2205267 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, who had been in Australia since October 2018, was employed by [Company name] as an [Occupation 2]. The dispute arose when, from January 2021, the applicant undertook work in a different occupation, [Occupation 1], to meet increased living expenses following his wife ceasing work due to the birth of their child and the impact of COVID-19 restrictions on his employer. The review was heard by a Tribunal constituted by Noelle Hossen.

The primary legal issue before the Tribunal was whether, having found that the ground for cancellation under section 116(1)(b) of the *Migration Act 1958* (Cth) existed, the Tribunal should exercise its discretion not to cancel the applicant's visa. This involved considering the applicant's circumstances, including his purpose for travel, compliance with visa conditions, and the hardship that cancellation might cause, as well as relevant guidance from the Department's Procedures Advice Manual.

The Tribunal reasoned that while the applicant had breached his visa conditions by working in an occupation other than his nominated one, this ground did not mandate cancellation. The Tribunal gave weight to the applicant's intention to continue working in his nominated occupation, evidenced by a pending application for a Subclass 186 visa. It also noted the applicant's otherwise compliant history and the significant hardship that cancellation would impose, including the emotional distress experienced by the family, leading to their child being sent to India. The Tribunal acknowledged the applicant's long residence in Australia and established community ties.

The Tribunal set aside the decision under review and determined that the visa should not be cancelled.