Skorokhodov (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of Ms. Skorokhodov, a Subclass 457 (Temporary Work (Skilled)) visa holder. The cancellation was initiated because the applicant was no longer a member of the family unit of the primary visa holder, Mr. Francesco Franco, as their de facto relationship had ceased. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was made out. This section allows for visa cancellation if the Minister is satisfied that the visa was granted based on a fact or circumstance that no longer exists. The Tribunal also had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under s 116(1)(a) was established, as the applicant's de facto relationship with the primary visa holder, a key circumstance for the grant of her visa, had ended. However, the Tribunal determined that cancellation was not mandatory under s 116(3). In considering its discretion, the Tribunal found the applicant to be credible and cooperative. It accepted her evidence that she had always intended to study in Australia and that her failure to respond to the Notice of Intention to Consider Cancellation was due to an honest mistake based on incorrect advice from a friend. The Tribunal noted that the applicant had commenced studies and intended to apply for a student visa.

Consequently, the Tribunal set aside the decision to cancel Ms. Skorokhodov's visa and substituted a decision not to cancel it.