O'Shea (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant. The dispute arose because the applicant was granted the visa as a de facto partner of the primary visa holder, Ms. Lana Muller, but this relationship had since ceased. The Minister had the power to cancel the visa under section 116(1)(a) of the Migration Act 1958 (Cth) if the ground for cancellation was made out, and then consider whether to exercise discretion to cancel the visa.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(a) existed, which it found to be the case as the applicant was no longer a member of Ms. Muller's family unit. The Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances. The applicant argued that his visa should not be cancelled due to his compelling need to remain in Australia as the parent of three young children, providing financial support and daily care.

The Tribunal reasoned that while the ground for cancellation was established, it did not mandate cancellation. In exercising its discretion, the Tribunal considered the applicant's role as a parent and caregiver to his three biological children, aged 15, 9, and 2. Evidence was presented that the applicant had been the primary carer for the children prior to their arrival in Australia and continued to have significant daily responsibilities, including collecting their youngest daughter from daycare. The Tribunal accepted that the applicant made substantial financial contributions to the family, which Ms. Muller would struggle to replace if he were to return to South Africa, thereby adversely impacting the family. The Tribunal also noted that while the separation was mutual, Ms. Muller indicated it was primarily her decision.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a new decision was substituted to the effect that the applicant's Subclass 457 visa would not be cancelled.