1611232 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because the applicant was no longer the spouse or de facto partner of the primary visa holder, which was a circumstance that permitted the grant of his visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. Section 116(1)(a) allows for visa cancellation if the Minister or Tribunal is satisfied that a fact or circumstance on which the visa was granted no longer exists.

The Tribunal found that the applicant's status as a member of the family unit of the primary visa holder, specifically as a spouse or de facto partner, had ceased to exist. This satisfied the ground for cancellation under section 116(1)(a). However, in considering the exercise of discretion, the Tribunal had regard to various factors, including the applicant's purpose of travel, the absence of visa condition breaches or adverse behaviour, and the significant hardship that cancellation would cause. This hardship included being prevented from applying for a new visa onshore due to section 48 of the Act, potentially being unable to return to Australia for up to three years due to Public Interest Criterion 4014, and the adverse impact on his employer and new wife. Given these circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel it.