1704904 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by the applicant, a national of Columbia. The dispute arose after the applicant's employment with her sponsoring employer was terminated, and she did not secure new employment or a new nomination within the prescribed 90-day period, leading to the cancellation of her visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically concerning the applicant's compliance with visa condition 8107. This condition mandates that a visa holder work only in the nominated occupation and that if employment ceases, the period of cessation must not exceed 90 consecutive days unless specific exemptions apply. The Tribunal also had to consider whether, having established a ground for cancellation, it should exercise its discretion not to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed breached visa condition 8107 by ceasing employment and not having a new nomination approved within 90 days, thus satisfying the ground for cancellation under s 116(1)(b). However, the Tribunal then exercised its discretion not to cancel the visa. This decision was based on several factors, including the applicant's attempts to find new employment, the circumstances surrounding her termination which involved reporting financial irregularities and subsequent bullying, her genuine and permanent relationship with an Australian partner, and importantly, a precancerous medical condition requiring timely treatment in Australia, which would be compromised if she were forced to return to her home country. The Tribunal concluded that the hardship, both emotional and medical, that would be caused by cancellation outweighed the public interest in cancelling the visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.