1807114 (Migration)

The Administrative Appeals Tribunal affirmed the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa as a dependant spouse of the primary visa holder, Ms. [A]. The Department of Immigration and Border Protection initiated cancellation proceedings after receiving information that the relationship between the applicant and Ms. [A] had ended. The applicant failed to respond to the Department's notification of intention to cancel, and the visa was subsequently cancelled under section 116(1)(a) of the Migration Act 1958 (Cth) on the grounds that a fact or circumstance upon which the visa was granted no longer existed.

The primary legal issue before the Tribunal was whether the applicant was still a member of Ms. [A]'s family unit, specifically whether he remained her spouse at the time of the cancellation decision. This determination was crucial to establishing whether the grounds for cancellation under s.116(1)(a) were made out. The Tribunal was also required to consider whether to exercise its discretion to cancel the visa, having regard to various factors including the applicant's purpose for travel and stay, compliance with visa conditions, potential hardship, and the circumstances leading to the cancellation.

The Tribunal found that the applicant was no longer the spouse of Ms. [A] and that there had been a material change in their relationship since the visa was granted. This satisfied the ground for cancellation under s.116(1)(a). In considering the exercise of discretion, the Tribunal noted that the applicant's purpose for remaining in Australia was based on his spousal relationship, which no longer existed. While the applicant had not breached visa conditions, the Tribunal gave no weight to his hardship claims, as he and Ms. [A] were no longer living together as a family unit. Consequently, the Tribunal concluded that the visa should be cancelled.