1611679 (Migration)

This matter concerned an appeal by Mr Lee and Mrs Pyun against the cancellation of their visas. The Tribunal determined that it had no jurisdiction to consider Mrs Pyun's case, as her visa was automatically cancelled by operation of law following the cancellation of Mr Lee's visa, rather than by a specific decision. Therefore, the Tribunal's jurisdiction was limited to Mr Lee's visa.

The primary legal issue before the Tribunal was whether the ground for cancelling Mr Lee's visa under section 116(1)(b) of the *Migration Act 1958* (Cth) was made out, and if so, whether the discretion to cancel his visa should be exercised. Section 116(1)(b) permits cancellation if the visa holder has not complied with a visa condition. Mr Lee's visa was subject to condition 8107(3)(b), which stipulated that he must not cease employment for more than 90 consecutive days.

The Tribunal found that Mr Lee had breached condition 8107(3)(b) as he had ceased employment for a period exceeding 90 days prior to the delegate's decision to cancel his visa. However, in considering the exercise of discretion, the Tribunal accepted Mr Lee's evidence that the cessation of his employment was due to a dispute with his employer regarding the correct calculation of leave entitlements and overtime payments. Furthermore, Mr Lee had taken steps to secure new employment and had a nomination application lodged by a prospective sponsor. Taking these circumstances into account, the Tribunal concluded that the discretion to cancel Mr Lee's visa should not be exercised.

Consequently, the Tribunal set aside the decision to cancel Mr Lee's Subclass 457 (Temporary Work (Skilled)) visa and substituted a decision not to cancel it. As previously noted, the Tribunal had no jurisdiction with respect to Mrs Pyun.