Charpentier (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa as a secondary applicant, being the de facto partner of the primary visa holder. The Department was notified that the de facto relationship had ended, and the applicant did not dispute this fact. The Tribunal was therefore required to consider whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the visa should be cancelled, given that the factual basis upon which it was granted – the de facto relationship with the primary visa holder – no longer existed. The Tribunal also considered the exercise of its discretion, noting that while it could be guided by policy, it was not bound by it, and that administrative guidelines such as those in the Department’s Procedures Advice Manual (PAM3) were not legally binding. The Tribunal was required to consider all relevant circumstances, including the applicant's compelling need to remain in Australia.

The Tribunal found that the ground for cancellation under section 116(1)(a) was established, as the applicant was no longer in a de facto relationship with the primary visa holder. However, the Tribunal then considered its discretion. It noted that the applicant had since married the owner of a remote cattle station where she lived and worked, and that she played a crucial role in the daily running of the station, particularly given labour shortages in the region. The Tribunal concluded that, considering all the circumstances, including the applicant's significant involvement in the agricultural sector in a remote area and her compelling need to remain in Australia, 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.