ms Khorramdelazad were living together their finances were arranged differently. He was paying all of the expenses then. It was the first time she was earning money in her whole life and she was keeping her money. He was initially using his savings from Iran (approximately $50,000) and after six or seven months he started working.

    (l)    When they were living together they shared a lease but they now have separate living and rental arrangements.

    (m) He is optimistic that he and Ms Khorramdelazad will reunite. He is not sure whether Ms Khorramdelazad is supportive of him remaining in Australia or not. He thinks it will be different when they have a mediation in August 2018. At the last Federal Circuit court hearing, Ms Khorramdelazad asked the Judge for a mediation.

    (n)  Ms Khorramdelazad is not aware of the specifics of his visa cancellation issues. She knows there is some difficulty but she does not know the exact situation. He thinks it is Ms Khorramdelazad who advised the Department of the relationship separation.

    (o)  Ms Khorramdelazad is due to finish her doctorate studies in a year and a half. He understands she then intends to apply for permanent residency in Australia.

    (p)  If his visa is cancelled, it will be too hard for him to come back to Australia to visit their son. The Family Circuit Court has placed their son on a watch list at the airport.

    (q)  He has around $44,000 in savings but has just spent $30,000 on legal fees for family law and visa matters.

    Issue 1 – Does the ground for cancellation exist?

15. The applicant’s visa was granted on the basis that he was a member of Ms Khorramdelazad’s family unit and therefore met the secondary criteria for the visa as a member of the family unit of Ms Khorramdelazad.

16. Relevantly, r.1.12(1)(a) of the Regulations provides that a person is a member of another’s family unit within the meaning of s.5(1) of the Act if the person is the other’s person’s spouse or de facto partner.

17. Section 5F(1) of the Act provides that a person is the spouse of another if both are in a married relationship. Section 5F(2) provides that two people will be in a married relationship if they are legally married, have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship between them is genuine and continuing, and they live together or do not live separately on a permanent basis.

18. In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3).

19. As noted in the delegate’s decision record, there is information before the Department which indicated that the applicant and Ms Khorramdelazad were no longer in an ongoing relationship.

20. The applicant submitted at hearing that whilst he and Ms Khorramdelazad had not lived together since February 2017, they are still legally married and are not divorced. Further, he pays for various expenses when requested by Ms Khorramdelazad.

21. The Tribunal notes from documents provided by the applicant to the Tribunal that there are current proceedings before the Federal Circuit Court of Australia. Various Federal Circuit Court orders have been provided by the applicant to the Tribunal, including as follows:

    (a)  25 July 2017 – including orders that the applicant’s and Ms Khorramdelazad’s son live with Ms Khorramdelazad and spend time with the applicant from Sunday morning until Wednesday morning and for half the school holidays.

    (b)  12 February 2018 – including orders in relation to not exposing the child to adult entertainment and ensuring that the child attend school on time with the matter adjourned to 22 August 2018 for further directions.

22. The Tribunal is satisfied and accepts that the applicant and Ms Khorramdelazad, although not living together since February 2017, remain legally married. The Tribunal therefore considered whether there is a ground for cancellation of the visa on the basis that the applicant is no longer the spouse, and therefore a member of the family unit of, Ms Khorramdelazad, the primary visa holder.

23. The Tribunal raised with the applicant at hearing its concern that he is no longer the spouse, as that term is defined in the Act, of Ms Khorramdelazad. The Tribunal noted that the situation now could be considered different from the earlier two to three week separations between him and Ms Khorramdelazad prior to their coming to Australia. The Tribunal noted that it is over a year since he and Ms Khorramdelazad lived together, and they have separate households and separate finances. There are court orders in relation to the care of their son, that is, they do not take joint responsibility together for the care of their son. In considering the circumstances, the Tribunal may conclude that since February 2017 the applicant has no longer been the spouse of Ms Khorramdelazad and, therefore, has not been a member of her family unit since that time, meaning a ground for cancellation of the visa exists.

24. The applicant told the Tribunal that since the separation, he and Ms Khorramdelazad are just trying to support their son. She has not tried to have another relationship with anyone else, has recently sought mediation and he knows she is going to come back to him. He suggested that in Australia partners have separate financial dealings. The Tribunal discussed with the applicant that it is accepted that persons in genuine and continuing relationships can maintain separate finances but noted that notably there has been a change in the financial arrangements between him and Ms Khorramdelazad in that previously he paid for all household expenses whilst Ms Khorramdelazad utilised her monies for her personal expenses, whereas he and Ms Khorramdelazad each now separately pay for their respective household and other expenses, except for some of their son’s expenses, for which the applicant pays.

25. The Tribunal had regard to all of the circumstances of the relationship, including the r.1.15A(3) matters. The Tribunal accepts that the applicant assists Ms Khorramdelazad with various expenses for their son as requested, however finds that since Ms Khorramdelazad moved out in February 2017, the applicant and Ms Khorramdelazad have maintained separate finances, and that the financial assistance provided by the applicant to Ms Khorramdelazad is only in relation to expenses for their son, in the nature of child support. The Tribunal finds that since February 2017, the nature of their households is that they have maintained separate households and have not taken joint responsibility for care of their son but rather have cared for their son separately and more recently in accordance with Federal Circuit Court orders. The Tribunal has had regard to the applicant’s evidence that he is optimistic of a reunion and is sure that will happen, with Ms Khorramdelazad recently seeking mediation through the court. The Tribunal accepts that there may be some prospect of the applicant and Ms Khorramdelazad reuniting. However, at this point in time that is merely a supposition as to the future, unsupported by objective evidence. Notably the applicant’s and Ms Khorramdelazad’s separation, including arrangements in relation to their son, is the subject of Federal Circuit Court proceedings, and the applicant’s evidence was that the only time they see each other is to drop off/pick up their son. Further, whilst their extended families may not have yet been told, their parents are aware of their separate living circumstances and they therefore represent to their parents and others, such as government departments and the school, that they are separated and are no longer in a continuing relationship. The applicant displayed an intention and commitment to a future with Ms Khorramdelazad, however there is no evidence before the Tribunal that Ms Khorramdelazad shares such a commitment or intention, and the Tribunal is not satisfied that there is a mutual commitment.

26. Having had regard to all matters, the Tribunal finds that the applicant and Ms Khorramdelazad are no longer in a continuing relationship and have not been since February 2017. It follows, and the Tribunal finds, that the applicant has not been the spouse of Ms Khorramdelazad within the meaning of that term in s.5F of the Act since February 2017. Accordingly, the Tribunal is satisfied that the ground for cancelling the applicant’s visa under s.116(1)(a) of the Act existed when the delegate cancelled the visa, and it exists now.

27. As that ground does not require mandatory cancellation of the applicant’s visa under s.116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.

    Issue 2 – Should the discretion to cancel the visa be exercised?

1. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in PAM3, ‘General visa cancellation powers’, as referred to earlier in these Reasons.

   The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel to or remain in Australia

2. The applicant was granted a Subclass 574 visa on 9 March 2015 (with a cease date of 26 December 2019) as a secondary applicant, with the purpose of his stay in Australia being to live with Ms Khorramdelazad (the primary Subclass 574 visa holder) as her husband. Their son was also granted a Subclass 574 visa. The applicant’s relationship with Ms Khorramdelazad is no longer continuing. The primary purpose of his travel to Australia has therefore ceased to exist. However, notably and importantly, the applicant’s son’s remains living in Australia with Ms Khorramdelazad and is the subject of Federal Circuit Court orders allowing the applicant to exercise significant care of their son.

3. Various allegations of family violence perpetrated against her and their son have been made against the applicant by Ms Khorramdelazad. The applicant’s evidence at hearing was that he denied these allegations and that the actions complained of in relation to their son were actions taken for disciplinary or protective reasons. It is not the role of this Tribunal on this application to make findings in relation to those allegations, particularly in circumstances where it has not had the benefit of hearing evidence from Ms Khorramdelazad. Notably, the Federal Circuit Court, presumably having had the opportunity to hear from both the applicant and Ms Khorramdelazad, has seen fit to order that the applicant have extensive care of their son. In those circumstances the Tribunal is satisfied that there is a compelling need for the applicant to remain in Australia to continue to have contact with and care of his young son pending further orders. The Tribunal places considerable weight on this factor in the applicant’s favour in considering whether the discretion to cancel the visa should be exercised.

   The extent of compliance with visa conditions and co-operation with the department

4. There is no evidence before the Tribunal that the applicant has breached any condition of his visa. Further, there is no evidence of a lack of cooperation with the department. The applicant responded to the NOICC the visa. Those matters stand in his favour.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

5. Following the hearing, a number of statutory declarations were provided from friends of the applicant, variously supporting the close relationship between the applicant and his son and the hardship that would be caused if the visa were cancelled and consequently the applicant and his son were separated. The Tribunal accepts that if the applicant’s visa is cancelled, it will likely necessarily result in an extended separation from his son, with the applicant likely to have to return to Iran and his son likely to remain in Australia at least until the cease date of Ms Khorramdelazad’s and his son’s visas on 26 December 2019, and possibly longer if Ms Khorramdelazad seeks and obtains permanent residency in Australia, as the applicant contends she is planning.

6. The Tribunal accepts that the applicant currently provides some financial assistance to Ms Khorramdelazad, particularly in relation to expenses for their son. Whilst the applicant is likely to still be able to assist financially from Iran, particularly given his level of savings, the Tribunal is satisfied that there are likely to be financial consequences of a visa cancellation upon the applicant, and consequentially, possibly also his son.

7. The Tribunal places significant weight in the applicant’s favour on the hardship that may be caused to both he and his son through cancellation of the visa in considering whether to exercise the discretion to cancel the visa.

   Circumstances in which ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

8. As already noted, it is not the Tribunal’s role to make findings in relation to any family violence allegations Ms Khorramdelazad may have made. The Tribunal accepts the applicant’s evidence that his relationship with Ms Khorramdelazad had previously had some periods of short separation but that he had no reason to suspect that their relationship was to cease in February 2017. Whilst the evidence before the Tribunal is limited, the Tribunal accepts that the circumstances in which the visa cancellation arose were unexpected and largely beyond the applicant’s control.

9. The Tribunal places some weight on this consideration in the applicant’s favour in considering whether to exercise the discretion to cancel the visa.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

10. The applicant is currently on a bridging visa because of this review process. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

11. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Consequently, this limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation into account. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program.

12. Notably, cancellation on the basis of s.116(1)(a) does not mean that the applicant would face a possible three-year exclusion period from applying for another visa, as might be relevant for cancellation on another ground.

13. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    Whether there would be consequential cancellations under s.140 of the Act

14. There is no evidence that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

15. Article 3.1 of the UN Convention on the Rights of the Child 1989 (CROC) requires that, in all actions concerning children, the best interests of the child shall be a primary consideration. This article is relevant to the Tribunal’s consideration given that the applicant has an eight year old son currently living in Australia.

16. The right of a child to have a continuing relationship with his or her parent is well recognised in Australian law. Section 60B of the Family Law Act 1975 recognises that the the best interests of children are met having regard to a number of matters, including ensuring that children have the benefit of the meaningful involvement of both parents in their lives (to the maximum extent consistent with their best interests), that children have the right to know and be cared for by both their parents, and that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents.

17. As already noted, if the visa is to be cancelled now, the practical impact would likely be that the applicant would be separated from his son and would be unlikely to be able to spend time with him on a regular basis. Given his son’s young age (eight years of age in 2018), the Tribunal accepts that such separation may well be detrimental to the applicant’s son at an important time in his life, particularly in circumstances where his son currently has regular and extended contact with the applicant.

18. As previously noted, whilst allegations of family violence have been raised by Ms Khorramdelazad against the applicant, the Federal Circuit Court has seen fit to order that the applicant have substantial (50%) care of their son.

19. Having had regard to all of these matters, the Tribunal places significant weight upon the CROC and the best interests of the applicant’s son as weighing in the applicant’s favour when considering whether the discretion to the cancel the visa should be exercised.

    Any other relevant matters

20. It was of some concern to the Tribunal that there was no evidence from Ms Khorramdelazad before the Tribunal supportive of the applicant’s visa not being cancelled in circumstances where time was allowed after the hearing for the applicant to provide that evidence if he wished. The applicant provided statutory declarations from four friends after the hearing. However, no evidence has been provided from Ms Khorramdelazad, nor has the applicant sought for her to give evidence to the Tribunal in a resumed hearing. One view of the lack of evidence from Ms Khorramdelazad in these circumstances is that she does not support the applicant’s continuing presence in Australia. Notably, as already canvassed, Ms Khorramdelazad has made certain family violence allegations against the applicant. However, as also already canvassed, in the absence of protection orders or the like against the applicant, and given the Federal Circuit Court has seen fit to order extensive care of their son to the applicant, the Tribunal does not place any weight one way or the other on the lack of supportive evidence from Ms Khorramdelazad.

21. The Tribunal notes that the visa, the subject of this review, has a cease date of 26 December 2019 and is a temporary visa. If the visa is not cancelled, the applicant’s continuing stay in Australia on this visa will be for a temporary period only and the applicant will need to make other arrangements for a continuing stay in Australia if that is what he wishes to do, depending upon his and his son’s then circumstances, and the Tribunal places some weight on the fact that the visa is only a temporary visa.

    Conclusion

22. The Tribunal has placed substantial weight in the applicant’s favour on the circumstances in which the ground for cancellation arose, as likely beyond the applicant’s control or at least unexpected; the best interests of his son, including continued meaningful involvement with and regular care by the applicant in his life; and the emotional and psychological hardship likely to impact him and their son should the visa be cancelled. The Tribunal also accepts that there will likely be some financial hardship caused by cancellation to the applicant and his son, and possibly also Ms Khorramdelazad. Further, notably, the visa in any event is only a temporary visa of approximately 20 months’ duration. The Tribunal has also placed some weight in the applicant’s favour on his cooperation with the Department and his compliance with visa conditions.

23. Considering the circumstances as a whole, the Tribunal concludes that the discretion to cancel the visa should not be exercised.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 574 Postgraduate Research Sector visa.

    Susan Trotter
    Member