Noppawong (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had been granted the visa as a member of the family unit of the primary visa holder, Chayanid Ruangkaew. The dispute arose because the applicant's married relationship with Ms Ruangkaew had ceased, meaning the factual basis upon which the visa was granted no longer existed.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was satisfied, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to consider if the applicant's visa was granted based on a fact or circumstance that was no longer the case, and then assess the merits of cancelling the visa in light of the applicant's circumstances and failure to notify the Department of the changed relationship status.

The Tribunal reasoned that the applicant's visa was granted on the basis of being in a married relationship with the primary visa holder, a circumstance defined by Regulation 1.12 of the Migration Regulations 1994. As the applicant and Ms Ruangkaew were no longer in a mutual, genuine, and continuing relationship and were living separately, the applicant no longer met the definition of a member of the family unit. Consequently, the Tribunal was satisfied that the ground for cancellation under s 116(1)(a) was established. In exercising its discretion, the Tribunal gave significant weight against the applicant due to his failure to notify the Department of the changed circumstances for over seven months, finding this omission was not due to circumstances beyond his control.

The Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.