POWER (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because the applicant was no longer the de facto partner of the primary visa holder, Ms Van Waelscappel, and therefore no longer a member of her family unit. The Department had contacted the applicant regarding this relationship breakdown, which formed the basis for the visa cancellation.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(a) permits cancellation if the visa was granted based on a fact or circumstance that no longer exists. The Tribunal also had to consider relevant circumstances, including government policy and the applicant's personal situation, in exercising its discretion.

The Tribunal found that the ground for cancellation was established because the applicant's visa was granted on the basis of his de facto relationship with Ms Van Waelscappel, a circumstance that had ceased to exist. In considering the exercise of discretion, the Tribunal noted that while the applicant would suffer hardship and wished to remain in Australia due to family members present, the visa was granted solely on the basis of the ended relationship. The Tribunal also noted that the applicant did not proactively inform the Department of the relationship breakdown.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that, considering all circumstances, cancellation was appropriate.