Marsh (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 500 (Student) visa. The dispute arose because the applicant was no longer in a relationship with the primary visa holder, Maria Juanita Barboza, with whom the applicant's visa was initially granted as a member of the family unit. The Tribunal, constituted by Vanessa Plain, was required to determine whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) existed and, if so, whether to exercise its discretion not to cancel the visa.

The legal issue before the Tribunal was whether the applicant's visa should be cancelled under section 116(1)(a) of the Act, which permits cancellation if the decision to grant the visa was based on a fact or circumstance that no longer exists. The Tribunal found that the ground for cancellation was made out, as the applicant was no longer the spouse or de facto partner of the primary visa holder, a condition for being a member of the family unit under regulation 1.12(2)(a) of the Migration Regulations 1994. However, the Tribunal then considered whether to exercise its discretion not to cancel the visa, having regard to all relevant circumstances.

In exercising its discretion, the Tribunal took into account the applicant's submissions, including the fact that the applicant and Ms. Barboza shared a young child. The Tribunal noted the ongoing Federal Circuit Court proceedings concerning property and child custody, and the existence of court orders and reports pertaining to the child's welfare and the applicant's visitation rights. Crucially, the Tribunal considered evidence that the applicant's separation from his daughter would cause her unnecessary distress and potential mental harm, given her emotional and financial dependence on him and her expressed wish to see both parents. The Tribunal concluded that, on balance, the circumstances warranted setting aside the cancellation decision.

The Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel the visa.