1819459 (Migration)

This matter concerned an appeal by an applicant against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. The visa had been granted on the basis that she was a member of the family unit of the primary visa holder, with whom she was in a genuine and continuing relationship. The dispute arose when this relationship broke down, leading to the cancellation of her visa by the Department. The appeal was heard by the Tribunal, presided over by Member Amanda Mendes Da Costa.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) was made out, and if so, whether the Tribunal should exercise its discretion not to cancel the visa. Section 116(1)(a) permits cancellation if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a fact or circumstance that no longer exists. The Tribunal was required to consider the applicant's circumstances, including her employment, her efforts to secure further study, and the potential hardship she might face if required to depart Australia.

The Tribunal reasoned that the ground for cancellation under section 116(1)(a) was indeed established, as the applicant's Subclass 457 visa was granted based on her genuine and continuing relationship with the primary visa holder, a circumstance that had ceased to exist following their separation. However, the Tribunal noted that this ground did not mandate cancellation. In exercising its discretion, the Tribunal had regard to the applicant's proactive notification to the Department about the relationship breakdown, her compliance with visa conditions, her current employment with an approved sponsor, and a recent nomination approval. The Tribunal also considered the potential financial and emotional hardship the applicant might experience if forced to return to her home country.

Ultimately, the Tribunal concluded that, in light of all the circumstances, particularly the applicant's current employment and the recent nomination approval, the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.