Sachdeva (Migration)

This matter concerned an appeal by Mr Sachdeva against a decision to cancel his Subclass 485 (Temporary Graduate) visa. Mr Sachdeva had been granted the visa as a secondary applicant, with the purpose of remaining in Australia with his partner, the primary visa holder. However, the relationship between Mr Sachdeva and the primary visa holder had ceased. The Department of Home Affairs had initiated cancellation proceedings under section 116(1)(a) of the Migration Act 1958 (Cth), on the basis that a fact or circumstance relevant to the grant of the visa no longer existed.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(a) was established, and if so, whether it should exercise its discretion to cancel the visa. The primary legal issue was whether the cessation of the spousal relationship meant that the applicant was no longer a member of the family unit of the primary visa holder, thereby rendering the visa grant invalid or subject to cancellation. The Tribunal also had to consider the applicant's submissions regarding his compelling need to remain in Australia, including his employment, voluntary activities, and crucially, his desire to remain with his young son who resided in Australia.

The Tribunal found that the ground for cancellation under section 116(1)(a) was established, as the applicant was no longer in a relationship with the primary visa holder and therefore could not fulfil the original purpose of his visa. However, the Tribunal then considered whether to exercise its discretion to cancel the visa. It had regard to the applicant's circumstances, including the ongoing family dispute resolution and potential family law proceedings, the best interests of his child, his mental health treatment, and the possibility of future employment sponsorship. While the applicant's hope for sponsorship was not certain, the Tribunal concluded that, on balance, the circumstances warranted a decision not to cancel the visa.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr Sachdeva's Subclass 485 (Temporary Graduate) visa.