Sharma Karki (Migration)

This matter concerned an appeal by Sharma Karki against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. The visa had been granted on the basis that Ms. Karki was a member of the family unit of Krishna, her husband, and met the secondary criteria for the visa. The Minister cancelled the visa under section 116(1)(a) of the Migration Act 1958 (Cth), on the ground that the circumstances which permitted the grant of the visa no longer existed. This cancellation was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the circumstances that permitted the grant of Ms. Karki's visa had ceased to exist, specifically whether she and her husband, Krishna, were still in a married relationship as defined by section 5F of the Act. This required consideration of whether they had a mutual commitment to a shared life as husband and wife, whether their relationship was genuine and continuing, and whether they lived together or did not live separately on a permanent basis. The Tribunal also considered whether Ms. Karki had adequately responded to the notice of intention to cancel her visa, particularly regarding her separation from Krishna.

The Tribunal reasoned that the cancellation ground under section 116(1)(a) required a material change in circumstances, as established in *MIMA v Zhang*. Ms. Karki's visa was granted based on her being Krishna's spouse. The Tribunal noted that section 5F of the Act defines a married relationship by several characteristics, all of which must be satisfied. It was unclear from Ms. Karki's correspondence whether she admitted to separating from Krishna or whether his report of separation was accurate. However, the Tribunal ultimately found that the purpose of Ms. Karki's continued stay in Australia was too far removed from the original purpose of her travel and the 457 visa scheme, and that these factors outweighed any considerations in her favour.

The Tribunal affirmed the decision to cancel Ms. Karki's Subclass 457 visa.