1935016 (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. The dispute arose because the applicant had ceased employment for more than 60 consecutive days, which is a ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). The applicant argued that economic conditions made it difficult to secure further employment, and that confusion surrounding an application to the Fair Work Commission, coupled with the potential for significant hardship if the visa were cancelled, should be considered.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether it should exercise its discretion not to cancel the visa. Specifically, the Tribunal had to assess if the applicant had complied with the condition of their visa, which stipulated that they must not cease employment for more than 60 consecutive days. If this condition was breached, the Tribunal then had to consider all relevant circumstances, including government policy and the applicant's submissions, to decide whether cancellation was appropriate.

The Tribunal found that the ground for cancellation under section 116(1)(b) did exist, as the applicant had indeed ceased employment for longer than 60 consecutive days. However, the Tribunal then proceeded to consider its discretion. It took into account the applicant's long history in Australia since 2011, his specialised skills in a critical field, and the significant emotional and practical hardship that cancellation would impose on his family, particularly his children who had lived in Australia for most of their lives. The Tribunal also noted the applicant's efforts to find alternative employment and pursue permanent residency, and the difficulties encountered due to the actions of previous employers and the economic climate.

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. The Tribunal noted it had no jurisdiction concerning other applicants.