Seldon (Migration)

This matter concerned an appeal by the applicant, Seldon, against the cancellation of her Subclass 485 (Temporary Graduate) visa by the Department of Home Affairs. The cancellation was based on the applicant no longer being a member of the family unit or in an ongoing relationship with the primary visa holder, meaning the purpose of her travel and stay in Australia could no longer be fulfilled. The Administrative Appeals Tribunal (AAT) was required to determine whether to affirm the cancellation decision.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, the applicant's Subclass 485 visa should be cancelled, given that the ground for cancellation did not mandate mandatory cancellation under section 116(3) of the Migration Act 1958 (Cth). The Tribunal considered various factors, including the purpose of the visa, the applicant's need to remain in Australia, her compliance with visa conditions, and the potential hardship that cancellation might cause.

The Tribunal reasoned that the applicant's Subclass 485 visa was granted as a secondary applicant to enable her to remain with her partner, but this relationship had ended. Consequently, she could no longer fulfil the original purpose of her stay. While the applicant stated she had commenced a new relationship and wished to remain in Australia with her new partner, who held a Student visa, the Tribunal found that her application for inclusion in his visa was a separate process. Therefore, even if her new relationship constituted a compelling need to remain, she could do so while that application was being processed, irrespective of the cancellation of her current visa. The Tribunal also found no evidence of non-compliance with visa conditions and concluded that any potential hardship, including financial hardship, was not a sufficient reason to prevent cancellation, particularly as she could seek permission to work if needed.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.