2207686 (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision by the Minister to cancel a Skilled Independent (Permanent) (Class SI) visa, Subclass 189, held by a secondary applicant who was a member of a family unit. The dispute arose because the applicant's de facto relationship ceased before the visa was granted, and the applicant did not notify the Minister of this change in circumstances. The applicant had separated from their partner, with periods of reconciliation and living apart due to work commitments, and eventually departed Australia with their child without the partner's knowledge.

The Tribunal was required to determine whether the Minister had correctly exercised the discretion to cancel the visa. Specifically, the AAT needed to assess if the applicant had failed to notify the Minister of a change in their circumstances, and if so, whether the Minister's decision to cancel the visa was justified, taking into account the prescribed circumstances and the best interests of the child. The Tribunal also had to consider the applicant's work, church involvement, and mental health, as well as the fact that the former partner and child were now permanent residents and the importance of a meaningful relationship between the child and both parents.

The Tribunal found that while there may have been non-compliance, the Minister's decision to cancel the visa was not sound. The AAT reasoned that the circumstances surrounding the cessation of the de facto relationship, the subsequent living arrangements, and the impact on the child's best interests were not adequately considered. The Tribunal emphasised the importance of the child's relationship with both parents and concluded that the decision under review was not in accordance with the law.

Consequently, the Tribunal set aside the Minister's decision to cancel the visa.