SINGH (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Subclass 573 Higher Education Sector visa. The applicant had been granted the visa as a member of the family unit of Ms Mandip Kaur. The Department of Home Affairs initiated cancellation proceedings on the basis that the applicant was no longer a member of Ms Kaur's family unit, as their marital relationship had ended. The applicant contended that the cancellation decision was incorrect, arguing that his migration agent was responsible for misrepresenting their marital status in a subsequent visa application. The Administrative Appeals Tribunal, constituted by Nicola Findson, was required to determine whether the grounds for cancellation existed and, if so, whether the visa should be cancelled.

The Tribunal was required to consider 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 whether the fact or circumstance upon which the visa was granted – namely, the applicant being a member of Ms Kaur's family unit – no longer existed. Second, if the ground for cancellation was established, the Tribunal had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant was granted the visa on 14 July 2016 because he was the husband of Ms Kaur and thus a member of her family unit. The applicant admitted that he and Ms Kaur separated in March 2017 and that he was no longer a member of her family unit. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(a) was established. In considering the exercise of discretion, the Tribunal noted the applicant's stated purpose of remaining in Australia to work to repay debts, which was inconsistent with the purpose of the Subclass 573 visa. Furthermore, the Tribunal found that the applicant had not complied with his work condition of 20 hours per week, having worked between 25 and 30 hours per week, and had provided dishonest information to the Department in response to the Notice of Intention to Consider Cancellation. The Tribunal gave significant weight to these factors in favour of cancellation.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.