Bahia (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr Bahia, who sought to have the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa set aside. The dispute arose when the applicant's sponsoring business, Deogun Pty Ltd, was barred from sponsoring overseas workers, which in turn triggered the cancellation of Mr Bahia's visa. The AAT was tasked with determining whether the ground for cancellation existed and, if so, whether the visa should be cancelled.

The Tribunal was required to assess whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, specifically in relation to regulation 2.43(1)(l)(iv) of the Migration Regulations 1994. Having found that the ground for cancellation did exist due to the sponsoring business being barred, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

In exercising its discretion, the Tribunal gave considerable weight to the fact that the circumstances leading to the cancellation were beyond the applicant's control, arising from his former employer's sanction. The Tribunal noted that Mr Bahia had been proactive in seeking an alternative sponsor, with a new sponsorship application by Banger Pty Ltd being approved. Furthermore, there was no evidence that Mr Bahia had breached any visa conditions or failed to cooperate with the Department. The Tribunal also acknowledged the emotional and financial hardship that would befall Mr Bahia and his Australian citizen de facto partner if he were required to leave Australia.

Consequently, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel Mr Bahia's Subclass 457 visa.