1604905 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 visa held by an applicant. The dispute arose after the applicant resigned from her sponsoring employer, Whitestone, due to the sale of the hotel where she was employed. She subsequently accepted an offer to continue in the same managerial role with the new owner of the hotel, Dehne. The delegate of the Minister had cancelled the applicant's visa on the grounds that the purpose for which the visa was granted was no longer being met.

The Tribunal was required to determine two primary issues. Firstly, whether the delegate had lawful grounds to cancel the applicant's visa. Secondly, if grounds for cancellation were established, whether the Tribunal should exercise its discretion to set aside the cancellation decision, considering all relevant circumstances. The Tribunal also noted that it lacked jurisdiction concerning a second applicant.

In its reasoning, the Tribunal acknowledged that while the applicant's employment with the original sponsor had ceased, her continued employment in the same role with a new employer meant that the purpose of her stay under the 457 visa was not entirely destroyed. The Tribunal considered the applicant's history in Australia, her qualifications, and her employment, noting that the 457 visa is intended to address skills shortages. The Tribunal found that the applicant's actions were understandable in the context of the sale of the hotel and her desire to remain in her established role. Crucially, the Tribunal determined that the new employer, Dehne, would be prejudiced if the applicant were required to return to India, as skilled managers are in demand in regional areas, and Dehne would benefit from retaining an experienced manager.

Ultimately, the Tribunal concluded that, having regard to all the matters before it, the applicant's visa should not be cancelled. The Tribunal set aside the delegate's decision to cancel the visa and substituted a decision not to cancel the Subclass 457 visa.