Achille (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 482 (Temporary Skill Shortage) visa. The applicant had been granted the visa as a secondary applicant, being a member of the family unit of the primary visa holder, Ms Caroline Goujon. The Department of Home Affairs formed the view that the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) was made out, as the applicant's relationship with Ms Goujon had broken down, meaning the fact or circumstance upon which the visa was granted no longer existed. The Tribunal was required to determine whether this ground for cancellation was established and, if so, whether the applicant's visa should be cancelled.

The Tribunal first considered whether the ground for cancellation under section 116(1)(a) of the Act was established. The applicant conceded that his relationship with Ms Goujon had irrevocably broken down and that the basis for the grant of his visa no longer existed. The Tribunal accepted this concession and found that there had been a material change in the applicant's circumstances, thus satisfying the ground for cancellation. However, as this ground did not mandate cancellation under section 116(3), the Tribunal then proceeded to consider whether to exercise its discretion to cancel the visa.

In exercising its discretion, the Tribunal had regard to the applicant's circumstances, including his compelling need to remain in Australia. Despite the original purpose of his visa being to accompany Ms Goujon, the applicant wished to remain in Australia to be with his close family members, who are Australian citizens and permanent residents, and to provide care for his elderly parents. He had also lodged an application for a Subclass 835 (Remaining Relative) visa, which had a significant processing time. The Tribunal also noted the applicant's lack of previous non-compliance with visa conditions. Weighing these factors against the established ground for cancellation, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 482 visa.