Mandal (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 485 (Temporary Graduate) visa. The applicant had been granted the visa as a secondary applicant, a member of the family unit of the primary applicant, Ms Kaur. The Department of Home Affairs formed the view that the applicant's relationship with Ms Kaur had ended, meaning the factual basis upon which the visa was granted no longer existed, and therefore the visa was liable for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth). The applicant responded to the Notice of Intention to Consider Cancellation, acknowledging that the ground for cancellation existed but requesting that the visa not be cancelled. The Administrative Appeals Tribunal was required to determine whether the visa should be cancelled.

The Tribunal was required to consider two steps under section 116 of the Migration Act. First, it had to be satisfied that the ground for cancellation existed, namely that the decision to grant the visa was based on a fact or circumstance that no longer existed. Second, if satisfied that the ground existed, the Tribunal had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant facts and circumstances. The applicant provided evidence, including a marriage certificate and statutory declarations, detailing his arranged marriage to Ms Kaur and the subsequent breakdown of their relationship shortly after his arrival in Australia. He confirmed that the relationship had ended and that he had not communicated with Ms Kaur since their separation.

The Tribunal accepted that the ground for cancellation under section 116(1)(a) was made out, as the applicant's visa was granted on the basis of his membership in the family unit of Ms Kaur, and this circumstance no longer existed. However, in considering the exercise of discretion, the Tribunal had regard to the applicant's detailed explanation of the circumstances surrounding the breakdown of his marriage, including claims of domestic violence and family disputes, and his mental health and treatment. The Tribunal also noted that the applicant had an application for a student visa in progress. Weighing these factors, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.