NG (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 573 Higher Education Sector visa. The visa had been granted on the basis that the applicant was a member of the family unit of the primary applicant, Mr Man Kit Chan. The Department initiated cancellation proceedings under s 116(1)(a) of the Act after being informed that the applicant was no longer a member of Mr Chan's family unit. The applicant claimed she did not receive the Notice of Intention to Consider Cancellation, which was returned to the Department unclaimed, but the Tribunal accepted this evidence, noting that its review process cured any prior procedural error.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(a) of the Act was made out, and if so, whether the applicant's visa should be cancelled, considering all relevant circumstances. Section 116(1)(a) permits visa cancellation if the Minister is satisfied that the visa was granted based on a fact or circumstance that no longer exists. The Tribunal also had to consider the exercise of discretion regarding cancellation, having regard to the applicant's circumstances and relevant departmental policy, with the objective of reaching the correct or preferable decision.

The Tribunal found that the applicant and Mr Chan had separated in March 2017, and despite their divorce not being finalised, they remained separated. The applicant conceded that this separation constituted a material change in the circumstances under which her visa was granted, thus satisfying the ground for cancellation under s 116(1)(a). However, as this ground did not mandate cancellation under s 116(3), the Tribunal proceeded to consider the discretionary aspects. The applicant provided evidence of an acrimonious separation, including Mr Chan's difficult behaviour and false accusations. She also indicated her intention to study Child Care, having received an offer, and that Mr Chan had previously insisted she delay her studies until he completed his. The Tribunal concluded that, considering all circumstances, the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 573 visa.