SINGH (Migration) - [2025] ARTA 416

SINGH (MIGRATION) [2025] ARTA 416 (18 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Navjot SINGH
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2437504
Tribunal:Kira Raif
Place:Sydney
Date:18 February 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 18 February 2025 at 4:14pm
CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of the family unit – relationship ceased – further application for a Student visa in process – visa period expired – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 140
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India born in January 1995. He was granted the Skilled visa in December 2022 as a member of the family unit of the primary visa applicant. In August 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the cancellation ground in s. 116(1)(a) may apply. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 18 February 2025 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
RELEVANT LAW
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(a). The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
A visa may be cancelled under s 116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists. If a visa may be cancelled under s 116(1)(a), prescribed circumstances may also exist in which a visa is not to, or must, be cancelled: s 116(2) and (3). There are currently no prescribed circumstances that apply
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.
Does the ground for cancellation exist?
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled visa on the basis of being a spouse of Ms Kaur, who was the primary visa applicant.
The Department received advice in June 2023 that the applicant’s relationship with Ms Kaur ended in December 2022. In his response to the NOICC and oral evidence to the Tribunal the applicant confirmed that his relationship with Ms Kaur ended.
The Tribunal finds that the applicant is no longer a spouse or de facto partner of Ms Kaur. There is no suggestion that the applicant met any of the alternative criteria of the definition of the term ‘member of the family unit’ or that he met the primary criteria for visa grant.
The Tribunal finds that the applicant is no longer a member of the family unit of the primary visa applicant. The Tribunal finds that the Skilled visa was granted to the applicant on the basis of the applicant being a member of the family unit of Ms Kaur and that fact or circumstance no longer exists. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(a) of the Act.
Consideration of discretion
Except for visas cancelled on the basis of a breach of visa condition under s 116(1)(b), there are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s policy guidelines (‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’), which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a specified period. The applicant was granted the visa as a secondary applicant. The purpose of that visa and of the applicant’s stay in Australia was to enable the applicant to remain with his partner. However, that relationship is no longer in existence. The applicant is no longer in a spouse or de facto relationship with the primary visa applicant. The Tribunal finds that the applicant is not able to fulfil the purpose of his travel to and stay in Australia because he is no longer in a relationship with the primary visa holder.
In his response to the NOICC the applicant refers to his study in Australia and in his evidence to the Tribunal the applicant stated that he started a TAFE course in 2024 and in May 2024 he made the application for a Student visa which is still pending.
The Tribunal is mindful that the purpose of the Skilled visa is not to enable the visa holder to study and a Student visa may be more appropriate. The applicant’s evidence is that he had made such an application. Significantly, the primary decision record indicates that the Skilled visa granted to the applicant would have expired in December 2024. That visa, even if reinstated, would not permit the applicant to remain in Australia to study.
The applicant told the Tribunal that he has made an application for a Bridging visa and is still awaiting the outcome of his Student visa application. In these circumstances, and whether or not the applicant has a compelling need to remain in Australia, the Tribunal finds that the applicant would not be required to leave Australia until his application for the Student visa is finally determined.
The extent of compliance with visa conditions
There is no evidence of any non-compliance with visa conditions.
The degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)
In his submission to the delegate the applicant states that the cancellation of the visa would cause significant hardship to him and his family and would disrupt his academic progress and impact his future career prospects. The applicant provided with his submission to the delegate a CoE for a course commencing in May 2024. The applicant told the Tribunal he has been studying since 2024 but he has not presented any documentary evidence of having engaged in that course.
The applicant states that he left everything to come to Australia to support his wife. He states that he and his family are already stressed due to the relationship break-down and visa issues. The applicant states that he has completed one year of a two year course and if his visa is cancelled, all his efforts would be in vain. As noted above, the information in the primary decision record indicates that the Skilled visa that is the subject of this review would have expired in December 2024. The applicant’s evidence is that he has made an application for a Student visa which is outstanding and that process is independent from the present review. The Tribunal is of the view that the cancellation of the now-expired Skilled visa will not affect the applicant’s ability to study and it is the Student visa that may enable the applicant to remain in Australia and to pursue his study.
The applicant also states that he does not have any work rights but the Tribunal notes that the setting aside the cancellation of a Skilled visa which expired in April 2024 will not provide the applicant with work rights. The applicant told the Tribunal that he had applied for a Bridging visa and he can apply for permission to work through that separate process.
The applicant refers to emotional toll due to the broken relationship and his ‘strained’ mental health. The applicant states that and his family are under stress. Even if these claims were accepted (and they are unsupported by any probative evidence such as medical reports), the Tribunal notes that these issues arise due to the relationship breakdown and not visa issues. The applicant states in his response to the NOICC that returning to India prematurely would affect his education and bring financial and emotional stress to the family who have supported him throughout. As the Skilled visa would have already expired, the Tribunal does not consider that the applicant’s return to India (even if that was the effect of the cancellation decision being affirmed) would have been ‘premature’.
The applicant states that the cancellation of his visa would affect his well-being and future plans, personally and professionally. The applicant does not explain in his statement to the delegate how his well-being and future plans would be affected by the cancellation of the visa in circumstances where the visa would have already expired and where the applicant has made an application for another visa that is yet to be finally determined. It is not apparent to the Tribunal that there would be any practical hardship to the applicant and his family if his now-expired Skilled visa is not reinstated.
The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.
The ground for cancellation arises because the applicant’s relationship with his partner and the primary visa applicant has ended. In his response to the NOICC the applicant described the circumstances of the relationship and its breakdown and his effort to strengthen the relationship and he told the Tribunal that it was not his decision to end the relationship. The applicant states that he tried to save the relationship.
The applicant told the Tribunal there was no family violence in the relationship.
The Tribunal does not consider that the ground for cancellation arises due to circumstances beyond the applicant’s control.
The past and present behaviour of the visa holder towards the Department
Nothing adverse is known about the applicant’s behaviour towards the Department and in his submission to the delegate the applicant refers to his compliance with the visa conditions and with the law in general.
Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under s 140
There are no persons whose visas would be subject to consequential cancellation
Whether there are mandatory legal consequences to cancellation, such as: indefinite detention if the person cannot be removed consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister personally intervening; and whether the person would become an unlawful non-citizen and liable to detention and removal
If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia, although the applicant should be able to remain in Australia while awaiting the outcome of his Student visa application. The applicant would be subject to an exclusion period contained in PIC 4013 in relation to some visa applications (noting, however, that the application for the Student visa was made before the decision was made to cancel the Skilled visa). There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore, due to the restrictions imposed by s. 48 of the Act.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. These include the best interests of any children whose interests could be affected by the cancellation; and whether cancellation would lead to removal in breach of Australia’s non-refoulement obligations
The applicant does not claim, and there is no evidence to suggest, that Australia’s non-refoulement obligations arise in this case.
There are no children who would be affected by the cancellation.
Any other relevant matters.
The applicant’s claims are addressed above.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has determined that there are grounds for cancelling the visa as the circumstances which permitted its grant no longer exist.
The Tribunal is not satisfied that hardship would be caused to the applicant and his family by the cancellation, noting firstly that the Skilled visa would have already expired and, secondly, that the applicant has an outstanding application for another visa that is more appropriate for his circumstances and his intention to study in Australia. The cancellation will not be in breach of Australia’s international obligations. The Tribunal gives greatest weight to the fact that the applicant is no longer able to fulfil the purpose of his travel and stay in Australia as he is no longer in a relationship with the primary visa holder and, as for his need to remain in Australia, it can be addressed through the Student visa process.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.
Date(s) of hearing18 February 2025
Representative for the Applicant: Mr MANDEEP SINGH (MARN: 2418383)