1608525 (Migration)

This matter concerned an application to the Administrative Appeals Tribunal (AAT) concerning the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa. The applicant was nominated for the visa by All Spice Indian Cuisine Pty Ltd, which was subsequently barred under section 140M of the Migration Act 1958 (Cth) for a period of five years. This event triggered the Minister's consideration of cancelling the applicant's visa under section 116(1)(g) of the Act.

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. The Tribunal was required to determine if the sponsor's bar under section 140M constituted a prescribed ground for cancellation under regulation 2.43(1)(l)(iv) of the Migration Regulations 1994 (Cth). If the ground was established, the Tribunal then had to consider all relevant circumstances in deciding whether to exercise its discretion to cancel the visa.

The Tribunal found that the evidence, which was not refuted by the applicant, clearly indicated that the sponsor had been barred under section 140M. Therefore, the Tribunal was satisfied that the ground for cancellation existed. However, as the ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider its discretion. In exercising this discretion, the Tribunal had regard to various factors, including the purpose of the visa, the pending nomination by a new sponsor, the applicant's compliance with visa conditions, and the claimed emotional and financial hardship to the applicant and her family. While acknowledging the applicant's long residence in Australia and the birth of her children there, the Tribunal gave limited weight to the hardship claims, noting that the applicant and her family were citizens of India and could re-establish themselves there.

Ultimately, considering all the circumstances, the Tribunal concluded that 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 visa. The Tribunal noted it had no jurisdiction concerning other applicants.