Mohammadi (Migration)

The Administrative Appeals Tribunal considered the case of Mr Mohammadi, who was the secondary holder of a Subclass 485 (Temporary Graduate) visa. The primary visa holder was his wife, Dr Elham Mohammadi Foomani. The Minister had decided to cancel Mr Mohammadi's visa.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. Section 116(1)(a) allows for visa cancellation if the Minister is satisfied that a fact or circumstance upon which the visa was granted no longer exists.

The Tribunal found that the ground for cancellation under s 116(1)(a) was made out, as Mr and Mrs Mohammadi had divorced under Australian law on 23 April 2022, meaning Mr Mohammadi was no longer a member of the family unit of the primary visa holder. However, the Tribunal then considered its discretion. It had regard to the applicant's circumstances, including his explanation that he had come to Australia to support his wife's studies, his own career aspirations in Iran, the difficulties he faced in having his qualifications recognised in Australia, and his efforts to reconcile his marriage. The Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel Mr Mohammadi's Subclass 485 visa.