Zeb (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 485 (Temporary Graduate) visa held by the applicant. The cancellation was initiated because the applicant was no longer the spouse of the primary visa holder, meaning he was no longer considered a member of her family unit, and thus the circumstance upon which his visa was granted no longer existed. The applicant did not dispute that the ground for cancellation was made out.

The Tribunal was required to determine whether to exercise its discretion to cancel the applicant's visa, considering all relevant circumstances. This involved assessing factors outlined in the Department's Procedures Advice Manual (PAM3) and considering the best interests of the child, as mandated by the Convention on the Rights of the Child (CROC). The Tribunal also had to weigh the potential consequences of cancellation for the applicant, including becoming an unlawful non-citizen and facing restrictions on future visa applications in Australia.

The Tribunal found that while the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was established, the cancellation was not mandatory. In considering the exercise of discretion, the Tribunal noted that the delegate had found factors favouring cancellation only slightly outweighed those against it. Crucially, the Tribunal gave significant weight to the applicant's role as a primary caregiver for his son during his wife's studies and the deep bond he shared with the child. Despite the marital breakdown and a family violence intervention order, the Tribunal found that the applicant's wife facilitated contact with their son, and the applicant was actively seeking to formalise this contact through family law proceedings. The Tribunal concluded that cancelling the visa would not be in the best interests of the child, particularly given the applicant's demonstrated commitment to his son and the ongoing family law process.

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