SAMOEI (Migration)

The Administrative Appeals Tribunal considered the case of Mr Samoei, who sought review of the Minister's decision to cancel his Subclass 500 (Student) visa. The applicant's visa had been granted on the basis that he was the spouse of Ms Sheila Jebet Lelei, who held a student visa. The dispute centred on whether the circumstances under which the visa was granted still existed, and if not, whether the visa should be cancelled.

The Tribunal was required to determine two primary legal issues. First, whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) was made out, specifically if the fact or circumstance upon which the visa was granted no longer existed. Second, if the ground for cancellation was established, whether the Minister's discretion to cancel the visa should be exercised in favour of cancellation, considering all relevant circumstances.

The Tribunal found that the applicant's Subclass 500 visa was granted because he was the spouse of Ms Lelei. However, the applicant confirmed that his relationship with Ms Lelei had broken down, with the parties separating in April 2018. Consequently, the Tribunal was satisfied that the applicant was no longer a member of Ms Lelei's family unit and that the basis for his visa grant no longer existed. In exercising its discretion, the Tribunal considered the applicant's stated purpose for being in Australia, his compliance with visa conditions, and the potential hardship he might face upon return to Kenya. While acknowledging the applicant's concerns for personal safety in Kenya and his compliance with visa conditions, the Tribunal gave no weight to his desire to remain in Australia, as the original purpose of his visa – to be with his wife – had ceased.

Ultimately, the Tribunal affirmed the decision to cancel Mr Samoei's visa, concluding that the cancellation was warranted.