1604591 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by an applicant who was a member of the family unit of the primary visa holder. The dispute arose because the applicant's relationship with his wife, the primary visa holder, had ceased, meaning he no longer met the criterion of being a member of her 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.

The Tribunal found that the ground for cancellation under section 116(1)(a) was established because the visa was granted, in part, on the basis of the applicant being a member of his wife's family unit, a circumstance that no longer existed. In considering the exercise of discretion, the Tribunal had regard to departmental guidelines, which include assessing the purpose of the visa holder's travel and stay, and whether there is a compelling need to remain in Australia. The applicant argued that his ability to see his children and access Australia's family law jurisdiction would be removed if his visa were cancelled, and that he required legal advice for ongoing criminal and family law matters.

The Tribunal reasoned that while the applicant's purpose for travel, to accompany his wife, no longer existed, and his visa was temporary, he expressed a primary concern for his children. However, the Tribunal noted that the applicant's former wife and children had reportedly moved to another country, and that communication and visits might still be possible. Regarding his health concerns, the Tribunal placed little weight on his claimed inability to travel due to surgery and ongoing medical treatment, observing that such treatment could potentially be undertaken in his home country. Ultimately, the Tribunal concluded that, considering all circumstances, the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.