Jones (Migration)

This matter concerned the affirmation of a decision to cancel the applicant's Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa. The applicant had been granted the visa on 3 November 2015 as a secondary applicant, being a member of the family unit of the primary applicant, David Roger Chadwick. The Minister had grounds to cancel the visa under s 116(1)(a) of the Migration Act 1958 (Cth) because the basis on which the visa was granted, namely that the applicant was a member of Mr Chadwick's family unit, was no longer the case.

The legal issues before the Tribunal were whether the ground for cancellation under s 116(1)(a) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if the applicant had ceased to be a spouse or de facto partner of Mr Chadwick, as defined by the Act, and consequently, if she was no longer a member of his family unit. If this ground was established, the Tribunal then had to consider all relevant circumstances in deciding whether to cancel the visa.

The Tribunal found that the applicant conceded that her relationship with Mr Chadwick had ceased and had not been re-commenced, meaning she was no longer a member of his family unit as prescribed by regulation 1.12 of the Migration Regulations. This satisfied the ground for cancellation under s 116(1)(a). In considering the exercise of discretion, the Tribunal noted the applicant's intention to apply for an alternative visa and her claims of undue personal hardship. However, the Tribunal was not satisfied that these factors, without more, warranted preventing the cancellation of the visa, particularly as the applicant's purpose for remaining in Australia was no longer consistent with the purpose for which her Subclass 457 visa was granted.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.