SINGH (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant had been granted the visa on the basis of his relationship with the primary visa holder. The Minister's delegate formed the view that the applicant was no longer in a relationship with the primary visa holder, which was a fact or circumstance upon which the visa grant was based. The applicant was invited to comment on this information and, in his response and at the hearing, did not dispute that his relationship with the primary visa holder had ceased. The Tribunal, presided over by Donna Petrovich, was therefore required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(a) permits cancellation if the Minister is satisfied that the decision to grant the visa was based, wholly or in part, on a fact or circumstance that is no longer the case or no longer exists. The Tribunal also had to consider all relevant circumstances in exercising its discretion to cancel the visa, including matters of government policy and the applicant's personal circumstances.

The Tribunal reasoned that the applicant's admission that his relationship with the primary visa holder had ceased satisfied the ground for cancellation under s 116(1)(a). As this ground did not mandate cancellation, the Tribunal then considered the exercise of discretion. It found that the applicant did not appear to be enrolled in a course of study and was no longer in a relationship with the primary visa holder, giving little weight to these factors in his favour. While acknowledging the applicant's distress at not seeing his daughter, the Tribunal gave no weight to his unsubstantiated claim regarding his wife's motives for separation. The Tribunal also noted that there was no evidence of other visa condition breaches, but considered this to be of minimal weight given the significance of the primary breach.

Having considered all the circumstances, the Tribunal concluded that the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Class TU visa.