1600844 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who had ceased employment with his sponsoring employer. The applicant's employer had been disqualified as a sponsor for 12 months due to non-compliance with tax obligations, leading to the applicant's cessation of employment and a subsequent notice of visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal found that the applicant had acknowledged the cessation of the circumstances that formed the basis for his visa grant, thus satisfying the ground for cancellation under section 116(1)(b). However, the cancellation was not mandatory under section 116(3), requiring the Tribunal to consider its discretionary power.

In exercising its discretion, the Tribunal had regard to various factors, including the applicant's compelling need to remain in Australia to further his career, care for his Australian spouse who was pregnant, and pursue permanent residency through a Partner visa application. The Tribunal noted the applicant's compliance with visa conditions and the significant financial, psychological, and emotional hardship he had suffered due to circumstances beyond his control, specifically the actions of his former sponsor. The Tribunal also considered that the ground for cancellation arose from the sponsor's conduct, which was beyond the applicant's control, and that there was no adverse information regarding the applicant's past or present conduct.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 (Business (Long Stay)) visa.