Shahandeh (Migration)

The Administrative Appeals Tribunal considered the case of Mr Shahandeh, who sought to have the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa affirmed. The dispute arose because the visa was granted on the basis that Mr Shahandeh was a member of the family unit of Ms Atefeh Maghzi, a criterion prescribed by regulation 1.12 of the Migration Regulations 1994. However, information received by the Department indicated that the de facto relationship between Mr Shahandeh and Ms Maghzi had ceased, meaning the factual basis upon which the visa was granted no longer existed.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(a) permits the Minister to cancel a visa if satisfied that the decision to grant it was based, wholly or partly, on a fact or circumstance that is no longer the case or no longer exists. The Tribunal was required to determine if Mr Shahandeh was still a member of Ms Maghzi's family unit as defined by the Act and Regulations, and if not, to consider all relevant circumstances in deciding whether to cancel the visa.

The Tribunal reasoned that the visa was granted based on Mr Shahandeh being a de facto partner of Ms Maghzi, as defined by section 5CB of the Act and regulation 1.12(2)(a). A notification of change of circumstances form indicated that the de facto relationship had ended. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(a) was established because the circumstance upon which the visa was granted – being a member of Ms Maghzi's family unit – no longer existed. While this ground did not mandate cancellation, the Tribunal then considered its discretion. It noted Mr Shahandeh's submissions regarding his employment and ongoing PhD studies, as well as his application for a Global Talent visa. However, the Tribunal found that the original purpose of his stay, accompanying Ms Maghzi, was no longer valid, and it ultimately concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr Shahandeh's Subclass 457 visa.