Bhalla (Migration)

This matter concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Ms. Bhalla. The Department of Home Affairs had considered cancelling her visa under s.116(1)(b) of the Migration Act 1958 (Cth) on the basis that she had breached visa condition 8107, which requires that if employment ceases, the period must not exceed 90 consecutive days. The Departmental officers had ascertained that the applicant’s employment with her sponsor, Evergreen Environmental Solutions Pty Ltd, had ceased around September 2017, significantly exceeding the permitted 90-day period.

The primary legal issue before the Tribunal was whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if the applicant had indeed breached visa condition 8107 and, if satisfied that the ground for cancellation was made out, to consider all relevant circumstances, including government policy, in deciding whether to cancel the visa. The Tribunal noted that the onus of establishing the facts leading to cancellation rested with the Minister, or on review, with the Tribunal, and that the applicant was not obliged to rebut the identified ground for cancellation.

The Tribunal found that the ground for cancellation under s.116(1)(b) was established, as the applicant's employment had ceased for a period exceeding 90 days. However, in exercising its discretion regarding cancellation, the Tribunal considered several factors. It gave considerable weight to the applicant's documentary evidence from two potential employers, including her current employer, who were willing to sponsor her as a Pastrycook once her visa issues were resolved. The Tribunal acknowledged the applicant's efforts to secure new employment and noted her contrition for misleading Departmental officers during a telephone interview, explaining her actions as fear of repercussions from her former sponsor.

Ultimately, the Tribunal concluded that the visa should not be cancelled. It set aside the decision under review and substituted a decision not to cancel Ms. Bhalla's Subclass 457 visa. The Tribunal indicated it had no jurisdiction concerning any other applicants.