1600564 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who had been granted a Subclass 457 visa. The applicant's visa was granted on the basis of being a member of the family unit of the primary visa holder, Ms Emer Maloney. The applicant subsequently informed the Department that he and Ms Maloney had separated and confirmed this at the hearing, indicating they were no longer in a relationship. The Tribunal was required to determine whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation under s.116(1)(a) was made out. This provision allows for visa cancellation if the visa was granted wholly or partly on the basis of a fact or circumstance that no longer exists. The Tribunal found, based on the applicant's evidence, that he was no longer a member of Ms Maloney's family unit. As the applicant's 457 visa was granted partly on the basis of this relationship, the Tribunal was satisfied that the ground for cancellation existed. However, this ground did not mandate cancellation under s.116(3), requiring the Tribunal to then consider the exercise of its discretion.

In exercising its discretion, the Tribunal had regard to relevant circumstances, including those outlined in the Department's Procedures Advice Manual. The Tribunal considered the applicant's history in Australia, his compelling need to remain, and the potential benefit to Australia of his continued presence. The applicant had resided in Australia since 2010, completed studies, and invested in a start-up technology business. Evidence suggested that the departure of the applicant would significantly impact this business and its potential for international success and benefit to Australia's tech industry. Furthermore, the Tribunal noted that the applicant had secured an approved nomination for a Subclass 457 visa in his own right, indicating he might meet the criteria for the visa independently.

Considering all the circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 457 visa.