1619314 (Migration)

This matter concerned the review of a decision by the Department of Immigration and Border Protection to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant's visa had been granted on the basis that she was a member of the family unit of the primary visa holder, Mr. A. The Department's decision to cancel the visa was based on the ground that a particular fact or circumstance required for the grant of the visa no longer existed, specifically that the applicant was no longer in a continuing relationship with Mr. A. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation existed. The applicant's visa was granted under secondary criteria which required her to be a member of Mr. A's family unit, defined by regulation 1.12(1)(a) as being his spouse or de facto partner. The definition of spouse under section 5F of the Migration Act 1958 (Cth) requires a married relationship characterised by marriage, a mutual commitment to a shared life, a genuine and continuing relationship, and living together. The Tribunal noted evidence indicating the applicant and Mr. A were no longer in an ongoing relationship, with the applicant having moved out of their shared home in August 2016 and Mr. A filing for divorce in August 2017. The Tribunal found that the applicant and Mr. A were no longer in a continuing relationship since at least October 2016, and therefore the applicant had not been the spouse of Mr. A within the meaning of section 5F since that time. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(a) of the Act existed at the time of the delegate's decision and continued to exist.

As the ground for cancellation did not mandate its cancellation under section 116(3) of the Act, the Tribunal proceeded to consider whether to exercise its discretion to cancel the visa. Having regard to all the evidence and the circumstances as a whole, the Tribunal concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.