1608732 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the applicant's Subclass 457 visa. The applicant's original sponsor advised the Department that the applicant had ceased employment, leading to a notice of intention to consider visa cancellation. The applicant responded, detailing her efforts to find new employment, her family ties in Australia, and the potential hardship she would face if required to leave. At the hearing, the applicant provided evidence of a new job offer and a commitment from a new employer to sponsor her for a Subclass 457 visa.

The Tribunal was required to determine whether the power to cancel the applicant's visa should be exercised, given that a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. This determination involved considering the exercise of discretion, guided by policy and case law, which mandates consideration of various factors to ensure fairness to the visa holder.

The Tribunal reasoned that while a ground for cancellation existed, the exercise of discretion required a comprehensive assessment of relevant circumstances. It applied the principles outlined in the Department's Procedures Advice Manual (PAM3), which includes considering the purpose of the visa holder's stay, compliance with visa conditions, the degree of hardship, the circumstances leading to the cancellation ground, the visa holder's behaviour towards the Department, and potential mandatory legal consequences of cancellation. The Tribunal weighed these factors, noting the applicant's proactive job search, her family connections in Australia, and the significant financial and emotional hardship she would experience if her visa were cancelled. Crucially, the Tribunal considered the applicant's secured new employment and sponsorship, which addressed the underlying reason for the potential cancellation.

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 visa.