Tamir (Migration)

This matter concerned an appeal by the applicant, Ms Tamir, against the decision of the Minister to cancel her Student (Temporary) (Class TU) visa, subclass 500. The dispute arose from the applicant's alleged failure to maintain a relationship with the primary visa holder, her husband, and her alleged non-compliance with her student visa conditions. The Administrative Appeals Tribunal (AAT) was required to determine whether the grounds for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) were made out and, if so, whether to exercise its discretion to affirm the cancellation.

The Tribunal was required to consider two primary legal issues. Firstly, whether the circumstances under which the applicant's visa was granted had changed, specifically regarding her relationship with the primary visa holder, thereby satisfying the ground for cancellation under s 116(1)(a). Secondly, 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, including the applicant's stated intention to study and the status of her relationship. The Tribunal also had to determine if the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a full-time registered course and maintenance of satisfactory course progress and attendance.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) as she was not enrolled in a full-time registered course. Furthermore, the Tribunal was not satisfied that the applicant had maintained a relationship with the primary visa holder, a key circumstance upon which her visa was granted. Despite the applicant's assertions of reconciliation and cohabitation on weekends, the Tribunal found her evidence to be unconvincing and implausible, particularly in light of her husband's testimony denying reconciliation and stating they had not been in contact for over 12 months. The Tribunal concluded that it was more likely than not that the relationship had ceased, and therefore the ground for cancellation under s 116(1)(a) was established. In exercising its discretion, the Tribunal gave significant weight against the applicant due to the breakdown of the relationship, which was a fundamental basis for her secondary student visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.