1605645 (Migration)

This matter concerned an application for review of a decision by the Minister to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because the Department received information that the applicant's de facto relationship with the primary visa holder had ceased, meaning the applicant was no longer considered a member of the primary visa holder's family unit. The Tribunal, presided over by Member Mary-Ann Cooper, was required to determine whether the grounds for cancellation under section 116(1)(a) of the Act were made out and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the visa had been granted wholly or partly on the basis of a fact or circumstance that no longer existed, as contemplated by section 116(1)(a) of the Migration Act 1958 (Cth). This involved assessing whether the applicant's de facto relationship with the primary visa holder was a foundational element for the visa grant and whether that relationship had indeed ceased. The court also had to consider the exercise of discretion in cancelling the visa, taking into account relevant circumstances, including the purpose of the visa, potential hardship, and the circumstances leading to the cancellation ground.

The Tribunal reasoned that the applicant's visa was granted, in part, on the basis of his de facto relationship with the primary visa applicant, which constituted membership of her family unit. In the absence of any response from the applicant to the notice of intention to consider cancellation or to the Tribunal's request for information, the Tribunal was satisfied that the de facto relationship had ceased and the applicant was no longer a member of the primary visa holder's family unit. Applying the principles from *MIMA v Zhang* (1999) 84 FCR 258, the Tribunal found that the ground for cancellation under s 116(1)(a) was established. In considering the exercise of discretion, the Tribunal noted that the applicant's stated purpose of accompanying the primary visa holder was no longer valid, and there was no evidence of compelling need to remain in Australia or of hardship if the visa were cancelled. These factors, along with the cessation of the relationship, weighed in favour of cancellation.

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