Tortato Dos Santos (Migration)

The Administrative Appeals Tribunal considered the cancellation of Ms. Tortato Dos Santos's 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 holder, Mr. Lauro Fabricio De Almeida Santos. The Department of Home Affairs was informed that Ms. Dos Santos's relationship with Mr. Santos had ceased, meaning the factual basis upon which her visa was granted no longer existed. Consequently, the delegate issued a Notice of Intention to Consider Cancellation, to which Ms. Dos Santos responded.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. The ground for cancellation applied if the Minister was satisfied that the decision to grant the visa was based on a fact or circumstance that was no longer the case. If this ground was established, the Tribunal then had to consider all relevant circumstances, including government policy, in deciding whether to cancel the visa.

The Tribunal found that the ground for cancellation was made out, as Ms. Dos Santos's de facto relationship with Mr. Santos had ended, and this was a key circumstance for the grant of her visa. However, in exercising its discretion, the Tribunal considered that Ms. Dos Santos had entered into a new de facto relationship with another Subclass 457 visa holder, Mr. Maestrelli, with whom she had a seven-month-old child. While acknowledging Ms. Dos Santos's non-compliance with visa conditions by failing to regularise her status, the Tribunal also noted the willingness of Mr. Maestrelli's employer to support an application for her to be included as a dependant on his visa, albeit at his cost. The Tribunal concluded that, on balance, the circumstances warranted setting aside the cancellation decision.

Accordingly, the Tribunal set aside the decision to cancel Ms. Tortato Dos Santos's Subclass 457 visa and substituted a decision not to cancel it.