1707833 (Migration)

This matter concerned an application to review the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by a German national. The applicant had been convicted of an offence against an Australian law. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 was made out. The Tribunal found that the applicant had been convicted of an offence against a law of the Commonwealth, a State or Territory, thus establishing the ground for cancellation. However, this ground did not mandate cancellation, requiring the Tribunal to then consider the exercise of its discretion.

In exercising its discretion, the Tribunal had regard to various circumstances, including the applicant's purpose for travel and stay, his significant contributions and promotion within his employer, [Company 1], and the surprise expressed by his supervising partner at the conviction. The Tribunal also considered the applicant's remorse, his community involvement, and the potential impact on his career and that of his partner. While acknowledging that the applicant was not indispensable, the Tribunal noted his senior role and the significant revenue pipeline he managed. Ultimately, 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.