Madani (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of Mr Madani, who held a Student (Temporary) (Class TU) visa, subclass 574. The dispute concerned the cancellation of his visa, which was based on the existence of a particular fact or circumstance, namely that he was no longer in a genuine and continuing relationship with his spouse, Ms Khorramdelazad, and that they were living in separate households with separate finances. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal's reasoning focused on the evidence presented regarding the applicant's relationship with his spouse and their living arrangements. The applicant testified that while he and Ms Khorramdelazad had experienced periods of separation in Iran, these were not indicative of a complete breakdown of their relationship. Upon their arrival in Australia, the applicant had been the primary carer for their son while Ms Khorramdelazad pursued her studies. However, in February 2017, Ms Khorramdelazad and their son left the family home, and subsequently, court orders were made granting the applicant care of their son. Despite living separately and managing finances independently, the applicant expressed optimism about reuniting with Ms Khorramdelazad and noted that their son was placed on a watch list at the airport, indicating the importance of his presence in Australia for their child. The Tribunal also considered the financial hardship Ms Khorramdelazad would face if the applicant were unable to return to Australia.

Applying the principles of migration law, the Tribunal concluded that while the circumstances indicated a separation, the evidence did not definitively establish that the ground for cancellation, as defined by the relevant legislation, had been met. More importantly, even if the ground for cancellation were found to exist, the Tribunal exercised its discretion not to cancel the visa. This decision was based on a holistic consideration of the applicant's circumstances, including his role as a carer for his son, the potential financial hardship for Ms Khorramdelazad, and the applicant's expressed hope for reconciliation. The Tribunal found that cancelling the visa would be unduly harsh.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 574 Postgraduate Research Sector visa.