Maliakkal Ouseph (Migration)

The Administrative Appeals Tribunal considered the case of Maliakkal Ouseph, who sought to have the cancellation of his Temporary Skill Shortage (Class GK) visa, Subclass 482, set aside. The applicant had been granted the visa as a member of the family unit of the primary visa holder, his spouse. The dispute arose when the primary visa holder informed the Department of Immigration that their relationship had broken down and she no longer wished to sponsor her husband, leading to the cancellation of his visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) existed, specifically whether the fact or circumstance upon which the visa was granted – being a member of the family unit in a genuine and continuing relationship – no longer existed. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under s 116(1)(a) was made out, as it was not persuaded that the applicant and his wife had reconciled, despite the applicant's assertions and the withdrawal of divorce proceedings. However, the Tribunal then exercised its discretion not to cancel the visa. In doing so, it weighed various factors, including the applicant's compliance with visa conditions, the potential hardship to his daughter, and the circumstances under which the cancellation ground arose. Crucially, the Tribunal was persuaded that the best interests of the applicant's daughter, who was approximately 12 years old, were served by her father remaining in Australia with her.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 482 visa and substituted a decision not to cancel it.