1609802 (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 457 visa. The dispute arose because the applicant's Subclass 457 visa had been granted based on his status as a member of the family unit of Ms. Le, but this circumstance was no longer the case. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal first addressed whether the ground for cancellation under s.116(1)(a) of the Migration Act 1958 (Cth) was made out. This section allows for visa cancellation if the decision to grant the visa was based, wholly or partly, on a fact or circumstance that no longer exists. The Tribunal found that the applicant's Subclass 457 visa was granted because he was the partner of Ms. Le and thus a member of her family unit. The applicant confirmed that he and Ms. Le had separated and he was no longer a member of her family unit, satisfying the ground for cancellation.

Having established the ground for cancellation, the Tribunal then considered its discretion. While no specific matters were mandated for consideration, the Tribunal had regard to relevant circumstances, including those outlined in the Department's Procedures Advice Manual. The applicant's stated intention to remain in Australia to learn nail artistry was found to be inconsistent with the purpose of the Subclass 457 visa program, which is designed to address labour shortages. The Tribunal gave this factor significant weight in favour of cancellation, noting that the applicant was no longer a dependant of the primary visa holder and that the Subclass 457 visa was not the appropriate vehicle for pursuing such studies. While acknowledging potential financial hardship, the Tribunal was not satisfied that any hardship would be serious, and there was no evidence of a reasonable expectation of permanent residency.

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