JESICCA (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 482 Temporary Skill Shortage visa. The cancellation was based on the ground that the applicant no longer met the definition of a member of the family unit of the primary visa holder, as her relationship with him had ceased. The applicant did not dispute that the relationship had ended and that she no longer met this criterion. The review was heard by Joanne Bakas of the Tribunal.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The applicant conceded that the factual basis for cancellation, namely the cessation of her relationship with the primary visa holder, was established. Therefore, the primary issue for the Tribunal was to consider all relevant circumstances in deciding whether to exercise the discretion to cancel the visa.

In considering the exercise of discretion, the Tribunal had regard to the applicant's submissions, which included her long-term residence in Australia since 2014, her employment as a carer, and her ongoing nursing studies which would be disrupted by cancellation. The applicant also highlighted her lack of family support in Indonesia, the recent passing of her grandparents, and the limited demand for her skills in her home country. Furthermore, she expressed concern about the potential impact of s 48 of the Act on her ability to lodge further visa applications onshore if her current visa were cancelled. The Tribunal weighed these factors against the grounds for cancellation.

Ultimately, the Tribunal concluded that, on balance, the factors favouring the non-cancellation of the visa outweighed those in favour of cancellation. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 482 visa.