Lapinski (Migration)

This matter concerned an appeal by an applicant against the cancellation of her Temporary Business Entry (Class UC) subclass 457 (Temporary Work (Skilled)) visa. The visa had been granted on the basis that she was a member of the family unit of the primary visa applicant, Mr Flavio Do Carmo Junior. The Department of Home Affairs issued a Notice of Intention to Consider Cancellation, advising that the applicant appeared to no longer be a member of the primary applicant's family unit, as their relationship had ceased. The applicant responded, acknowledging the cessation of the relationship, and her visa was subsequently cancelled under section 116(1)(a) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal first considered whether the ground for cancellation under section 116(1)(a) of the Act was made out. This section permits the Minister to cancel a visa if satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case. The Tribunal found that the applicant's visa was granted on the basis that she was a member of the primary applicant's family unit, as defined by regulation 1.12 of the Migration Regulations 1994 (Cth), which required her to be a spouse or de facto partner. The evidence before the Tribunal established that the applicant and the primary visa applicant had ceased their relationship and were no longer living together, meaning she was no longer a spouse or de facto partner and thus no longer a member of his family unit. Consequently, the circumstances upon which her visa was granted no longer existed, and the ground for cancellation under section 116(1)(a) was established.

The Tribunal then considered whether to exercise its discretion to cancel the visa. While acknowledging the applicant's stated desire to remain in Australia to improve her English language skills and her potential for limited harm, detention, and limitations on future visa applications if cancelled, the Tribunal found these factors did not outweigh the cessation of the visa's original purpose. The visa was granted for the purpose of her accompanying the primary applicant as a family member, a purpose that had ceased. The Tribunal was not satisfied that the applicant's present intention to reside in Australia was for the purpose of continuing a relationship with the primary applicant. Therefore, considering all the circumstances, the Tribunal concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant's subclass 457 visa.