1515809 (Migration)

This matter concerned an application to affirm the cancellation of Mr. Preka's Subclass 457 (Business (Long Stay)) visa. The dispute arose from the Minister's decision to cancel the visa under section 116(1)(b) of the Migration Act 1958 (Cth), which permits cancellation if the visa holder fails to comply with a visa condition. The applicant contended that he had been taken advantage of by his employer and that his circumstances warranted the exercise of discretion against cancellation.

The primary legal issue before the Tribunal was whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if Mr. Preka had breached Condition 8107 of his visa, which mandates that a visa holder must not cease employment for more than 90 days. If a breach was established, the Tribunal then had to consider all relevant circumstances, including government policy and the applicant's personal situation, to decide whether to uphold the cancellation.

The Tribunal found that Mr. Preka had breached Condition 8107 as his employment had ceased for a period exceeding 90 days. While the Act did not mandate cancellation in this instance, the Tribunal considered the exercise of its discretion. It noted that Mr. Preka's account of the reasons for his employment termination differed from statements made in medical reports, leading to caution in accepting his uncorroborated evidence. Weighing the hardship Mr. Preka might suffer against the duration of his breach and his failure to seek an appropriate visa, the Tribunal concluded that the cancellation should be affirmed. The Tribunal affirmed the decision to cancel the visa.