1603131 (Migration)

This matter concerned an application to the Tribunal to review a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa on the basis that she was a member of the family unit of Mr Luke Neave. The applicant acknowledged that her relationship with Mr Neave had ended and she was no longer part of his family unit.

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. Section 116(1)(a) permits cancellation if the visa was granted based on a fact or circumstance that no longer exists. The Tribunal also considered relevant circumstances, including those outlined in the Department's Procedures Advice Manual, in exercising its discretion.

The Tribunal found that the ground for cancellation under section 116(1)(a) was made out, as the applicant was no longer a member of Mr Neave's family unit, which was the basis for her visa grant. In considering the exercise of discretion, the Tribunal noted the applicant's new relationship with Mr Byrne, an Australian permanent resident, and the birth of their daughter. However, the Tribunal concluded that the applicant's primary purpose for remaining in Australia was better met by her partner visa application. The Tribunal also considered the applicant's failure to inform the Department of the breakdown of her relationship with Mr Neave and her subsequent relationship with Mr Byrne, noting that her desire to remain in Australia with her new partner and child did not outweigh the grounds for cancellation.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.