2118422 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 403 Temporary Work visa of a Fijian national. The applicant had arrived in Australia to work for an approved sponsor but subsequently ceased that employment. The core of the dispute revolved around whether the applicant's departure from his sponsored employment was due to circumstances beyond his control, which would impact the Minister's discretion to cancel his visa.

The Tribunal was required to determine if a prescribed ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(ia) of the Migration Regulations 1994 applied to the applicant. If a ground for cancellation was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances, including government policy.

The Tribunal found that the applicant's visa was not subject to mandatory cancellation. The applicant provided evidence that he left his employment due to ongoing altercations and fear of physical assault from a housemate, Mr. A, who had moved in with him. These disputes escalated to the point where the applicant's wife contacted the police, who subsequently visited the applicant's residence and made a report. The Tribunal accepted the applicant's explanation that he was prevented from continuing his employment due to these circumstances, which were beyond his control.

Consequently, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a substitute decision was made not to cancel the applicant's Subclass 403 visa.