Gorzkiewicz (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work Skilled) visa of the applicant, Mr. Gorzkiewicz. The applicant had been granted the visa as a member of the family unit of the primary visa holder, Ms. Julia Fanny Helene Gouyes. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation because the applicant was no longer a member of Ms. Gouyes' family unit, their de facto relationship having broken down. The applicant responded to this notice, and the Tribunal conducted a de novo review of the cancellation decision.

The primary legal issue before the Tribunal was to determine whether the grounds for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) existed, and if so, whether it was preferable to cancel the visa, considering the discretionary factors. The Tribunal was required to assess if the circumstance that permitted the grant of the visa – being a member of the primary visa holder's family unit – no longer existed. If this ground was established, the Tribunal then had to consider whether there were compelling reasons not to cancel the visa.

The Tribunal found that the ground for cancellation did exist, as the applicant's de facto relationship with the primary visa holder had ended, meaning he was no longer a member of her family unit. The Tribunal then considered its discretion regarding cancellation. It noted that the applicant had arrived in Australia on a student visa and had since obtained a Master's degree and established professional connections in marketing and the sports sector. However, the Tribunal placed significant weight on the fact that the visa was granted based on his relationship with the primary visa holder, a purpose that had ceased. The Tribunal was not satisfied that the applicant's desire to remain in Australia to work, support his overseas family, and stay with his current girlfriend constituted a "compelling need" to remain, as defined by relevant case law.

Ultimately, the Tribunal concluded that, considering all the circumstances, it was preferable for the visa to be cancelled. The Tribunal affirmed the decision of the Department to cancel the applicant's Subclass 457 visa.