APPLICANT PROFILE SUMMARY
Applicant Name: Susan (names have been changed to maintain confidentiality)
Age: 26
Nationality: United Kingdom
Visa Cancelled: Subclass 457 (Temporary Work (Skilled)) Visa [Dependent].
CASE BACKGROUND
Susan applied for a Subclass 457 Temporary Work visa as a secondary applicant on her husband’s Subclass 457 visa. The visa was granted on 22 November 2017.
On 21 August 2020, the Department was notified that Susan’s de-facto relationship with her partner, the primary visa holder, had broken down irretrievably.
Accordingly, on 19 January 2021, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) by email advising that they do not consider Susan to be in a genuine and continuing relationship with the primary visa holder based on the information before the Department. Consequentially, Susan’s 457 visa was deemed for cancellation under s.116(1)(a) of the Act. The NOICC provided the applicant with an opportunity to respond within the prescribed period.
On 3 February 2021, the applicant responded to the Department with materials and evidence in response to the NOICC. However, the Department refused the submission provided, and Susan’s visa was cancelled under s.116(1)(a) of the Act.
ISSUE IN THE CASE
The issue in the present case is:
- Whether a ground for cancellation is made out; and if so,
- Whether the visa should be cancelled.
RELEVANT LAW AND CONSIDERATION
Augustine and Co. Immigration Lawyers advised Susan to appeal the decision of the delegate of the Minister to the Administrative Appeals Tribunal (AAT) based on her specific circumstances and the details surrounding her relationship breakdown. In preparing for the appeal, Augustine and Co. submitted detailed legal submissions to the Tribunal addressing the critical issues at hand.
ISSUE 1 – WHETHER GROUNDS FOR CANCELLATIONS WERE MADE OUT
Pursuant to s.116(1)(a) of the Act, the Minister can cancel a visa if the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.
At the time of the visa grant, Susan was still in a genuine and continuing relationship with her partner. However, since Susan was no longer in a relationship with her partner, she ceased to be the primary visa holder’s de-facto partner. For this reason, the Tribunal would have found that cancellation grounds in s.116(1)(a) existed.
Therefore, Augustine and Co. focused on thorough legal submissions outlining the reasons why Susan’s visa should not be cancelled.
Discretionary Cancellation
In writing submissions for Susan, Augustine and Co. had particular regard to Section 116 of the Migration Act 1958.
In our submissions, we outlined that the section only provides the Minister a discretionary power to cancel a temporary visa. Discretionary power means that the ground does not require mandatory cancellation under s.116(3), and the Tribunal can consider Susan’s circumstances and decide whether it should be cancelled.
By interpreting the policies outlined in the Department’s Procedures Advice Manual (PAM3), Augustine &. Co. outlined the following:
- The purpose of Susan’s travel and stay in Australia;
- The extent of Susan’s compliance with her current and previous visa condition;
- Degree of hardship that may be caused to Susan if the Tribunal were to uphold the decision of the Department;
- Circumstances in which grounds of cancellation arose;
- Past and present behaviour of Susan towards the Department;
- Any mandatory legal consequences;
- Susan’s strong family, business, or other ties to Australia.
In building a solid merits review case corroborated by compelling legal submissions, Augustine & Co.’s lawyers managed to convince the Member at the AAT hearing why the Department’s decision should be set aside.
OUTCOME OF THE CASE
The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa. Therefore, Susan’s visa was reinstated.
If you are facing a visa cancellation or refusal like Susan did, get in touch with our immigration lawyers by booking your consultation session.
Author
Calvin Augustine is the founding solicitor of Augustine & Co. Immigration Lawyers. He graduated with Honors from the University of London law school, before being admitted to practice in Malaysia and Australia (admitted in SA, appears in all Victorian Courts and Tribunals, at trial and appellate levels).
